Workers prepare meat at Tyson Foods Inc. in Dakota City, Nebraska. Photo: Tyson Foods Inc.
Sued over the COVID-19 deaths of two workers at a Texas meatpacking plant, Tyson Foods Inc. has laid out a defense, also used in lawsuits in other states that might decide if pandemic-era litigation against food producers should proceed in state or federal courts.
Meatpacking plants emerged as coronavirus hot spots during the pandemic, and litigation has been filed across the country because many employees got sick and some died from their infections.
Plaintiffs and defense counsel who are filing these cases might want to take note of the arguments that Tyson filed in a notice of removal on Monday in the Texas case, Chavez v. Tyson Foods, filed in the U.S. District Court for the Northern District of Texas in Dallas.
"There are different cases against meatpacking facilities that have encountered the same obstacles that we are now facing to stay out of federal court," said plaintiffs attorney Jill Nicaud, an associate with Shrader & Associates in Frisco, who said she would dispute the removal. "I think they like to tie everybody up in procedure."
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Tyson argued that two Texas meatpacking facilities operated as designated "critical infrastructure" by multiple federal executive agencies and even then-President Donald Trump in an executive order about food supply-chain resources. The company claimed the lawsuit can be removed to federal court because Tyson was acting under the direction of a federal officer.
Read the notice of removal
Tyson claimed that if a federal court took the case, then the company would be able to use federal defenses under the Federal Meat Inspection Act and the Poultry Products Inspection Act of 1957, which lays out regulations for meat processors and prohibit states from imposing different regulations.
The notice said, "Plaintiffs here would use state tort law to impose additional and different requirements."
Among other things, Tyson argued that the federal Defense Production Act would also protect it from the claims.
Tyson used the same arguments in litigation in Iowa by families of four Tyson employees who died of COVID-19. There, federal courts sent the cases back to state trial courts, but Tyson is appealing to the U.S. Court of Appeals for the Eighth Circuit, reported Law.com's Critical Mass newsletter.
The defense team includes Mayer partner Zachary Mayer of Dallas and Phoenix-based lawyers Christopher Coleman and Jessica Everett-Garcia of Perkins Coie. They didn't respond to requests for comment before deadline.
Workers prepare meat for Tyson Foods Inc. in Dakota City, Nebraska. Photo: Tyson Foods Inc.
Represented by Nicaud and Lisa Blue of Baron and Blue in Dallas, the plaintiffs specifically argued in their petition that their dispute should not be a federal case. They filed the litigation in a Dallas County court-at-law, and claimed that is where it should stay, because they're not bringing any federal claims and the defendants are local.
"No federal officer at any time directed facilities in question to remain open in a negligent manner. No order given established a federal officer having control over defendant's management or partnerships of the facilities," said the petition.
The plaintiffs, who are family members and estate representatives of the dead Tyson employees Jose Angel Chavez and Thomas David Cowan, alleged that Tyson employees worked eight-hour shifts, side-by-side with other meat-packers, doing hard manual labor that made them breath hard and have a difficult time keeping their masks on properly, said the petition.
There was a high rate of infection among Tyson employees and "an uncontrolled COVID-19 outbreak," but the company still didn't provide adequate personal protective equipment, use social distancing measures, screen employees for illness, or have quarantine and stay-home policies for sick employees, the petition said. Chavez and Cowan allegedly got COVID-19 at work, and they died.
Tyson's court filing said that Chavez and Cowan's deaths were tragic, but vigorously disputed their families' allegations of willful misconduct.
"Tyson has worked from the beginning of the pandemic to follow federal workplace guidelines and has invested millions of dollars to provide employees with safety and risk-mitigation equipment," the notice said. "Tyson's efforts to protect its workers while continuing to supply Americans with food continue to this day."
Angela Morris
Angela Morris is ALM Media's Texas litigation reporter. She covers lawsuits in all levels of Texas state and federal courts. Based in Austin, Morris earned journalism and government degrees from the University of Texas at Austin in 2006, and since then, has worked primarily as a reporter and writer, but also has skills in videography, photography and podcasts. Follow her on Twitter at @AMorrisReports.