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Sued Over Covid-19, Companies Scramble for Federal Court Shelter

July 20, 2020, 9:06 AM

The poultry processor Pilgrim’s Pride Corp., faced with a wrongful death lawsuit from the family of a plant worker who died from Covid-19, has raised a novel legal argument: The president made us do it.

Citing Donald Trump‘s April 28 executive order compelling Pilgrim’s Pride and other meatpackers to remain open, and OSHA guidance on worker safety during the pandemic, the company claimed federal court was the proper place for the lawsuit filed by the sons of deceased employee Maria Hernandez, and pulled it from a state courthouse in Lufkin, Texas.

“Any duty ascribed to Pilgrim’s unavoidably implicates President Trump’s explicit directive regarding the safe operation of meat processing facilities during the pandemic, as well as federal policies governing the nation’s food supply, national security, and economy,” Pilgrim’s Pride lawyers said in their July 2 notice of removal.

The company, which is controlled by Greeley, Colo.-based JBS USA, isn’t alone. Many companies sued in state court over employee and customer deaths attributed to the coronavirus pandemic are shifting those cases to U.S. courthouses, the better to avail themselves of new defenses and tougher rules for proving one’s case.

They’re relying not merely upon notions of geographically diverse plaintiffs and defendants, but also upon federal question jurisdiction arising from the Occupational Health and Safety Administration directives central to the suits.

The benefits of moving to federal court are many for corporations, says Ira Nathensen, a law professor at St. Thomas University School of Law in Miami Gardens, Fla..

By the Rules

“Discovery rules in federal courts are oftentimes more stringent than discovery rules in state courts as well as pleading standards,” Nathensen said. “Rightly or wrongly, there’s a perception among corporate defendants that federal judges are not as sympathetic to tort claimaints,” he added.

The legal moves come as the business community lobbies the federal government to extend liability protections to companies that already have been sued. The U.S. Senate has signaled its willingness to take up the issue. The defense maneuvers also coincide with a resurgence of the contagion across the U.S. South and West, which is pushing the number of new cases to record highs, raising the prospect of more deaths and more lawsuits.

Nicholas Howell, senior associate specializing in trial and global disputes at King & Spalding LLP, said there will be an increase of wrongful death claims against companies, and firms will increasingly rely on specific case law in conjunction with the Trump meat processing order, as well as federal agency guidance.

In the Maria Hernandez case, her sons—plaintiffs Jose Manuel Requena and Oscar Requena—claim their mother was “instructed to report to work in Pilgrim’s Pride Shipping and Labeling department” to fill in for workers who were absent due to Covid-19.

Their complaint alleges she wasn’t warned of more than 50 worker infections at the plant, which could have prevented her death. She died May 8.

Actions and Directives

“Plaintiffs’ claims are directly opposed to the federal government’s actions and directives,” Pilgrim’s attorneys said in their July 2 filing, adding, their client’s actions were in compliance with Trump’s order.

Shortly after that presidential order was issued, the U.S. Department of Labor and OSHA announced that they were unlikely to cite plants for health violations if those employers try in “good faith” to follow guidance from OSHA and from the Centers for Disease Control and Prevention.

“Thus, a state court’s application of any standard of conduct on a meat processing facility contrary to that imposed by the federal government may compromise a unique federal interest and frustrate the government’s capacity to impose a uniform rule,” according to the Pilgrim’s lawyers.

On July 9, Pilgrim’s filed a motion to dismiss the Requenas’ complaint with U.S. District Judge Ron Clark, asserting that OSHA has primary jurisdiction in the case.

Clayton Bailey with Bailey Brauer PLLC in Dallas represents Pilgrim’s. He did not respond to requests for comment from Bloomberg Law. Attorneys for the Requena family also didn’t respond to Bloomberg Law requests for comment.

Staying Put

Hunter Shkolnik, a partner with Napoli Shkolnik, told Bloomberg Law that in order to keep cases in state court, plaintiffs lawyers could argue that the federal directive to keep food processing facilities open “does not in any way conflict with state tort law that requires you to provide a safe workplace, therefore the federal question doesn’t predominate in a case.”

“It doesn’t strip you of a responsibility to provide a safe workplace under state tort law,” Shkolnik said.

