PHILADELPHIA – Tyson Foods argues that claims brought by the widow of a meatpacking supervisor, alleging that its deficient precautions to protect against COVID-19 led to her husband’s death from the disease last year, are the exclusive domain of the Pennsylvania Worker’s Compensation Act and not a federal court.
Renata Barker (individually and as the personal representative of the estate of Brian K. Barker) of Philadelphia initially filed suit in the Philadelphia County Court of Common Pleas on July 27 versus Tyson Foods, Inc. (c/o CT Corporation System) of Harrisburg, plus The Original Philly Steak, Inc. and Original Philly Holdings, Inc. (both doing business as “Original Philly Cheesesteak Co.”), both of Philadelphia.
(The case was later removed to the U.S. District Court for the Eastern District of Pennsylvania on Jan. 15.)
Barker claimed that the Original Philly Cheesesteak Co. failed to provide its workers with personal protective equipment when the COVID-19 pandemic began last March and instead, increased production without following such precautions.
“Barker was just three years from retirement when he was infected with COVID-19 while working at the Original Philly plant. Despite the fact that Barker was at high risk for contracting COVID-19 – he was over 60, had diabetes and high blood pressure – the defendants ordered Barker to take the temperatures of employees coming into the plant on April 2, 2020. April 2 would be Barker’s last day at the plant – predictably he tested positive for COVID-19 just five days later, on April 7, 2020,” the suit stated.
“Tragically, Barker succumbed to the infection and died on April 23, 2020. Barker’s death was the preventable result of the defendants’ decisions to ignore worker safety. The defendants ignored federal guidance and put plant workers in the crosshairs of a global pandemic.”
The plaintiff said that “by choosing profits over safety, the defendants demonstrated a reckless disregard to the rights and safety of others, including Brian Barker.”
“As a direct result of the carelessness, negligence, recklessness, gross negligence, and/or other liability producing conduct of the defendants, plaintiff’s decedent, Brian Barker, suffered illness and injuries that led to his death,” per the suit.
UPDATE
Tyson Foods filed a motion to dismiss the case on Jan. 22, believing that the litigation only belongs under the auspices of the Pennsylvania Worker’s Compensation Act.
“This Court is the wrong forum to resolve plaintiff’s workplace injury claims. Pennsylvania has a strict, no-fault workers’ compensation system administered by the Pennsylvania Bureau of Workers’ Compensation of the Department of Labor and Industry. Plaintiff’s claims against Tyson are barred – at least in this Court – under the exclusive remedy provision of the Pennsylvania Workers’ Compensation Act (PWCA), which directs that workplace injury claims must be adjudicated through the Pennsylvania Bureau of Workers’ Compensation,” the dismissal motion read, in part.
“Plaintiff tries to evade the PWCA by recasting the workplace injury claims as ones for fraudulent or intentional misrepresentation, or for allegedly ‘grossly negligent, willful, reckless, [or] wanton’ conduct. Those re-characterizations are futile. There is no ‘intentional tort’ or ‘wanton [or] willful misconduct’ exception to the PWCA’s exclusive-remedy provision. The Court need go no further. All claims against Tyson are barred under the PWCA, and the complaint should be dismissed on that basis alone.”
Additionally, Tyson Foods’ counsel countered that the plaintiff’s claims fail to adequately plead a claim for misrepresentation, fail to allege plausible, non-conclusory facts establishing causation for the decedent’s contraction of COVID-19 and also fail to take into account the broad express preemption provisions in the Federal Meat Inspection Act and Poultry Products Inspection Act.
For counts of negligence, fraudulent misrepresentation, intentional misrepresentation, survival and wrongful death, the plaintiff is seeking, jointly and severally, an amount in excess of the jurisdictional threshold in compensatory damages, punitive damages, interest and allowable costs of suit, plus a trial by jury.
The plaintiff is represented by Robert J. Mongeluzzi, Jeffrey P. Goodman and Steven G. Wigrizer of Saltz Mongeluzzi & Bendesky, plus Jason Scott Weiss of Wapner Newman Wigrizer Brecher & Miller, all in Philadelphia.
The defendants are represented by William H. Catto of Freeman Mathis & Gary, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-00223
Philadelphia County Court of Common Pleas case 200701751
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com