Mississippi officials believe the increased acceptance of claims that the coronavirus pandemic spread from a laboratory in Wuhan is making their landmark lawsuit against China stronger by the day.
In May last year, Mississippi became the second state to sue the Chinese Communist Party after Missouri filed a similar suit in April. Both states accused the CCP and the Wuhan Institute of Virology, allowing the deadly virus to escape unchecked and engaging in a coordinated cover-up.
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Mississippi was especially harsh in its accusations. State Attorney General Lynn Fitch wrote in her complaint that state-controlled Chinese entities used the crisis to create market scarcity for personal protective equipment. By covering up the virus’s lab leak, she wrote, China “created an environment ripe for the need of PPE,” and then “hoarded PPE so as to interfere with natural supply and demand patterns, and engaged in trafficking of such products to its unjust enrichment.”
At the time, the Trump administration promoted the idea that the virus had escaped from a lab even as it was being dismissed by many experts and much of the media. But now, as that theory becomes increasingly mainstream — and is even being addressed by the Biden administration — the state wants federal courts to strike a blow against China.
“We are hopeful that the courts will agree with this growing consensus,” the Fitch office told the Washington Examiner of the lab leak theory.
Missouri Attorney General Eric Schmitt is equally hopeful that his state will prevail in court, regardless of what new evidence a second look at lab leak theories may reveal. Missouri was the first state to sue the CCP, arguing it intentionally inflicted “billions and possibly tens of billions of dollars in economic damages, as well as substantial non-economic damages.”
“We filed the suit to hold the Chinese government accountable for their role in the pandemic, and that’s what we plan to do,” a spokesman for Schmitt told the Washington Examiner.
Both states and several other groups with open lawsuits against China face massive legal obstacles to victory. China is generally protected from lawsuits that would play out in U.S. courts by the Foreign Sovereign Immunities Act, which grants foreign countries sovereign immunity in domestic courts. And attempts to amend FSIA for coronavirus cases, as Congress did to allow the families of 9/11 victims to sue Saudi Arabia, have not gained wide acceptance.
Attempts to cut through FSIA’s tight restrictions tend to fail. Earlier this year, the Supreme Court ruled that, because of the law, Holocaust survivors and their familes could not sue the German and Hungarian governments for human rights violations. The court in June is poised to deliver another decision on a similar question involving whether former Malian child slaves can sue Nestle and the Minnesota-based company Cargill in U.S. courts for alleged knowledge of abuse on cocoa plantations.
With these obstacles, a consensus agreement around the lab leak theory is unlikely to strengthen the legal arguments against China, said Sean Mirski, a Washington, D.C. attorney who specializes in international law.
“Basically, the problem is that these suits are mostly alleging misconduct by Chinese entities in China, and it is hard for plaintiffs to explain why that conduct abroad justifies bringing a suit in U.S. courts,” Mirski told the Washington Examiner.
While open to the possibility of a lab leak, the Biden administration has not committed to seeking punishment for China if it finds the virus did escape from a Wuhan research facility. The administration on Wednesday stressed it would not make any decisions until it has finished its investigation.
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The lawsuits against China can reignite debates about the communist country’s culpability in the pandemic’s spread, Mirski said, allowing plaintiffs to update their arguments.
“It would not surprise me at all if some plaintiffs took advantage of the news cycle to update their allegations and draw fresh attention to their cases and this issue,” he said.
