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`Case 2:20-cv-00203-Z-BR Document 46 Filed 06/28/21 Page 1 of 9 PageID 630Case 2:20-cv-00203-Z-BR Document 46 Filed 06/28/21 Page 1 of 9 PageID 630
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`AMARILLO DIVISION
`
`NO. 2:20-cv-00203-Z
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`JAMIE WAZELLE; TAY AUNG;
`ELIZABETH CASEL; MANIVANH
`CHANTHANAKHONE; MANUEL
`CONTRERAS; REBECA CORRAL;
`PATRICIA COSSEY; JOZETTE
`ESCOTO; CRUZ GARCIA, SR.; SHERYL
`GARDNER; DENETRIA GONZALEZ;
`RENE GUTIERREZ; BRIAN HALL;
`BRANDON IVORY; NINI AYE
`KAYAHPHU; KO LATT; ARMANDO
`LIRA; DERESTIA LIRA; MYA LIRA;
`VALARIE LIRA; AUNG MOE; BIAK
`MORRIS; MALEAK RECTOR;
`MARICELA RIOS; NATASHA RIOS;
`GUADALUPE RONDAN; MIGUEL
`RONDAN; JAVIER RUBIO; IGNACIO
`RUIZ; SYLVIA RUIZ; MITCHELL
`SANCHEZ; BILLY SHAW; KYAW SOE;
`NYEIN SOE; THIDA SOE; BREANA
`SOLIS; LADONNA TRULL; AND TIN
`SOE, Individually and as Personal
`Representative of the Estate of Maung
`Maung Tar; DANNY WOODALL;
`CARLOS CORRAL; and JONATHAN
`HAWS,
`
`Plaintiffs,
`
`vs.
`
`TYSON FOODS, INC.; ERNESTO
`SANCHEZ; KEVIN KINIKIN; and FAR-
`REN FERNANDEZ,
`
`Defendants.
`
`DEFENDANT TYSON FOODS, INC.’S
`SUPPLEMENTAL MOTION TO DISMISS
`PLAINTIFFS’ FIRST AMENDED COMPLAINT
`
`
`
`
`
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`Earlier this month, Governor Abbott signed the Pandemic Liability Pro-
`tection Act, which protects businesses and other organizations from liability
`for alleged exposure to pandemic diseases like COVID-19. Because the Act pro-
`vides a new ground for dismissal that was not “available to [Defendant]” at the
`time of its “earlier motion,” Fed. R. Civ. P. 12(g)(2), Defendant Tyson Foods,
`Inc. respectfully requests leave to supplement its pending Rule 12(b)(6) motion
`to dismiss. [Dkt. 6]
`
`INTRODUCTION
`The Act imposes a heightened standard for liability for claims against
`businesses and individuals for “injury or death caused by exposing an
`individual to pandemic disease,” removing them from the typical negligence
`framework. Plaintiffs bear the heavy burden of pleading, and ultimately
`proving, that Tyson “knowingly” failed to warn of or remediate conditions that
`Tyson knew were likely to result in Plaintiffs’ exposure to COVID-19, and that
`“reliable scientific evidence” shows that Tyson’s alleged conduct “was the cause
`in fact” of Plaintiffs’ COVID-19 infections. Plaintiffs’ complaint fails to satisfy
`those requirements.
`
`THE ACT
`The Pandemic Liability Protection Act, which became effective
`immediately after Governor Abbott signed it into law on June 14,1 provides
`that individuals, businesses, and other entities are “not liable for injury or
`
`
`1 The relevant portion of the Act will be codified at Tex. Civ. Prac. & Rem.
`Code § 148.003.
`
`1
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`death caused by exposing an individual to a pandemic disease during a
`pandemic emergency” unless the plaintiff establishes that the defendant:
`
`(A) knowingly failed to warn the [plaintiff] of or remediate a
`condition that the [defendant] knew was likely to result in
`the exposure of an individual to the disease, provided that
`the [defendant]:
`(i)
`had control over the condition;
`(ii)
`knew that the [plaintiff] was more likely than not to
`come into contact with the condition; and
`(iii) had a reasonable opportunity and ability to remediate
`the condition or warn the [plaintiff] of the condition
`before the [plaintiff] came into contact with the
`condition; or
`(B) knowingly failed to implement or comply with government-
`promulgated standards, guidance, or protocols intended to
`lower the likelihood of exposure to the disease that were
`applicable to the [defendant] or the [defendant’s] business,
`provided that:
`(i)
`the [defendant] had a reasonable opportunity and
`ability to implement or comply with the standards,
`guidance, or protocols;
`the [defendant] refused to implement or comply with
`or acted with flagrant disregard of the standards,
`guidance, or protocols; and
`the government-promulgated standards, guidance, or
`protocols that the [defendant] failed to implement or
`comply with did not, on the date that the [plaintiff]
`was exposed to the disease, conflict with government-
`promulgated standards, guidance, or protocols that
`the [defendant] implemented or complied with….
