On April 2, Brian Barker’s supervisors at the Original Philly Cheesesteak Co. plant in North Philadelphia handed him an electronic thermometer. He was ordered to scan the temperatures of his fellow employees as they arrived for work.
For Barker, 61, of Northeast Philadelphia, it would be his last day on the job.
The next day, plant owner Tyson Foods temporarily closed the 250-employee facility because of COVID-19. Barker was diagnosed with COVID-19 on April 7. And by April 23, he was dead from the virus. “He said goodbye to his family on Zoom,” said his family’s lawyer, Jeffrey Goodman.
His coworkers learned of Barker’s death several days later. Tyson did not inform his teammates that their supervisor had died of the virus, Goodman said.
Now, his widow has filed a wrongful death suit in Philadelphia Common Pleas Court. It alleges that Tyson “inexplicably failed to take proper safety precautions to protect workers.”
The suit last month is the second COVID-related wrongful death case to be brought by the Philadelphia law firm of Saltz, Mongeluzzi & Bendesky. In May, its lawyers filed on behalf of a 70-year-old union steward who allegedly contracted the virus while working at a different slaughterhouse in Bucks County. Another suit, targeting a third meat processing giant, is imminent, Goodman said.
The trio of cases is among the earlier in litigation endorsed by liberal analysts, unions, and trial lawyers as essential to making injured workers whole and to bringing about corporate accountability. Business groups and conservatives predict a tidal wave of COVID-related lawsuits that they say will wreak havoc on industries that have done their best to cope with a wholly unexpected, global menace.
Although U.S. Senate Majority Leader Mitch McConnell (R., Ky.) has warned of a “second epidemic” of anti-business suits, the threatened wave has yet to happen, and some experts predict it never will. Even as McConnell and other Republicans have fought for new legal restrictions on suits, formidable barriers are already in place, limiting the suits.
The legislative fight over the issue has already been fierce. Last year, McConnell repeatedly sought but failed to tie liability protection to the newest round of stimulus funding.
“At the very moment of the pandemic spiking out of control, the government wanted to tell employers they’d face no liability at all,” said Hugh Baran, a lawyer at the National Employment Law Project. “Why take away incentives to improve things?”
In Pennsylvania, legislators passed a COVID-19 corporate immunity bill in November. Gov. Tom Wolf vetoed the measure, calling it “overly broad” and saying it would encourage “carelessness and a disregard for public safety.”
Even without the Republican-backed liability protections, the suits face two high hurdles.
“The big problem will be establishing causation,” said Tom Baker, a scholar of insurance law and policy who is a professor at Penn Law.
Kenneth Dau-Schmidt, a professor of employment and labor law at Indiana University, agreed.
“If there’s an illness already out in the general population, it’s called an ‘ordinary disease of life,’” Dau-Schmidt said. “The employer can say it didn’t happen in the workplace, you could have contracted that at the grocery store.”
Another major roadblock would be the workers’ compensation system, a nonjudicial insurance apparatus that protects businesses from suits at the same time that it guarantees some guaranteed coverage to workers.
In most states, workers’ comp is essentially the exclusive remedy for workplace injury and death.
“It looks like they’re trying to get around the workers’ compensation bar by alleging reckless/intentional conduct and by suing the corporate parent of the employer,” Baker said after examining the Barker complaint.
Ground zero for any COVID-19 litigation is likely to be so-called essential workplaces, jobs sites ranging from supermarkets to hospitals, that the U.S. Department of Homeland Security deemed must keep operating despite the pandemic. Last April, officials deemed meatpacking plants as vital — a designation that may help in the defense against lawsuits.
Meatpacking plants have become “coronavirus clusters,” where more than 54,525 workers have tested positive for the virus. As of last week, at least 269 of those meatpackers have died, according to data collected by the nonprofit Food and Environment Reporting Network. In all, more than 550 meatpacking plants have had confirmed cases.
Tyson, citing the pending litigation, said it could not comment on the details of the Barker lawsuit.
“We’re saddened by the loss of any Tyson team member and sympathize with their families,” Tyson spokesman Gary Mickelson said in a statement. “Our top priority is the health and safety of our workers and we’ve implemented a host of protective measures at our facilities that meet or exceed CDC and OSHA [Occupational Safety and Health Administration] guidance for preventing COVID-19.”
The company would not say how long it had kept the Original Philly plant shuttered after April 3. Nor would it say how many workers there had been stricken by the virus. Neither state nor Philadelphia officials could provide information about the issue.
Ronald Ferguson and Alexander Maldanado, leaders of the United Independent Unions, which represents workers at the facility, did not return numerous calls seeking information.
Tyson, headquartered in Arkansas, is the world’s second-largest processor of chicken, beef, and pork after JBS. Tyson, which booked $43 billion in revenues in its last fiscal year, said in December that it had invested more than half a billion dollars to fight new spikes of the coronavirus.
Though lawyers at Philadelphia’s Saltz Mongeluzzi promise that more suits are coming, industry experts said surprisingly few cases have been filed nationwide.
“There’s no wave of litigation. It’s more like a trickle,” said Baran, of the National Employment Law Project. “The latest data shows there are maybe only 130 to 200 cases related to COVID-19 in the workplace. That’s only three or four cases per state.”
The Barker suit provides few details about Barker’s work at the plant or how specifically he might have contracted the virus. It does say that Barker suffered from high blood pressure and diabetes.
And before he fell ill, the suit maintains, the Original Philly plant had suffered at least one serious case of COVID-19. It says that Barker was twice required to deliver work laptop computers to an Original Philly sales manager who was ailing from the disease. It gave no details about those exchanges.
In general terms, it claims Tyson was grossly negligent, alleging it ignored federal guidance on keeping the workplace safe. It claims Tyson provided too little personal protective equipment and misled staff about the safety of the factory.
It also says Tyson’s policy of paying no sick leave also meant ill employees would clock in anyway.
And rather than slow down production and space workers out by at least six feet, the lawsuit says, Tyson added more shifts and employees at the plant “to capitalize on increased demand caused by public panic purchases of meat.”