LUFKIN, Texas (KETK) – An East Texas federal judge has thrown out a lawsuit against Pilgrim’s Pride filed by family members of an employee who died of COVID-19.

The family had sued under the Pandemic Liability Protect Act (PLPA), which was passed by the Texas Legislature in 2021. The law helps establish how a company may be liable for exposing its employees to COVID-19.

In the suit, the family claimed that the company “negligently exposed Maria Hernandez to COVID-19 while she worked at one of Pilgrim’s poultry-processing plants in April of that year.”

Judge Zack Hawthorn, a magistrate judge with the Lufkin Division in the Eastern District of Texas, wrote that while a report found that it was “almost certain” that Hernandez contracted COVID-19 during her work, the family’s suit did not meet all the requirements of the PLPA to find Pilgrim’s Pride liable for negligence in her death.

Background

Hawthorn wrote that the Hernandez family either had to prove Pilgrim’s “knowingly failed to remediate or warn Hernandez of a [work] condition that would likely expose her to COVID 19 or (1) knowingly flouted… COVID-19 guidance that was applicable to the company and (2) reliable scientific evidence shows that the plant’s conduct was the cause-in-fact of Hernandez’s death.”

Hernandez worked in a section called “Third Processing” which was a cooler used for final processing before sending meat to the shipping department.

Between April 20 and May 5, 2020, 15 confirmed cases of COVID-19 were found in the Third Processing part of the plant. Court documents said these accounted for 44% of total cases through the plant.

“For context, the entire county reported just fifty-four cases on May 5,” Hawthorn wrote.

However, these numbers were not shared with employees, but were instead kept on a spreadsheet by the Occupational Health Manager, according to documents. The ruling said the company felt it was not necessary to share the data because it “was implementing assorted measures to combat COVID-19.”

While some protocols were enacted at the plant, many were not enacted until after Hernandez tested positive on May 6. For instance, the ruling states that Pilgrim’s did not require masks until “months after April 2020” and plastic physical barriers between work stations fell down on a regular basis.

The ruling also said the plant “didn’t follow its own staggered schedule, enforce distancing at lunch, or check whether workers were properly wearing masks.”

Positive Test

On May 1, Hernandez called out sick to work with a bad cough, fatigue and other symptoms. She tried to return to work after the weekend on May 4, but had to report to an on-site nurse after only an hour.

Later that day, she was tested for COVID-19. A positive test was returned on May 6 and she passed away on May 8, which was her 64th birthday.

Ruling, Part I

Hawthorn said the plant “knowingly failed to warn Hernandez about the concentration of COVID-19 in Third Processing” by not making employees aware of the more than a dozen positive cases in that area.

However, he said that the family did not show Pilgrim’s Pride knew Hernandez was “more likely than not” to come into contact with the virus, which is required by the PLPA. Their medical expert, Dr. Andreas Handel, testified in a deposition it was “more likely” she became sick from the plant, but would not give “an absolute percentage.”

Handel did say in the same deposition it was “thirty-three times more likely that she contracted COVID-19 in the workplace than outside.”

Hawthorn wrote this still does not say there was greater than a 50% chance of exposure at the Third Processing specifically.

There were 15 confirmed cases in Third Processing between April 20 and May 5, but without knowing the total number workers in Third Processing at any time, an absolute probability cannot be calculated. And because there is no evidence that the exposure risk exceeded 50%, by extension, there also isn’t evidence that Pilgrim’s knew it exceeded 50%.

Judge Zack Hawthorn

Ruling, Part II

Hawthorn also ruled that despite Pilgrim’s “knowingly refused to implement or comply with CDC standards meant to prevent COVID-19 exposure,” the family did not reach the standard of proving Hernandez contracted the virus because of this failure.

Dr. Handel wrote that a number of factors contributed to Hernandez’s probability of contracting COVID-19 at work:

  • Prolonged contact with coworkers in close work spaces
  • Cold temperatures
  • Hernandez’s age

Despite this, Hawthorn wrote in his ruling that none of these factors were enough to reach the high standard listed above.

“None of these conclusions, however, amounts to evidence that the plant’s alleged failures caused her death.”

Judge Zack Hawthorn

Dr. Handel was asked in his deposition if Hernandez’s cause of death was the plant’s failure to warn her. He answered, “I don’t think one can make a conclusion of that” and that “you can never fully predict causation for any individual person.”

He also said there “were probably many people in Hernandez’s shoes who avoided the virus ‘by luck’ while there were others who caught it despite a proper warning.”