Widow Who Sued Tyson Foods Over Husband’s COVID Appeals Loss to Third Circuit

The widow of a meatpacking supervisor for Tyson Foods who claimed that its deficient precautions to protect against COVID-19 led to her husband’s death from the disease last year and had her case dismissed by a federal judge, is now appealing to the U.S. Court of Appeals for the Third Circuit.

Renata Barker (individually and as the personal representative of the estate of Brian K. Barker) of Philadelphia initially filed suit in the Philadelphia County Court of Common Pleas on July 27, 2020 versus Tyson Foods, Inc. (c/o CT Corporation System) of Harrisburg, plus The Original Philly Steak, Inc. and Original Philly Holdings, Inc. (both doing business as “Original Philly Cheesesteak Co.”), both of Philadelphia.

(The case was later removed to the U.S. District Court for the Eastern District of Pennsylvania on Jan. 15.)

Barker claimed that the Original Philly Cheesesteak Co. failed to provide its workers with personal protective equipment when the COVID-19 pandemic began last March and instead, increased production without following such precautions.

“Barker was just three years from retirement when he was infected with COVID-19 while working at the Original Philly plant. Despite the fact that Barker was at high risk for contracting COVID-19 – he was over 60, had diabetes and high blood pressure – the defendants ordered Barker to take the temperatures of employees coming into the plant on April 2, 2020. April 2 would be Barker’s last day at the plant – predictably he tested positive for COVID-19 just five days later, on April 7, 2020,” the suit stated.

Tragically, Barker succumbed to the infection and died on April 23, 2020. Barker’s death was the preventable result of the defendants’ decisions to ignore worker safety. The defendants ignored federal guidance and put plant workers in the crosshairs of a global pandemic.

The plaintiff said that “by choosing profits over safety, the defendants demonstrated a reckless disregard to the rights and safety of others, including Brian Barker.”

“As a direct result of the carelessness, negligence, recklessness, gross negligence, and/or other liability producing conduct of the defendants, plaintiff’s decedent, Brian Barker, suffered illness and injuries that led to his death,” per the suit.

Tyson Foods filed a motion to dismiss the case on Jan. 22, believing that the litigation only belongs under the auspices of the Pennsylvania Worker’s Compensation Act.

“This Court is the wrong forum to resolve plaintiff’s workplace injury claims. Pennsylvania has a strict, no-fault workers’ compensation system administered by the Pennsylvania Bureau of Workers’ Compensation of the Department of Labor and Industry. Plaintiff’s claims against Tyson are barred – at least in this Court – under the exclusive remedy provision of the Pennsylvania Workers’ Compensation Act (PWCA), which directs that workplace injury claims must be adjudicated through the Pennsylvania Bureau of Workers’ Compensation,” the dismissal motion read, in part.

“Plaintiff tries to evade the PWCA by recasting the workplace injury claims as ones for fraudulent or intentional misrepresentation, or for allegedly ‘grossly negligent, willful, reckless, [or] wanton’ conduct. Those re-characterizations are futile. There is no ‘intentional tort’ or ‘wanton [or] willful misconduct’ exception to the PWCA’s exclusive-remedy provision. The Court need go no further. All claims against Tyson are barred under the PWCA, and the complaint should be dismissed on that basis alone.”

Additionally, Tyson Foods’ counsel countered that the plaintiff’s claims fail to adequately plead a claim for misrepresentation, fail to allege plausible, non-conclusory facts establishing causation for the decedent’s contraction of COVID-19 and also fail to take into account the broad express preemption provisions in the Federal Meat Inspection Act and Poultry Products Inspection Act.

Diamond dismissed the case entirely on Dec. 6, siding with the defense that the Worker’s Compensation Act pre-empted the plaintiff’s claims.

According to Diamond, Barker further argued (for the very first time) that her fraudulent misrepresentation and intentional misrepresentation claims fell outside Worker’s Compensation Act’s exclusivity provision, leading Diamond to remark that the plaintiff “once again misread the law and her own complaint.”

“The Act includes a limited exception to exclusivity, allowing claims for ‘aggravation of an employee’s work-related injury where the employer’s fraudulent misrepresentation has been alleged.’ The employer’s misrepresentation must result in an ‘aggravation of a pre-existing injury.’ Alleging that an employer showed a ‘willful and wanton disregard for employee safety’ is insufficient to escape the PWCA exclusivity provision,” Diamond said.

“Plaintiff has not alleged any pre-existing work-related injury. Rather, she alleges that Mr. Barker had diabetes and high blood pressure. She does not suggest that either condition was caused by his work at the meatpacking plant. She also alleges that Tyson ‘directly misrepresented to workers that there was no risk of infection and/or that the workers were unlikely to become infected and/or deliberately withheld their knowledge of workers at the plant becoming infected with COVID-19.’ Plaintiff thus has not alleged Tyson’s wrongful conduct aggravated a pre-existing work-related injury. Accordingly, plaintiff’s fraudulent misrepresentation and intentional misrepresentation claims do not fall within the ‘narrow exception’ to PWCA exclusivity.”

Though Diamond stated the final result “may seem harsh”, he added the law required that the case be dismissed.


On Jan. 5, counsel for the plaintiff announced their intent to appeal Diamond’s ruling to the Third Circuit.

“Notice is hereby given that plaintiff, Renata Barker, Administratrix of the Estate of Brian K. Barker, deceased, and in her own right hereby appeals to the United States Court of Appeals for the Third Circuit from the final judgment entered by this Court in favor of defendants Tyson Foods, Inc., The Original Philly Steak, Inc. and Original Philly Holdings, Inc. on Dec. 6, 2021 and all decisions subsumed in that judgment,” the notice stated.

According to the plaintiff, these included:

  • The Court’s Nov. 22, 2021 memorandum denying plaintiff’s motion to remand and related order, including the Court’s concurrent dismissal of all claims against defendant Original Philly Holdings, Inc. and Original Philly Steak, Inc., and;
  • The Court’s Dec. 6, 2021 memorandum granting defendant Tyson Foods, Inc.’s motion to dismiss with prejudice and related order.

The plaintiff is represented by Robert J. Mongeluzzi, Jeffrey P. Goodman and Steven G. Wigrizer of Saltz Mongeluzzi & Bendesky, plus Jason Scott Weiss of Wapner Newman Wigrizer Brecher & Miller, all in Philadelphia.

The defendants are represented by William H. Catto and Erin Elizabeth Lamb of Freeman Mathis & Gary, also in Philadelphia, plus Jessica L. Everett-Garcia and Christopher S. Coleman of Perkins Coie, in Phoenix, Ariz.

U.S. Court of Appeals for the Third Circuit case 22-1039

U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-00223 

Philadelphia County Court of Common Pleas case 200701751

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com

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