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Tyson urges Fifth Circuit to toss appeal from Covid-infected plant employees

Nearly half of the workforce at Tyson Foods' Amarillo plant caught Covid-19 because it initially ignored federal guidelines on containing the virus, several workers say.

(CN) — Efforts by former Tyson Foods meatpacking workers to revive a lawsuit blaming their Covid infections on the company's lack of precautions at its Amarillo plant floundered Monday at the Fifth Circuit as their counsel admitted he did not know the dates of their illnesses.

In the spring of 2020 when little was known about the novel coronavirus, before the advent of vaccines and clear guidance from federal health officials on how to limit exposure, the virus ran wild in U.S. meatpacking plants. Covid-19 infected thousands of laborers whose working conditions—shoulder-to-shoulder, huffing to keep up with meat moving down conveyor belts at breakneck speeds and shouting at one another over loud machinery— proved conducive for major outbreaks.

Though widespread Covid infections led some companies to suspend operations, they soon reopened after then-President Donald Trump – citing the Defense Production Act, the importance of providing Americans with a continued supply of protein and protecting the national meat supply chain – mandated the plants stay open in an April 2020 executive order.

Trump’s Agricultural Secretary Sonny Perdue followed with a letter urging plant owners to adhere to guidance from the Centers for Disease Control and Prevention and the Occupational Safety and Health Administration to thoroughly clean equipment, screen workers for symptoms before they enter the plants, give them face masks and implement social distancing.

The state of Texas then moved to stifle litigation in June 2021 with passage of the Pandemic Liability Protection Act, which raised the threshold for litigants to pin liability for Covid infections on businesses.

Despite the higher bar, seven people represented by the Houston firm Arnold Itkin sued Tyson Foods in Texas state court in July 2021, alleging they had contracted Covid working at its Amarillo plant because it had kept running the facility even in the face of Governor Greg Abbott’s stay-at-home orders, disregarded workers’ Covid symptoms and had not given them any protective gear.

The case was transferred to Amarillo federal court, where U.S. District Judge Matthew Kacsmaryk dismissed it with prejudice in January.

Agreeing with Tyson, the Trump appointee found the plaintiffs had not complied with the new Texas law by providing reliable scientific evidence they came down with Covid due to the company’s actions. He also agreed their claims were preempted by two federal laws: the National Defense Act and the Federal Meat Inspection Act.

The plaintiffs appealed to the Fifth Circuit and their counsel, Andrew Gould with Arnold Itkin, struggled Monday to explain a gaping hole in their allegations to a three-judge panel.

“I think everybody agrees early on there was an executive order that said you should follow the CDC and OSHA specific guidelines for the meat and poultry processing industry,” said Chief U.S. Circuit Judge Priscilla Richman, a George W. Bush appointee.

“At the point in time when your plaintiffs got sick, when was that? When did they get sick?” she asked Gould.

“So we didn’t plead the exact date that they got sick,” Gould replied.

Exasperation in her voice, Richman continued, “Alright, let’s get right to the point. What PPE [personal protective equipment], CDC and OSHA guidelines were in effect about masks, social distancing, what kind of masks, all of that, when your plaintiffs got sick?”

Gould said those agencies’ interim guidance recommending those measures for the meatpacking industry was, in fact, in effect at the time his clients became ill, and while the advisories may not have included providing N95 masks for workers, they did call for giving them surgical masks.

U.S. Circuit Judge Catharina Haynes noted federal guidance was fluid early in the pandemic.

“There was a period when they were basically saying don’t wear a mask unless you’re like a nurse in a hospital,” said Haynes, another George W. Bush appointee. “And that was an issue because there was a period that they thought you were getting it from your fingers. … So I think what Chief Judge Richman is addressing is the fact that things were evolving. So where are we on this road?”

Gould argued the question of whether Tyson was snubbing federal guidance when his clients fell ill is a merits question a jury should decide.

Haynes pointed out another hole in the case: the plaintiffs did not allege exposure to Covid-infected colleagues at the plant.

“The Tyson meat place is huge,” she said. “So somebody way over somewhere else could have been the one who was sick and this person over here, that isn’t why they got it. In fact, they went home and their spouse had it and that’s why they got it.”

Tyson’s attorney, Paul Clement of the Alexandria, Virginia, firm Clement and Murphy, focused on the timeline of Texas’ passage of the Pandemic Liability Protection Act.

He said before its enactment, Arnold Itkin filed two other lawsuits in Texas state courts for other meatpacking plant workers, making similar Covid negligence claims against their employers.

After both cases were transferred to Kacsmaryk in federal court, he let them be amended because Texas had passed the new statute in the interim. But he warned he needed to know when all the plaintiffs caught Covid.

“He said, ‘I need some dates, that’s the way the statute works.’ They did file amended complaints but they didn’t give him any dates,” Clement said. “And then he dismissed those two cases.”

Judge Haynes agreed that information should be easy to obtain.

“That’s not something you need a doctor for, that’s not something you need discovery for,” she said. “Your own client should be able to say. … They obviously feel they were adversely affected, so they should know when they started to feel it.”

With Gould back at the podium, U.S. Circuit Judge Carl Stewart, a Bill Clinton appointee, asked him what would be added to the case if the panel decided Kacsmaryk abused his discretion by not letting the workers amend their lawsuit.

“It would be more specific about what Tyson failed to do. … It would also be about what they knew about transmission within the Amarillo plant at the time,” Gould replied. “I mean as a congressional staff report outlines, almost 50% of Tyson workers at that plant were getting Covid.”

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