On April 21, Missouri became the first state to sue China in response to the coronavirus (“COVID-19”) pandemic. Led by Attorney General Eric Schmitt, Missouri joins the ranks of at least seven federal class action lawsuits that have been filed by groups of private plaintiffs claiming that China, despite knowing the danger of COVID-19, acted slowly and attempted to cover up and suppress news of the virus out of its own economic self-interest. Missouri’s action shows that states are not waiting on the federal government to take action in response to China’s handling of COVID-19 and, instead, are taking leadership roles in fighting to hold accountable those believed to be responsible for the fallout from the pandemic.
In announcing the lawsuit against the Chinese government, Chinese Communist Party, and other Chinese officials and institutions, Schmitt made clear that “COVID-19 has done irreparable damage to countries across the globe, causing sickness, death, economic disruption, and human suffering. 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 went on to say, “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.”
The key factual allegations of Missouri’s lawsuit are that China and the other defendants denied the risk of human-to-human transmission, silenced whistleblowers who spoke out about the danger of the virus, failed to contain the outbreak, and hoarded quality personal protective equipment while allowing only defective equipment to be exported. Missouri brings claims of public nuisance, engaging in abnormally dangerous activities, breach of duty in allowing the transmission of COVID-19, and breach of duty in hoarding personal protective equipment. As to its claims, Missouri seeks restitution, injunctive relief, all civil penalties, actual damages, and direct and consequential damages authorized by law, punitive damages, and the costs of bringing suit.
While the success of Missouri’s lawsuit is far from certain, particularly given that it must find its way into one of the narrow exceptions to the prohibition of lawsuits against foreign states put in place by the Foreign Sovereign Immunities Act, the act of filing the lawsuit is notable. States are experiencing significant financial strain as a result of COVID-19, and this lawsuit is likely the first of many efforts to recover costs associated with the virus. In this case, Missouri Attorney General Schmitt asks China to abate the nuisance, reimburse the cost of the State’s abatement efforts, and pay compensatory damages and other damages for harms caused by the nuisance. While there have been bills proposed in the Senate that would loosen the restrictions on filing suits against foreign states, the step that Missouri has taken in seeking redress for the harms that have resulted from this pandemic is a clear indicator that states are prepared to take the lead and that they are under tremendous financial strain.