throbber

`HUS HARI BULJIC INDIVIDUALLY AND AS
`ADMINISTRATOR OF THE ESTATE OF SEDIKA
`BULJIC, HONARIO GARCIA INDIVIDUALLY AND
`AS ADMINISTRATOR OF THE ESTATE OF
`REBERIANO LENO GARCIA, AND ARTURO DE
`JESUS HERNANDEZ AND MIGUEL ANGEL
`HERNANDEZ AS CO-ADMINISTRATORS OF THE
`ESTATE OF JOSE AYALA,
`
`
`
` V.
`
`TYSON FOODS, INC., TYSON FRESH MEATS,
`INC., JOHN H. TYSON, NOEL W. WHITE, DEAN
`BANKS, STEPHEN R. STOUFFER, TOM
`BROWER, TOM HART, CODY BRUSTKERN,
`JOHN CASEY, AND BRET TAPKEN.
`
`
`
`
`
`
`
`
`
`PLAINTIFFS,
`
`DEFENDANTS.
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF IOWA
`EASTERN DIVISION
`
`
`
`
`
`
`
`
`
`
`
`
`
`Case No. 6:20-cv-02055
`
`
`
`
`
`FIRST AMENDED COMPLAINT
`
`
`
`INTRODUCTION
`This case arises from Tyson Foods’ fraudulent misrepresentations, gross
`
`1.
`
`negligence, and incorrigible, willful and wanton disregard for worker safety at its pork
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`processing facility in Waterloo, Iowa (the “Waterloo Facility”). Despite an uncontrolled
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`COVID-19 outbreak, Tyson required its employees to work long hours in cramped conditions.
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`Moreover, despite the danger of COVID-19, Tyson failed to provide appropriate personal
`
`protective equipment and failed to implement sufficient social distancing or safety measures to
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`protect workers from the outbreak. As a result, Sedika Buljic, Reberiano Garcia, Jose Ayala, and
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`more than 1,000 other Tyson employees were infected with COVID-19 at the Waterloo Facility.
`
`
`
`Case 6:20-cv-02055-LRR-KEM Document 40 Filed 11/18/20 Page 1 of 32
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`

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`Plaintiffs
`2.
`
`Plaintiff Hus Hari Buljic is the duly appointed Administrator of the Estate of his
`
`PARTIES
`
`deceased wife, Sedika Buljic.
`
`3.
`
`At all relevant times, Sedika Buljic was a Tyson Foods employee working at the
`
`Waterloo Facility. She died on April 18, 2020 from complications of COVID-19.
`
`4.
`
`Hus Hari Buljic’s injuries arose out of and in the course of Sedika Buljic’s
`
`employment with Tyson Foods.
`
`5.
`
`Plaintiff Honario Garcia is the duly appointed Administrator of the Estate of his
`
`deceased father, Reberiano Garcia.
`
`6.
`
`At all relevant times, Reberiano Garcia was a Tyson Foods employee working at
`
`the Waterloo Facility. He died on April 23, 2020 from complications of COVID-19.
`
`7.
`
`Honario Garcia’s injuries arose out of and in the course of Reberiano Garcia’s
`
`employment with Tyson Foods.
`
`8.
`
`Plaintiffs Arturo de Jesus Hernandez and Miguel Angel Hernandez are the duly
`
`appointed Co-Administrators of the Estate of their deceased brother, Jose Ayala.
`
`9.
`
`At all relevant times, Jose Ayala was a Tyson Foods employee working at the
`
`Waterloo Facility. He died on May 25, 2020 from complications of COVID-19.
`
`10.
`
`Arturo de Jesus Hernandez and Miguel Angel Hernandez’s injuries arose out of
`
`and in the course of Jose Ayala’s employment with Tyson Foods.
`
`Defendant Tyson Foods
`11.
`Defendant Tyson Foods, Inc. is the largest meat processor in the United States.
`
`12.
`
`Tyson Foods, Inc. is a Delaware Corporation, with its principal place of business
`
`in Springdale, Arkansas.
`
`
`
`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 2 OF 32
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`13.
