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Can China Be Held Legally Responsible for the COVID-19 Epidemic?

A bill recently introduced in Congress would allow Americans to sue the Chinese government for harm caused by the coronavirus pandemic. The measure, called the Holding the Chinese Communist Party Accountable for Infecting Americans Act, is the most recent in a series of attempts by legislators to saddle China with legal liability for the spread of COVID-19 throughout the U.S.

The Foreign Sovereign Immunities Act (FSIA) precludes most lawsuits against a foreign nation. The U.S. Supreme Court has held that the FSIA is the sole basis for obtaining jurisdiction over a foreign state. However, the FSIA does have a few exceptions, allowing lawsuits when a foreign state has waived its immunity, when the claim is based on the foreign state’s commercial activity in the U.S. and when the claim is against a country that the U.S. has labeled as a state sponsor of terrorism.

The latest bill, sponsored by Sen. Tom Cotton (R-Ark) and Rep. Dan Crenshaw (R-Texas), would amend the FSIA to create a new exception for “damages caused by China’s dangerous handling of the COVID-19 outbreak.” In introducing the bill, Crenshaw said, “We need to hold the Chinese government accountable for their malicious lies and coverup that allowed the coronavirus to spread across the world. Simply put, their actions cost American lives and livelihoods.”

Lawsuits against China have already been filed by plaintiffs in Florida, Nevada and Texas. The Florida case, for example, involves claims of negligence, public nuisance and negligent infliction of emotional distress against several defendants, including China as a nation, China’s National Health Commission, Ministry of Emergency Management, the Government of Hubei Province, and the Government of Wuhan.

Unless this new bill or some other new legislation creates a new exception to the FSIA, cases like these are very likely to be dismissed for lack of jurisdiction. However, the potential for congressional action may serve as incentive enough for China to engage in settlement discussions that could result in substantial payments.

At Hemmer DeFrank Wessels PLLC, we are continuously monitoring the progress of legislation addressed to the COVID-19 crisis. Our attorneys are here to answer your questions about the legal effects of the quarantine and other coronavirus-related measures amid these ever-changing circumstances. Call our Fort Mitchell office at 859-344-1188 or contact us online to arrange a consultation.

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