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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`AMARILLO DIVISION
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`CIVIL ACTION NO.
`2:20-CV-00203-Z
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`Jaime 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;
`Bia 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,
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`Plaintiffs,
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`v.
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`Tyson Foods, Inc.; Ernesto Sanchez;
`Kevin Kinikin; and Farren Fernandez,
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`Defendants
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`PLAINTIFFS’ RESPONSE TO DEFENDANT
`TYSON FOODS, INC.’S SUPPLEMENTAL MOTION TO DISMISS
`PLAINTIFFS’ FIRST AMENDED COMPLAINT
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`For the reasons set forth below, the Court should deny Defendant Tyson Foods, Inc.’s
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`supplemental motion to dismiss Plaintiffs’ first amended complaint.
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`I.
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`STATEMENT OF THE ISSUES
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`1.
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`Does Plaintiffs’ first amended complaint allege facts sufficient to survive Tyson’s
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`Rule 12(b)(6) motion to dismiss under the recently enacted Pandemic Liability Protection Act?
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`II.
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`SUMMARY OF THE ARGUMENT
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`
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`This case arises out of injuries Plaintiffs sustained while working at Tyson Foods’
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`meatpacking plant in Amarillo, Texas. The global COVID-19 pandemic has swept the country
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`affecting almost 18 million people, and so far has caused the deaths of over 300,000 Americans.
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`Meatpacking plants have been particularly hard hit as companies like Tyson failed to protect
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`their employees.
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`
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`Plaintiffs in this suit contracted COVID-19 while working for Tyson. They filed suit in
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`Texas state court bringing exclusively state law claims against Tyson for negligence and gross
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`negligence. Tyson removed the suit and filed a motion to dismiss arguing that Plaintiffs’
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`complaint fails to properly allege causation and that Plaintiffs’ claims are preempted by the
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`Federal Meat Inspection Act (“FMIA”). Plaintiffs have already responded to that motion
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`showing that their most recent petition is more than adequate under the federal rules.
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`
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`Most recently, Tyson has filed a supplemental motion to dismiss arguing that the newly
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`enacted Pandemic Liability Protection Act is cause for dismissal of Plaintiffs’ claims. But even
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`under this new legislation, Plaintiffs’ most recent petition passes muster. Thus, accepting the
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`pleaded facts as true and resolving all reasonable inferences in Plaintiffs’ favor, Plaintiffs’ claims
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`should not be dismissed.
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`1
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`III.
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`FACTUAL BACKGROUND
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`Plaintiffs are Tyson workers who contracted COVID-19 because of unsafe working
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`conditions and the negligent acts of Defendants at the Amarillo, Texas Tyson facility.
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`In the spring of 2020, the COVID-19 pandemic began sweeping the United States. Many
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`states and counties began implementing proactive safety measures to prevent the spread of
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`COVID-19. This included the State of Texas. Texas Governor Greg Abbott issued a stay-at-
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`home order for the state that took effect on April 2, 2020. Despite the stay-at-home order,
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`Plaintiffs were required to continue working at the Tyson meatpacking plant in Amarillo.
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`Both before and after the April 2 stay-at-home order, Tyson failed to take adequate
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`precautions to protect the workers at its meatpacking facilities, including the Amarillo, Texas
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`plant. Even when the rest of the country and the state of Texas were taking significant
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`precautions to prevent the spread of COVID-19, Tyson failed to do the same. And even after the
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`April 2 order, Tyson still required its employees to come to work and did not provide adequate
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`precautions and protections to help protect its employees from COVID-19.
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`Tyson was directly responsible for implementing a safe work environment at its Amarillo
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`meatpacking plant. And Tyson was also directly responsible for implementing and enforcing
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`adequate safety measures to prevent the spread of COVID-19 to the Tyson employees working at
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`the Amarillo plant. But despite knowing of the dangers, Tyson failed to provide a safe working
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`environment for Plaintiffs. As a direct result of Tyson’s negligence and gross negligence of
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`Plaintiffs contracted COVID-19 at the meatpacking plant. As a result, Plaintiffs have
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`experienced significant injuries.
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`2
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`IV.
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`LEGAL STANDARD
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`“A Rule 12(b)(6) motion allows a party to move for dismissal of an action when the
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`complaint fails to state a claim upon which relief can be granted.” Lahman v. Cape Fox Corp.,
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`4:17-CV-00305, 2018 WL 4205424, at *1 (E.D. Tex. Sept. 4, 2018) (citing FED. R. CIV. P.
