Future of Tyson Covid Death Suits Hinges on Supreme Court Action

The US Supreme Court’s impending decision to take up or reject Tyson Foods Inc.’s appeals of two Covid-19 worker death liability cases will affect more than a dozen similar cases involving meat processors that are now with federal courts.

While the details of the lawsuits differ, a common thread among all the cases is whether federal courts should treat the meat processors as quasi-federal entities and therefore possibly exempt from death liability claims, or instead as private companies and thus required to fight the lawsuits in state courts where the cases were originally filed.

At least 20 lawsuits against meat producers—including Tyson; JBS Foods Swift Meat, a JBS subsidiary; and Pilgrim’s Pride Corp. —that were originally filed in state courts have been moved to federal courts at the companies’ request.

The liability lawsuits are among the last Covid worker safety and health legal challenges the companies face. The US Occupational Safety and Health Administration decided in 2021 not to pursue a Covid regulation that would protect food production workers.

In most cases, the transfer to federal courts prompted a challenge from the attorneys representing the workers’ families and estates who want the liability cases moved back to state jurisdictions where the likelihood of a plaintiff win is much stronger.

Workers’ Claims

“We are not arguing that it was the production of the meat that killed our clients, but the way Tyson acted recklessly and did not follow even CDC guidance on what would be safe,” said attorney Lindsay Hagy, whose firm Loevy & Loevy in Chicago represents the estates of two Tyson workers.

One of those workers who died was employed at an Iowa plant that made dog treats, Hagy said.

“They argue that animal feed is part of critical infrastructure. I would question that,” she said.

If not for the Covid issue, the lawsuits would be typical liability cases, said attorney Andrew Gould, a partner with Arnold & Itkin LLP in Houston, a firm representing workers’ families in several of the cases.

“You don’t remove a slip-and-fall workplace accident to federal court. We’re not going to consent to jurisdiction where none exists,” Gould said.

Jurisdictional Question

Tyson on Nov. 10 filed a petition with the US Supreme Court for a writ of certiorari in Glenn v. Tyson where the Fifth Circuit rejected Tyson’s federal claim. In July, Tyson asked the Supreme Court to review of the Eighth Circuit’s Tyson v. Buljic decision.

“Allowing the Eighth Circuit’s decision to remain on the books will deny private parties like Tyson who assist the federal government in times of emergency their right to a federal forum in which to defend their actions, discouraging voluntary cooperation and hindering the federal government’s ability to respond to a future national crisis,” Tyson’s attorney and former Justice Department solicitor general Paul Clement of Clement & Murphy PLLC in Alexandria, Va., said in petition.

Clement and Tyson Foods didn’t respond to a Bloomberg Law request to discuss the cases.

The justices had been scheduled to consider the Buljic writ in late September, but the conference discussion was delayed when the court asked the attorneys for Buljic to provide a written response to Tyson’s petition. The response is due by Nov. 23.

Adam Pulver, an attorney with the Washington-based Public Citizen Litigation Group who is representing the families in the Buljic case, said Tyson asked the Supreme Court to decide a jurisdiction issue—whether the case was properly removed to federal court—not the merits of the allegations.

Even if the Supreme Court finds the Eighth and Fifth circuits were wrong, “that will not resolve the question of liability,” Pulver said.

Gould said if the Supreme Court decides in early 2023 to accept Tyson’s appeal of Buljic and Glenn, he doesn’t expect there to be oral arguments until after the start of the court’s October 2023 term.

From the Appeals Courts

All the lawsuits identified by Bloomberg Law were first filed with state courts in Iowa and Texas and then transferred at the meat processors’ requests to federal district courts in those states.

Appeals of federal district court decisions in Texas go the Fifth Circuit, while appeals from Iowa are assigned to the Eighth Circuit.

So far, the appeals courts have ruled in five cases, all finding against Tyson.

“In sum, Tyson has failed to show that it was performing a basic governmental task or operating pursuant to a federal directive in March and April of 2020,” the three-judge panel unanimously wrote in the Eighth’s Buljic decision.

The Fifth Circuit in its July 7 ruling on Glenn rejected the meatpacker comparing itself to a defense contractor.

“Packaging poultry for private parties is far afield from assembling aircraft or manufacturing munitions for Uncle Sam,” the court said. “The problem is not that Tyson’s relationship with the federal government was voluntary. The problem is the absence of any evidence of delegated authority or a principal/agent relationship at all.”

State Law Hurdles

A federal court decision against Tyson’s federal protection claim won’t ensure the workers’ lawsuits will succeed.

Lawsuits in Iowa will have to overcome objections based on the state’s June 2020 Covid Back-to-Business Act that protects employers from claims if they were following state or federal health guidance and rules.

In the Texas cases, the workers’ attorneys may have to surmount a state law specifically enacted to protect employers from Covid lawsuits—the Texas Pandemic Liability Protection Act. Although, the law was enacted in June 2021, it was retroactive to March 2020 when Texas declared a Covid state of emergency.

Judges in at least two cases heard in federal district courts ruled in favor of employers, saying the liability claims were blocked by the Texas law.

Gould said the law won’t block the success of liability claims he represents.

“While it is true that under the Texas Pandemic Protection Liability Act there are additional items that we’re going to have to establish, like the scientific evidence requirement, that you don’t see in an ordinary negligence case, we believe the facts will show that Tyson was liable,” said Gould.