COVID-19, News

Washington at a standstill, as states face the loss of federal help amid ‘the worst part of the crisis’

News

The latest on Trump’s effort to overturn the vote in Michigan

Michigan state House Speaker Lee Chatfield and Senate Majority Leader Mike Shirkey, both Republicans, are supposed to be headed to the White House Friday for a chat with President Donald Trump, who’s been eager to overturn the results of the Nov. 3 election won by Democrat Joe Biden.

Gov. Gretchen Whitmer appeared Thursday night on both CNN and MSNBC, with the GOP leaders’ meeting as the primary topic of discussion.

CNN host Erin Burnett asked Whitmer about Trump’s contention that he should win Michigan, despite losing by about 155,000 votes, and what she can do about it.

“The president can say all he wants; he can summon people to the White House all he wants. He can try to interfere — which raises serious legal and ethical questions, by the way. But the fact of the matter is, Joe Biden won this state and won big — by 14 times the margin that Donald Trump won Michigan in 2016,” said Whitmer, a former Ingham County prosecutor.

“The will of the people will be done. And these efforts to disenfranchise Wayne County, where the majority of our African American voters live is just a blatant attempt to steal the election result and disenfranchise Michigan voters, and it will not stand.”

That echoes arguments made by University of Michigan law professor Richard Primus in a Thursday Politico column. He argues taking the meeting is a threat to democracy, but he also lays out a case that it “threatens the two Michigan legislators, personally, with the risk of criminal investigation.” Neither Shirkey nor Chatfield are attorneys.

“The president is a dealmaker, and it’s far more likely that his agenda is transactional. When considering a course of action, he doesn’t think about principles; he thinks about what’s in it for whom. So it makes sense to think that he is inviting Shirkey and Chatfield for a private meeting to offer them something,” Primus writes.

“… The danger for Shirkey and Chatfield, then, is that they are being visibly invited to a meeting where the likely agenda involves the felony of attempting to bribe a public official.”

Primus notes that if Trump is successful in staying in office for a second term, he could stymie a Department of Justice investigation, but he would have no ability to stop a state probe by Democratic Attorney General Dana Nessel, whose spokesperson retweeted the story.

Michigan Gov. Gretchen Whitmer

Whitmer was asked about Shirkey’s previous comments that seemed to suggest the Legislature would not intervene in the post-election process and if she was concerned that he would now change his mind.

She responded, “of course … I don’t know why they’d be going to the White House.”

Earlier on Thursday, Whitmer noted that she and Democratic legislative leaders sent a letter to congressional leaders asking for a COVID-19 relief bill, but Shirkey and Chatfield declined to sign on.

“Maybe they’re going to lobby for COVID funding, which would be welcome here in Michigan and across the country. It’s one of the things that our nation’s governors — I was one of them — met with the incoming Biden administration about today [said] is desperately needed. And if that’s what they’re doing wonderful, but if they’re going there to undermine the results of this election and disenfranchise Michigan voters and to embarrass the state of Michigan, what they are doing runs against our law and they should be very careful because it’s dangerous.” Read more

COVID-19, News

Lawsuit: Tyson managers bet money on how many workers would contract COVID-19

Tyson workers have had plastic dividers separating them on the production line. (Photo provided by Tyson Fresh Meats)

A wrongful death lawsuit tied to COVID-19 infections in a Waterloo, Iowa pork processing plant alleges that during the initial stages of the pandemic, Tyson Foods ordered employees to report for work while supervisors privately wagered money on the number of workers who would be sickened by the deadly virus.

Earlier this year, the family of the late Isidro Fernandez sued the meatpacking company, alleging Fernandez was exposed to the coronavirus at the Waterloo plant where he worked. The lawsuit alleges Tyson Foods is guilty of a “willful and wanton disregard for workplace safety.”

In a written statement issued late Wednesday, Tyson said it was “saddened by the loss of any Tyson team member and sympathize with their families.” The company said it would not comment on specific allegations within the lawsuit but that its “top priority is the health and safety of our workers and we’ve implemented a host of protective measures at Waterloo and our other facilities that meet or exceed CDC and OSHA guidance for preventing COCVID-19.”

Fernandez, who died on April 20, was one of at least five Waterloo plant employees who died of the virus. According to the Black Hawk County Health Department, more than 1,000 workers at the plant — over a third of the facility’s workforce — contracted the virus.

The lawsuit alleges that despite the uncontrolled spread of the virus at the plant, Tyson required its employees to work long hours in cramped conditions without providing the appropriate personal protective equipment and without ensuring workplace-safety measures were followed.

The lawsuit was recently amended and includes a number of new allegations against the company and plant officials. Among them:

  • In mid-April, around the time Black Hawk County Sherriff Tony Thompson visited the plant and reported the working conditions there “shook [him] to the core,” plant manager Tom Hart organized a cash-buy-in, winner-take-all, betting pool for supervisors and managers to wager how many plant employees would test positive for COVID-19.
  • John Casey, an upper-level manager at the plant, is alleged to have explicitly directed supervisors to ignore symptoms of COVID-19, telling them to show up to work even if they were exhibiting symptoms of the virus. Casey reportedly referred to COVID-19 as the “glorified flu” and told workers not to worry about it because “it’s not a big deal” and “everyone is going to get it.” On one occasion, Casey intercepted a sick supervisor who was on his way to be tested and ordered him to get back to work, saying, “We all have symptoms — you have a job to do.” After one employee vomited on the production line, managers reportedly allowed the man to continue working and then return to work the next day. Read more
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Biden promises ‘no national shutdown’ despite surge in COVID-19

agriculture, Courts & the Law, Environment, News

In damning opinion, federal appeals court rules against Murphy-Brown in hog nuisance suits

Photos taken inside one of the hog barns at Kinlaw Farms and presented to the jury in the case of McKiver vs. Smithfield Hog Production Division (Photos from court filings)

Punitive damages will be recalculated, but court sides with plaintiffs on all other arguments 

This is a developing story.

