Thursday, July 7, 2022
As we predicted here, the Defense Production Act defenses in the worker death cases by Tyson went nowhere. From Bruce Rolfsen at Bloomberg:
A Trump administration executive order doesn’t protect Tyson Foods Inc. from workers’ Covid-19 death and injury liability lawsuits, the US Court of Appeals for the Fifth Circuit decided Thursday.
The Fifth Circuit 3-0 ruling is similar to a decision issued by the US Court of Appeals for the Eighth Circuit on Dec. 30 that also found Trump administration actions didn’t shield the poultry processor from two lawsuits involving workers in Iowa.
The decision could open the door for workers’ cases to be heard by Texas state courts where the lawsuits were filed before Tyson sought federal review.
Unfortunately, state law is now unlikely to be kind. I suspect that the Texas cases may be covered by arbitration and the Iowa cases may well be subject to the exclusive remedy rule given cases floating out there like Brcka v. St. Paul Travelers Companies, Inc., 366 F.Supp. 2d 850 (S.D. Iowa 2005). (For a discussion of the difficulties workers face proving causation in Covid-related workers' compensation claims see here). But we'll see.
Michael C. Duff