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Law360 (February 5, 2021, 7:00 PM EST ) A Florida judge on Friday refused to dismiss a lawsuit filed by the family of a Publix Super Markets Inc. deli worker who died after allegedly catching COVID-19 from a coworker.
Judge Carlos Lopez said he would not dismiss the lawsuit filed by the family of Gerardo Gutierrez, who died on April 28 at age 70 from complications caused by COVID-19.
The family says the Lakeland, Florida-based company breached its duty to keep its employees safe and not only knowingly failed to take proper precautions but also actually prohibited its workers from wearing gloves and face masks for fear it would "incite panic" among customers.
In its motion to dismiss, Publix called the suit an attempt to circumvent the worker's compensation process and said the claims needed to be filed in the Florida Division of Administrative Hearings, but the judge disagreed.
"Publix has never taken any responsibility for its unthinkable decision to prohibit its employees from wearing masks as COVID-19 swept through Florida," the family's attorney Michael Levine said in a statement. "Our case will make sure Publix is held accountable for its reckless decision. We look forward to uncovering the documents behind the mask prohibition and deposing its senior personnel."
In March, as the realization set in that the spread of COVID-19 presented a major national crisis, Publix posted a statement on its website from its CEO Todd Jones saying the company had remained in close contact with the Centers for Disease Control and Prevention and would "continue to focus on keeping [its] associates healthy — and [its] stores open and stocked — to serve and support all our communities," according to the complaint filed in November.
But the suit alleges that the company's actions belie its statements touting efforts to keep employees and customers safe, including prohibiting employees from wearing personal protective equipment of any type, even their own.
The lawsuit cites five complaints the Occupational Safety and Health Administration received in March from customers and Publix employees raising concerns about the lack of use of personal protective equipment at stores around Florida.
The complaint says Gutierrez worked March 27 and 28 in the deli area of Miami Beach's Sunset Harbor Publix store alongside a female co-worker who was exhibiting COVID-19 symptoms, including coughing.
The company knew the other employee, whose name was omitted from the complaint to protect her privacy, was not wearing a mask, but it failed to send her home and did not order her to quarantine, the complaint said.
She tested positive for COVID-19 shortly after, and on April 2, the company sent Gutierrez home and told him to self-isolate because of his possible exposure to her, the complaint said.
On April 6, Gutierrez developed a cough and a fever, and he tested positive for COVID-19 the next day. He was hospitalized on April 10, and on April 28, his doctors notified his family that a priest was being called to read him his last rites, the complaint said.
Unable to visit the hospital due to the pandemic, family and friends gathered via Zoom videoconference to say their goodbyes, and Gutierrez died on April 28.
The suit, which was brought by Gutierrez's daughter Ariane Gutierrez as representative of his estate, seeks damages on behalf of herself, her sister and two brothers for lost support and services, lost parental companionship, instruction and guidance, and mental pain and suffering resulting from their father's death. It also seeks to recover Gerardo Gutierrez's medical and funeral expenses, as well as for the loss of his prospective net earnings.
A representative for Publix did not immediately respond to a request for comment.
The family is represented by Michael Levine and Dax Bello of Stewart Tilghman Fox Bianchi & Cain PA.
Publix is represented by Robert J. Grace Jr., Grant W. Kindrick and Victoria M. McLaughlin of Bleakley Bavol Denman & Grace and Jason A. Glusman and William Bromley of Wicker Smith O'Hara McCoy & Ford PA.
The case is Gutierrez v. Publix Super Markets Inc., case number 2020-025168-CA-01, in the Circuit Court for the Eleventh Judicial Circuit of Florida.
--Additional reporting by Nathan Hale. Editing by Ellen Johnson.
For a reprint of this article, please contact reprints@law360.com.