Update 6:25 p.m.: Smithfield issued a statement saying they have “resolved these cases through a settlement that will take into account the divided decision of the court. Information about the terms of the settlement will not be disclosed.”

Murphy-Brown lost nearly every legal argument it posed before the Fourth Circuit Court of Appeals, which, in a damning opinion issued this afternoon reaffirmed a jury verdict awarding monetary damages to 10 neighbors who had filed nuisance suits against the world’s largest pork producer.

After 10 months since the oral arguments, the Fourth Circuit affirmed a decision issued by the District Court that Murphy-Brown’s operation of its industrialized hog operations — open lagoon and spray field systems, “dead boxes” and all-hours truck traffic — unduly harmed neighbors’ quality of life. The only point that Murphy-Brown prevailed on was the role of executive salaries and parent company profits in calculating punitive damages.

The case centered on neighbors of the Kinlaw Farm in Bladen County, a contract grower for Murphy-Brown/Smithfield Foods. However, the suit was filed in 2018 against Murphy-Brown, which controls every aspect of the farm, from the type and amount of feed, to the number of hogs raised, to the lagoon-and-sprayfield waste management systems.

After more than two weeks of hearing testimony, a jury awarded each plaintiff  $75,000 each in compensatory damages, plus another $5 million apiece for punitive damages. The total: Upward of $50 million, an historic amount.

Punitive damages can be awarded if a jury finds a defendant “committed fraud,”  “acted in malice” or in “wanton neglect.”

There will be no new trial, the appellate court ruled, only a rehearing on the amount of punitive damages that can be awarded to neighbors without considering the parent company or executives’ financial information. Compensatory damages are unaffected.

At the district court level, the neighbors were represented by Wallace & Graham, based in Salisbury, who had hired Michael Kaeske of Texas to argue the case. McGuireWoods in Richmond, Va., represented Murphy-Brown.

In the 144-page opinion, appeals court judges disarmed Murphy-Brown’s many defenses, including its major points:

  • Murphy-Brown had tried to reel in Kinlaw Farms as a responsible party, even though the pork producer dictates the terms of the operation. Had Murphy-Brown succeeded in its argument, the company could have further buttressed its claim that the nuisances suits, of which there are dozens, harmed family farmers. In fact, Murphy-Brown is responsible for the damages.
  • The company had claimed that the Right to Farm Act of 2017, which sharply limited the amount of damages neighbors could recover in case they won in court, was retroactive. (Gov. Cooper vetoed the bill, but lawmakers overrode it.) By the time that legislation was enacted, dozens of nuisance suits had been filed in federal court against the company. Even though the text of the bill said it would be effective when it “became law and after that date,” Murphy-Brown and several lawmakers said it merely “clarified” previous farm acts and should apply retroactively.
    Original bill language did say it should apply retroactively, but was removed over concerns it could not pass constitutional muster.
    The appellate court disagreed, saying “we have nothing to conclude that the 2017 Right to Farm Act amendments should apply retroactively. … If made retroactive it would reward powerful defendants who faced with a possible judgment against them could escape responsibility by raising a specter of doubt about something the state’s courts have long made available.”
  • Murphy-Brown also lost its claim that the expert testimony of Shane Rogers should be struck. Rogers is an environmental engineer who testified that hog feces had been found on neighbors’ homes. He based these findings on Pig2Bac, a technology that can determine the fingerprint of fecal material. Although the technology had not been peer-reviewed, the court said that fact was only one consideration of its reliability.

The court also found that Murphy-Brown knew that its farms were causing problems for the neighbors, even without formal complaints. “Murphy-Brown’s own collection of media articles reporting conditions associated with its farming practices and policies, as well as its knowledge of studies detailing the effects of lagoon and spray field operations and types of effective remediation,” showed that the company was fully aware of the odor, flies, buzzards and truck traffic. “Yet despite this knowledge,” the court wrote, Murphy-Brown “persisted in practices it knew were reasonably likely to result in injury to neighboring properties.”

Nor did the court buy the company’s argument that the Kinlaw farm operated legally and with required permits, and thus should not be found liable for nuisance. “This is beside the point,” the court wrote. “Lawful enterprises can constitute a nuisance ….”

During the trial, Murphy-Brown executives testified that the company had taken steps to reduce impacts on neighbors. This included changing the type of feed to decrease odors from the manure. However, the court determined that these steps “were motivated by profit or efficiency of operations as oppose to concern for neighbors. … The fact that Murphy-Brown policies expressly encouraged growers to avoid spraying at times neighbors were known to be outside demonstrates that [the company] knew its spray field operation was still likely to interfere with use and enjoyment of their property.”

The neighbors, wrote the court, “presented clear and convincing  evidence that Murphy-Brown knew about the likely harms, denied their existence and fought for them not to come to light.”