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`12(b)(6)). But Rule 12(b)(6) motions are generally “‘viewed with disfavor’” and are “‘rarely
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`granted.’” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
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`
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`“To defeat a Rule 12(b)(6) motion to dismiss, a plaintiff must ‘nudge[ ] their claim across
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`the line from conceivable to plausible’ by pleading ‘enough facts to state a claim to relief that is
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`plausible on its face.’” Webb v. Livingston, 6:13CV711, 2014 WL 11860703, at *1 (E.D. Tex.
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`May 5, 2014) (annotations as in original) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
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`570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows
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`the [C]ourt to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged.” Lahman, 2018 WL 4205424, at *1 (citing Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.
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`2009) (internal quotations omitted)). This means that the plaintiff’s complaint “need only include
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`‘a short and plain statement of the claim showing that the pleader is entitled to relief.’” Harris v.
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`Coastal Offshore, Inc., CIV.A. C-11-58, 2011 WL 2457922, at *2 (S.D. Tex. June 16, 2011)
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`(quoting FED. R. CIV. P. 8(a)(2)). The plaintiff’s statement of a claim “must simply give [the]
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`defendant fair notice of what [the] plaintiff’s claim is and grounds upon which it rests.”
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`Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-15 (2002). This is a “liberal and simplified
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`‘notice of pleading’ standard.” Id.
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`When deciding a Rule 12(b)(6) motion to dismiss, the court “‘must accept all well-
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`pleaded facts as true and view them in the light most favorable to the plaintiff.’” Morris v. Conn
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`3
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`Credit Co., CV H-13-195, 2013 WL 12157173, at *1 (S.D. Tex. July 25, 2013) (quoting Baker v.
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`Putnal, 75 F.3d 190, 198 (5th Cir. 1996)). In other words, “[t]he court is required to construe the
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`complaint liberally in favor of the plaintiff, and take all facts pleaded in the complaint as true.”
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`Webb, 2014 WL 11860703, at *1 (citing Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th
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`Cir. 1986)). Plaintiffs need only establish “more than a sheer possibility that a defendant has
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`acted unlawfully.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). And “[a]bsent a
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`claim which is obviously insufficient, a court should not grant a Rule 12(b)(6) motion to dismiss,
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`thereby denying [the] [p]laintiff an opportunity to develop facts to support his complaint.”
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`Hoppenstein v. Ruckel, 4:14-CV-467, 2015 WL 294295, at *3 (E.D. Tex. Jan. 22, 2015).
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`V.
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`ARGUMENT
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`1. Plaintiffs’ complaint alleges facts that are plausible on there face and establish that
`Tyson knowingly exposed them to COVID-19.
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`
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`Under the recently enacted Pandemic Liability Protection Act, Plaintiffs need only
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`establish that Tyson “knowingly failed to warn [them] of or remediate a condition that [Tyson]
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`knew was likely to result in the exposure of [Plaintiffs] to the disease” or that Tyson “knowingly
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`failed to implement or comply with government-promulgated standards, guidance or protocols
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`intended to lower the likelihood of exposure to the disease . . .” TEX. CIV. PRAC. & REM. CODE
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`§ 148.003(a)(1)(A)-(B). In short, Tyson is liable under the failure to warn prong if it “(i) had
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`control over the condition; (2) knew that [Plaintiffs were] more likely than not to come into
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`contact with the condition; and (3) had a reasonable opportunity and ability to remediate the
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`condition or warn [Plaintiffs] of the condition before [they] came into contact with the
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`condition.” TEX. CIV. PRAC. & REM. CODE § 148.003(1)(A)(i)-(iii). And it is liable under the
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`failure to implement prong if Tyson “(i) . . . had a reasonable opportunity and ability to
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`4
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`implement or comply with the standards, guidance or protocols; (ii) . . . refused to implement or
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`comply with or acted with flagrant disregard of the standards, guidance, or protocols; and (iii)
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`the government-promulgated standards, guidance, or protocols that the person failed to
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`implement or comply with did not, on the date that the individual was exposed to the disease,
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`conflict with government-promulgated standards, guidance, or protocols that the person
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`implemented or complied with . . .” TEX. CIV. PRAC. & REM. CODE § 148.003(a)(1)(B)(i)-(iii).