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`As a corporation, Tyson Foods, Inc. can act only through its agents, including its
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`employees, officers, and directors.
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`14.
`
`Tyson Foods, Inc. is vicariously liable for its agents’ acts and omissions within
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`the course and scope of their agency.
`
`15.
`
`Defendant Tyson Fresh Meats, Inc. is a Delaware Corporation, with its principal
`
`place of business in Springdale, Arkansas.
`
`16.
`
`As a corporation, Tyson Fresh Meats can act only through its agents, including its
`
`employees, officers, and directors.
`
`17.
`
`Tyson Fresh Meats is vicariously liable for its agents’ acts and omissions within
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`the course and scope of their agency.
`
`18.
`
`Tyson Fresh Meats is a wholly owned subsidiary of Tyson Foods, Inc.
`
`(collectively “Tyson Foods” or “Tyson”).
`
`Executive Defendants
`19.
`Defendant John H. Tyson is the Chairman of Tyson Foods, Inc.
`
`Defendant Noel W. White is the Chief Executive Officer of Tyson Foods, Inc.
`
`Defendant Dean Banks is the President of Tyson Foods, Inc.
`
`Defendant Stephen R. Stouffer is the President of Tyson Fresh Meats, Inc.
`
`Defendant Tom Brower is Senior Vice President of Health and Safety for Tyson
`
`20.
`
`21.
`
`22.
`
`23.
`
`Foods, Inc.
`
`24.
`
`Hereinafter John H. Tyson, Noel W. White, Dean Banks, Stephen R. Stouffer, and
`
`Tom Brower, will be collectively referred to as the “Executive Defendants.”
`
`Supervisory Defendants
`25.
`Defendant Tom Hart is the plant manager of the Tyson Waterloo Facility. He is
`
`required to be familiar with all aspects of the Waterloo Facility and to identify potential safety
`
`
`
`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 3 OF 32
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`hazards.
`
`26.
`
`Defendant Bret Tapken is the Safety Lead of the Tyson Waterloo Facility. He is
`
`required to be familiar with all aspects of the Waterloo Facility and to identify potential safety
`
`hazards.
`
`27.
`
`Defendants Cody Brustkern and John Casey hold upper-level management
`
`positions at the Tyson Waterloo Facility.
`
`28.
`
`Hereinafter Tom Hart, Bret Tapken, Cody Brustkern, and John Casey will be
`
`collectively referred to as the “Supervisory Defendants.”
`
`29.
`
`The Supervisory Defendants are required to be familiar with all aspects of the
`
`Waterloo Facility and to identify potential safety hazards.
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`JURISDICTION AND VENUE
`
`30.
`
`This Court has jurisdiction over the Defendants because the acts and omissions
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`giving rise to the Plaintiffs’ claims occurred in Black Hawk County, Iowa.1
`
`31.
`
`Plaintiffs certify, pursuant to IA Code § 619.18, that this action meets applicable
`
`jurisdictional requirements for amount in controversy.
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`32.
`
`Venue is proper under IA Code § 616.18 because the Plaintiffs sustained injuries
`
`and damages in Black Hawk County.
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`FACTS COMMON TO ALL CAUSES OF ACTION
`
`The Pandemic
`33.
`COVID-19 is an infectious respiratory disease caused by a novel coronavirus
`
`(hereinafter “COVID-19” or “the virus”).
`
`34.
`
`COVID-19 is highly contagious.
`
`
`1 Plaintiffs filed this action in the District Court for Black Hawk County, Iowa and Defendants improperly removed
`to Federal Court. This case should be remanded for lack of subject matter jurisdiction.
`
`
`
`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 4 OF 32
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`35.
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`COVID-19 can result in serious, long-term health complications and has resulted
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`in more than 230,000 reported deaths in the United States to date.
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`36.
`
`Among these serious health complications, COVID-19 can cause inflammation in
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`the lungs, clogging the air sacs in the lungs, limiting the body’s oxygen supply and blood clots,
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`organ failure, liver damage, intestinal damage, heart inflammation, neurological malfunction,
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`and acute kidney disease.
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`37.
