Ruiz v. Conagra Foods Packaged Foods, LLC

RIGOBERTO RUIZ, Plaintiff, v. CONAGRA FOODS PACKAGED FOODS, LLC, Defendant.

No. 21-CV-387-SCD

United States District Court, E.D. Wisconsin

July 20, 2021

DECISION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT

STEPHEN C. DRIES United States Magistrate Judge.

On February 26, 2021, Rigoberto Ruiz filed a complaint in Walworth County Circuit Court against his former employer ConAgra Foods Packaged Foods, LLC, alleging state-law claims of wrongful death and survival. See ECF No. 1-2. ConAgra removed the action to federal court on March 26 2021, ECF No. 1, and the parties consented to magistrate-judge jurisdiction, see ECF Nos. 4, 9. After ConAgra filed a motion to dismiss the complaint, ECF No. 5 Ruiz responded by filing an amended complaint, ECF No. 8. The amended complaint alleges that Ruiz contracted COVID-19 while working at ConAgra under unsafe conditions and that Ruiz transmitted the virus to his wife, who succumbed to the disease. ConAgra has filed a motion to dismiss the amended complaint, arguing that the Public Readiness and Emergency Preparedness Act (PREP Act), see 42 U.S.C. § 247d-6d, immunizes ConAgra from Ruiz's claims. ECF No. 10. For the reasons given below, the motion will be denied.^[1]

BACKGROUND

The following allegations are taken from Ruiz's amended complaint. See ECF No. 8. ConAgra operates a meat-packing plant in Darien, Wisconsin, where Ruiz was employed from 1995 until he tested positive for COVID-19 on April 22, 2020. Id. ¶ 5. Ruiz alleges that he contracted COVID-19 because of ConAgra's inadequate safety measures and, in some cases, the failure to institute any measures at all. As a result, Ruiz alleges that over 100 of ConAgra's employees tested positive for COVID-19 in April 2020, an outbreak that prompted ConAgra to temporarily close its plant on April 22, 2020. See ECF No. 8 ¶¶ 5-9.

Ruiz alleges that, prior to its temporary closure, ConAgra was aware of at least one of its employees testing positive for COVID-19; it further knew that many of its employees exhibited symptoms caused by COVID-19. Despite this knowledge, ConAgra failed to institute adequate safety measures. In fact, Ruiz alleges that ConAgra requested that its employees who were exhibiting COVID-19 symptoms continue working. As for workers housed in the company dorm, Ruiz alleges that ConAgra failed to properly space out its workers' sleeping arrangements. Moreover, the amended complaint alleges that ConAgra failed to institute a track-and-trace system or train its workers properly to mitigate COVID-19 risks. The company also allegedly failed to properly distance its workers or enforce a mask policy. Ruiz alleges that many of these failures were in violation of Governor Evers' emergency orders. Ruiz alleges that he contracted the virus as a result of ConAgra's inadequate safety measures and then unwittingly exposed his wife, who later died from the disease. See ECF No. 8 ¶¶ 9-12. Accordingly, Ruiz now brings both a wrongful death and a survival action against his former employer, ConAgra.

MOTION TO DISMISS

A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) challenges the sufficiency of the plaintiff's pleaded allegations. To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.... A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 (2009)). Indeed, “the plausibility requirement demands . . . that a plaintiff provide sufficient detail ‘to present a story that holds together.'” Alexander v. United States, 721 F.3d 418, 422 (7th Cir. 2013) (quoting Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010)).

Nonetheless, a court may “reject sheer speculation, bald assertions, and unsupported conclusory statements.” Taha v. Int'l Bhd. of Teamsters, Local 781, 947 F.3d 464, 469 (7th Cir. 2020) (citations omitted). Likewise, a pleading is insufficient where it merely offers “labels and conclusions or a formulaic recitation of the elements of a cause of action, . . . [or] tenders naked assertions devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007)) (internal quotation marks omitted).

