By Y. Peter Kang

Law360 (July 7, 2021, 5:38 PM EDT ) The first precedential rulings for coronavirus injury and wrongful death cases are on the horizon as a number of federal appellate courts are set to decide whether such litigation should be heard in federal court under the Federal Officer Removal Statute or in the state courts where the suits originated.

The Eighth Circuit is expected to hear oral arguments about venue this fall in a suit accusing Tyson Foods of causing worker deaths during the early stages of the pandemic, making the case one of three to watch that could shape coronavirus injury case law.

8th Circ. to Decide Forum for Tyson COVID-19 Death Suit

In a closely watched case, the Eighth Circuit said in April that it will hear oral arguments before deciding whether a federal or state court will adjudicate suits accusing the meat processing giant of repeatedly lying to its Waterloo, Iowa, plant employees and knowingly risking their health during the early stages of the pandemic, resulting in more than 1,000 worker infections and at least five deaths.

Suits filed by Hus Buljic and other relatives of four deceased workers were lodged in Iowa state court, but Tyson later removed them to federal court. An Iowa federal judge then ordered that the cases be remanded to state court, leading to the company's appeal.

At issue is whether the company can invoke the Federal Officer Removal Statute, which allows certain cases to be removed from state to federal court if a federal officer or agency, or an entity working under a federal officer, is involved. Tyson claims that because it was acting in accordance with then-President Donald Trump's April 2020 executive order under the federal Defense Production Act, which declared meatpacking plants critical infrastructure amid the pandemic, it was effectively made a federal officer.

The case is important because it has the potential to set court precedent over whether such cases could be heard in federal court, which is frequently believed to be a more favorable forum for corporate defendants with federal juries that are less willing to award large sums, according to one plaintiffs attorney.

"We're seeing pretty wide-scale desperation by meatpacking companies to get themselves out of state court in these cases," Jeff Goodman, a Saltz Mongeluzzi & Bendesky PC attorney who is pursuing similar claims on behalf of Tyson workers in Pennsylvania, told Law360 in April. "One thing that is particularly outrageous is that in some of these cases they are trying to invoke orders that didn't exist at the time of a worker's death."

But Tyson insists that the cases belong in federal court simply because the claims are controlled by federal law.

"The question of liability … should plainly be litigated in a federal forum, with due regard for the role the federal direction played in providing uniform guidance and keeping Tyson's plants open," the company said in a February brief.

Still, Goodman said that even if a company is unsuccessful in keeping the case in federal court, it still benefits from having stalled the litigation.

"It is a typical tactic that defendants have been employing more and more during COVID as the courts face operational challenges," he said. "It's an unfortunate tactic, but it's one that we see every day from defendants and their insurance carriers."

An attorney for the workers said he expects oral arguments to be held in the fall.

The cases are Hus Buljic et al. v. Tyson Foods Inc. et al., case number 21-1010, and Oscar Fernandez v. Tyson Foods Inc. et al., case number 21-1012, in the U.S. Court of Appeals for the Eighth Circuit.

3rd Circ. Ponders Keeping Virus Suits in Federal Court

A Third Circuit panel heard oral arguments in June in a case where two New Jersey nursing homes accused of causing patients' coronavirus deaths are attempting to keep two suits in federal court on the grounds that the facilities acted under the federal government's authority as part of its pandemic response.

A three-judge panel on June 23 questioned whether Andover Subacute Rehabilitation Center I and a sister facility were merely complying with federal regulations or were truly acting as an arm of the federal government.

During a hearing on their appeal of a district court ruling sending the matters back to state court, counsel for the nursing homes argued that the cases were encompassed by the Federal Officer Removal Statute.

The facilities' attorney, Lann G. McIntyre of Lewis Brisbois Bisgaard & Smith LLP, said, "These nursing homes were acting under and in assistance to the federal government in the manner in which it responded to the pandemic that swept through these nursing homes."

But U.S. Circuit Judge David J. Porter asked McIntyre, "What separates your clients' actions from subjection and control versus compliance with ordinary regulation?" in an apparent reference to the standard set forth in the U.S. Supreme Court's 2007 Watson v. Philip Morris Companies opinion.

McIntyre noted that the nursing homes were "designated as part of a critical infrastructure in this country to respond as first responders to this national pandemic." She also stressed the federal government's interest in "ensuring that adequate care is provided to this vulnerable population."

U.S. Circuit Judge Michael A. Chagares interjected and asked McIntyre, "Is there something more in terms of your relationship with the government that would make ... your clients federal officers?"

"Are they just complying [with] regulations like a lot of businesses do?" Judge Chagares added.

As of Wednesday, the Third Circuit panel had yet to render its decision.

The cases are Estate of Joseph Maglioli et al. v. Alliance HC Holdings LLC et al. and Estate of Wanda Kaegi et al. v. Alliance HC Holdings LLC et al., case numbers 20-2833 and 20-2834, in the U.S. Court of Appeals for the Third Circuit.

9th Circ. to Review Nursing Home's PREP Act Defense

In a case with similar issues, a Southern California nursing home being sued over a 77-year-old resident's COVID-19 death has asked the Ninth Circuit to keep the case in federal court, arguing that the home was acting under the federal government's authority designating it as critical infrastructure.

Glenhaven Healthcare LLC lodged a brief in May telling the Ninth Circuit it should be permitted to invoke the Federal Officer Removal Statute because the government's designation enlisted it and other nursing homes "to carry out the duty of the government itself to ensure the continued provision of 'services critical to maintaining the national defense, continuity of government, economic prosperity, and quality of life in the United States.'"

The case is being considered for oral argument, according to court records.

The suit, filed by the family of Ricardo Saldana, alleges that staff at the Glenhaven nursing home were prohibited from wearing protective gear, which caused Saldana and nine other patients to become infected with the coronavirus and die. The case was initially filed in California state court in May 2020 and removed to federal court by Glenhaven a month later.

A California federal judge in October rejected Glenhaven's bid to keep the case in federal court, and the company filed a Ninth Circuit appeal the following month, according to court records.

In its May brief, Glenhaven additionally argued that because it is mounting an affirmative defense that the family's claims are preempted by the federal Public Readiness and Protection Act, or PREP Act, which confers immunity to "covered persons" who deploy "countermeasures" during a public health emergency, the case should be heard in federal court.

"The merits of Glenhaven's claim that the PREP Act is a complete preemption statute must be addressed and once again compels the conclusion that federal question jurisdiction exists," Glenhaven's brief stated. "The PREP Act completely encompasses plaintiffs' claims."

An attorney for the family, Adam Pulver of Public Citizen, blasted Glenhaven's contention that it was acting under the authority of the federal government.

"Glenhaven's argument that Mr. Saldana's death was connected to directions of the federal government is not only wrong, but offensive to his memory," Pulver told Law360 in May. "Glenhaven continues to ignore literally dozens of decisions issued by district judges around the country explaining why its arguments as to the scope of the PREP Act are not supported by the text of the statute, and why the musings of administrative agencies on federal court jurisdiction do not bind federal courts."

The case is Jackie Saldana et al. v. Glenhaven Healthcare LLC et al., case number 20-56194, in the U.S. Court of Appeals for the Ninth Circuit.

--Additional reporting by Bill Wichert. Editing by Jill Coffey and Kelly Duncan.

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