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`In their first amended complaint, Plaintiffs allege that Tyson failed to take the necessary
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`precautions and implement the necessary protections to help prevent the spread of COVID-19 at
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`their meatpacking facilities, including the Amarillo, Texas facility where Plaintiffs worked. See
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`Ex. 1: Pls.’ First Am. Pet., at ¶ 54. On April 2, 2020, Governor Abbott issued a stay-at-home
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`order for Texas residents in an effort to help slow the spread of COVID-19. Id. at ¶ 53. But
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`despite the order, Plaintiffs were required to continue working at the Tyson meatpacking plant.
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`Id. Even when the rest of the country, and specifically the state of Texas, was taking adequate
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`precautions to prevent, or at least slow, the spread of the virus, Tyson did not do the same thing.
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`Id. at ¶ 54. Tyson was directly responsible to implement a safe work environment by providing
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`the workers adequate protections. Id. at ¶ 55. Tyson should have enforced safety measures to
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`prevent the spread of COVID-19 to Plaintiffs. Id. But Tyson failed to take simple precautionary
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`measures. Id. As a direct result of these failures, Plaintiffs contracted COVID-19. Id.
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`
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`In Plaintiffs’ complaint, they point out that thousands of Tyson employees have been
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`exposed to COVID-19 at Tyson facilities throughout the country. Id. at ¶ 56. At the time of
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`filing, at least 7,100 Tyson employees had contracted COVID-19, and at least 24 Tyson
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`employees had died as a result of exposure to the virus at Tyson’s meatpacking facilities. Id. In
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`5
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`short, it is well known that Tyson employees have experienced a much higher rate of positive
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`cases of COVID-19 than the rest of the country.
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` In July 2020, the CDC issued a report discussing the high rate of COVID-19 among
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`workers in meat and poultry processing facilities across the United States.1 The report
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`concluded, “COVID-19 outbreaks among meat and poultry processing facility workers can
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`rapidly affect large numbers of persons.” Id. By the end of May 2020, data from 23 states
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`showed that COVID-19 was diagnosed in 9.1% of meat and poultry processing workers. Id.
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`Several factors, including “prolonged close workplace contact with coworkers, . . . shared work
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`spaces, shared transportation to and from the workplace, congregate housing, and frequent
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`community contact with fellow workers” contributed to the spread and high rate of infection. Id.
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`“The percentage of workers with COVID-19 ranged from 3.1% to 24.5% per facility.” Id.
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`Tyson meatpacking plants have experienced these same high rates of infection.2 Given
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`these statistics, Plaintiffs’ allegations that they (1) are Tyson workers; (2) were not provided with
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`appropriate PPE protections to limit the spread of COVID-19; and (3) contracted the virus from
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`working at Tyson, are plausible on their face and certainly enough to show causation.
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`1 See “Update: COVID-19 Among Workers in Meat and Poultry Processing Facilities—United States,
`April-May 2020,” https://www.cdc.gov/mmwr/volumes/69/wr/mm6927e2.htm.
`2 For example, in Tyson’s Waterloo plant, 1000 of the 2800 workers were reported to have contracted the
`disease. (See “Families of 3 dead workers sue Tyson Foods over coronavirus outbreak” accessed on Sept.
`16 at https://fortune.com/2020/06/26/tyson-foods-coronavirus-lawsuit/).
`As of July 30, 10,000 of the roughly 100,000 Tyson employees had tested positive for COVID-19. (See
`“Over 10,000 Tyson Employees Reportedly Test Positive for Covid” accessed on Sept. 16 at
`https://www.forbes.com/sites/alexandrasternlicht/2020/07/30/over-10000-tyson-employees-reportedly-
`test-positive-for-covid/#48383a736da4).
`1 in 4 Tyson employees in Tyson’s North Carolina plant tested positive. (See “1 in 4 Tyson employees in
`a North Carolina plant tested positive for COVID-19,” accessed on Sept. 16, 2020 at
`https://www.cnn.com/2020/05/22/business/tyson-plant-north-carolina-coronavirus-trnd/index.html).
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`6
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`Additionally, Plaintiffs allege that Tyson:
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`• Failed to provide a safe work environment;
`• Required Plaintiffs to continue working at the meatpacking plant
`when it knew it was no longer safe to do so;
`• Failed to provide adequate PPE to the workers at the meatpacking
`plant;
`• Failed to implement adequate precautions and social distancing at
`the meatpacking plant;
`• Failed to follow guidelines set forth by the WHO and CDC with
`regard to COVID-19 at the meatpacking plant;
`• Failed to warn of the dangerous conditions at the meatpacking
`plant regarding COVID-19;
`• Failed to properly train its employees at the plant;
`• Failed to provide adequate medical treatment;
`• Allowed and required workers who were infected with COVID-19
`to continue working at the plant who then infected other
`individuals.
