Tuesday, April 28, 2020
Update: The President's Order has issued. I now have doubt as to whether the Defense Production Act provides immunity to tort actions (if that was the plan) to parties bound by it outside the context of military contractors. See In Re Aircraft Crash Lit. Frederick, Md., 752 F. Supp. 1326, 1330 n.2 (S.D. Ohio 1990); see In Re Agent Orange Product Liability Litigation, 597 F. Supp. 740, 843 n.27 (E.D.N.Y. 1984). As we used to say back in my ice hockey days, this could be a donnybrook.
When I was a young whipper-snapper, an airline supervisor once ordered me to put my rain gear on and enter an airplane baggage compartment into which "lavatory fluid" had discharged due to a malfunction. I told him to pound sand. That memory popped into my head when I read that the President was ordering meat facilities to remain open (disclosure: I became a vegetarian in 1983 - how prescient of me). As Bloomberg reports (here behind a paywall):
President Donald Trump plans to order meat-processing plants to remain open, declaring them critical infrastructure as the nation confronts growing disruptions to the food supply, a person familiar with the matter said.
Trump plans to use the Defense Production Act to order the companies to stay open, and the government will provide additional protective gear for employees as well as guidance, according to the person.
Trump signaled the executive action at the White House on Tuesday, saying he planned to sign an order aimed at Tyson Foods Inc.’s liability, which had become “a road block” for the company. He didn’t elaborate.
The order, though, will not be limited to Tyson, the person said. It will affect all processing plants supplying beef, chicken, eggs and pork.
The White House decided to make the move amid estimates that as much as 80% of the U.S. production capacity could shut down.
Illnesses in the meat-processing industry and shifts in demand as restaurants have closed have disrupted the food supply chain in recent weeks. Dairy farmers are dumping milk that can’t be sold to processors, broiler operations have been breaking eggs to reduce supplies and some fruit and vegetables are rotting in fields amid labor and distribution disruptions.
Many low-income Americans, meanwhile, have been waiting in long lines at food banks, which have reported shortages.
Asked about the supply of food to the country, Trump said: “There’s plenty of supply.”
The deep game here may be that the Defense Production Act has been interpreted as providing broad liability immunity to producers compelled to comply with its terms. See the statute here, and agriculture-specific anti-liability regulation here. So "anti-liability" is apparently coming by Executive Order and by Mitch McConnell edict. I think it remains to be seen how far into state law the immunization will purport to intrude (is workers' compensation liability included?). Some of us can avoid lavatory fluid, and some of us can't. But if this goes much further the constitutional dimensions of tort law may be tested a lot more starkly than in prior periods of "tort reform." Perhaps we will reach a point where even the most desperate of workers will not enter Covid-19 hot zones. The next likely thought in the President's head may encounter the 13th amendment of the U.S. Constitution:
"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
And, as a colleague of mine just said, "Happy Workers' Memorial Day!"
Michael C. Duff