Earlier this week, the State of Missouri became the first state in the nation to sue China over alleged damages caused by the coronavirus pandemic. The named defendants include the People’s Republic of China, the Communist Party of China, the National Health Commission, and the Wuhan Institute of Virology.
Missouri’s complaint alleges that China is responsible for “the enormous loss of life, human suffering, and economic turmoil experienced by all Missourians from the COVID-19 pandemic.” The complaint goes on to identify a government campaign of “deceit, concealment, misfeasance, and inaction by Chinese authorities.” Missouri alleges that, during the critical first weeks of the 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.”
Missouri raises claims of fraudulent, negligent, and reckless violations of public nuisance law, for “unreasonably interfering with … public health and public safety.” Missouri also alleges that China is strictly liable for carrying on coronavirus research at its Wuhan lab, an “abnormally dangerous activity.” Finally, Missouri contends that China violated its duty to report international public health emergencies within 24 hours, as required by Article 6.1 of the International Health Regulations, as well as a duty not to hoard PPE equipment.
The Foreign Sovereign Immunities Act of 1976 typically prevents states from suing foreign governments in United States courts. Missouri argues that the FSIA does not bar its lawsuit against China, under the “commercial activity exception” to the FSIA. That statutory exception provides that a foreign state may be sued in any case based upon, among other things, a commercial activity of the foreign state that causes “a direct effect in the United States.”
According to the complaint, the following commercial activities by China had a direct effect on Missouri:
- the operation of the healthcare system in Wuhan and throughout China;
- commercial research on viruses by the Wuhan Institute and Chinese Academy of Sciences;
- the operation of traditional and social media platforms for commercial gain; and
- production, purchasing, and import and export of medical equipment, such as personal protective equipment (“PPE”), used in COVID-19 efforts.
In addition, Missouri argues that the non-commercial tort exception to the FSIA should also apply because Missouri’s coronavirus injuries were caused by the tortious acts and omissions of China and its officials.
In a National Review interview, Missouri Attorney General Eric Schmitt stated that when one looks seriously at the pandemic, there’s only one conclusion: “the Chinese government is responsible for this.” Schmitt also predicted that other states would soon follow suit and demand that China pay for the damage caused by the coronavirus pandemic.
From looking at the well-done complaint, Schmitt’s prediction seems a safe bet.