It was the Greek physician and philosopher Hippocrates who acknowledged there are circumstances in one’s life where normal courses of action are insufficient and thinking outside the box is to be encouraged:
“For extreme diseases, extreme methods of cure, as to restriction, are most suitable.”
In other words, drastic times call for drastic measures.
And can anyone deny that the spread worldwide of COVID-19 was the epitome of drastic times?
To say the U.S. federal government had all it could handle to keep its head above water might be underestimating the severity of the crisis. At the height of the pandemic there were more than 4,000 recorded deaths a day.
COVID-19 was particularly dangerous for workers in meat processing plants. And Big Meat had a problem that had nothing to do with worker safety, but rather keeping the doors open and the profits rolling in.
But in seeking a solution, Tyson Foods and its meatpacking brethren have run afoul of the Defense Production Act, which may end up costing Big Meat billions of dollars in state court lawsuits.
First, a little history.
Smithfield Foods initially tried to downplay rising COVID infections in March 2020 at its huge Sioux Falls, South Dakota meatpacking plant. A whistleblower told the Argus Leader of COVID-19 problems on March 25, and in response Smithfield president and CEO Kenneth Sullivan told the newspaper “the company and its workers, along with farmers and supply chain partners, were ‘a crucial part of our nation’s response to COVID-19,’ and that Smithfield would maintain normal operations during the pandemic.”
Less than a month later, Smithfield shuttered the plant in the face of mounting COVID illnesses – ultimately, at least 777 confirmed COVID-19 cases out of a workforce of 3,700.
Smithfield wasn’t alone. Other Big Meat companies also had to go offline for a period of time – JBS USA, Tyson, National Beef Packing Company, Cargill.
Tyson CEO Noel White e-mailed Sullivan, “Anything we can do to help?” Sullivan replied he wished there was.
Drastic times call for drastic measures. White convinced Sullivan they needed to go to the feds and convince President Donald Trump to sign an executive order to keep meatpacking plants open.
And thus was born the backroom scheme for Tyson’s legal department to draft language, ship it to the White House, and invoke the Defense Production Act to keep meat on grocery shelves come hell or high water.
Trump’s April 28 executive order, significantly assisted by the Tyson Foods draft, declared meat processing plants critical infrastructure in order to keep doors open, regardless of state and county health department concerns:
“Under the delegation of authority provided in this order, the Secretary of Agriculture shall take all appropriate action under that section to ensure that meat and poultry processors continue operations consistent with the guidance for their operations jointly issued by the CDC and OSHA.”
Now Tyson very likely will pay through the cow’s nose to settle thousands of wrongful death and personal injury state court lawsuits brought by survivors and families of deceased workers.
For its part, Tyson has been desperate to prevent that from happening by attempting to remand all state cases to federal court, claiming Trump’s executive order meant the company was protected by the Federal Officer Removal Statute because it was acting at the direction of a federal officer – specifically, USDA.
Tyson repeatedly has tried to make that argument in federal courts, hoping a favorable ruling could put an end to all state lawsuits in one fell swoop.
It hasn’t worked out the way Tyson hoped. In fact, it hasn’t worked out at all.
Federal court after federal court has rejected Tyson’s argument. Tyson failed in the Eighth Circuit. And the Fifth.
Still Tyson Foods chugged along, requesting last July the U.S. Supreme Court grant it certiorari in the case Tyson Foods, Inc. et al. v. Hus Hari Buljic, Oscar Fernandez, et al.
Tyson made the same now familiar argument that it was acting at the direction of a federal officer.
Here’s a news flash, Tyson – you were not. The Supreme Court refused to grant cert and remanded the case back to state court where it – and all the others across the nation – belong.
Of course Tyson isn’t going to take no for an answer lying down in a farrowing pen. The company’s financial exposure is in the billions. I would expect Tyson is likely to throw more legal gobbledygook against the wall to see if anything sticks. I doubt it will.
Three years after the height of COVID-19, the lawsuits keep coming. Last month, 34 plaintiffs filed a lawsuit in Pulaski County Circuit Court in Arkansas. Yup, in Tyson’s home state. And there certainly will be more lawsuits on the way. A lot more.
See ya in court Tyson. State court.
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