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State of Missouri sues China over Wuhan coronavirus spread

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Democrats are not going to be happy. They want to sue Trump.

Missouri sues China over Wuhan coronavirus spread

By William A. Jacobson, Legal Insurrection, April 21, 2020:

If China did have to defend the lawsuit, it would take the same approach as Democrats: It’s mostly Trump’s fault, not China’s. On this issue, the Democrats and Communist Chinese read from the same page. Maybe China will call Joe Biden as its first witness.

The State of Missouri, through its Attorney General Eric Schmitt, has sued the government of China, the Communist Party of China, the Wuhan Institute of Virology, and several other Chinese entities over the damage from the Wuhan coronavirus pandemic. You can read the Complaint here.

I’d like to see the government of China and the officials responsible for the cover-up, concealment, and lies that allowed what could have been a local issue to spread around the world, pay for what they did. I doubt this lawsuit will achieve that goal.

China committed a crime against the world. There isn’t a single person reading this who hasn’t been affected.

But I am skeptical that such a lawsuit will obtain justice and/or retribution. The answer is political and economic, not judicial. We need to reduce our dependency on Chinese manufacturing, we need to build coalition to slow China’s aggressive push for world domination, and we need to emphasize rebuilding the American economy.

Most of all, we need to encourage the good people in China to end the tyranny of the Chinese Communist Party, which is responsible for more deaths, mostly of Chinese people, than all the other genocidal regimes combined.

In a press release, the Attorney General described the lawsuit:

In a historical move, Missouri Attorney General Eric Schmitt filed a lawsuit today against the Chinese government, Chinese Communist Party, and other Chinese officials and institutions, alleging that their actions to suppress information, arrest whistleblowers, and deny the contagious nature of the 2019 novel Coronavirus led to loss of life and severe economic consequences in Missouri.

 “COVID-19 has done irreparable damage to countries across the globe, causing sickness, death, economic disruption, and human suffering. In Missouri, the impact of the virus is very real – thousands have been infected and many have died, families have been separated from dying loved ones, small businesses are shuttering their doors, and those living paycheck to paycheck are struggling to put food on their table,” said Attorney General Schmitt. “The Chinese government lied to the world about the danger and contagious nature of COVID-19, silenced whistleblowers, and did little to stop the spread of the disease. They must be held accountable for their actions.”

The lawsuit, filed this morning in the U.S. District Court for the Eastern District of Missouri, alleges, “During the critical weeks of the initial outbreak, Chinese authorities deceived the public, suppressed crucial information, arrested whistleblowers, denied human-to-human transmission in the face of mounting evidence, destroyed critical medical research, permitted millions of people to be exposed to the virus, and even hoarded personal protective equipment (“PPE”)—thus causing a global pandemic that was unnecessary and preventable.”

According to the lawsuit, by late December, Chinese health officials had serious evidence of human-to-human transmission. Despite this evidence of human-to-human transmission, Chinese health officials did not report the outbreak to the World Health Organization until December 31. When Chinese authorities did inform the WHO of the outbreak, they denied the potential for human-to-human transmission.

The lawsuit also alleges that, despite having knowledge of the disease, Chinese officials did little to contain the spread. According to data gathered by the New York Times, nearly 175,000 individuals left Wuhan on January 1 alone to travel for the Lunar New Year. The Chinese government also continued with New Year celebrations, despite the risk for potential further infections.

Chinese officials’ alleged coverup and silencing of whistleblowers is also noted in the lawsuit. On January 1 or 2, Wuhan police stated in a message that was broadcast across the country on CCTV that they had taken “legal measures” against eight people who published and shared “rumors” online. One of those eight is believed to be a doctor that shared information about the disease on a platform called WeChat. One doctor in a Wuhan hospital emergency room was disciplined for instructing staff to wear masks, suspecting human-to-human transmission.

The lawsuit notes the immense negative impact that COVID-19 has had on Missourians, pointing out the unprecedented number of jobless claims, the impact on Missouri’s unemployment rate, and the impact on the State’s budget now and in the future. On the human side – Missouri’s nurses and doctors are forced to quarantine from their families, our elderly citizens are stuck in nursing homes away from loved ones, and more.

The lawsuit seeks relief on one count of public nuisance, one count of abnormally dangerous activities, and two counts of breach of duty. Remedies could include civil penalties and restitution, abatement of the public nuisance, cessation of abnormally dangerous activities, punitive damages, and more.

The key factual allegations can be found here.