`
`The virus primarily spreads from person to person through respiratory droplets
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`produced when an infected person coughs or sneezes.
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`38.
`
`Spread is more likely when people are in close contact with one another (i.e.,
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`within 6 feet).
`
`39.
`
`The virus can be spread by people who are asymptomatic, pre-symptomatic, or
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`mildly symptomatic.
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`40.
`
`Distinctive factors that affect workers’ risk for exposure to COVID-19 in meat
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`processing facilities include distance between workers, duration of contact and type of contact
`
`between workers.
`
`41.
`
`The best way to prevent infection and illness is to avoid being exposed to the
`
`virus.
`
`42.
`
`The first known COVID-19 outbreak occurred in Wuhan, Hubei province,
`
`People’s Republic of China (“China”).
`
`43.
`
`Tyson Foods has extensive operations and business interests in China, and one of
`
`its subsidiaries operates a facility in Hubei province.
`
`
`
`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 5 OF 32
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`44.
`
`Tyson Foods has been focused on COVID-19 since January 2020 when it formed
`
`a “company coronavirus task force.” Tyson formed this task force after observing the impact of
`
`COVID-19 on its China operations.
`
`45.
`
`In January, nearly all of Tyson’s operations in China were affected by the
`
`COVID-19 outbreak. By February, Tyson halted operations at some facilities in China and
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`reduced operations at others.
`
`46.
`
`On January 11, 2020, Chinese state media reported its first known death from
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`COVID-19; Japan, South Korea, and Thailand reported confirmed cases by January 20, 2020;
`
`and the United States reported its first case on January 21, 2020.
`
`47.
`
`On January 31, the United States Department of Health and Human Services
`
`declared a national public health emergency.
`
`48.
`
`49.
`
`On March 8, three COVID-19 cases were reported in Iowa.
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`On March 9, Iowa Governor Kim Reynolds issued a Proclamation of Disaster
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`Emergency in response to the COVID-19 outbreak.
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`50.
`
`On March 11, the World Health Organization declared the COVID-19 outbreak a
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`global pandemic.
`
`51.
`
`On March 13, President Donald Trump declared a National Emergency in
`
`response to the COVID-19 outbreak.
`
`52.
`
`On or about March 13, Tyson Foods suspended all U.S. commercial business
`
`travel, forbid all non-essential visitors from entering Tyson offices and facilities, and mandated
`
`that all non-critical employees at its U.S. corporate office locations work remotely.
`
`53.
`
`On March 17, Governor Reynolds proclaimed a State of Public Health Disaster
`
`Emergency for the State of Iowa.
`
`
`
`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 6 OF 32
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`54.
`
`55.
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`On March 17, COVID-19 cases were confirmed in Black Hawk County.
`
`On March 24, President Trump approved a major disaster declaration for the State
`
`of Iowa in response to the COVID-19 outbreak.
`
`COVID-19 Outbreak at the Waterloo Facility
`56.
`The Waterloo Facility is Tyson’s largest pork plant in the United States. The
`
`facility employs approximately 2,800 workers who process approximately 19,500 hogs per day.
`
`57.
`
` By late-March, the Executive Defendants and Supervisory Defendants were
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`aware that COVID-19 was spreading through the Waterloo Facility.
`
`58.
`
`On April 3, 2020, the CDC recommended that all Americans wear face coverings
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`in public to prevent asymptomatic spread of COVID-19.
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`59.
`
`Tyson Foods did not provide its workers at the Waterloo Facility with sufficient
`
`face coverings, respirators, or other personal protective equipment.
`
`60.
`
`Tyson Foods did not implement or enforce sufficient social distancing measures
`
`at the Waterloo Facility.
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`61.
`
`The Executive Defendants and Supervisory Defendants had advance notice of the
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`danger COVID-19 posed to workers.
`
`62.
`
`In March, COVID-19 outbreaks occurred at Tyson’s Columbus Junction plant and
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`Camilla plant (in Georgia). Four Tyson employees at the Camilla plant died from the virus and
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`two employees at the Columbus Junction facility died.