Still, a major challenge for pursuing coronavirus-related wrongful death cases—whether in court or before a state workers compensation panel—is proving the deceased employee contracted Covid-19 on the job, said Debbie Berkowitz, worker health and safety program director with the National Employment Law Project.

OSHA in May announced that employers who are required by the agency to keep injury and illness logs must determine if workers’ Covid-19 cases are job-related. Previously, the agency said only health-care employers, corrections facilities, and emergency-response providers were required to make that determination.

Berkowitz said companies largely benefit from the current legal and regulatory environment, especially as Congress contemplates a form of legal immunity for businesses from wrongful death lawsuits and claims from customers and employees.

Countervailing Arguments

JBS USA also faces an ongoing removal battle in the wrongful death case of meat processing worker Enock Benjamin who died of Covid-19 in Souderton, Pa.

Benjamin worked on a newly created “Saturday Kill” line as JBS increased its production of meat during in March. He died of Covid-19 April 3. Benjamin’s family says JBS “inexplicably failed to take proper safety precautions to protect workers.”

The meatpacking company asserted in its removal of the case to Philadelphia federal court, among other grounds, that any duty JBS owed to Benjamin “unavoidably implicates the President’s explicit directive regarding the safe operation of meat processing facilities during the pandemic, as well as federal policies governing the nation’s food supply, national security, and economy.”

On July 13, the Benjamin estate asked the U.S. District Judge John Padova to send it back to a state forum, arguing in a motion that Trump’s order did not occur until 25 days after Benjamin’s death, “and contains no indicia whatsoever of an attempt for retroactivity.”

Shkolnik, said many attorneys either do not know how or forget that they have the ability to request to remand back to state court. Many plaintiffs attorneys aren’t familiar with federal procedures for removal and remand, he said, which is often why “by the time they wake up to their options it’s too late.”

Plaintiffs lawyers should have an immediate remand filing ready to deploy, Shkolnik said.

Relying on Guidance

Non-meatpacking employers are also beginning to cite OSHA guidance released since the start of the pandemic to clarify current federal safety regulations.

On July 2, Albertsons’ Cos.-owned Safeway Inc. removed to an Oakland, Calif., federal court the negligence and wrongful death case brought by the family of distribution center worker Pedro Zuniga, who died after contracting the coronavirus in March.

At least 51 distribution center employees ended up testing positive for Covid-19 by April, according to the Zuniga family’s Alameda County Superior Court complaint.

The grocery store chain argues in part that the Zuniga claim “raises federal issues that particularly demand a uniform federal treatment.”

William J. Dritsas with Seyfarth Shaw LLP in San Francisco represents Safeway. He didn’t respond to Bloomberg Law’s requests for comment.

Paul Matiasic, a partner in the San Francisco-based Matiasic Firm represents the Zuniga family against Safeway. He told Bloomberg Law that he doesn’t see “any recognizable basis” for the case to be in federal court, adding that the case is grounded in California state law.

“This is a pandemic affecting every state but the nuance matters, one state’s laws can be diametrically different from another state,” he said. “I think Safeway is trying to shirk and circumnavigate their responsibility through state and local jurisdictions.”

Kentucky Case

At least one litigant has relied on an executive order, albeit gubernatorial not presidential, to support his coronavirus liability claim. But a unit of the boutique grocery chain Trader Joe’s contends that argument is a non-starter.

A Louisville, Ky., Trader Joe’s East Inc. employee brought a state wrongful discharge claim against the grocer in April. Kristopher King claims that he was fired from his position as crew member after he made safety complaints to management and created a Facebook group for coworkers to discuss pandemic-related safety issues.

King also claims he contracted Covid-19 after he was not allowed to wear gloves on the job.

After removing the case to federal court, the grocery chain moved to dismiss the case, arguing in its May 14 filing that King’s reliance on Gov. Andy Beshear’s March 6 State of Emergency declaration, indicates Trader Joe’s owed no legal duty to King.

“At most, Mr. King has attempted to allege conduct in violation of the Executive Order,” Trader Joe’s lawyers said. “While promulgated under statutory authority and given the force of law, these Executive Orders are not ‘statutes,’ and provide no private cause of action for people like King.”

King’s attorney, Bradley S. Zoppoth in Louisville, did not respond to Bloomberg Law’s requests for comment.

To contact the reporter on this story: Fatima Hussein in Washington at fhussein@bloombergenvironment.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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