Why China Is Unlikely To Be Held Liable For The Pandemic

CroppedStalin1943Below 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.

155 thoughts on “Why China Is Unlikely To Be Held Liable For The Pandemic”

  1. This is your second column on the subject of Chinese liability for the COVID-19 pandemic. Despite your failure to submit any credible evidence to prove the lab in Wuhan is culpable you persist in your claim that “dismissal of the lab as a possible source always seems willfully blind”. So in pursuing this conspiracy theory lawyers are rushing to the court house and Republican politicians are introducing legislation to open up US courts for victims to sue Chinese officials. Anyone who questions Chinese legal responsibility is called a “Chinese asset”. You are right in pointing out that lawsuits would be a long shot due to the doctrine of sovereign immunity. And Republican legislative efforts do not seem to be the appropriate remedy either. Andrew McCarthy writing in the National Review, a conservative publication, points out that diplomatic negotiations are the best remedy: “But enabling lawsuits is the wrong way to go about this task”. All the lawsuits and Republican legislation are simply an attempt to deflect attention away from Trump’s failure to recognize early on the threat from the coronavirus, his failure to adequately marshal federal resources and his continuing fights with state governors over their pandemic restrictions ( “LIBERATE” seems to be the mantra)–blaming them for his own negligence. If anyone wants to sue because the US has more infections and more deaths than any other place in the world they should consider suing Trump not Chinese officials!

    1. Dennis McIntyre – you seem to be assuming the Chinese numbers are legitimate. You might want to consider that since they bought 50K funeral urns for Wuhan, alone. The urn numbers do not match with the official death numbers, but do match the estimated numbers of several people in the field who were following the virus. Now, you have to consider the deaths in the rest of the country of China. Wuhan is a major rail hub for the Lunar New Year, which was held with get festivity.

    2. If anyone wants to sue because the US has more infections and more deaths than any other place in the world they should consider suing Trump not Chinese officials!

      Your full-throated defense of China in regard to liability is certainly questionable as to how you would place blame on the victims of this pandemic. Setting aside your partisan attack on Republicans in general and President Trump specifically, you seem to be blinded to the root cause of the damage. Your argument is no different than one to blame a rape victim for the clothing they were wearing, for being in the wrong place at the wrong time, for not being prepared to mount an adequate defense, for their racism/xenophobia in identifying the perpetrator as Asian, for not seeking medical attention (rape kit) to capture evidence. And so on.

      There will be plenty of after-action studies to evaluate our preparedness and response to this pandemic. But one fact won’t change; the global community and the United States specifically are victims of this pandemic and the root cause (perpetrator) is China. Period.

      1. Olly, absent evidence not presently available, no one intended that the virus be unleashed on the world. However, self interest on the part of at least some in China caused them to act in ways which exacerbated it’s spread. Yes, they should be held to account. Similarly, there is clear evidence that our president acted in self interest and also exacerbated the spread of the virus. In both instances the argument could be made that those acting primarily in self interest had a reasonable expectation that no one would pay for their misdeeds. If they expected or knew that others would suffer, there can be little sympathy or forgiveness. An accounting should be made after this is over. It would be beneficial if all those with power worked as hard as they are able to lessen the impact and hasten the end of this crisis.

        1. “Olly, absent evidence not presently available, no one intended that the virus be unleashed on the world.”

          The evidence keeps coming in. The reason behind this virus may not be known for a long time if ever, but it was Chinese and most likely from the lab. An accidental release is a good starting point right now but what China did afterwards shows something similar to an “attack” on the west. China closed its internal borders to prevent spread, destroyed evidence that would tell everyone where the virus came from, refused to provide information to the world and worst of all while protecting their citizens and industry they permitted people from Wuhan to fly all over the world. Why that was done is a big question and could have been CCP stupididy and arrogance or an actual “attack” on the west because China was going to fall behind and wanted the rest of the industrial world not to get ahead.

        2. Similarly, there is clear evidence that our president acted in self interest and also exacerbated the spread of the virus.

          What evidence?

          1. Seriously? He received warnings starting in January and continuing up to the present which he ignores and downplays and lies about. He is still lying everyday in the WH briefings and now has taken to encouraging defying the same guidelines his team is promoting while failing to take the leadership position only the president can. This is a 3rd world response from the most powerful country and economy in the world.

