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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`AMARILLO DIVISION
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`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
`FARREN FERNANDEZ,
`
`Defendants.
`
`DEFENDANT TYSON FOODS, INC.’S REPLY IN SUPPORT OF
`SUPPLEMENTAL MOTION TO DISMISS
`PLAINTIFFS’ FIRST AMENDED COMPLAINT
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`Plaintiffs concede that the Pandemic Liability Protection Act (the “Act”)
`applies to their claims and that, to avoid dismissal, they must plead factual
`content satisfying each element. But the Complaint fails to plead at least the
`following required elements:
` Plaintiffs must allege that Tyson “knowingly failed to warn [Plain-
`tiffs] of or remediate a condition that [Tyson] knew was likely to re-
`sult in” exposure to COVID-19. The Complaint fails to include any
`such allegation.
` Plaintiffs must allege that Tyson “had control over the condition”
`that caused the exposure. The Complaint fails to include any such
`allegation—indeed, Plaintiffs do not even identify what specific “con-
`dition” allegedly caused any given Plaintiff to contract an infection.
` Plaintiffs must allege that Tyson “knew that [Plaintiffs were] more
`likely than not to come into contact with the condition.” Here again,
`Plaintiffs do not even identify the specific condition in issue for each
`Plaintiff or otherwise satisfy this required element.
` Plaintiffs must allege that Tyson “had a reasonable opportunity and
`ability to remediate the condition or warn [Plaintiffs] of the condition
`before [Plaintiffs] came into contact with the condition.” The Com-
`plaint does not contain any such allegation.
` Plaintiffs must allege that Tyson “knowingly failed to implement or
`comply with government-promulgated standards, guidance, or pro-
`tocols . . . applicable to” Tyson’s business at the time. The Complaint
`does not contain any such allegation.
` Plaintiffs must allege that Tyson “had a reasonable opportunity and
`ability to implement or comply with the standards, guidance, or pro-
`tocols.” The Complaint does not contain any such allegation.
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` Plaintiffs must allege that Tyson “refused to implement or comply
`with or acted with flagrant disregard of the standards, guidance, or
`protocols.” The Complaint does not contain any such allegation.
` Plaintiffs must allege that Tyson was not subject to conflicting “gov-
`ernment-promulgated standards, guidance, or protocols that [Tyson
`had] implemented or complied with” on “the date that [Plaintiffs
`were] exposed to the disease.” The Complaint contains no such alle-
`gation—indeed, Plaintiffs do not even allege what date they were
`allegedly exposed to the disease.
` Plaintiffs must allege that “reliable scientific evidence shows” that
`Tyson’s alleged failure to warn, remediate, or comply with govern-
`ment-promulgated standards “was the cause in fact of [Plaintiffs’]
`contracting” COVID-19. The Complaint contains no substantiated
`allegations of causation.
`See Tex. Civ. Prac. & Rem. Code § 148.003(a).
`The Complaint does not contain these allegations, and the Response does
`not show otherwise. Instead, the Response simply asserts—without analysis—
`that “Plaintiffs have provided notice of their claims.” [Dkt. 47 (“Resp.”) at 8]
`But saying it does not make it so. The Complaint must be dismissed be-
`cause it fails to include “factual allegations that would permit this [C]ourt to
`find that the elements of [the Pandemic Liability Protection Act] are properly
`pleaded.” Lindgren v. Spears, No. CV H-10-1929, 2010 WL 5437270, at *3 (S.D.
`Tex. Dec. 27, 2010).
`In particular, Plaintiffs fail to allege various required elements of the
`“Knowing Conduct Requirement” of Section 148.003(a)(1) and the “Causation
`Requirement” of Section 148.003(a)(2).
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`No Knowing Conduct. Plaintiffs do not dispute that the Act requires
`them to plead that Tyson either (1) knowingly failed to warn Plaintiffs of or
`remediate a condition it knew was likely to result in Plaintiffs’ exposure, or
`(2) knowingly failed to implement government-promulgated standards that ap-
`plied to Tyson’s business at the time of Plaintiffs’ exposure. Tex. Civ. Prac. &
`Rem. Code § 148.003(a)(1)(A) & (B); see also Resp. at 4. Nor do Plaintiffs dis-
`pute that alleged constructive knowledge is insufficient to satisfy the statute.
`But the Response largely ignores these stringent and detailed require-
`ments. Plaintiffs’ entire argument on this point is to reproduce three state-
`ments from the Complaint that contain the words “knew” or “subjective aware-
`ness” and simply claim without explanation that they somehow have pleaded
`the required elements. [Resp. at 7-8] But mere conclusory statements like “De-
`fendants . . . had actual, subjective awareness of the risk involved” (Compl.