Here is the introductory and summary paragraph from the Complaint:

1. In this case, the State of Missouri seeks recovery for the enormous loss of life, human suffering, and economic turmoil experienced by all Missourians from the COVID-19 pandemic that has disrupted the entire world.
An appalling campaign of deceit, concealment, misfeasance, and inaction by
Chinese authorities unleashed this pandemic. During the critical weeks of the
initial outbreak, Chinese authorities deceived the public, suppressed crucial
information, arrested whistleblowers, denied human-to-human transmission
in the face of mounting evidence, destroyed critical medical research,
permitted millions of people to be exposed to the virus, and even hoarded
personal protective equipment—thus causing a global pandemic that was
unnecessary and preventable. Defendants are responsible for the enormous
death, suffering, and economic losses they inflicted on the world, including
Missourians, and they should be held accountable.

Professor Jonathan Turley has identified some possible legal obstacles to getting China to pay anything:

The single advantage to private litigation is that it comes with evidentiary discovery if that is even allowed. Such lawsuits are exceptionally difficult, and China is known for blocking depositions and document disclosures. At least four class action lawsuits have recently been filed in the United States. One lawsuit claims the coronavirus was designed as a biological weapon, an allegation that both experts and intelligence officials have rejected. All of the lawsuits allege intentional or negligent acts.

The Foreign Sovereign Immunities Act of 1976 extends blanket immunity to countries from most lawsuits in the United States. The exceptions are rather narrow and rarely accepted by American courts, which read this statute as clearly conveying the intent to discourage such lawsuits. The United States can be sued just as easily in foreign courts and thus favors immunity as the general rule. The most common exception under this law concerns commercial activities by foreign nations. For that reason, some lawsuits have stretched the facts to suggest that the wet market or lab in Wuhan were commercial enterprises effectively run or directed by China. That argument is likely to be far too attenuated for the courts.

One legal question could turn on Congress. In 2008, a lawsuit with some interesting analogies was filed against Saudi Arabia over the financing of the terrorists who attacked us on 9/11. The kingdom had been accused of effectively releasing terrorists, rather than a virus, but the courts rejected those claims under the Foreign Sovereign Immunities Act. Congress then amended it to allow for such lawsuits with the Justice Against Sponsors of Terrorism Act. President Obama vetoed it, but Congress overrode his veto. It is possible that Congress could do so again for this virus, which has now cost tens of thousands of lives and trillions of dollars in losses.

Hofstra Law School Professor Julian Ku had this relevant Twitter thread:

There are lots of jurisdictional obstacles facing this lawsuit; the main one being that the Chinese govt is generally immune under US law from lawsuits in US courts. But the Missouri AG has tried some interesting attempts here to get around this law.

1) Missouri suing not just Chinese govt entities, but the Chinese Communist Party itself, which may not be entitled to immunity since it is technically not part of the Chinese state. So even if all of the other Chinese govt entities get immunity, the CCP may not.

2)As @edswaine notes, Missouri is trying to invoke the commercial activity exception to sovereign immunity, alleging that the nefarious Chinese govt acts themselves “commercial activities” that have a direct effect on the U.S. (this seems pretty tough to prove, factually).

3) Missouri is also alleging that the Chinese govt acts were noncommercial torts, which is also exempted from sovereign immunity. This seems at odds with their claim that China is acting in a commercial way w/r/t the virus, but alternative argmts are a litigator’s best friend.

4) Assuming it gets past the immunity obstacles, Missouri is invoking its sovereign powers to sue for a “public nuisance”, which is a potentially very broad cause of action used to force opioid manufacturers to settle recently….

5) I am not optimistic about the Missouri’s chances here given the very tough jurisdictional obstacles this lawsuit is facing. But it does pose, in a very pointed way, some totally legitimate qs for the Chinese govt. Not sure I love using US courts to pose those questions tho…

6) Another inside-baseball point: Will the Chinese govt appear in court to file a motion to dismiss? Almost certainly, yes (although in has sometimes just demanded the US govt appear on its behalf, or file a letter on its behalf). Would @SecPompeo or Barr do that?

7) Another inside-baseball point: will the Chinese Communist Party hire its own counsel to represent it, since it does have a slightly different argument to make here? Or will the Chinese govt’s lawyers claim that the CCP is an arm of the Chinese govt and entitled to immunity?

8) Final inside-baseball point: Which big-time US law firm will take on the Chinese Communist Party as their client? Jones Day? Sidley? Let the beauty contest begin!

9) Final, final point: Missouri’s lawsuit may be used to marshal even more support in the US Congress for lifting the Chinese govt’s immunity. Is it a coincidence that Missouri’s junior senator @HawleyMO has introduced a bill to do just that?

The lawsuit is unlikely to survive a motion to dismiss, at least against the government of China. If China did have to defend the lawsuit, it would take the same approach as Democrats: It’s mostly Trump’s fault, not China’s.

On this issue, the Democrats and Communist Chinese read from the same page. Maybe China will call Joe Biden as its first witness.

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