`S.B. 6, Section 3 (“Sec. 148.003”).
`
`(iii)
`
`(ii)
`
`In addition, Plaintiffs must also establish that “reliable scientific
`evidence shows that the failure to warn the [plaintiff] of the condition,
`
`2
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`
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`
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`I.
`
`the
`comply with
`or
`implement
`or
`condition,
`the
`remediate
`government-promulgated standards, guidance, or protocols was the cause in
`fact of the [plaintiff’s] contracting the disease.” Id.
`ARGUMENT
`The Pandemic Liability Protection Act applies to this case.
`The Act applies retroactively to “any action commenced on or after
`March 13, 2020, for which a judgment has not become final before the effective
`date of this Act.” S.B. 6, Section 5(a) (2021). The Plaintiffs filed their Original
`Petition in the Potter Country District Court in July 2020, and no final
`judgment has been entered. [Dkt. 1-3] The Act therefore applies to this case.
`
`II. The Complaint fails to allege the statutorily required
`elements to impose liability.
`To survive a 12(b)(6) motion, “every element of each cause of action must
`be supported by specific factual allegations.” Kan v. OneWest Bank, FSB, 823
`F. Supp. 2d 464, 468 (W.D. Tex. 2011). Plaintiffs have the burden of pleading
`all element of both Sec. 148.003(a)(1) (the “Knowing Conduct Requirement”)
`and (a)(2) (the “Causation Requirement”). Plaintiffs have failed to carry their
`burden as to either.
`A. The Knowing Conduct Requirement
`Plaintiffs must allege facts demonstrating that Defendants either
`(1) knowingly failed to warn about or remediate a condition that Defendants
`knew would likely expose Plaintiffs to COVID-19 or (2) knowingly failed to
`implement or comply with government-promulgated guidance that was
`intended to lower the likelihood of exposure and was applicable to Tyson’s
`business at the time Plaintiffs were allegedly exposed.
`
`3
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`But the Complaint—which alleges only “negligence,” “gross negligence,”
`and premises liability2—contains no such allegations. The closest Plaintiffs
`come are allegations that Tyson “either knew or should have known that the
`condition on its premises created an unreasonable risk of harm” and that Tyson
`“should have known that the conditions regarding COVID-19 posed an
`unreasonable risk of harm to invitees.” [Dkt. 1-14 ¶ 69 (emphasis added)]
`Constructive knowledge—what Tyson “should have known”—is not the
`same as actual knowledge. City of Corsicana v. Stewart, 249 S.W.3d 412, 414–
`15 (Tex. 2008) (“Actual knowledge requires knowledge that the dangerous
`condition existed at the time of the accident, as opposed to constructive
`knowledge which can be established by facts or inferences that a dangerous
`condition could develop over time.”). Nor do Plaintiffs allege a knowing failure
`to implement or comply with government-promulgated guidance.
`Plaintiffs likewise do not allege that Tyson knowingly failed to warn
`Plaintiffs about a dangerous condition or remedy that condition. They allege
`only that Tyson failed to give “adequate warning” and failed to exercise
`“ordinary care to keep its premises in reasonably safe condition.” [Dkt. 1-14
`¶ 67] That is not enough to deprive Tyson of statutory protection from liability.
`Plaintiffs also fail to allege other statutory elements associated with
`Tyson’s compliance with government-promulgated guidance, including that:
`
`
`2 Plaintiff Tin Soe also alleges a wrongful death and survival claim on
`behalf of Maung Maung Tar. However, each of those claims is derivative in
`that it must be premised upon Maung Maung Tar’s ability to bring those claims
`immediately prior to death. Thus, absent pleading and proof compliant with
`Section 148.003, those claims fail. In re Labatt Food Svc., L.P., 279 S.W.3d 640,
`644 (Tex. 2009).
`
`4
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` Tyson had a reasonable opportunity to implement that
`guidance prior to Plaintiffs’ alleged exposure to COVID-19
`(§ 148.003(a)(1)(B)(i));
` Tyson refused to implement or comply with that guidance
`(§ 148.003(a)(1)(B)(ii)); and
` Government-promulgated guidance did not conflict with other
`government guidance on the date Plaintiffs were exposed to
`COVID-19 (§ 148.003(a)(1)(B)(iii)).
