Coronavirus lawsuits against China face uphill battle

A recent spate of lawsuits seeking to hold China liable for the coronavirus pandemic and its effects in the U.S. are likely to face long odds in court.

Two states — Missouri and Mississippi — have sued the Chinese government and its officials in federal court, joining several class-action lawsuits against Beijing. But they all face tough hurdles given that foreign states are granted legal immunity from domestic lawsuits.

Missouri Attorney General Eric Schmitt (R) in his lawsuit accused the Chinese government of an “appalling campaign of deceit, concealment, misfeasance, and inaction” that led to the 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 (‘PPE’)—thus causing a global pandemic that was unnecessary and preventable,” Schmitt’s office said in its complaint. “Defendants are responsible for the enormous death, suffering, and economic losses they inflicted on the world, including Missourians, and they should be held accountable.”

Mississippi Attorney General Lynn Fitch (R), who announced she would be filing a similar lawsuit, said in a statement this week, “Too many Mississippians have suffered as a result of China’s cover-up. They must not be allowed to act with impunity.”

But legal experts say that the lawsuits face long odds. A 1976 law called the Foreign Sovereign Immunities Act (FSIA) gives a broad legal shield to foreign governments from lawsuits within the U.S., with few exceptions.

“Almost all of the defendants, maybe all of the defendants in this case would be characterized as a foreign state or agency or instrumentality before in state,” said Ingrid Wuerth, a law professor at Vanderbilt University. “And therefore, the Foreign Sovereign Immunities Act applies to almost all or probably all of these defendants, and that means they are immune from suit in state or federal court in the United States, unless an exception to immunity applies.”

Missouri argues that its lawsuit falls under FSIA exemption for commercial activity, because China’s conduct that allegedly led to the spread of the coronavirus involved health care, social media operations and commercial exports of personal protective equipment.

Wuerth, however, believes that argument likely won’t survive in court.

“The fact that China may not have taken adequate precautions to prevent the spread of COVID-19, and then that wound up having an impact in the United States, is certainly not enough to bring it within the commercial activity exemption,” she said. “You’re going to need to have a much stronger nexus to the United States.”

David Stewart, a law professor at Georgetown University, said that while he thinks Missouri’s lawsuit was well thought out and professionally written, it seems unlikely that it will clear the FSIA’s threshold.

“This is not likely to survive a motion to dismiss on jurisdictional grounds,” Stewart said. “And I don’t think it should. I don’t think that’s necessarily the purpose of the law.”

Similar class-action lawsuits have also sprung up across the country, including one in Texas by the right-wing legal provocateur Larry Klayman, amid an effort among Republican leaders to lay blame for the massive health crisis with China.

Several GOP lawmakers, perhaps recognizing the difficulty facing such lawsuits, have begun to push for legislation that would create a FSIA exemption that would raise the possibility of opening China up to legal action.

Sens. Marsha Blackburn (R-Tenn.) and Martha McSally (R-Ariz.) introduced one such bill, called the Stop China-Originated Viral Infectious Diseases (COVID) Act, which would allow Americans to seek damages from China in court.

“China’s Communist Party must face consequences for its role in the origin and spread of the coronavirus,” Blackburn said in a statement. “The costs are devastating: trillions of dollars in economic damage, more than 22 million American jobs lost, and over 150,000 deaths worldwide and counting. Business owners and families who have lost loved ones deserve justice.”

Sen. Josh Hawley (R-Mo.) introduced a similar bill that would strip China of its immunity and also prompt an international investigation into Beijing’s conduct at the beginning of the crisis.

Geng Shuang, a spokesman for China’s foreign ministry, said in a news conference this week that the recent spate of lawsuits has “no factual or legal basis.”

“Since the outbreak began, the Chinese government has been nothing but open, transparent and responsible in timely informing the WHO and relevant countries and regions including the U.S. of pandemic-related information,” Shuang said. “We have shared the genome sequence of the virus, actively responded to the concerns of all parties and strengthened cooperation with the international community.

“Such frivolous litigation will not help the U.S. with its epidemic response, nor will it contribute to the global cooperation in this regard. The right course of action for the U.S. side is to dismiss this abusive lawsuit.”

Other critics suggest that the legal effort is aimed at distracting from the response to the crisis within the U.S., both at the federal level and from state and local leaders.

Stewart, the Georgetown professor, said that the state of the pandemic makes it hard to lay responsibility with any one government.

“This is a health catastrophe of enormous proportions,” he said. “If you’re looking for blame, there’s plenty to go around. There’s hardly anybody who’s handled this correctly.

“All those folks looking at China ought to be looking over their shoulder saying, ‘Wait a minute, can we be sued?’ ”