The immense cost of the COVID-19 outbreak over the past year has led many worldwide to question whether any country —namely China — bears at least some legal and fiscal responsibility for this worldwide catastrophe. But perhaps the more important question is, whether any country can actually be held legally responsible for it. In U.S. courts, litigation against foreign nations is prohibited, unless it fits within one of the narrowly drawn exceptions in the Foreign Sovereign Immunities Act of 1976.
COVID-19 has certainly taken a staggering toll worldwide in terms of illness, death, and emotional and economic upheaval. Worldwide, it’s estimated that about 110 million people have been infected with COVID-19, leading to nearly 2.4 million deaths. In the United States alone, more than 350,000 people have died of this virus, which has dealt the U.S. economy a severe blow. The Congressional Budget Office projects $7.6 trillion in lost output over the next decade. All told, the total cost of the pandemic in the United States — including the costs of dealing with the long-term health effects of the virus — is estimated to top $16 trillion. To put that into perspective, that’s approximately 90% of the annual gross domestic product of our country.
Health officials worldwide early on zeroed in on China’s Wuhan’s Huanan Seafood Wholesale Market as the origin of the pandemic, and the World Health Organization has teams of investigators in China and other countries tracing and verifying COVID-19′s origins and spread. That has led to dozens of lawsuits filed by individuals and organizations in the United States targeting China for its role in the global pandemic and the devastating effects of its spread. The first civil suit filed against China for COVID-19 was likely Alters et al. v. People’s Republic of China, filed in Florida in mid-March 2020. Many others have been filed in other states.
The state of Missouri filed its lawsuit on April 21, 2020 against the Chinese government over the overwhelming humanitarian and economic costs of the pandemic, alleging that nation’s officials are to blame. The filing, by Republican Attorney General Eric Schmitt, alleges that during the first critical weeks of the initial outbreak, when Chinese authorities could have taken steps to inform other countries of what they knew, they instead deceived the public, suppressed crucial information, arrested whistleblowers, denied human-to-human transmission in the face of mounting evidence and destroyed critical medical research, all of which permitted millions of people to be exposed to the virus.
To help pave the way for U.S. legal claims against China, there are several bills introduced by members of Congress that propose stripping the country of sovereign immunity under the Foreign Sovereign Immunity Act for its actions relating to COVID-19. (Congress previously amended the act to allow September 11 victims to sue Saudi Arabia.) Those bills, however, address only the immunity issue. Even without the obstacle of overcoming immunity, there’s a high barrier to liability and other obstacles that must be overcome for the litigation to be successful. Legally, they are long shots. But as we all know, a lot can change over the course of 2021. As with the COVID-19 outbreak itself, the future path and trajectory of litigation against China is uncertain.
At Ehrenstein|Sager, we have a broad business practice, skillfully representing clients in all manner of disputes, including International Litigation and Arbitration. Get to know more about us on our website: https://ehrensteinsager.com/.