`¶ 63) and unwarranted inferences cannot be credited. See Modelist v. Miller,
`445 F. App’x 737, 739 (5th Cir. 2011) (“[W]e will not strain to find inferences
`favorable to the plaintiffs nor accept conclusory allegations, unwarranted de-
`ductions or legal conclusions.”) (quoting Southland Sec. Corp. v. INSpire Ins.
`Solutions Inc., 365 F.3d 353, 361 (5th Cir. 2004)) (quotation marks omitted).
`And even accepting as true the three statements Plaintiffs rely on, these
`allegations come nowhere near plausibly alleging the specific requirements of
`the Act. To plead that Tyson had actual knowledge of a condition likely to re-
`sult in Plaintiffs’ exposure or an intentional or flagrant disregard of govern-
`ment-promulgated standards, far more specificity is required. See, e.g., Single-
`ton v. Champagne, No. CV 17-17423, 2019 WL 917728, at *4 (E.D. La. Feb. 25,
`2019) (dismissing complaint for failure to “allege that the Sheriff had actual or
`constructive knowledge of any alleged practices or customs that allegedly vio-
`lated Plaintiffs’ constitutional rights” where “Plaintiffs simply assert bare
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`allegations that [the Sheriff] ‘maintained an atmosphere’ of lawlessness with-
`out providing any specific facts as to how this activity was carried out”).
`More fundamentally, Plaintiffs are unable to even identify the particular
`failure they allege to be the cause of their injuries. As such, they cannot allege
`any knowing failure on Tyson’s part. Plaintiffs describe the alleged “dangerous
`condition” in numerous, nonspecific ways. For example, Plaintiffs assert that
`Tyson allegedly failed to “provide a safe work environment,” provide “appro-
`priate PPE protections,” “implement adequate precautions,” “follow guide-
`lines,” and “warn of the dangerous conditions[.]” [Resp. at 6-7; Compl. ¶ 60]
`But nowhere do Plaintiffs elaborate on these generic statements with factual
`allegations plausibly demonstrating that Tyson had actual knowledge that a
`specific condition at the Amarillo facility (over which Tyson had control) was
`likely to result in Plaintiffs’ contracting COVID-19.
`In other words, “[n]ot only is [Plaintiffs’ Complaint] unclear about what
`‘dangerous condition’ [they] allege[] to exist,” but also Plaintiffs’ Complaint
`“does not specifically allege that [Tyson] had actual knowledge of the danger-
`ous condition.” Norwood v. Indus. Warehouse Servs., Inc., No. 1:17-CV-396,
`2018 WL 1464660, at *3 (E.D. Tex. Mar. 2, 2018), report and recommendation
`adopted, No. 1:17-CV-396, 2018 WL 1463381 (E.D. Tex. Mar. 23, 2018). Accord-
`ingly, “[a]t most, [the Complaint] is a threadbare recital of some elements of a
`. . . claim supported by conclusory statements without factual allegations to
`back up the statements.” Id.
`And the bare allegation that Tyson “[f]ailed to follow” unspecified “guide-
`lines set forth by the WHO and CDC” on unspecified dates (see Resp. at 7;
`Compl. ¶ 60(e)) is not enough to allege that Tyson knowingly refused to comply
`with or acted with “flagrant disregard” of government-promulgated standards
`applicable at the time of Plaintiffs’ exposure, along with the other
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`requirements set forth in Section 148.003(a)(1)(B)(i)-(iii). Indeed, without spec-
`ifying which standard Tyson allegedly failed to comply with and the date of the
`alleged noncompliance, it is impossible to infer that the standard “did not, on
`the date that the individual was exposed to the disease, conflict with govern-
`ment-promulgated standards, guidance, or protocols that the person imple-
`mented or complied with.” Tex. Civ. Prac. & Rem. Code § 148.003(a)(1)(B)(iii).
`This element is required.
`In sum, the Complaint does not allege facts showing any knowing miscon-
`duct—let alone the specific categories of knowing misconduct detailed in the
`Act—with respect to Tyson. And constructive knowledge is not enough. See id.
`§ 148.003(a)(1); City of Corsicana v. Stewart, 249 S.W.3d 412, 414-15 (Tex.
`2008).
`No Causation or “Reliable Scientific Evidence.” Plaintiffs also mis-
`state the standard for causation, arguing that the Complaint is sufficient if it
`pleads “a causal link.” [Resp. at 8] In fact, under the Act and federal pleading
`standards, Plaintiffs must allege facts plausibly showing that Tyson’s specific
`alleged failure to warn, remediate, or comply with government-promulgated
`standards “was the cause in fact” of each Plaintiff contracting COVID-19, and
`that “reliable scientific evidence” supports that conclusion. Tex. Civ. Prac. &
`Rem. Code § 148.003(a)(2).1
`The Complaint’s minimal factual allegations do not satisfy this standard.
