Conflicting Federal and WHO Guidance on COVID-19 Precautions Cited as Basis for Rule 12(b)(6) Motion to Dismiss

The opening salvo for the defense in the “first Pennsylvania COVID-19 slaughterhouse worker wrongful death lawsuit,” as dubbed by the plaintiff’s attorneys, was filed in the United States District Court for the Eastern District of Pennsylvania on Tuesday in the form of a motion to dismiss—one that emphasizes the “novel” aspect of the coronavirus and seeks, among other things, dismissal of the suit based on the “conflicting guidance” of federal and World Health Organization (WHO) authorities as the coronavirus pandemic unfolded.

The lawsuit, Estate of Enock Benjamin v. JBS S.A., et al., filed on May 7, alleges that Enock Benjamin, a union steward at the JBS slaughterhouse in Souderton, Pennsylvania, died on April 3 as the result of contracting COVID-19 while working at the slaughterhouse under unsafe conditions without proper personal protective equipment (PPE). The complaint, which includes claims of wrongful death, negligence and fraudulent misrepresentation, was filed in the Philadelphia County Court of Common Pleas and subsequently removed to the Eastern District.

In the motion to dismiss, the defendants, Pilgrim’s Pride Corporation, JBS USA Food Company and other JBS entities, assert defenses sounding in lack of personal jurisdiction, exclusivity of remedy of the Pennsylvania Workers’ Compensation Act, referral to OSHA under the primary jurisdiction doctrine and failure to plead facts to state claims of negligence, misrepresentation and punitive damages. As to the asserted failure to state a claim of negligence under Federal Rule of Civil Procedure 12(b)(6), the defendants argue that neither breach of duty nor causation can be shown.

Specifically, as to breach of duty, the defendants assert that the plaintiff “cannot show Defendants’ actions amounted to a breach of duty in the midst of a developing global pandemic and in light of the limited and conflicting scientific and medical knowledge at the time.” The motion points out that “Plaintiff admits COVID-19 is a novel coronavirus” and “several months after COVID-19 was declared a global pandemic (and two months after Enock Benjamin died), the CDC admits it is ‘still learning about how the virus spreads and the severity of illness it causes.’” The defendants characterize the lawsuit as a contention that “Defendants should have done more to protect Enock Benjamin from an invisible, novel threat about which little was known and regarding which a great deal of conflicting guidance was offered within the space of a few weeks.”

The defendants’ motion details the “conflicting guidance,” noting “throughout March 2020, federal organizations and officials advised against the use of face masks for anyone other than healthcare providers in direct contact with sick individuals” and that “not until April 3, 2020 did the CDC update its guidance to recommend that healthy individuals wear cloth face coverings.” The defendants go on to assert that “[e]ven after the CDC changed its position, the World Health Organization provided a conflicting message” by continuing to state that there was no evidence that “wearing a mask (whether medical or other types) by healthy persons in the wider community setting” can prevent COVID-19 infection. “Considering these uncertainties,” argue the defendants, they “cannot be held liable for negligence.”

The motion is currently pending before United States District Judge John R. Padova.