`The Act places the burden on Plaintiffs to allege—and prove—actual
`knowledge and all other elements set out in Section 148.003(a)(1). The
`Complaint does not include any such allegations and should be dismissed.
`B. The Causation Requirement
`Tyson’s pending motion to dismiss explains that the Complaint should
`be dismissed for failure to satisfy federal pleading standards that require
`plausible, non-conclusory allegations of causation. [Dkt. 6 at 10–16]
`The Act now imposes even greater requirements for causation, requiring
`that Plaintiffs allege the existence of “reliable scientific evidence” that
`Defendants’ alleged conduct was “the cause in fact of the [Plaintiffs]
`contracting the disease.” § 148.003(a)(2). Under either standard, the posture of
`this case requires individualized allegations supporting causation as to each of
`the 40-plus Plaintiffs.
`Plaintiffs have not alleged any facts—much less facts supported by
`“reliable scientific evidence”—to support the conclusion that any alleged
`conduct by Tyson or the other Defendants was the “cause in fact” of Plaintiffs’
`alleged injuries. Indeed, Plaintiffs’ allegations of causation amount to little
`more than the unadorned, unsupported claim that each Plaintiff “contracted
`
`5
`
`
`
`
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`COVID-19 because of the unsafe working conditions at the Amarillo, Texas
`facility.” [Dkt. 1-14 ¶¶ 7–47] Plaintiffs do not articulate any mechanism of
`infection for even a single Plaintiff, nor do they allege facts that would foreclose
`the possibility that one or all of them contracted COVID-19 from alternative
`sources or before Tyson had the opportunity to warn or take any other action.
`And none of Plaintiffs’ allegations are supported by “reliable scientific
`evidence.” For this reason, too, the Complaint should be dismissed.
`
`CONCLUSION
`The legislature enacted the Pandemic Liability Protection Act to protect
`businesses and other organizations from liability for alleged exposure to pan-
`demic diseases like COVID-19. The Complaint fails to allege any of the ele-
`ments necessary to fit within the narrow exceptions to that protection. The
`Complaint therefore fails to state a claim and should be dismissed.
`
`Dated: June 28, 2021
`
`Respectfully submitted,
`
`
`
`
`
` /s/ Christopher S. Coleman
`Kelly Utsinger
`Texas Bar No. 20416500
`C. Jason Fenton
`Texas Bar No. 24087505
`UNDERWOOD LAW FIRM, P.C.
`500 S. Taylor, Suite 1200
`Amarillo, Texas 79101
`Telephone: 806.376.5613
`Facsimile: 806.379.0316
`Kelly.Utsinger@uwlaw.com
`Jason.Fenton@uwlaw.com
`
`
`6
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`
`
`
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`
`
`Christopher S. Coleman
`Arizona Bar No. 018287
`Jessica L. Everett-Garcia
`Arizona Bar No. 018359
`PERKINS COIE LLP
`Admitted Pro Hac Vice
`2901 North Central Avenue
`Suite 2000
`Phoenix, Arizona 85012-2788
`Telephone: 602.351.8000
`Facsimile: 602.648.7000
`CColeman@perkinscoie.com
`JEverettGarcia@perkinscoie.com
`
`ATTORNEYS FOR DEFENDANTS
`
`
`
`7
`
`
`
`
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`CERTIFICATE OF SERVICE
`
`This is to certify that, on June 28, 2021, a true and correct copy of the foregoing
`document was served upon all counsel of record via the Court’s CM/ECF system as
`follows:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Kurt Arnold
`
`Caj Boatright
`Roland Christensen
`Joseph McGowin
`
`Claire Traver
`
`Andrew Gould
`
`6009 Memorial Drive
`Houston, Texas 77007
`karnold@arnolditkin.com
`cboatright@arnolditkin.com
`rchristensen@arnolditkin.com
`jmcgowin@arnolditkin.com
`ctraver@arnolditkin.com
`agould@arnolditkin.com
`kbateam@arnolditin.com
`e-service@arnolditkin.com
`ATTORNEYS FOR PLAINTIFFS
`
`Joe L. Lovell
`LOVELL, LOVELL, ISERN
` & FARABOUGH, LLP
`Eagle Centre Building
`112 W. 8th, Suite 1000
`Amarillo, Texas 79101
`joe@lovell-law.net
`
` /s/ Christopher S. Coleman
`
`
`
`
`
`
`8
`
`
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