PHILADELPHIA – The widow of a meatpacking supervisor for Tyson Foods who brought litigation against the company in claiming that its deficient precautions to protect against COVID-19 led to her husband’s death from the disease last year, has seen her case dismissed by a federal judge.
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.
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.
UPDATE
Just one month later, Diamond dismissed the case entirely on Dec. 6, siding with the defense that the Worker’s Compensation Act pre-empted the plaintiff’s claims.
“As I discussed in my earlier Memorandum, the Pennsylvania Supreme Court has held ‘that workmen’s compensation is the exclusive remedy for job related injuries.’ Accordingly, an employee may not bring ‘actions at common law against an employer’ for injuries within the scope of the Act. As I discussed, under the Act, Original Philly Holdings, Tyson’s subsidiary, is immune from plaintiff’s state law claims,” Diamond said.
“After issuing my memorandum I ordered the parties to address how this litigation should proceed in light of that immunity ruling. Not surprisingly, Tyson urges that as Mr. Barker’s employer, it, too, is immune from suit. Yet plaintiff has almost ignored my order, and instead repeated the factual allegations she made in her complaint. In thus reiterating that as Mr. Barker’s employer, Tyson controlled (and so was responsible for) his working conditions, plaintiff has underscored that Tyson is immune under the PWCA.”
According to Diamond, Barker further argued (for the very first time) that her fraudulent misrepresentation and intentional misrepresentation claims fell outside Worker’s Compensation Act’s exclusivity provision, leading Diamond to remark that the plaintiff “once again misread the law and her own complaint.”
“The Act includes a limited exception to exclusivity, allowing claims for ‘aggravation of an employee’s work-related injury where the employer’s fraudulent misrepresentation has been alleged.’ The employer’s misrepresentation must result in an ‘aggravation of a pre-existing injury.’ Alleging that an employer showed a ‘willful and wanton disregard for employee safety’ is insufficient to escape the PWCA exclusivity provision,” Diamond said.
“Plaintiff has not alleged any pre-existing work-related injury. Rather, she alleges that Mr. Barker had diabetes and high blood pressure. She does not suggest that either condition was caused by his work at the meatpacking plant. She also alleges that Tyson ‘directly misrepresented to workers that there was no risk of infection and/or that the workers were unlikely to become infected and/or deliberately withheld their knowledge of workers at the plant becoming infected with COVID-19.’ Plaintiff thus has not alleged Tyson’s wrongful conduct aggravated a pre-existing work-related injury. Accordingly, plaintiff’s fraudulent misrepresentation and intentional misrepresentation claims do not fall within the ‘narrow exception’ to PWCA exclusivity.”
Though Diamond stated the final result “may seem harsh”, he added the law required that the case be dismissed.
“The Workers Compensation Act was created to provide “workers expeditious coverage for their medical expenses and financial stability during their work-related disability in exchange for not suing their employer in court.’ The Act thus deprives Mr. Barker of ‘common law suits in tort’ against his employer, Tyson. Because any attempt to amend would be futile, I will dismiss plaintiff’s complaint with prejudice. Although this result may seem harsh, it is the result the law requires,” Diamond concluded.
The plaintiff was 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 were 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