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`63. Waterloo employees were ordered to deliver parts to the Columbus Junction plant
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`during the Columbus Junction outbreak. These employees did not quarantine and were not
`
`tested for COVID-19 when they returned to the Waterloo Facility.
`
`64.
`
`On or about April 6, 2020, Tyson temporarily suspended operations at its
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`Columbus Junction plant after more than two dozen employees tested positive for COVID-19.
`
`
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`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 7 OF 32
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`Consequently, a portion of the hogs that would have been processed at Columbus Junction were
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`redirected to the Waterloo Facility.
`
`65.
`
`In March and April, Packers Sanitation Services Incorporated (PSSI) employees
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`moved back-and-forth between Columbus Junction and the Waterloo Facility. PSSI employees
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`arriving from Columbus Junction did not quarantine and were not tested for COVID-19 prior to
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`entering the Waterloo Facility.
`
`66.
`
`By the time COVID-19 was detected at the Waterloo Facility, the Executive
`
`Defendants were fully informed of prior and ongoing outbreaks at Tyson facilities in China,
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`Columbus Junction, and Camilla. At a minimum, the Supervisory Defendants were well
`
`informed of the Columbus Junction outbreak.
`
`67.
`
`On or about April 6, 2020, Tyson Foods installed temperature check stations to
`
`scan persons entering the Waterloo Facility for fever. Tyson knew or should have known these
`
`temperature checks did not function as designed and workers taking certain medications could
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`lower their temperatures prior to coming to work and pass through even if they were ill.
`
`68.
`
`The Supervisory Defendants did not require truck drivers and subcontractors
`
`(such as PSSI employees) to have their temperatures checked before entering the Facility.
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`69.
`
`In late-March or early-April, the Supervisory Defendants and most managers at
`
`the Waterloo Facility started avoiding the plant floor because they were afraid of contracting the
`
`virus. Consequently, as the virus spread through the plant, the Supervisory Defendants and other
`
`managers increasingly delegated managerial authority and responsibilities to low-level
`
`supervisors with no management training or experience.
`
`70.
`
`In March and April the Supervisory Defendants cancelled regularly scheduled
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`safety meetings.
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`
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`71.
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`Even after learning of positive COVID-19 tests within the Waterloo Facility, the
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`Supervisory Defendants directed supervisors to deny knowledge of COVID-19 cases at the plant.
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`72.
`
`Consequently, in March and April supervisors—at the direction of the
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`Supervisory Defendants—falsely denied the existence of “confirmed cases” or “positive tests”
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`within the Waterloo Facility.
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`73.
`
`In April,
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`the Supervisory Defendants falsely
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`told workers
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`they had a
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`responsibility to keep working in order to ensure Americans don’t go hungry.
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`74.
`
`In April, the Supervisory Defendants falsely told workers that they would be
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`notified if they had been in close contact with a co-employee with a confirmed diagnosis of
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`COVID-19.
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`75.
`
`On April 10, 2020, Black Hawk County Sherriff Tony Thompson and Black
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`Hawk County health officials visited the Waterloo Facility.
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`76.
`
`According to Sherriff Thompson, working conditions at the Waterloo Facility
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`“shook [him] to the core.” Workers were crowded elbow to elbow; most without face coverings.
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`77.
`
`Sheriff Thompson and other local officials lobbied Tyson to close the plant, but
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`the company refused.
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`78.
`
`Around this time, Defendant Tom Hart, the Plant Manager of the Waterloo
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`Facility, organized a cash buy-in, winner-take-all betting pool for supervisors and managers to
`
`wager how many employees would test positive for COVID-19.
`
`79.
`
`On the night of April 12, 2020, nearly two-dozen Tyson employees were admitted
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`to the emergency room at MercyOne Waterloo Medical Center.
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`
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`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 9 OF 32
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`80.
`
`On April 14, Black Hawk County officials asked Tyson to temporarily shut down
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`the Waterloo plant due to the outbreak of positive cases and the risks to Tyson employees and
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`the community. Again, the company refused.
`
`81.
`
`On April 16, 2020, Tyson company officials publicly denied a COVID-19
`
`outbreak at the Waterloo Facility.2
`
`82.
