By Matthew Santoni

Law360 (June 30, 2020, 9:10 PM EDT) -- The family of a Philadelphia-area meatpacking plant worker who died of COVID-19 wants its case against his employer moved back to state court, arguing its wrongful-death claims are not barred by workers' compensation law or a federal executive order governing the food supply chain.

The estate of Enock Benjamin said Monday there were genuine questions of whether Benjamin was employed by JBS Souderton Inc. — which operated the Montgomery County, Pennsylvania, meatpacking plant — or its parent company, so the Pennsylvania-based subsidiary was properly joined to the case and gave the state courts jurisdiction over the lawsuit.

The estate also said Benjamin died nearly a month before President Donald Trump issued his executive order, so the order could not have given the federal court priority over any claims related to Benjamin's death.

"There is no evidence presented whatsoever that the proclamation that was made on April 28, 2020, had anything to do with the actions taken by the JBS defendants at the Souderton plant in March of 2020," the brief accompanying the estate's motion to remand said Monday. "There is nothing in the food chain supply order that states it was acceptable for the JBS defendants to threaten workers' jobs if they called out sick with COVID-19 symptoms, that it was acceptable for JBS not to establish a policy to wear face masks, or that it was acceptable for JBS not to provide PPE materials if it considered its workers to be essential."

Benjamin's estate asked the federal court to send the case back to the Court of Common Pleas in Philadelphia.

The lawsuit, brought May 7, claims JBS ignored U.S. Occupational Safety and Health Administration recommendations instructing businesses to have sick workers stay at home and to issue personal protective equipment to keep workers safe while on the job.

Benjamin came down with a cough and took time off from work starting March 27; he died in his home April 3. The suit was removed from the Court of Common Pleas to the U.S. district court on June 2, and JBS filed a motion to dismiss June 16.

JBS claimed Benjamin's estate had improperly joined JBS Souderton to the suit because the company was Benjamin's employer, and direct employers can't be sued for injuries covered by workers' compensation law. The JBS USA Holdings named in the complaint had been converted to an overseas corporation in 2015 and shouldn't have been part of the suit, the company said.

But the estate countered that there were questions about which company was Benjamin's employer and whether JBS Souderton fell under an exception to workers' compensation immunity because it had misrepresented the safety of the workplace during the pandemic.

A workers' compensation denial letter June 15 was signed by JBS USA Holdings, the estate said.

"As the above makes clear, JBS USA Holdings Inc. did not cease to exist in 2015," the brief said. "At a minimum, factual disputes exist on both of these points which entitles plaintiff to discovery and render defendants' claim of 'fraudulent joinder' utterly inappropriate."

The estate cited the Supreme Court of Pennsylvania's 1987 ruling in Kiehl v. Action Manufacturing Co. to argue that even if the local subsidiary were immune under the Workers' Compensation Act, its parent company could still be sued. The same court's 1992 decision in Martin v. Lancaster Battery Co. held that a company lost its immunity when it actively misled employees about workplace hazards, the estate said.

"In the midst of the pandemic, the JBS defendants misrepresented the safety of the Souderton plant in order to profit off of the increased demand for beef in the marketplace. Individuals were told that their co-workers who looked to be demonstrating COVID-19 symptoms actually had the flu," the brief said.

An attorney for the estate said the lawsuit implicates various parts of JBS.

"As our filings in the litigation make clear, failures throughout the JBS chain of command resulted in numerous workplace safety failures," Jeffrey Goodman of Saltz Mongeluzzi & Bendesky PC said Tuesday.

Counsel for JBS did not immediately respond to requests for comment Tuesday.

The plaintiffs are represented by Robert Mongeluzzi, Steven Wigrizer, Jeffrey Goodman and Jason Weiss of Saltz Mongeluzzi & Bendesky PC.

JBS is represented by Molly E. Flynn, Mark D. Taticchi and Rebecca L. Trela of Faegre Drinker Biddle & Reath LLP.

The case is Ferdinand Benjamin v. JBS SA et al., case number 2:20-cv-02594, in the U.S. District Court for the Eastern District of Pennsylvania.

--Editing by Janice Carter Brown.

For a reprint of this article, please contact reprints@law360.com.