De Ruiz v. Conagra Foods Packaged Foods, LLC, Case No. 21-CV-387-SCD

• Court: United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
• Writing for the Court: STEPHEN C. DRIES, United States Magistrate Judge
• Citation: 601 F.Supp.3d 368
• Parties: ESTATE OF Martha Amador DE RUIZ, BY its special administrator, Rigoberto RUIZ, and Rigoberto Ruiz, Plaintiffs, v. CONAGRA FOODS PACKAGED FOODS, LLC, Defendant.
• Docket Number: Case No. 21-CV-387-SCD
• Decision Date: 03 May 2022

601 F.Supp.3d 368

ESTATE OF Martha Amador DE RUIZ, BY its special administrator, Rigoberto RUIZ, and Rigoberto Ruiz, Plaintiffs,
v.
CONAGRA FOODS PACKAGED FOODS, LLC, Defendant.

Case No. 21-CV-387-SCD

United States District Court, E.D. Wisconsin.

Signed May 3, 2022

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Douglas J. Phebus, Victor M. Arellano, Arellano & Phebus SC, Middleton, WI, for Plaintiffs.

Emily L. Stedman, Patrick M. Harvey, Husch Blackwell LLP, Milwaukee, WI, for Defendant.

DECISION AND ORDER GRANTING IN PART DEFENDANT'S MOTION TO DISMISS

STEPHEN C. DRIES, United States Magistrate Judge

ConAgra Foods Packaged Foods, LLC, has moved to dismiss this wrongful death and survival action filed by the company's former employee, Rigoberto Ruiz, and the estate of his wife, Martha Amador de Ruiz. The plaintiffs allege that Rigoberto contracted the novel coronavirus at work because of ConAgra's failure to implement adequate safety measures, that Rigoberto transmitted the virus to Martha while he recovered at home, and that the virus caused Martha's death a few weeks later. ConAgra argues that both causes of action are barred by the exclusive-remedy provision of Wisconsin's Worker's Compensation Act, which generally provides that the sole liability of an employer for work-related

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injuries of its employees is under worker's compensation proceedings, not a tort action. ConAgra also argues that Martha's estate cannot proceed on its wrongful death and survival actions because Martha would not have been able to pursue either one against the company had she lived.

This "take-home" COVID case requires me to resolve two questions of Wisconsin law. First, does Wisconsin's worker's compensation exclusivity bar a tort action against an employer for the COVID-related death of its employee's spouse when the death stems from the employee's infection at work? The answer is, it depends. Worker's compensation exclusivity bars the employee's action against his former employer and any action by the "non-injured" spouse for damages deriving wholly from the employee-spouse's work-related injury. But it does not extend to separate physical injuries suffered by the nonemployee-spouse, even when the employee-spouse's injury was part of the causal chain leading to those injuries. Second, under Wisconsin law, does an employer owe a duty of care to mitigate the risk of exposing its employees and others to a highly transmissible infectious virus? Yes. It is reasonable, under the circumstances of a global pandemic, to expect employers to provide a safe work environment that does not increase the risk of its employees spreading an infectious virus to others, including members of the employees’ households. However, it's also possible that even if negligence could be established, Wisconsin's public policy would bar recovery. I therefore will withhold ruling on that issue and request additional briefing.¹

BACKGROUND

After Martha Amador de Ruiz passed away from coronavirus disease ("COVID-19"), her estate and her surviving spouse, Rigoberto Ruiz, filed a negligence action in Wisconsin state court against Rigoberto's former employer, ConAgra Foods Packaged Foods, LLC. See ECF No. 1-2. They alleged that Rigoberto contracted the virus that causes COVID-19 (severe acute respiratory syndrome coronavirus—SARS-CoV-2—or simply "coronavirus") while working at ConAgra, that Rigoberto transmitted the virus to his wife Martha, and that Martha died from COVID-19 a few weeks later. ConAgra removed the action to federal court, see ECF No. 1, and the clerk of court randomly assigned it to me.

The plaintiffs have filed a second amended complaint raising two causes of action. See ECF No. 24. First, the estate and Rigoberto seek damages from ConAgra for Martha's death—the wrongful death action. Id. at 1–4. Second, the estate seeks damages from ConAgra for the pain and suffering Martha endured prior to her death—the survival action. Id. at 4–5. The plaintiffs allege for both causes of action that ConAgra was negligent and violated Wisconsin's Safe Place Act. Id. at 4, 5.