`
`On or about April 17, 2020, twenty local elected officials sent a letter to Tyson
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`Foods imploring the company to take steps “to ensure the safety and well-being of Tyson’s
`
`valuable employees and our community” and to “voluntarily cease operations on a temporary
`
`basis at [the] Waterloo Facility so that appropriate cleaning and mitigation strategies can take
`
`place.”
`
`83.
`
`On or about April 19, Iowa state lawmakers filed an OSHA complaint against
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`Tyson Foods after Waterloo employees complained of unsafe working conditions amid the
`
`coronavirus pandemic. The complaint alleged: at least one Tyson employee had informed
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`Waterloo health care providers that he or she had been transferred to the Waterloo Facility from
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`Tyson’s Columbus Junction plant, which had closed due to a COVID-19 outbreak; workers did
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`not have sufficient personal protective equipment; social distancing measures were not being
`
`implemented or enforced on the plant floor or in employee locker rooms; nurses at the Waterloo
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`Facility lacked sufficient medical supplies and were unable to accurately conduct temperature
`
`checks; and because of language barriers, non-English speaking employees mistakenly believed
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`they could return to work while sick.
`
`
`2 See https://wcfcourier.com/business/local/tyson-workers-say-they-work-sick-clinic-seeing-
`tons-of-covid-19/article_965e046b-f4e8-5c57-99dd-2b9938734909.html
`
`
`
`
`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 10 OF 32
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`84.
`
`Tyson transferred workers to the Waterloo Facility from its Columbus Junction
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`plant after it shut down due to a COVID-19 outbreak.
`
`85.
`
`Tyson failed to test or adequately quarantine workers from the Columbus Junction
`
`plant before allowing them to enter the Waterloo Facility.
`
`86.
`
`The Supervisory Defendants permitted or encouraged sick and symptomatic
`
`employees and asymptomatic employees known or suspected to have been exposed to COVID-
`
`19 to continue working at the Waterloo Facility. At least one worker at the facility vomited on
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`the production line and management allowed him to continue working and return to work the
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`next day.
`
`87.
`
`The Supervisory Defendants ordered sick employees who were tested at the
`
`Waterloo Facility to return to work and continue working until they were notified that they had
`
`tested positive for COVID-19.
`
`88.
`
`Defendant John Casey explicitly directed supervisors to ignore symptoms of
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`COVID-19. Mr. Casey told supervisors they had to show up to work, even if they were
`
`exhibiting symptoms of COVID-19, and he directed supervisors to make their direct reports
`
`come to work, even if those direct reports were showing symptoms of COVID-19.
`
`89.
`
`On one occasion, Mr. Casey intercepted a sick supervisor en-route to get tested
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`and ordered the supervisor to get back to work, adding, “we all have symptoms—you have a job
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`to do.”
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`90.
`
`Tyson offered $500 “thank you bonuses” to employees who turned up for every
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`scheduled shift for three months. This policy further incentivized sick workers to continue
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`coming to work.
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`91.
`
`In March and April, supervisors and managers at the Waterloo Facility told
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`employees that their co-workers were sick with the flu (not COVID-19) and warned them not to
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`discuss COVID-19 at work.
`
`92.
`
`The Supervisory Defendants regularly downplayed the dangers of COVID-19.
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`For instance, John Casey regularly referred to COVID-19 as the “glorified flu” and told workers
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`not to worry about it because “it’s not a big deal; everyone is going to get it.”
`
`93.
`
`High-level Tyson executives began lobbying the White House for COVID-19
`
`related liability protections as early as March and continued their lobbying efforts throughout
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`April. Tyson officials dined at the White House and participated in several calls with President
`
`Trump and Vice President Pence during March and April.
`
`94.
`
`Tyson executives lobbied, or directed others to lobby, members of the U.S. House
`
`of Representatives or the U.S. Senate for COVID-19 related liability protections.
`
`95.
`
`Tyson executives lobbied, or directed others to lobby, Iowa Governor Reynolds
`
`for COVID-19 related liability protections.
`
`96.
