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Tyson Worker Covid Death Suits Rightly Sent to Iowa State Court

Dec. 30, 2021, 4:03 PM

Families of four workers who died after allegedly contracting Covid-19 at a Waterloo, Iowa, Tyson Foods pork processing facility can move forward with their cases in state court, rather than the company’s preferred federal venue, the Eighth Circuit affirmed Thursday.

The families brought a pair of cases against Tyson and various officers and supervisors for fraudulent misrepresentation and gross negligence. They argue that in early 2020 Tyson failed to provide workers with sufficient face coverings or other protective equipment, failed to implement sufficient social distancing measures, transferred workers to the Waterloo facility without adequate testing or quarantining, and encouraged workers known or suspected to have been exposed to the coronavirus to continue working.

Tyson removed both cases to federal court. But the district court was right to send them back to Iowa state court, the U.S. Court of Appeals for the Eighth Circuit said.

Tyson argued the case should remain in federal court because from the earliest days of the pandemic the federal government enlisted the company to fulfill the basic governmental task of ensuring that the national food supply would not be interrupted.

The fact “that an industry is considered critical does not necessarily mean that every entity within it fulfills a basic governmental task or that workers within that industry are acting under the direction of federal officers,” the court said. In fact, despite the Trump administration’s encouragement to remain open, Tyson itself shut down multiple plants including Waterloo in April 2020, indicating “that it retained complete, independent discretion over the continuity of its operations,” the court said.

The court also held that Tyson had failed to preserve for appeal its argument that the cases raise substantial and disputed issues of federal law under the Defense Production Act.

The opinion was written by Judge Jane Kelly and joined by Judges Ralph R. Erickson and L. Steven Grasz.

The plaintiffs are represented by Frerichs Law Office, Public Citizen Litigation Group, Spence Law Firm, and Rausch Law Firm. The defendants are represented by Kirkland & Ellis, Perkins & Coie, and Finley Law Firm.

The cases are Buljic v. Tyson Foods Inc., 8th Cir., No. 21-01010, 12/30/21 and Fernandez v. Tyson Foods Inc., 8th Cir., No. 21-01012, 12/30/21.

To contact the reporter on this story: Brian Flood in Washington at bflood@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com