Gerardo Gutierrez, 70, repeatedly and unsuccessfully pleaded with his supervisors to be allowed to wear a mask while working at a Publix Super Market deli in Florida. He died in April, just a month after a co-worker exposed him to the coronavirus.
The family of Isidro Fernandez, 52, alleges Tyson Foods failed to provide him with proper face coverings, protective equipment or the ability to socially distance from other workers, and was told to report to work even if he had symptoms of illness. The father of two contracted COVID-19 at the plant and subsequently died.
The families of the two men believe their employers were complicit in causing their deaths and have filed wrongful death lawsuits in Miami-Dade circuit court (Gutierrez) and in federal court (Fernandez).
The two cases are among the dozens of lawsuits filed against businesses by grieving relatives of people who died after contracting COVID-19 at work.
Wrongful death lawsuits can be complicated and must meet the strict state or federal court rules governing how the cases can be successfully pursued, whether they involve COVID-19 or any other cause of death.
Further complicating legal strategies is a move in Congress to legislate some degree of COVID-19 liability protection for businesses that may be included in a proposed $908 billion relief package a bipartisan coalition hopes to pass before the end of the year.
“An absolute shield would mean that no damages would be available—but the more likely scenario is a qualified shield which would still penalize conduct which is wanton and willful,” Scott P. Mallery, an attorney with the international Seyfarth legal firm, said in a blog post.
Another issue is how such legislation might affect ongoing legal cases or how proposed limitations might deter or hinder potential future liability actions.
Policy failures at Publix and Tyson Foods are crux of wrongful death lawsuits
“The sudden passing of our father has been a devastating loss to our family. Our family is in shock that Publix would prevent its employees from staying safe. Because of its careless decisions, our father is not here with us today,” the Gutierrez family said in a statement issued when they filed their lawsuit.
Beginning in March, Publix did allow some employees to wear disposable masks, but banned the practice for deli employees, according to the lawsuit.
“You can either work without a mask or go home,” Publix employees were told in Miami, while some were told wearing a mask might panic shoppers.
It was not until after Gutierrez was sent home to quarantine that Publix began allowing all employees to wear cloth masks. The wearing of masks storewide did not become mandatory at Publix stores until July.
Like Gutierrez, Fernandez died in April. The Tyson employee was one of 1,000 workers at the Waterloo, IA, plant to contract COVID-19 and one of five of the plant’s employees to succumb to the disease.
Fernandez’ family alleges in the lawsuit that Tyson committed “fraudulent misrepresentations, gross negligence, and incorrigible, willful and wanton disregard for worker safety”, and claims the plant manager had a betting pool over how many people at the plant would become infected.
Additionally, the lawsuit claims Tyson supervisors were ordered to deny knowing of any COVID-19 cases at the plant. The company offered $500 bonuses to employees who did not miss shifts, and sick workers were ordered to stay on the production line unless they had a positive test, according to the lawsuit.
Some well-known wrongful death cases
Wrongful death lawsuits are quite common and have involved a number of famous people and businesses: O.J. Simpson, Nancy Grace, the Ford Motor Company and Uber, to name a few:
- O.J. Simpson – Although found not guilty in his criminal murder trial, Simpson was found guilty in civil court of causing the deaths of Ronald Goldman and Nicole Brown Simpson in a lawsuit filed by the families of both victims. The trial court ordered him to pay $33.5 million in damages.
- Nancy Grace – The television commentator was sued for causing the suicide of the mother of a missing 2-year-old boy. Grace interviewed the mother and later claimed on air that the mother knew where he was and may have killed him. Just before the show aired, the mother committed suicide, even though investigating authorities never considered her a suspect. The mother’s family sued Grace for causing her death, settling in 2010 for a $200,000 payout that would be donated to the National Center for Missing and Exploited Children if the boy was not found by the age of 13. He has never been found.
- Ford Pinto – Major defects in the 1970s-era popular $2,000 subcompact car built by the Ford Motor Company led to nearly 120 wrongful death lawsuits filed by families of those killed in explosions and fires while driving the car. The lawsuits revealed that the company knew that the rear-facing gas tank was prone to rupture and potentially exploding during even minor rear-end collisions. Despite this, the company continued to manufacture the car for six years without changing the design. An internal company report revealed in court that the company felt it was not cost-effective” to redesign the car. In just one legal action among many that resulted in hefty judgments against Ford, a jury levied $4.2 million in actual damages and $101 million in punitive damages. Another jury in California awarded $128 million in damages. In 1978, Ford recalled all 1.5 million of the cars.
- Uber – When a self-driving Uber SUV struck and killed an Arizona woman in 2018, the company settled with the woman’s husband and daughter for an undisclosed sum. This case followed several others also involving Uber cars that hit and killed pedestrians and killed passengers in car accidents. Most recently, a wrongful death lawsuit was filed in federal court in Maryland alleging inadequate passenger screening procedures resulted in the killing of an Uber driver by passenger.
- DaVita Dialysis – The families of three patients who died after receiving dialysis treatments in Colorado were awarded $385.5 million two years ago by a federal jury. The company was found to be negligent and had concealed facts from patients that the treatment could cause pH imbalances.
Wrongful death claims are complicated and can be hard to prove
Each year, nearly three million people die in the United States, according to the Centers for Disease Control. The leading causes of death, according to the CDC, include heart disease, cancer, unintentional injuries, chronic lower respiratory diseases, stroke, Alzheimer disease, diabetes, influenza and pneumonia, kidney disease and suicide.
Of that number, more than 167,000 people die from unintentional (non-suicide) injuries, 37,000 each die from motor vehicle accidents and falls, while more than 62,000 die from unintentional poisoning. An additional 48,000 people die from suicide.
The number of people who have died in the U.S. from COVID-19 is approaching 300,000. That total is increasing by thousands a day.
Among all of these deaths, there is the possibility that wrongful actions were involved.
In law, wrongful death is defined as an action or inaction by a party, whether person or business or agency, that results in the wrongful death of a person. The defendant in such a lawsuit is alleged to have a legal liability for committing the act that caused harm.
That harm can be physical or monetary and claims must be based on law as defined by state or federal legislative statutes. The rules can vary from state to state.
In general, there are three kinds of torts: intentional (deliberately and knowingly acting in a way to cause harm), negligent (causing harm by failing to follow proper rules), or strict liability (making or selling a defective product).
Because cases are civil actions that normally do not involve a crime (but can), the recompense is usually monetary. Often, settlement amounts are not made public.
Usually, a wrongful death claim is made by a close relative, a life partner or financial dependent, or the executor of the deceased’s estate — basically, anyone who can show financial or direct emotional loss.
Claims can be made against people, premises owners, companies and their employees, government agencies, and manufacturers.
Often, however, government agencies are immune by law from wrongful death actions. For example in 2013, the U.S. Supreme Court ruled that generic drug makers cannot be sued for personal injury or wrongful death if the suit is based on the alleged “unreasonably dangerous[ness]” of a drug originally approved by the FDA.
A successful claim generally must prove direct negligence, recklessness or intentional harm, was well as failure to meet the duty of safety, and that this negligence and breach of duty directly contributed to the death. As for damages, it must be shown that the death caused emotional damage and suffering and financial losses including loss of income, medical costs, and funeral costs to the victim and family.