DISCUSSION

I. PREP Act Immunity

ConAgra first argues that the PREP Act immunizes it from the claims alleged in the amended complaint. In 2005, Congress enacted the PREP Act in response to the SARS epidemic of 2003. The purpose of the Act's immunity provision is to insulate covered individuals and entities from liability for their administration or use of countermeasures, such as vaccines or N95 surgical masks, that are designed to combat the pandemic. “[T]he Act precludes . . . liability claims alleging negligence by a manufacturer in creating a vaccine, or negligence by a health care provider in prescribing the wrong dose, absent willful misconduct.” Estate of Maglioli v. Andover Subacute Rehab. Ctr. I, 478 F.Supp.3d 518, 531 (D.N.J. 2020).^[2] The Act's immunity provision states:

a covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure if a declaration [by the Secretary of a public health emergency] has been issued with respect to such countermeasure.

42 U.S.C. §§ 247d-6d(a)(1), 247d-6d(b)22. To trigger the immunity provision, there must be “a causal relationship with the administration to or use by an individual of a covered countermeasure.” 42 U.S.C. § 247d-6d(a)(2)(B).

“Covered countermeasures” are determined by the Secretary of the Department of Health and Human Services (the Secretary). In March 2020, the Secretary declared a “public health emergency” under the PREP Act and recommended certain covered countermeasures to combat COVID-19. See Declaration, 85 Fed. Reg. 15, 198. Originally, the “covered countermeasures” were limited to “any antiviral, any other drug, any biologic, any diagnostic, any other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID-19 . . .” Id. at 15, 202. This definition “has been amended and expanded” several times. Bolton v. Gallatin Ctr. for Rehab. & Healing, LLC, No. 3:20-cv-00683, 2021 WL 1561306, at *3 (M.D. Tenn. Apr. 21, 2021). By December 2020, the Secretary had declared that covered countermeasures included products manufactured, used, or designed to prevent COVID-19, which could include facemasks. See Fourth Amendment to the Secretary's Declaration, 85 Fed. Reg. 79, 190, 79, 196 (Dec. 9, 2020).

To prevail on its immunity argument, ConAgra must establish both that it is a covered person and that it implemented covered countermeasures. And, although the parties gloss over the point, any immunity would apply only to injury “caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure.” § 247d-6d(a)(1). Here, most of Ruiz's claims have nothing to do with covered countermeasures; instead, Ruiz asserts much more general claims about unsafe working conditions-requiring employees to work while sick, inadequate spacing, and the like. Accordingly, even if I agreed with Conagra that the PREP Act applies, most of the amended complaint's allegations would remain untouched by the Act's immunity provision. See Maglioli, 478 F.Supp.3d at 533 (on appeal) (“[M]any of the measures with which Defendants allegedly failed to comply were acts such as ‘social distancing, quarantining, lockdowns, and others.' . . . These are not covered ‘countermeasures' under the PREP Act at all.”).

A. Covered Person

Immunity is conferred upon only a “covered person.” The statute defines a covered person, when used with respect to the administration or use of a covered countermeasure, as “a person or entity that is . . . (i) a manufacturer of such countermeasure; (ii) a distributor of such countermeasure; (iii) a program planner of such countermeasure; (iv) a qualified person who prescribed, administered, or dispensed such countermeasure, ” or (v) an agent or employee of one of the above. 42 U.S.C. § 247d-6d(i)(2)(B). ConAgra maintains that it is a program planner, which the statute defines as:

a State or local government . . . or other person who supervised or administered a program with respect to the administration, dispensing, distribution, provision, or use of . . . a qualified pandemic or epidemic product, including a person who has established requirements, provided policy guidance, or supplied technical or scientific advice or assistance or provides a facility to administer or use a covered countermeasure in accordance with a declaration under subsection (b).

42 U.S.C.A. § 247d-6d(i)(6) (italics added).

ConAgra argues that because it took certain safety precautions including distributing facemasks to its employees, it “administered a program with respect to the . . . dispensing, distribution, provision, or use of . . . a qualified pandemic or epidemic product.” ConAgra, a food company, does not naturally fit within the PREP Act's purpose, which is to shield the medical community from liability. See, e.g., Maglioli, 478 F.Supp.3d at 529 (“[The PREP Act's] evident purpose is to embolden caregivers, permitting them to administer certain encouraged forms of care . . . with the assurance that they will not face liability for having done...