Below is my column in The Hill newspaper on potential liability of China for its negligence in the early stages (and possible release) of the Coronavirus.
Shortly after this column ran, 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.
Here is the column:
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.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.
U.S. Intelligence And Institutions Have Warned Of A Pandemic
No one can pinpoint the exact moment that lightning will strike. But a global pandemic? Experts have predicted it, warned about the preparedness gaps and urged action. Again and again and again.
Just look at 2019. In January, the U.S. intelligence community issued its annual global threat assessment. It declared, “We assess that the United States and the world will remain vulnerable to the next flu pandemic or large-scale outbreak of a contagious disease that could lead to massive rates of death and disability, severely affect the world economy, strain international resources, and increase calls on the United States for support.
In September, the Johns Hopkins Center for Health Security issued a report titled “Preparedness for a High-Impact Respiratory Pathogen Pandemic.” The report found that if such a pathogen emerged, “it would likely have significant public health, economic, social, and political consequences.
In October, the Nuclear Threat Initiative, working with the Johns Hopkins center and the Economist Intelligence Unit, published its latest Global Health Security Index, examining open-source information about the state of health security across 195 nations, and scoring them. The report warned, “No country is fully prepared for epidemics or pandemics, and every country has important gaps to address.”
In November, the Center for Strategic and International Studies published a study by its Commission on Strengthening America’s Health Security. It warned, “The American people are far from safe. To the contrary, the United States remains woefully ill-prepared to respond to global health security threats. This kind of vulnerability should not be acceptable to anyone.
Edited From: “The Pandemic Didnt Come Out Of Nowhere”
Editorial- Today’s Washington Post
And guess who didn’t address those gaps. As Scaramuci says: Tough to do when an actual virus resides in the oval office.
Professor Turley, the article below may be of interest to you.
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Missouri sues Chinese Communist Party for ‘billions of dollars’ in coronavirus costs
State blames ‘reckless’ work on virus at Wuhan lab
By Stephen Dinan – The Washington Times – Tuesday, April 21, 2020
Missouri filed a lawsuit Tuesday demanding China repay the state “billions of dollars” lost because of the coronavirus, saying the communist government was reckless in its handling of the disease.
Attorney General Eric S. Schmitt said China hid details of the outbreak, hoarded medical supplies and may even have allowed the virus to escape from the Wuhan Institute of Virology — a possibility The Washington Times raised in January, and which has recently gained ground as the U.S. government investigates.
At the very least, the Chinese government and its ruling Communist Party should have known that research on such a dangerous virus was a recipe for disaster, given previous findings of safety concerns at the Wuhan lab, Mr. Schmitt argued.
“The Chinese government lied to the world about the danger and contagious nature of COVID-19, silenced whistleblowers, and did little to stop the spread of the disease. They must be held accountable for their actions,” Mr. Schmitt said.
The lawsuit, filed in federal court, says the cost to Missouri could “total in the tens of billions of dollars, even if only one outbreak occurs.”
And that doesn’t count the human toll.
“Missouri families with loved ones in nursing homes have been unable to visit them, and some have been unable to visit dying relatives. As one St. Louis area woman tragically said of her stepfather, who died alone in a nursing home due to COVID-19, ‘He was always there for everyone. At the end he was all alone,’” the lawsuit says.
China has become a clear target in recent weeks as officials from President Trump on down say the nation where the outbreak was first detected was not forthcoming about the extent of the disease.
A number of lawmakers have announced bills to suspend China’s sovereign immunity in U.S. courts, which would make the government liable to private lawsuits.
Even if sovereign immunity isn’t waived for China itself, Mr. Schmitt says the Chinese Communist Party can be held responsible, since it directed the actions of officials.
Mr. Schmitt also sued a number of Chinese government agencies and provincial governments.
An Asian American Doctor Describes Her Anxiety Over Trump’s ‘Blame China’ Effort
I am an Asian American physician working in the emergency room at the University of California in San Francisco, and my experience is not isolated. As headlines continue to provide updates about the covid-19 virus overwhelming hospitals across the country, an overt wave of xenophobic and racist sentiment has also swept in.
Early on, even before the coronavirus was officially labeled a pandemic, Asian commuters shared traumatic stories of harrowing public transits marked by racial slurs, spitting, and physical assaults from passersby. And on Sunday, a man wearings medical scrubs and an N95 mask blocking an anti-lockdown protest in Denver was told to “Go back to China”.
Despite being on the front lines of this pandemic, Asian American health care workers are also subjected to this racism. Some patients have even asked my Asian nurses if someone “not from China” could take care of them.
A month ago, after President Trump defended his use of the term “Chinese Virus,” I began to worry about the safety of my patients.
When Trump uses the term “Chinese Virus,” the message to the public is to place blame abroad despite a dismal initial and ongoing public health response in the United States, and to allow xenophobia and racism to fuel public panic and fear.
While I am not Chinese American and recognize the hazard of grouping Asians, my identity as an Asian American from an immigrant family is as much defined by me, as it is perceived and imposed by others, including my own patients.
https://www.thelily.com/im-an-asian-american-doctor-on-the-front-lines-of-two-wars-coronavirus-and-racism/
“An Asian American Doctor Describes Her Anxiety Over Trump’s ‘Blame China’ Effort”
More anxiety from Paint Chips. The Chinese closed Wuhan off from China while they sent their infected people to the US, Europe, Japan and elsewhere. You must have some form of Mad Cow Disease.
Alan thinks stupid Trumpers should have a fair chance to abuse Asians in America.
Seth confirms Anonymous has been him all along while using a different voice
Paid trolls alert….
You have to be pretty stupid not to see the CCP is the villain here but you are too arrogant and stupid to link what has been happening back to them. You imply racism where non exists which makes you a racist. You are also one who doesn’t care about the Chinese that have been killed and imprisoned by the CCP along with all in the world that have suffered from the Wuhan virus. You are ignorant and a fool.