Families’ COVID lawsuits against Iowa meatpacking plants dismissed – Des Moines Register

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COVID-19 outbreak at SE Iowa Tyson plant accounts for 86 of the 189 new, positive tests, April 14, 2020.

COVID-19 outbreak at SE Iowa Tyson plant accounts for 86 of the 189 new, positive tests.

Brian Powers, bpowers@dmreg.com

Families of Tyson Foods workers in Iowa who succumbed to COVID-19 are absorbing another blow after a judge dismissed negligence lawsuits against the company, its executives and managers of its Waterloo pork processing factory.

In a ruling Jan. 20, Iowa District Court Judge John Sullivan wrote that the families of four of the employees who died during the early months of the pandemic lacked legal grounds to sue. Instead, he said, the families can only file workers’ compensation claims against Tyson, with far less potential compensation.

The families had filed the lawsuits on behalf of Jose Ayala, Sedika Buljic, Isidro Fernandez and Reberiano Garcia ― all of whom died of COVID-19 in April and May of 2020, when infections raged along the tightly packed processing lines at the plant.

More:Iowa COVID-19 cases and hospitalizations drop to lowest points in months

Sullivan’s ruling, which differs from another judge’s Jan. 5 decision in a similar case against meat packer JBS in Marshalltown, could cost the families millions of dollars, an expert told the Des Moines Register on Tuesday. A lawyer for the families, meanwhile, says his team plans to appeal the decision.

“Their loved ones were killed,” attorney Mel Orchard said. “So the workers’ compensation system, with these kinds of facts, with this kind of conduct, we believe is insufficient to fully compensate people for wrongful death.”

A Tyson spokesperson declined to comment on Sullivan’s ruling.

What are these cases about?

The families sued Tyson and its leaders for gross negligence and false misrepresentation, arguing that the defendants knew COVID-19 would infect thousands of workers yet failed to protect them.

In particular, the attorneys highlighted Tyson’s safety steps at its factories in China in February 2020, as the coronavirus was affecting employees there more than a month before it reached Iowa. According to the lawsuit, Tyson shut down some Chinese factories and slowed production lines at others.

The lawyers also say that Tyson also gave Chinese employees masks, checked their temperatures twice a day, installed air filtration systems, prevented gatherings in break rooms and established quarantine observation areas.

More:XBB.1.5, the latest COVID-19 variant, will probably infect everyone. What you should know.

But when the pandemic reached Iowa in mid-March 2020, according to the lawsuit, Tyson did not take similar actions at the Waterloo factory, where about 2,800 employees often worked elbow to elbow as they sliced and processed hogs. The lawyers said workers labored maskless next to each other for weeks, and alleged that Plant Manager Tom Hart and Human Resources Director James Hook told interpreters to incorrectly inform non-English-speaking employees in early April 2020 that a public health department had “cleared” the plant.

The staffing agency Packers Sanitation Services shifted workers to the Waterloo plant from Columbus Junction, where Tyson had shut down a factory amid a COVID-19 outbreak in April 2020. Later that month, managers at the Waterloo factory participated in a betting pool, wagering on how many workers would have the virus at a mass testing event. (Some managers who participated in the pool later said they placed bets because they were confident they had done a good job preventing an outbreak.)

According to a letter that Tyson sent to Congress, about 1,200 workers tested positive for the virus in April 2020. Seven died.

Why did the judge dismiss the lawsuits?

Iowa law requires that employees ― and their families ― must bring almost all injury claims to the state’s Workers’ Compensation Division.

Some plaintiffs can sue in court. But they must prove other employees committed gross negligence. To do that, they have to prove those employees knew they were putting fellow workers in danger. They also have to prove that the danger would probably result in injuries.

“It’s a very high bar to jump across,” said Mark Hedberg, a workers’ compensation attorney in Des Moines. who is not involved in the Tyson lawsuits.

More:Conviction thrown out for Iowa man whose trial was closed to public due to COVID-19

On Friday, Sullivan ruled that the families did not meet the required standard, writing that they didn’t prove Tyson leaders knew in early 2020 of the danger to come as a result of the pandemic.

Orchard, the families’ attorney, disagreed.

“At least the scientific community knew pretty clearly that this was really awful and potentially deadly,” he said. “Look what was happening from a governmental standpoint. … Tyson knew how bad it was. Look what they were doing in China to protect the Chinese workers.”

He added: “Any argument that Tyson and its supervisor defendants didn’t know …. I mean, it just doesn’t make any sense to me.”

He said he plans to appeal the case.

What’s at stake by moving the case to Workers’ Compensation?

Hedberg said taking a case to court would generate a lot more compensation for families, likely millions of dollars. A workers’ compensation case involving a meatpacking worker, on the other hand, likely will not provide more than $1 million.

If the case were to go to a jury, he said, families could sue for problems in their lives that stretch beyond a missed weekly paycheck.

“Pain and suffering and all these other types of damages, you don’t get with workers’ compensation,” he said. “All the non-economic damages that are so important to a person’s life.”

More:Tyson says UFCW using handout of federal relief funds to promote unionization of Iowa plant

The payout in a workers’ compensation case for an employee who died is based on a formula. State officials will determine the employee’s typical weekly pay, based on what they earned in the 13 weeks before their deaths. (Hedberg said the state does not count any increased wages that employees received while working overtime.)

A surviving dependent, such as a spouse or child, will then receive 66% of that average weekly pay for the rest of their lives. The dependent can also opt for an up-front lump sum, based on a formula. However, companies have to sign off on the lump sum, and Hedberg said businesses often negotiate down the total amount going to families.

According to the Bureau of Labor Statistics, the average meatpacking worker in Iowa made $944 a week in 2019, before the pandemic. In a workers’ compensation case, that pay rate would equate to $623 a week for a dependent.

Over 30 years, the payment would come out to about $970,000.

Why a lawyer in Marshalltown is feeling better

The family of Jose Andrade Garcia, a JBS employee in Marshalltown who died of COVID-19 in May 2020, received different news earlier this month.

More:‘They could have done more’: Daughter of Marshalltown meatpacking plant worker blames JBS for his COVID-19 death

Iowa District Court Judge James Ellefson wrote in a Jan. 5 order that Garcia’s family could not sue the company for gross negligence. However, Ellefson said he would later determine whether individual company leaders should still be liable for lawsuits.

JBS would have been a lucrative target for the lawsuit. The Brazilian-based company reported a $780 million profit in its most recent quarter and, as of September, held about $3.2 billion of cash.

But the family’s attorney, Brent Welder, felt optimistic Tuesday. Among those he is still suing: Tim Shellpeper, CEO of JBS USA, the company’s U.S. and Australian subsidiary.

“We’re going to dig to the bottom of what the insurance policies say and what they cover,” Welder said. But I firmly believe that there will be plenty of money available for the family to obtain justice.”

 Tyler Jett covers jobs and the economy for the Des Moines Register. Reach him at tjett@registermedia.com, 515-284-8215, or on Twitter at @LetsJett.

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