PHILADELPHIA – The widow of a meatpacking supervisor for Tyson Foods who brought litigation against the company, alleging that its deficient precautions to protect against COVID-19 led to her husband’s death from the disease last year, will not see her case remanded to state 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, 2020 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.
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.
UPDATE
After the plaintiff filed to remand the case to state court on Feb. 4 and the defense opposed such a move on Feb. 18, U.S. District Court for the Eastern District of Pennsylvania Judge Paul S. Diamond ultimately ruled to dismiss the plaintiff’s remand motion on Nov. 4.
Diamond found that there was “complete diversity between the plaintiff and the sole defendant she did not fraudulently join”, Tyson Foods.
“Tyson urges that because Original Philly Holdings is immune from this suit, its joinder here is fraudulent. Tyson further argues that Original Philly Steak, Inc. – the defendant that the plaintiff named in her complaint but never served – has nothing to do with this matter and so is also fraudulently joined as it ‘cannot be held liable for any of the alleged wrongdoing,” Diamond said.
“Disregarding (for jurisdictional purposes) the two fraudulently joined Pennsylvania defendants, my remand decision turns on the citizenship of plaintiff and Tyson alone. Plaintiff concedes that there is complete diversity between herself and Tyson and the amount in dispute exceeds $75,000. Because diversity jurisdiction thus exists, there is no basis to remand.”
Diamond concurred with Original Philly Holdings, Inc. that it is immune from the plaintiff’s state law claims under the Pennsylvania Worker’s Compensation Act.
“Plaintiff has explicitly alleged that Holdings (and the other defendants) ‘controlled and supervised the work being done at the Plant’ and had ‘possession and control of the Plant and the work being done there.’ Plaintiff also alleges ‘there is sufficient evidence to suggest all defendants maintained control over [the] response to the COVID-19 pandemic at the meat plant where Mr. Barker contracted the virus.’ In these circumstances, the facts alleged by plaintiff herself confirm that Holdings was Mr. Barker’s employer and so is immune from suit under the PWCA. Its joinder here is thus fraudulent,” Diamond said.
Diamond found that because diversity of citizenship existed between the parties, the case would not be remanded to state court.
“Mrs. Barker is a citizen of Pennsylvania in both her own and her representative capacities. Because Holdings and Steak, although citizens of Pennsylvania, were fraudulently joined, I may disregard their citizenship in determining jurisdiction. It is undisputed that the remaining defendant, Tyson Foods, is a citizen of Arkansas –its principal place of business – and Delaware – its state of incorporation. Complete diversity thus exists. Finally, Barker does not contest that the amount in controversy exceeds $75,000. Accordingly, diversity jurisdiction exists,” Diamond ruled.
“It is undisputed that Tyson is diverse from plaintiff. The ‘Pennsylvania defendants’ were fraudulently joined: Holdings is immune from suit; ‘Steak’ is simply Holdings’ fictitious name (and so does not exist for jurisdictional purposes). Because complete diversity exists, I will deny the motion to remand. In light of my decision, I will not address Tyson’s arguments regarding federal question and federal defense jurisdiction.”
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 and Erin Elizabeth Lamb of Freeman Mathis & Gary, also in Philadelphia, plus Jessica L. Everett-Garcia and Christopher S. Coleman of Perkins Coie, in Phoenix, Ariz.
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