By Rachel Scharf

Law360 (July 8, 2020, 6:05 PM EDT ) The family of a Philadelphia-area meatpacking plant worker who died of COVID-19 has urged a judge not to ditch their federal wrongful death suit, saying statements from the government and the plant itself contradict claims that the suit is barred by workers' compensation laws.

The family of Enock Benjamin told U.S. District Judge John R. Padova on Tuesday that their suit can't be tossed in favor of a workers' compensation claim, since a dispute remains over whether plant owner JBS Souderton or its parent company JBS USA Holdings Inc., which the plant says has been dissolved, actually employed Benjamin.

"It is impossible to conclude that JBS USA Holdings Inc. no longer exists given JBS' filings with Pennsylvania's workers' compensation board, the filings of the FDA, and the public statements on behalf of JBS USA Holdings Inc. that were made by [JBS' CEO]," the brief says. "Moreover, based upon JBS' own representations both to this court and to the workers' compensation board, it cannot be stated with any certainty which JBS entity was actually Mr. Benjamin's employer."

Benjamin came down with a cough and took time off from work starting March 27, and died in his home April 3. The suit, filed May 7 and removed to federal court June 2, alleges that JBS ignored the U.S. Occupational Safety and Health Administration recommendations instructing businesses to have sick workers stay at home and to issue personal protective equipment to keep workers safe while on the job.

The meatpacking plant has said it is immune under the Pennsylvania Workers' Compensation Act from the claims of negligence, wrongful death and that it misrepresented the safety of the plant, saying Benjamin was an employee of Montgomery County-based JBS Souderton — not its parent company JBS USA Holdings — and that direct employers can't be sued for injuries covered by workers' compensation law. JBS claims the parent company was converted to an overseas corporation in 2015.

But Benjamin's estate says "someone forgot to tell the federal government" that JBS USA had been dissolved, noting the company's government filings, public statements and U.S. Food and Drug Administration communications all name the parent company. Even Benjamin's workers' compensation denial dated June 15, they said, was signed by JBS USA Holdings.

The estate also said it had sufficiently shown that JBS' flouting of safety precautions caused Benjamin to contract the coronavirus, saying the plant's arguments to the contrary are clearly contradicted by specific examples in the complaint, such as JBS' "work while sick" policy and lack of response to workers' requests for masks.

Benjamin's family further reiterated its earlier arguments that the suit is not barred by federal emergency orders governing pandemic responses, calling JBS' argument that his wrongful death claims belong under OSHA's jurisdiction a "wildly inappropriate" application of rarely used doctrines.

Tuesday's response was the estate's second time saying genuine questions remain about whether JBS Souderton or its parent company was Benjamin's employer, reiterating a June 29 motion to remand calling into question JBS' claims that it no longer exists in the U.S.

"The residents of Pennsylvania surely have an interest in analyzing any entity that will deny workers' compensation benefits to its residents on one hand and then claim not to exist on the other hand," the brief said. "JBS USA Holdings' arguments in this action are entirely self-serving and in no manner serve the interests of the substantive social policies of the commonwealth. Even further, this case involves failing to protect a Pennsylvania resident in the face of a known danger so that a business could continue to make profits."

"We look forward to being able to litigate this case and to establish [JBS'] responsibility and accountability for this horrific death," said Robert Mongeluzzi of Saltz Mongeluzzi & Bendesky PC, counsel for Benjamin's estate, in a statement to Law360 on Wednesday.

Counsel for JBS did not immediately respond to a request for comment Wednesday.

Benjamin's estate is represented by Robert Mongeluzzi, Steven Wigrizer, Jeffrey Goodman and Jason Weiss of Saltz Mongeluzzi & Bendesky PC.

JBS is represented by Molly E. Flynn, Mark D. Taticchi and Rebecca L. Trela of Faegre Drinker Biddle & Reath LLP.

The case is Ferdinand Benjamin v. JBS SA et al., case number 2:20-cv-02594, in the U.S. District Court for the Eastern District of Pennsylvania.

--Additional reporting by Matthew Santoni. Editing by Stephen Berg.

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