Here we go: Missouri files COVID-19 lawsuit against China

It’s not the first lawsuit against China over the coronavirus outbreak, not even in the US. It is, however, the first such lawsuit filed by a state government, which makes it not just a legal but also a diplomatic issue. Missouri Attorney General Eric Schmitt filed the complaint in federal court today, naming China’s government and its Communist Party as respondents, among others:


Missouri became the first state to file a lawsuit against China on Tuesday, accusing the country of being responsible for the severity of the coronavirus pandemic and seeking damages to make up for “the enormous loss of life, human suffering, and economic turmoil” resulting from the disease.

The suit in the Eastern District of Missouri follows at least seven federal class-action suits that have been filed by private groups, with one filed in Florida saying that China knew “COVID-19 was dangerous and capable of causing a pandemic, yet slowly acted, proverbially put their head in the sand, and/or covered it up in their own economic self-interest.”

It also comes on the heels of 22 Republican lawmakers on Monday requesting that the Trump administration bring a case against China to the International Court of Justice (ICIJ) for the country’s actions during the pandemic.

Schmitt’s office called the lawsuit “historical,” and cited the enormous impact on the state:

“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,” Schmitt said in a release announcing the lawsuit.

A spokesperson representing Schmitt’s office described the move as “historical.”

Read the complaint here, but it won’t hold many surprises. It alleges that China lied, that those lies materially compromised the global, national, and state response to COVID-19, and that led to almost 200 deaths so far of Missourians, with thousands more sick and the economy in free fall. In other words, it’s a restatement of the obvious:


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. …

When their actions began to kill hundreds of thousands of people across the globe, Defendants sought to minimize the consequences, engaging in a coverup and misleading public relations campaign by censoring scientists, ordering the destruction and suppression of valuable research, and refusing cooperation with the global community, all in violation of international health standards.

Defendants’ actions and inactions had profound effects in Missouri. Literally every Missourian has been adversely affected by Defendants’ course of conduct.

Schmitt cites China’s obligations under international law as the basis for this complaint. However, that usually falls under the federal purview as a matter of international diplomacy rather than domestic civil law. Although there are some exceptions, most such lawsuits do not succeed in recovering damages, except where the federal government intervenes (such as the Lockerbie bombing case), because states and private individuals simply don’t have the authority to enforce judgment on a sovereign nation. For that matter, neither do the courts.


Even as a symbolic action it’s a terrible idea, writes Andrew C. McCarthy at National Review:

Making lawsuits the response to foreign provocations also distorts governmental responsibilities. The courts do not have a national-security function. In our system, the defense of the nation is committed to the political branches that are accountable to the American people whose lives are at stake. It is the president and Congress who are supposed to deal with provocations by foreign powers, using diplomatic, military, intelligence, and other government capabilities to seek accommodations — including any monetary compensation for victims of willful or accidental harms.

We quite intentionally insulate our courts from this political role. The judiciary’s duty is not to safeguard the public; it is to ensure that parties in court cases are afforded the law’s due-process safeguards. A bill that makes the judiciary responsible for responding to and punishing China over the COVID-19 disaster is a bill that takes that responsibility away from the political branches where it rightfully resides, and gives it to the non-political branch charged with protecting China’s rights as a litigant. That would not be most Americans’ idea of justice.

And then there is the reciprocity problem.

No nation is more active on the world stage than the United States. No nation, then, has more interest in upholding the doctrine of sovereign immunity than ours. We are deeply involved in overt military operations and covert intelligence operations; our diplomatic officers, as well as our other appointed and elected officials, play a decisive role in policies that dramatically affect people in other countries, mostly for the good, but sometimes for ill, including lethal ill. Sovereign immunity from liability in court proceedings prevents American officials and operatives from being hauled into foreign courts, ensuring that disputes among foreign powers are handled diplomatically.

How much would the rogue regimes in China, Russia, and Iran love a world in which the United States, the defender of the international order, undermined the basic protections of that order? How much would they exploit the implicit invitation to use the kangaroo courts of their vassals as a weapon against the West?


Be sure to read the whole essay, but McCarthy makes a series of excellent points in his perhaps-counterintuitive take. Primarily, he argues that the COVID-19 outbreak should carry a different kind of accountability — a recognition by the American public that China is not our friend, but rather “a hostile, aggressive power that seeks to displace us on the world stage.” In that environment, it is far better for us to protect the principles of sovereign immunity rather than undermine it, which would inadvertently push us even further into the kind of globalization that redounds to Xi Jinping’s benefit.

McCarthy probably doesn’t have to worry about this too much, though. This lawsuit and the others like it won’t go very far, and even a win in court will produce nothing but momentary bragging rights. Our attention should focus more on treating China as the threat it is, not as just another respondent in civil court.

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