`Plaintiffs fail to allege any details as to when, why, or how they allegedly
`
`
`1 Plaintiffs also must submit a “report authored by at least one qualified
`expert” setting forth “a factual and scientific basis” for their assertion that Ty-
`son’s alleged conduct caused them to contract COVID-19 within 120 days of
`Tyson filing an answer, if an answer is required. Tex. Civ. Prac. & Rem. Code
`§ 148.003(b)(1).
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`contracted COVID-19; they fail to rule out other probable sources of infection
`like community spread; and their Response confirms that other factors unre-
`lated to Tyson like “frequent community contact with fellow workers” caused
`many employees to contract COVID-19. [Resp. at 6] Indeed, it is common
`knowledge that COVID-19 was widely transmitted through community spread
`to every corner of our nation, infecting at least 33 million Americans that we
`know of. In light of this background—and absent further factual specificity—
`mere statements such as “Defendants’ breaches of duty caused” Plaintiffs’ in-
`juries (Compl. ¶ 62) do not plausibly allege that any conduct by Tyson (much
`less knowing conduct) was “the cause in fact” of Plaintiffs’ contracting the dis-
`ease. See Benfield v. Magee, 945 F.3d 333, 338 (5th Cir. 2019) (“Because [the
`plaintiff’s] harassment allegations lack specificity, [plaintiff] has not alleged a
`plausible causal connection. Thus, his right to relief is only speculative.”).
`Implicitly acknowledging the Complaint’s insufficiency, Plaintiffs also cite
`allegations outside of the pleadings to suggest that Tyson employees (who
`worked at various facilities across the country other than Amarillo) supposedly
`“experienced a much higher rate of positive cases of COVID-19 than the rest of
`the country.” [Resp. at 6 & n.2] But the only relevant question is what caused
`Plaintiffs to contract COVID-19. Plaintiffs’ mere “insinuations do not meet the
`required standard of alleging a direct causal relationship at a level surpassing
`a mere but-for coupling of cause and effect.” Harmon v. City of Arlington,
`Texas, 478 F. Supp. 3d 561, 575 (N.D. Tex. 2020); see also Order at 8, Fish v.
`Princess Cruise Lines Ltd., No. CV 20-3894 DSF (JCx) (C.D. Cal. Aug. 21,
`2020), ECF No. 26 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (Although
`the plaintiffs “allege they ‘contracted COVID-19 on Defendant’s ship,’ [the com-
`plaint] fails to contain sufficient allegations to plausibly support that conclu-
`sion.”).
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`Also conspicuously absent from Plaintiffs’ Response is any mention of
`where they have alleged “reliable scientific evidence” of causation. Tex. Civ.
`Prac. & Rem. Code § 148.003(a)(2). They have not.
`Plaintiffs fail to satisfy the standard for leave to amend. As a final
`point, Plaintiffs suggest that “if necessary,” they request “the opportunity to
`amend their complaint to add any additional facts the Court finds necessary to
`avoid dismissal of any of their claims.” [Resp. at 8] But the Court is not obli-
`gated to identify for Plaintiffs the “additional facts” needed to state a claim.
`Instead, it is Plaintiffs’ obligation to “set forth with particularity the grounds
`for the [proposed] amendment and the relief sought.” United States, ex rel. Doe
`v. Dow Chem. Co., 343 F.3d 325, 331 (5th Cir. 2003) (quoting United States, ex
`rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 386–87 (5th Cir.
`2003)). A “bare request in an opposition to a motion to dismiss” unaccompanied
`by “any proposed amendments” or “grounds for such an amendment” does not
`warrant leave to amend under Rule 15(a). Id.; see also Benfield, 945 F.3d at
`339-40 (denying request for leave to amend contained in the plaintiff’s 12(b)(6)
`briefing where the plaintiff “could have amended his complaint as a matter of
`course in response to [the defendant’s] motion, which pointed out the deficien-
`cies,” but instead “stood on his pleading, arguing that he had, in fact, stated a
`claim,” and “never stated what he would amend”).
`
`CONCLUSION
`The Pandemic Liability Protection Act imposes stringent requirements
`for claims involving liability for alleged exposure to pandemic diseases like
`COVID-19. The Complaint fails to allege these elements and should be dis-
`missed.
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`Dated: July 19, 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
`
`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
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`CERTIFICATE OF SERVICE
`
`This is to certify that, on July 19, 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:
`
`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
`
`
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`
`
`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
`
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`9
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