Update: Shortly after this post was completed, two members announced that they would be introducing the amendment to the federal law discussed below. There are now at least seven lawsuits filed against China which is pushing a public relations campaign to deflect blame.
Joseph Stalin once said “a single death is a tragedy” and “a million deaths is a statistic.” The observation was chilling because it has a grain of truth about how we process tragedies. The same is sometimes true legally. If a government kills one person, it is a murder.
If it kills thousands of people, it is a policy. That cold fact soon may be evident in a growing number of class action lawsuits now brought against China over its failure to notify the world promptly of the coronavirus, along with renewed allegations that the outbreak may have started in a laboratory in Wuhan.
The question of Chinese responsibility, and of potential liability, became more acute this week. Many in the media have dismissed allegations of a release from the lab as a politically motivated conspiracy theory. It is the same narrative aggressively pushed by China. For some of us, however, the dismissal of the lab as the possible source always seemed willfully blind. It might not prove to be true, but it hardly seems a baseless idea since the lab was working on coronavirus research. We also know that China arrested and silenced people who tried to raise alarms.
The true origin of the coronavirus may be incredibly difficult to prove. The media reported on an account by scientists that the genome sequence of the coronavirus does not show any signs of being artificially manipulated or engineered. The coverage suggested that it is now established that it was a purely natural outbreak rather than the fault of China. That would not seem to definitively answer the question, however, of whether a lab employee had been infected by a bat carrying the coronavirus.
Two years ago, the State Department raised concerns over coronavirus research on bats at the lab and its allegedly lax practices. Both American and British intelligence officials recently found a credible possibility that the lab was the source and that the outbreak then spread at first through the Huanan Seafood Market. There is no proof of this, but dismissal of the theory occurred as some in the media condemned President Trump for his use of the terms “Wuhan virus” and “Chinese virus.” That narrative seemed to demand universal rejection of the theory that the outbreak might have been the result of negligence at the lab. There remains no evidence that supports the theory of an intentional release of the coronavirus.
While legitimate questions surround the origin, there is little debate that the Chinese government cost the world crucial weeks of preparation and containment by hiding the outbreak and by silencing those brave doctors who tried to warn of a new highly contagious respiratory illness.
There are even reports that the coronavirus may not have really emerged in Wuhan. Needless to say, had China fulfilled its responsibility to alert global experts and be transparent on early testing and data, many countries might have restricted international travel, ramped up production of medical supplies, or imposed social distancing rules much sooner than they did.
Many continue to advance the narrative that the outbreak is not the fault of China.
Democratic Senator Chris Murphy of Connecticut said “we are in the crisis that we are today” not “because of anything that China did” but “because of what this president did.” Some critics now call it the “Trump virus” and attack those who focus on the responsibility of China as Trump supporters peddling conspiracy theories. Such narratives are music to the ears of Chinese officials, and they undermine any hope of an investigation by Congress that examines the issue with no bias or agendas.
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.
Even with a legislative fix, China is unlikely to make people or information freely available and, even if it was found to be liable, we are back to what Stalin said. There is corollary in tort law for personal injuries in causation theory. Courts tend to cut off liability when causation gets too attenuated. In cases such as James Ryan versus New York Central Railroad, courts cut off liability for spreading fires by limiting it to natural direct damage rather than the ultimate damage. Courts ruled that spreading fires is caused by many reasons. Courts could also balk at liability for millions of cases, tens of thousands of deaths, and trillions of dollars in losses. They could rule that the outbreak was due to negligent decisions by countries.
Some of us would welcome an evidentiary discovery into the origin of the coronavirus. But Democrats and Republicans appear wedded to political narratives for their advantage. With questions about financial support for the lab by the Obama administration and allegations over a slow response by the Trump administration, we may have another farcical commission or investigation in which each party appoints loyalists to protect its interests. The 9/11 commission skillfully avoided holding anyone responsible despite negligent acts by government officials. However, litigation means building a provable case rather than maintaining a narrative. The brutal fact is that, in politics as in war, tens of thousands of deaths can just be a statistic. For some politicians, the real tragedy is who ends up with the blame.