Smithfield Foods, 1400 N. Weber Ave., Sioux Falls, South Dakota

The public-interest law firm Public Justice is hoping to revive a closely watched public nuisance lawsuit over COVID-19 protections at a meat-processing plant after a judge last month allowed a similar case to go forward against McDonald's.

U.S. District Judge Gregory Kays had dismissed the public nuisance case alleging Smithfield Foods Inc. had failed to protect workers from COVID-19 at a plant in Milan, Missouri. His May 5 ruling was one of the first to address the legal responsibilities a company has to protect its workers from the coronavirus. In his decision, Kays sided with Smithfield in concluding that the U.S. Occupational Safety and Health Administration had jurisdiction over the matter and, in any case, there was no "imminent harm" given numerous changes the plant, which had yet to have a confirmed case of the coronavirus.

"Sadly, that is no longer the case," Public Justice wrote in a motion for reconsideration of the dismissal order, noting that up to 30 workers were quarantined a week after the court's decision due to possible exposure to infected individuals in the workplace. "It is beyond dispute that the continued operation of the plant has contributed to the spread of the virus."

On Monday, Public Justice, arguing against OSHA's ability to solely monitor the plant, supplemented its motion with a July 1 motion to quash a subpoena that Smithfield filed relating to a separate investigation over its plant in Sioux Falls, South Dakota, where more than 850 people got the coronavirus, forcing its shutdown in April.

Jean Paul Bradshaw of Lathrop GPM in Kansas City, Missouri, and Alexandra Cunningham of Hunton Andrews Kurth in Richmond, Virginia, who both represent Smithfield, did not respond to a request for comment.

In the June 2 motion for reconsideration, Public Justice, along with the Heartland Center for Jobs and Freedom Inc. in Kansas City, Missouri, and Towards Justice, based in Denver, sought to reopen the case but stay any actions for 90 days, which would allow plaintiffs, who have filed an "imminent danger complaint" with OSHA, to seek immediate relief if necessary.

Smithfield, in a June 16 response, said the reconsideration motion "completely misses the mark" and that OSHA, not the court, continues to have the proper jurisdiction over any health standard disputes at the plant.

The rising number of coronavirus cases also did not justify reopening the case, Smithfield's lawyers wrote.

"It has now been three months since the president declared a state of emergency and designated COVID-19 a pandemic," they wrote. "The disease has spread throughout the country."

In a reply, Public Justice insisted that Smithfield, while increasing its testing, has not enforced guidelines to keep employees 6 feet apart.

"Newly discovered documents confirm Smithfield's statements are not posturing, but company policy," the reply says. "Specifically, recently revealed emails show that Smithfield's Chief Executive Officer complained to the Nebraska governor that 'social distancing is a nicety that makes sense only for people with laptops.'"

Moreover, the reasons for the case's dismissal "now rest on the shakiest of foundations," citing two recent decisions against McDonald's. A June 24 ruling granted a preliminary injunction in a class action brought by workers at four restaurant locations in Chicago who alleged McDonald's created a public nuisance by failing to enforce its own policies to protect employees from the coronavirus.

Cook County Circuit Court Judge Eve Reilly found that McDonald's had supplied enough face coverings, hand sanitizer and gloves, monitored infections among workers and educated employees on how the COVID-19 pandemic spreads. However, she wrote, McDonald's was not properly training its employees on two key elements of its policies: social distancing and the correct wearing of masks. The risks to the community, she wrote, were "severe" and potentially a "matter of life or death" for its employees.

She also disagreed with the Smithfield decision.

"The court dismissed the Smithfield case as being illogical because the courts are supposed to protect common law rights, and the notion that OSHA's rule is such that it replaces common law remedies is not only inconsistent with that logic but the OSHA Act itself," said David Muraskin, a senior attorney at Public Justice in Washington, D.C. "What we appreciated about the McDonald's case is it sets the right framework that the courts have a role here, and the Smithfield decision was an outlier."

The plaintiffs also cited a June 22 decision in a case alleging McDonald's created a public nuisance at a store in Oakland, California, by allowing 23 people to get sick with COVID-19, including a 10-month-old baby. Alameda County Superior Court Judge Patrick McKinney blocked the store from reopening until it went through a deep cleaning and instituted changes to its sick leave policies and other COVID-19 protections.

Public Justice also noted that, despite Smithfield's claim that court intervention would result in varying health guidelines, OSHA argued against a national standard in a case before the U.S. Court of Appeals for the D.C. Circuit that the AFL-CIO unsuccessfully brought against the federal agency.

As to the recent subpoena, Smithfield is fighting OSHA's access to documents it filed with the South Dakota Department of Health, citing "significant public policy implications relevant to the nation's ongoing response to the novel COVID-19 virus." Allowing OSHA access to potentially confidential materials, submitted for public health reasons, creates "entirely backwards incentives during the current pandemic," wrote its lawyers at Hunton Andrews Kurth.

"These are companies talking out of both sides of their mouth," Muraskin responded. "They're going to tell the court in Missouri, 'No, OSHA needs to have jurisdiction.' Then, they tell the court in the same circuit in South Dakota, 'No, OSHA doesn't need this information.'"