`
`Tyson executives successfully lobbied, or directed others to lobby, Governor
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`Reynolds to issue an executive order stating that only the state government, not local
`
`governments, had the authority to close businesses in Northeast Iowa, including the Tyson
`
`Waterloo facility.
`
`97.
`
`On or about April 20, 2020, Governor Reynolds held a conference call with the
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`CEO of Tyson Foods, other high-ranking Tyson officials, and Tyson lobbyist Matt Eide. On
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`information and belief, Tyson officials downplayed the seriousness of the COVID-19 outbreak at
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`the Waterloo Facility and exaggerated the efficacy of safety measures implemented at the
`
`facility.
`
`
`
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`98.
`
`According to Tyson Foods, the company began winding down operations at the
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`Waterloo Facility on April 20 because a lack of available healthy labor, but the plant did not shut
`
`down until April 22, after the company had processed the remaining hog carcasses in its cooler.
`
`99.
`
`On April 22, 2020, Tyson Foods announced plans to indefinitely suspended
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`operations at the Waterloo Facility.
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`100. On or about April 26, 2020, Tyson Foods placed a full-page advertisement in The
`
`New York Times, Washington Post and Arkansas Democrat-Gazette entitled “A Delicate
`
`Balance: Feeding the Nation and Keeping Our Employees Healthy,” which asserted that “the
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`food supply chain is breaking.” The advertisement, signed by Defendant John H. Tyson, warned
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`that “millions of pounds of meat will disappear from the [U.S.] supply chain” due to plant
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`closures and, “[a]s a result, there will be limited supply of our products available in grocery
`
`stores” until closed facilities reopen. The advertisement stressed that Tyson had a “responsibility
`
`to feed our nation.”
`
`101.
`
` On numerous occasions in April, Tyson executives (including Defendants John
`
`H. Tyson, Noel W. White, Dean Banks, and Stephen R. Stouffer) and company spokespersons
`
`(including Liz Croston and Gary Mickelson) publicly argued that it was necessary to continue
`
`operating meat processing facilities during the pandemic (despite uncontrolled COVID-19
`
`outbreaks at many of those facilities) in order to feed Americans.
`
`102. Tyson exports to China increased by 600% in the first quarter of 2020. In fact,
`
`Tyson exported 1,289 tons of pork to China in April 2020, its largest single month total in more
`
`than three years.
`
`
`
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`103. On April 28, President Trump signed an executive order classifying meat
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`processing plants as essential infrastructure that must remain open. The stated purpose for the
`
`order was to avoid risk to the nation’s food supply.
`
`104. On May 1, 2020, the human resources director of the Tyson Waterloo Facility
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`told local officials that the plant was weeks away from reopening; however, the plant reopened
`
`six days later.
`
`105. The Black Hawk County Health Department has recorded more than 1,000
`
`infections among Tyson employees—more than one third of the Tyson Waterloo workforce—
`
`and at least 5 workers have died.
`
`106. Dr. Nafissa Cisse Egbuonye, director of the Black Hawk County Health
`
`Department, attributed 90% of the county’s COVID-19 cases to the Tyson Waterloo Facility.
`
`107. A grossly disproportionate number of Tyson Waterloo workers have been infected
`
`with COVID-19 compared to the general populations of Black Hawk County and Iowa.
`
`108. At the time of filing this lawsuit, more than 8,500 Tyson employees had
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`contracted COVID-19, more than double the number for any other company, and at least 20 had
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`died nationwide. A grossly disproportionate number of Tyson workers have been infected with
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`COVID-19 compared to the general population of the United States.
`
`109. At all relevant times, the Supervisory Defendants and Executive Defendants
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`individually and collectively had responsibility for Ms. Buljic, Mr. Garcia and Mr. Ayala’s
`
`safety and work conditions.
`
`110. Plaintiff Hus Hari Buljic, as Administrator of the Estate of Sedika Buljic, seeks
`
`recovery from Defendants for all damages cognizable under Iowa law including but not limited
`
`to:
`
`
`
`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 14 OF 32
`Case 6:20-cv-02055-LRR-KEM Document 40 Filed 11/18/20 Page 14 of 32
`
`

`

`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`f.
`
`g.
