Missouri attorney general Eric Schmitt on Wednesday told National Review that he believes the state’s first-of-its-kind lawsuit against China could potentially bring massive compensation to Missourians who have suffered as a result of Beijing’s mishandling of the coronavirus.
The lawsuit “seeks recovery for the enormous loss of life, human suffering, and economic turmoil experienced by all Missourians” caused by the coronavirus pandemic. Several defendants are identified, including the CCP, China’s health ministry, the governments of Hubei province and the city of Wuhan, and the Wuhan Institute of Virology.
The suit claims that these entities were negligent in attempting to contain the initial outbreak in Wuhan, and that they deceived the international community as to the prevalence of the outbreak. While the Foreign Sovereign Immunities Act of 1976 generally prevents Americans from suing foreign governments in U.S. courts, there are certain exemptions embodied in the legislation which are targeted in the lawsuit.
“Our claim, which I think people are starting to understand is a little bit different than what people might have thought it was, is that we believe those allegations fit squarely in an exception to the Federal Sovereign Immunities Act that would typically give immunity to other nations,” Schmitt said in an interview with National Review.
“[This] is the commercial activities exception,” Schmitt explained. “So, if you’re operating a [negligent] virology lab, if you’re hoarding PPE…you no longer have those protections. So we believe that those common law claims that we have fit squarely within that exception, which is why we think we’ll ultimately be successful…to the tune of tens of billions of dollars.” Those damages could be sought from Chinese entities within the U.S.
There is precedent for using commercial activities exemption of the FSIA, such as in the 1992 Supreme Court case Republic of Argentina v. Weltover. Justice Antonin Scalia wrote in his opinion that “Argentina’s issuance of the Bonods [bonds] was a ‘commercial activity’ under the FSIA,” and the bond payment in question was to be made in New York City. Because of this, the court ruled unanimously that Argentina could be sued in the U.S. for breach of contract on a bond payment.
Senators Marsha Blackburn (R., Tenn.) and Martha McSally (R., Ariz.) have also introduced legislation that would establish an immunity exemption “for a foreign state that discharges a biological weapon, and for other purposes,” to enable Americans affected by the coronavirus to directly sue China. National Review contributor Andy McCarthy criticized that legislation, writing that paving the way for such lawsuits could backfire if China decided to retaliate against American investments abroad and to argue for stripping immunity from the U.S.
Schmitt, however, sought to ease concerns that the Missouri lawsuit could have unintended consequences, saying it was his “obligation to seek the truth” on behalf of Missouri residents.
The coronavirus pandemic “is something that we’ve not seen the likes of before, and if you look at how this all played out, in the suppression of information at a really critical time, there’s just no other conclusion you can draw: the Chinese government is responsible for this,” Schmitt said. “My duty, as the lawyer for six million Missourians, is to prosecute that case.”
The attorney general added, “I think as people take a look at the complaint, I wouldn’t be surprised at all if other states follow suit.”
As of Wednesday the coronavirus had infected over 6,000 and killed 200 in Missouri, and the state has implemented economically-harmful social-distancing measures and business closures similar to those in effect in most of the U.S. Freshman Missouri senator Josh Hawley, a Republican, has taken a hard line on China’s handling of the coronavirus pandemic, calling in March for an international investigation into the Chinese government’s coverup of the outbreak.