According to the second amended complaint, Rigoberto was working at ConAgra's food-packaging plant in Darien, Wisconsin, when the coronavirus began infecting Americans in 2020. ECF No. 24 ¶ 7. The plaintiffs allege that ConAgra knew one of its employees tested positive for the virus as early as April 13, 2020, and that ConAgra knew many of its employees were exhibiting symptoms prior to then. Id. ¶ 10. However, according to the plaintiffs, ConAgra failed to exercise ordinary care in responding to the coronavirus pandemic. Id. ¶ 8. For example,

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the plaintiffs allege that ConAgra failed to: establish a contract-tracing system, train its workers regarding COVID-19 safety, properly distance its employees within the plant to minimize risk, or require and enforce proper mask wearing within the plant. Id. ¶ 13. The plaintiffs also allege that ConAgra requested symptomatic line employees to continue working and housed workers who lived in company-provided facilities in unsafe conditions. Id. ¶¶ 11–12. According to the second amended complaint, such conduct was negligent toward the health and safety of the workers and their families.

Unsurprisingly, according to the second amended complaint, ConAgra's unsafe working conditions resulted in a coronavirus outbreak at the company's Darien plant. See id. ¶ 14. The plaintiffs allege that more than 100 workers tested positive for the virus in April 2020, id. ¶ 8, and that ConAgra temporarily closed the plant on April 19, 2020, id. ¶ 9. The plaintiffs further allege that Rigoberto was one of the many workers infected during the outbreak. Id. ¶ 9. According to the plaintiffs, Rigoberto tested positive for the virus on April 22, 2020, id. ¶¶ 7, 9; Rigoberto brought the virus home from the plant and infected his wife, Martha, id. ¶ 15; and Martha "suffered greatly" from the virus until it caused her death on May 5, 2020, id. ¶ 16.

MOTION TO DISMISS STANDARD

According to Rule 8(a)(2) of the Federal Rules of Civil Procedure, "[a] pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure "challenges the sufficiency of the complaint to state a claim upon which relief may be granted." Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7 , 570 F.3d 811, 820 (7th Cir. 2009). "To survive a motion to dismiss, a complaint must ‘state a claim to relief that is plausible on its face.’ " Zemeckis v. Global Credit & Collect. Corp. , 679 F.3d 632, 634–35 (7th Cir. 2012) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). "A claim satisfies this pleading standard when its factual allegations ‘raise a right to relief above the speculative level.’ " Zemeckis , 679 F.3d at 635 (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). When analyzing a motion to dismiss pursuant to Rule 12(b)(6), courts must "accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff." Johnson v. Enhanced Recovery Co. , 961 F.3d 975, 980 (7th Cir. 2020) (citing Heredia v. Capital Mgmt. Servs., L.P. , 942 F.3d 811, 814 (7th Cir. 2019) ).

DISCUSSION

ConAgra argues that the second amended complaint fails to state a viable claim for relief for two reasons. First, according to ConAgra, the plaintiffs’ two causes of actions are barred by the exclusive-remedy provision of Wisconsin Worker's Compensation Act. Second, ConAgra contends that the estate's claims fail as a matter of law because Martha could not have brought a negligence action against ConAgra had she lived.

I. Worker's Compensation Exclusivity

In Wisconsin, "worker's compensation benefits are primarily governed by Wisconsin Stat. ch. 102," Wisconsin's Worker's Compensation Act. Graef v. Cont'l Indem. Co. , 2021 WI 45, ¶ 11, 397 Wis.2d 75, 959 N.W.2d 628, 632. Section 102.03 of the Act sets forth the conditions of liability for employers. Generally, an

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employer is liable only when five conditions are present:

(1) The employee sustained an injury;

(2) At the time of the injury, both the employer and the employee were subject to the Act;

(3) At the time of the injury, the employee was performing service growing out of and incidental to his employment;

(4) The injury was not intentionally self-inflicted; and

(5) The accident or disease causing injury arose out of the employment.

Wis. Stat. § 102.03(1)(a)–(e) ; see also Graef , 959 N.W.2d at 633. "The Act also covers a second or subsequent injury that stems from the first work-related injury." Graef , 959 N.W.2d at 633.

If all five conditions of liability are met, the Act is the exclusive remedy for claims against an employer for the work-related injuries of its employees. Wis. Stat. § 102.03(2). In other words, section 102.03(2) bars "any action...