Lawsuits filed by Tyson workers over COVID-19 still on hold

By: - July 23, 2021 2:44 pm

In April 2020, Brian Barker of Philadelphia died of respiratory failure after contracting COVID-19. At the time, he was a meatpacking supervisor at Tyson Foods’ Original Philly Cheesesteak Co. meatpacking plant. He died three weeks after Tyson allegedly ordered him to take the temperatures of employees entering the plant. (Photo from U.S. District Court files.)

Before he died of COVID-19 last year, Arthur Scott of Waterloo worked in a Tyson Foods plant that manufactures dog treats.

Even so, Tyson claims it cannot be sued in state court for contributing to Scott’s death because the company was trying to secure the nation’s food supply and critical infrastructure when it kept the plant open. So far, that argument appears to be working.

Last month, the Scott family’s case, like several others before it, was moved from state court to federal court. Action in most of those cases has been suspended while a federal appeals court decides whether they should proceed or be sent back to state court where they originated.

Currently, there are lawsuits involving at least 49 Tyson employees who either died or were injured by COVID-19, allegedly after contracting the virus on the job.

By arguing that its response to the pandemic was dictated in part by the actions of former President Donald Trump, the U.S. Department of Agriculture and the U.S. Department of Homeland Security, Tyson is saying the wrongful-death and injury claims involve matters of federal law that must be decided in federal court.

The company says that while remaining open during the pandemic and pushing to keep plant workers generating product, it was responding to Trump’s order keep meatpacking plants in operating, adding that it “worked hand-in-hand with federal officials” to secure America’s food supply.

Plaintiffs point to Tyson exports to China

Attorneys for several of the plaintiffs suing the company have argued in court that despite those claims, Tyson processed so much meat during the pandemic that it was able to export product to China.

In fact, according to a lawsuit filed on behalf of three deceased former employees of the Waterloo plant, Tyson’s exports to China increased by 600% in the first quarter of 2020. In April 2020, the company allegedly exported 1,289 tons of pork to China, its largest single-month total in three years.

As for Tyson’s pet-products production, the Independence plant remained open even after Gov. Kim Reynolds issued a proclamation in March 2020 closing non-essential businesses. “Perhaps sensing the tenuous nature of its claim that manufacturing dog treats was essential, employees were given a letter to carry with them indicating that their work was essential,” the Scott family’s lawsuit states.

The lawsuit also claims that one employee who called human resources asking whether it was safe to work was told he had a better chance of getting COVID-19 by shopping at Walmart than by going to work.

Although one federal judge found no merit to Tyson’s claim that it was “acting on the direction of federal officers,” sending some of the cases back to state court, Tyson appealed that ruling to the United States Court of Appeals for the Eighth Circuit, which has ordered a stay on certain cases until the issue of jurisdiction can be decided.

New Texas liability shield could scuttle workers’ case

In Texas, however, a lawsuit brought by 38 Tyson workers allegedly sickened or killed by the virus is proceeding in federal court, with a judge having already ruled Tyson was “acting under the direction of federal officials” during the pandemic.

Lawyers for the company are now asking that the case be dismissed, citing  the Texas governor’s recent approval of the Pandemic Liability Protection Act, a state law that shields businesses from liability for workers’ exposure to COVID-19. In court filings, Tyson acknowledges the law retroactively imposes a “heavy burden” on workers, requiring them to show “reliable scientific evidence” that their employer’s conduct caused their infections.

In addition to the wrongful-death claims, Tyson executives are also facing lawsuits from shareholders who claim the company’s leaders breached their fiduciary duty by failing to protect front-line workers and by making false claims about risks associated with the pandemic.

Two such lawsuits, both filed in U.S. District Court for the Eastern District of New York, claim Tyson lobbied the government to deem meatpacking an “essential” business that could remain open, then ran advertisements warning Americans the food-supply chain was at risk, all while exporting product to China.

At the same time, the lawsuits claim, workers were allowed to wear face coverings such as bandanas and sleep masks as “protective” equipment, and the company provided financial incentives for employees to report for work even if they were sick. By December 2020, Tyson had allegedly recorded three times as many COVID-19 cases and two times as many deaths as other meatpackers.

The shareholder lawsuits allege that last year, Noel White, Tyson’s former CEO and now the executive vice chairman of the board, was paid $10.9 million. Dean Banks, Tyson’s president and CEO, was allegedly paid $12.7 million, which included a $5 million bonus.

The lawsuits accuse the Tyson executives of unjust enrichment, gross mismanagement and wasting corporate assets. The defendants have denied the allegations.

Here’s a look at the 49 individuals, or their estates, who have sued Tyson Foods due to injuries or death related to COVID-19:

  • Sedika Buljic, Waterloo: Buljic was an employee of Tyson’s Waterloo plant. She died on April 18, 2020, from complications of COVID-19.
  • Reberiano Garcia, Waterloo: Garcia was a Tyson Foods employee working at the Waterloo Facility. He died on April 23, 2020, from complications of COVID-19.
  • Jose Ayala, Waterloo: Ayala was an employee of Waterloo plan and died on May 25, 2020, from complications of COVID-19.
  • Isidro Fernandez, Waterloo: Fernandez was a Tyson Foods employee working at the Waterloo facility. He died on April 26, 2020, from complications of COVID-19
  • Pedro Cano Rodriguez, Columbus Junction: Rodriguez was a Tyson employee at the company’s Columbus Junction plant. He died intestate on April 14, 2020, at age 51.
  • James Orvis, Waterloo: Orvis worked in the laundry room at the Tyson plant in Waterloo. He died on April 19, 2020, of COVID-19.
  • Arthur Scott, Independence: Scott was a 51-year-old employee of Tyson’s Pet Products Plant in Independence. He died on April 23, 2020.
  • Brian Barker, Philadelphia, Pa.: On April 23, 2020, Barker died of respiratory failure after contracting COVID-19. At the time, he was a meatpacking supervisor at Tyson Foods’ Original Philly Cheesesteak Co. meatpacking plant in Philadelphia. Although Barker was over 60 and had diabetes and high blood pressure, Tyson allegedly ordered him to take the temperatures of employees entering the plant on April 2, 2020. He died within three weeks.
  • Jose Angel Chavez and Thomas David Cowan, Texas: Cowan worked at a Tyson plant in Sherman, Texas, and Chavez worked at a Tyson plant in Center, Texas.
  • Rolandette Glenn, Texas: Glenn worked at the Tyson plant in Center, Texas, when she contracted COVID-19. She survived but alleges she is suffering from severe injury to her respiratory system and lungs.
  • The Amarillo workers: This lawsuit was filed on behalf of 38 employees of Tyson’s Amarillo, Texas, plant. Thirty-seven of the workers claim they contracted COVID-19 at the plant. The 38th plaintiff, Maung Maung Tar, allegedly contracted the virus at the plant and died as a result. Last month, a federal judge ruled Tyson had been “acting under the direction of federal officials” when they kept the plant open, and denied the workers’ request to have the case heard in state court.

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Clark Kauffman
Clark Kauffman

Deputy Editor Clark Kauffman has worked during the past 30 years as both an investigative reporter and editorial writer at two of Iowa’s largest newspapers, the Des Moines Register and the Quad-City Times. He has won numerous state and national awards for reporting and editorial writing. His 2004 series on prosecutorial misconduct in Iowa was named a finalist for the Pulitzer Prize for Investigative Reporting. From October 2018 through November 2019, Kauffman was an assistant ombudsman for the Iowa Office of Ombudsman, an agency that investigates citizens’ complaints of wrongdoing within state and local government agencies.

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