Judge denies Publix’s request to dismiss COVID-19 wrongful death case

The lawsuit accuses Publix of prohibiting mask use by a 70-year-old employee who contracted the virus.
Gerardo Gutierrez, 70, died from complications related to COVID-19. A lawsuit filed by his family says he contracted the virus while working at a Publix deli counter during a period the grocer forbid workers from using masks.
Gerardo Gutierrez, 70, died from complications related to COVID-19. A lawsuit filed by his family says he contracted the virus while working at a Publix deli counter during a period the grocer forbid workers from using masks. [ The Gutierrez family ]
Published Feb. 5, 2021

A judge in Miami-Dade County denied Publix’s request to toss out a wrongful death lawsuit that accuses the grocer of carelessly handling employee safety during the early stages of the pandemic.

Publix’s argued the case should be handled in worker’s compensation court. Judge Carlos Lopez filed his denial to Publix’s motions on Friday morning after making his decision in Miami-Dade circuit court Wednesday, according to court records.

Gerardo Gutierrez, a 70-year-old Publix deli employee in Miami Beach, died of complications from COVID-19 in April. The lawsuit, filed by his adult daughter, Ariane Gutierrez, alleges he contracted the virus from a coworker while he was barred from wearing a mask to work. The judge’s decision means the case will continue to move forward in court.

Related: A Publix employee died from COVID-19. Now his family is suing over his death.

“We think the judge made the right ruling and we’re looking forward to holding Publix accountable,” said Michael Levine, the Miami-based attorney representing the Gutierrez family.

Asked about the allegations made in the case and the judge’s ruling, Publix said in a statement it does not comment on pending litigation.

In its filing seeking to dismiss the case, Publix’s attorneys wrote the lawsuit was “littered with inflammatory and unsupported rhetoric” and that the death was a workplace accident that should be handled as a worker’s compensation claim.

Further, Publix’s motion argued that Levine, the Gutierrez family’s attorney, did not establish that Publix could be “virtually certain” — a standard in Florida law — that an employee who contracted COVID-19 would die. Publix’s attorneys, led by Tampa attorney Robert J. Grace, Jr., argued then that Levine would need to show that all, or almost all, employees who have gotten COVID-19 died.

“The court is allowed to utilize its common sense to reject such nonsense,” the filing said.

Levine said in his filed response that what happened to the elderly deli worker was “entirely predictable.” The danger of the virus and the benefits of mask use were well documented, even in March, and, therefore, Gutierrez contracting and dying of COVID-19 wasn’t unusual or unexpected, the filing says.

“Publix’s attempt to make this a worker’s compensation case is not only entirely wrong, but it would also result in this family receiving no compensation at all, and apparently that’s what [Publix] wants,” Levine told the Tampa Bay Times. “They have never taken any responsibility for this.”

Related: Last in line: Publix lagged behind competitors in COVID-19 safeguards

Florida worker’s compensation law says only children younger than 18 or under 22 and a full-time student or spouses can be benefactors in a case involving an accident that resulted in death. The case has been filed on behalf of Gutierrez’s four adult children, none of whom would be considered dependents.

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Levine’s lawsuit echoes an April Tampa Bay Times report that showed Publix forbid mask use in the early weeks of the pandemic and was later than other retailers to allow, and then require, employees to wear them.

The Times interviewed employees who said the Lakeland grocer was worried mask and glove use would scare off customers, something that was also documented in employee complaints filed with the Occupational Safety and Health Administration.

Levine said Publix’s attempt at a dismissal put a pause to the discovery process, which will now continue. Levine said he looks forward to getting access to internal documents and deposing Publix’s senior employees.

The Publix case is moving forward at a time state lawmakers are considering bills in the house and senate that would protect businesses from COVID-19 liabilities. The bill’s supporters say it is intended to protect businesses from an onslaught of frivolous lawsuits. It is still moving through the committee process before Florida lawmakers head into session next month.

Levine said he has only heard of a handful of cases similar to his own in the state, but that he’d leave the lawmaking to the legislature.

“We are going to stay focused on our case,” he said.

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