`
`Sedika Buljic’s pre-death physical and mental pain and suffering;
`
`Sedika Buljic’s pre-death loss of function of the mind and body;
`
`Sedika Buljic’s pre-death fright and emotional distress;
`
`Sedika Buljic’s pre-death medical expenses;
`
`Pecuniary loss of accumulation to the Estate of Sedika Buljic;
`
`Interest on premature burial expenses; and
`
`Past and future loss of the love, services, society, companionship, support,
`
`affection, and consortium suffered by Hus Hari Buljic as a result of the
`
`death of his wife.
`
`111. Plaintiff Honario Garcia, as Administrator of the Estate of Reberiano Garcia,
`
`seeks recovery from Defendants for all damages cognizable under Iowa law including but not
`
`limited to:
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`f.
`
`g.
`
`Reberiano Garcia’s pre-death physical and mental pain and suffering;
`
`Reberiano Garcia’s pre-death loss of function of the mind and body;
`
`Reberiano Garcia’s pre-death fright and emotional distress;
`
`Reberiano Garcia’s pre-death medical expenses;
`
`Pecuniary loss of accumulation to the Estate of Reberiano Garcia;
`
`Interest on premature burial expenses; and
`
`Past and future loss of the love, services, society, companionship, support,
`
`affection, and consortium suffered by Honario Garcia, Lorenzo Garcia,
`
`Aureliana Garcia, Eucebia Garcia, and minor children M.G. and A.G. as a
`
`result of the death of their father.
`
`
`
`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 15 OF 32
`Case 6:20-cv-02055-LRR-KEM Document 40 Filed 11/18/20 Page 15 of 32
`
`

`

`112. Plaintiffs Arturo de Jesus Henrandez and Miguel Angel Hernandez as Co-
`
`Administrators of the Estate of Jose Ayala, seek recovery from Defendants for all damages
`
`cognizable under Iowa law including but not limited to:
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`f.
`
`Jose Ayala’s pre-death physical and mental pain and suffering;
`
`Jose Ayala’ pre-death loss of function of the mind and body;
`
`Jose Ayala’s pre-death fright and emotional distress;
`
`Jose Ayala’s pre-death medical expenses;
`
`Pecuniary loss of accumulation to the Estate of Jose Ayala; and
`
`Interest on premature burial expenses.
`
`FIRST CAUSE OF ACTION
`CLAIMS AGAINST TYSON FOODS
` (FRAUDULENT MISREPRESENTATION, VICARIOUS LIABILITY AND PUNITIVE DAMAGES)
`113. Plaintiffs incorporate by reference all allegations contained in this Complaint.
`
`114.
`
`In March and April of 2020, Defendant Tyson Foods, through the Supervisory
`
`Defendants,made numerous false representations to Sedika Buljic, Reberiano Garcia, Jose Ayala,
`
`and other workers at the Waterloo Facility concerning: (1) the presence and spread of COVID-19
`
`at the facility; (2) the importance of protecting and keeping workers safe; (3) the efficacy of
`
`safety measures implemented at the facility; and (4) the need to keep the facility open to avoid
`
`U.S. meat shortages.
`
`115.
`
`In March and April, Tyson Foods, through the Supervisory Defendants, falsely
`
`represented to Ms. Buljic, Mr. Garcia, Mr. Ayala, and others workers at the Waterloo Facility
`
`that:
`
`a.
`
`b.
`
`c.
`
`COVID-19 had not been detected at the facility;
`
`COVID-19 was not spreading through the facility;
`
`Worker absenteeism was unrelated to COVID-19;
`
`
`
`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 16 OF 32
`Case 6:20-cv-02055-LRR-KEM Document 40 Filed 11/18/20 Page 16 of 32
`
`

`

`d.
`
`e.
`
`Sick workers were not permitted to enter the facility;
`
`Sick or symptomatic workers would be sent home immediately and would
`
`not be permitted to return until cleared by health officials;
`
`f.