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`Ex. 1: Pls.’ First Am. Compl., at ¶ 60.
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`
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`Plaintiffs allege that Tyson “had actual subjective awareness of the risk involved yet
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`chose to proceed in conscious indifference to the rights, safety, and welfare of Plaintiffs.” Id. at
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`¶ 63. And that Tyson “knew of the spread of COVID-19 throughout its facility” and “knew of
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`employees testing positive prior to Plaintiffs being infected” but “caused and allowed other
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`employees to work around the infected employees in an unsafe manner.” Id. at ¶ 69.
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`When considering Tyson’s motion to dismiss, this Court “must accept as true all well-
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`pleaded facts” in Plaintiffs’ complaint “and view those facts in the light most favorable” to
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`Plaintiffs. Lahman, 2018 WL 4205424, at *1 (E.D. Tex. Sept. 4, 2018). This includes any facts
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`that go to causation or Tyson’s knowledge regarding the risks and dangers of COVID-19 and the
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`rate of infection at its plant.
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`7
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`To be sure, Plaintiffs have provided notice of their claims and have pleaded facts that
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`show a causal link between Tyson’s actions and Plaintiffs’ injuries and that Tyson had
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`knowledge of the risks yet knowingly failed to warn Plaintiffs or to remediate the dangerous
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`condition. Indeed, Tyson failed to follow applicable government-promulgated standards,
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`guidance, and protocols and unnecessarily exposed Plaintiffs to the disease. Accordingly, the
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`Court should deny Tyson’s supplemental motion as Plaintiffs’ complaint outlines facially
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`plausible claims that show that Plaintiffs are entitled to relief.
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`2. In the event that the Court finds that Tyson’s supplemental motion has merit as to
`any of Plaintiffs’ claims, Plaintiffs ask for leave to amend their complaint to cure
`any alleged deficiencies.
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`As noted above, Plaintiffs’ complaint passes muster under federal pleading rules. But in
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`the event the Court finds that any of Plaintiffs’ claims are under-pled—especially given that the
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`Pandemic Liability Protection Act was not in effect when Plaintiffs filed their most recent
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`complaint—Plaintiffs ask the Court to grant them leave to amend their complaint to cure any
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`deficiencies found therein. Rule 15(a) of the Federal Rules of Civil Procedure “instructs the court
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`to ‘freely give leave when justice so requires.’” Shelton v. Bonham Indep. Sch. Dist., 4:17-CV-
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`00764, 2018 WL 466258, at *1 (E.D. Tex. Jan. 18, 2018). “The rule ‘evinces a bias in favor of
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`granting leave to amend.’” Id. Thus if necessary, and the Court is inclined to grant Tyson’s
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`motion as to any of Plaintiffs’ claims, Plaintiffs ask the Court to give them the opportunity to
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`amend their complaint to add any additional facts the Court finds necessary to avoid dismissal of
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`any of their claims.
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`VI.
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`CONCLUSION
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`For the foregoing reasons, the Court should deny Tyson’s supplemental motion to
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`dismiss.
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`8
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`Respectfully Submitted,
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`ARNOLD & ITKIN LLP
`
`/s/ Roland Christensen
`_______________________________
`Kurt Arnold
`State Bar No: 24036150
`Federal ID: 36185
`karnold@arnolditkin.com
`Caj Boatright
`State Bar No: 24036237
`Federal ID: 650384
`cboatright@arnolditkin.com
`Roland Christensen
`State Bar No: 24101222
`Federal ID: 2987857
`rchristensen@arnolditkin.com
`6009 Memorial Drive
`Houston, TX 77007
`Tel: 713.222.3800
`Fax: 713.222.3850
`e-service@arnolditkin.com
`
`ATTORNEYS FOR PLAINTIFFS
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`
`
`/s/ Roland Christensen
`_______________________________
`Roland Christensen
`
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`CERTIFICATE OF SERVICE
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`I hereby certify that the above and foregoing pleading has been electronically filed
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`through the Court’s CM/ECF system, which will send notification of electronic filing to all
`counsel of record on July 12, 2021.
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`9
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