              1. I missed it. Did Fauci text “Liberate” too?

                Fauci was one of those warning Trump through Febuary and March and soft selling the miracle drug cures he was using in his daily Happy Talk campaign.

                  1. You sound like Anonymous the Stupid in your assessment of the article.

                    ” It analyzed medical records from 368 men hospitalized with confirmed coronavirus infection at VA centers who died or were discharged by April 11, according to the paper posted online for researchers.”

                    The article doesn’t discuss the differences in the different groups and unless that is known any conclusion is worthless. You ought to concentrate on information less taxing.

                  2. There is often differences of opinion. Whether hydroxychoroquine will work or not is not proven one way or the other. More evidence points towards its efficacy though there is not enough so this is essentially a tossup (though probably should lean in favor of the drug)>

                    There is a choice to be made. A patient is going to die. An unproven drug is available and might save the life. Should one give it or not? The patient dies unless the drug actually works so the only choice is to give the drug.

                    I would explain in greater detail of what is needed for a study to prove things one way or the other, but you have already demonstrated your inability to think and draw conclusions so it is a waste of time.

                1. btb,
                  It’s no secret that you’re are incapable of an objective analysis of this situation. Dr. Fauci’s expertise regarding how to contain a global pandemic has been limited by the available data. He was at odds with the President’s travel ban early on, as were many of Trump’s political adversaries. And yet that move has proven to be as critical to containment as anything done since. Experts in pandemics are all playing catch-up and yet you assert the President is not allowed any tolerance of judgment. His daily briefings have included scientific reporting, as well as the very thing a national leader should be doing; providing information that brings realistic hope to the millions of Americans that we will get through this. If I were a betting man, I’d bet you would prefer this crisis continue through November to give the Democrats leverage in the upcoming election.

                  1. Yeah, well if I were a betting man, I’d bet you have 3 dead bodies in your basement.

                    Back to the issue, Trump did not get significant push back on banning travel from China, and that’s getting old as his one proactive decision among months of happy talk, lies, and now sabotage of his own guidelines. Congratulations on him doing his job for one day in the last 4 months..

                    1. Trump did not get significant push back on banning travel from China,

                      LOL! Like I said, you’re are incapable of an objective analysis of this situation.

            1. And the staggering lack of testing. It’s so glaring it’s easy for the mind to want to make it just go away. Human brains don’t like to look at such mediocrity and malfeasance and see it for what it is. But there it is, the elephant in the living room.

              1. Trump has utterly failed at the leadership necessary to win the “war” he himself declared. It’s like he left D-Day planning to New Jersey and Georgia.

                1. Michael you’re Crazed Idiot. Thanks for letting us know. You have more puppets than I guessed.

              2. What an absolute lack of knowledge. You sound more and more like Anonymous the Stupid. The lack of testing is the responsibility of the CDC and the FDA. Look to the prominent people in those organizations like Fauci. When Trump became aware of the problem he stopped the bureaucracy from preventing private businesses from creating the test kits. Once he opened the door test kits rapidly became available.

            2. Be specific. On the one hand you guys say he should listen to the experts. The experts were wrong on a number of issues. On some Trump listened to them and on others he didn’t. His batting average was much better when he used his own decision making capabilities. No one is perfect but so far Trump is ahead of any other politician I can think of and ahead of Fauci on major issue.

              You keep talking but as usual you have nothing to say. You talk about warnings but you don’t define the warnings and where the experts and other politicans stood.

              You say he lies but don’t say the exact lie and do not deal with the rapidly changing facts. We hear where he lied by the WP but then later we find it was the WP that lied.

              Denying the guidelines: What guidelines ***in specific***. You don’t mention these things either and if he had followed all the guidelines we would have a lot more dead people. You do not include any metrics of what the reasonable person would do in his positition. Guidelines = a recommendation that is followed or not followed based on the circumstances. That is what medical guidelines are and I assume these guidelines are similar.

              What we are hearing from Anon is the same old cr-p where he levels accusations but doesn’t say what they are and refuses to discuss them in detail based on the knowledge of the day. That knowledge should include what should or should not be expected along with comparisons to what others are doing or saying.

              In other words Anon is full of garbage and can’t defend a position based on specifics and the needed comparisons. He is all talk like so many of his aliases. Women frequently leave men that are all talk and little do.

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