`
`Workers would be notified if they had been in close contact with an
`
`infected co-worker;
`
`Tyson’s “top priority” is the health and safety of its “team members;”
`
`Safety measures implemented at the facility would prevent or mitigate the
`
`spread of COVID-19 and protect workers from infection;
`
`The Waterloo Facility needed to stay open in order to avoid U.S. meat
`
`shortages; and
`
`The Waterloo Facility was a safe work environment.
`
`g.
`
`h.
`
`i.
`
`j.
`
`116. Tyson Foods knew these representations were false, and knew or should have
`
`known that it was wrong to make such false representations.
`
`117. These representations were material in that Ms. Buljic, Mr. Garcia and Mr. Ayala
`
`would not have continued coming to work had they been informed of the extent of the COVID-
`
`19 outbreak at the Waterloo Facility.
`
`118. Tyson intended by these false representations to deceive workers at the Waterloo
`
`Facility, including Ms. Buljic, Mr. Garcia and Mr. Ayala, and to induce them to continue
`
`working despite the uncontrolled COVID-19 outbreak at the plant and the health risks associated
`
`with working at the Waterloo Facility.
`
`119. Ms. Buljic, Mr. Garcia, Mr. Ayala, and others accepted and relied on Tyson’s
`
`representations as true, and were justified in doing so.
`
`120. Tyson Foods thereby induced Ms. Buljic, Mr. Garcia, Mr. Ayala and others to
`
`
`
`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 17 OF 32
`Case 6:20-cv-02055-LRR-KEM Document 40 Filed 11/18/20 Page 17 of 32
`
`

`

`continue working at the Waterloo Facility.
`
`121. Tyson’s false representations directly and proximately caused Plaintiffs’ injuries
`
`and were a substantial factor in causing Plaintiffs’ injuries.
`
`122. Tyson Foods is vicariously liable for the culpable acts and omissions committed
`
`by all of its agents acting within the course and scope of their agency, including but not limited
`
`to the executives and supervisors named in this Complaint.
`
`123. Tyson Foods’ acts and omissions were grossly negligent, reckless, intentional,
`
`and constitute willful and wanton misconduct.
`
`124. Tyson Foods’ fraudulent misrepresentations and prolonged refusal to temporarily
`
`close down the Waterloo Facility despite knowing that many workers at the plant had tested
`
`positive for COVID-19 and despite knowing that COVID-19 was rapidly spreading through the
`
`workforce at the Waterloo Facility are evidence of Tyson’s incorrigible, willful and wanton
`
`disregard for workplace safety and culpable state of mind.
`
`125. Tyson knowingly and intentionally prioritized profits over the health, safety and
`
`well-being of its Waterloo employees.
`
`126. Tyson’s lobbying efforts for liability protections while simultaneously failing to
`
`sufficiently protect its workers from COVID-19 is further evidence of the company’s
`
`incorrigible, willful and wanton disregard for workplace safety and culpable state of mind.
`
`127. An award of punitive damages is necessary to punish Tyson Foods for its willful
`
`and wanton disregard for workplace safety and to deter it and other similarly situated companies
`
`from jeopardizing workers’ lives in the future.
`
`
`
`
`
`
`
`FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL — PAGE 18 OF 32
`Case 6:20-cv-02055-LRR-KEM Document 40 Filed 11/18/20 Page 18 of 32
`
`

`

`SECOND CAUSE OF ACTION
`CLAIMS AGAINST TYSON EXECUTIVES
` (GROSS NEGLIGENCE AND PUNITIVE DAMAGES)
`128. Plaintiffs incorporate by reference all allegations contained in this Complaint.
`
`129. At all relevant times, Tyson Foods employed the Executive Defendants in
`
`managerial capacities.
`
`130. At all relevant times, the Executive Defendants were acting within the course and
`
`scope of their employment.
`
`131. The Executive Defendants had a duty to exercise reasonable care to prevent
`
`injuries to employees such as Sedika Buljik, Reberiano Garcia, and Jose Ayala.
`
`132. The Executive Defendants were regularly briefed on positive COVID-19 cases at
`
`Tyson facilities, and they learned that the virus had been detected at the Waterloo Facility within
`
`days of the first confirmed case.
`
`133. The Executive Def

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