4

Lawsuit filed against WHO over its handling of coronavirus outbreak:

https://abcnews.go.com/International/lawsuit-filed-handling-coronavirus-outbreak/story?id=70264726

Selected excerpts from news article:

Richard Kling and Steve Rotker of New Rochelle and Gennaro Purchia of Scarsdale, filed the suit in White Plains federal court Monday and claimed they suffered "injury, damage and loss" because of the outbreak and want the WHO to pay "incalculable" damages. Steven Blau, the attorney representing the plaintiffs, argued WHO didn't do enough to ensure the Chinese government was transparent of its COVID-19 safeguards.

"The Chinese government and the WHO intentionally misled the international community, including the named Plaintiffs, about the coronavirus and its devastating medical and economic effects,”

It is unclear which statute is violated.

How is it possible for a multinational NGO to be prosecuted for unsuccessfully containing a pandemic?

UPDATE: Missouri AG file similar lawsuit against China

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.

7
  • 5
    Winning the claim stated would require proving that the WHO had any method for "ensuring the Chinese government was transparent", which it almost certainly does not.
    – Ron Beyer
    Apr 21, 2020 at 21:25
  • 1
    The details appear complicated, but it seems there's a general principle that US courts can have personal jurisdiction over foreign companies that have operations in the US. The WHO certainly has operations in the US, so there's a good chance that US courts have jurisdiction to hear the case. The merits of the case are another issue, of course. Apr 21, 2020 at 21:44
  • 6
    Prosecuting an entity and suing it are two quite different things. I'd recommend editing the question to clarify which one you're asking about. Suing someone does not require that they've violated any statute. Prosecution implies violating criminal law. Lawsuits have no such implication.
    – reirab
    Apr 22, 2020 at 6:30
  • I cannot see anything about prosecuting the WHO in the article you linked. Apr 22, 2020 at 12:08
  • It is impossible to create a condition where no court has jurisdiction; however an entity might have immunity for various reasons.
    – Joshua
    Apr 22, 2020 at 21:18

1 Answer 1

13

The Proper Defendant

As a preliminary matter, it would be necessary to determine who the proper defendant was in the case, in order to analyze it further. The World Health Organization (WHO) is probably a different legal entity from the United Nations (UN) itself and merely affiliated with the UN from a legal perspective, rather than being legally considered to be an agency of the UN. So, the WHO rather than the UN would be the proper defendant.

Subject Matter Jurisdiction

Federal courts have limited "subject matter" jurisdiction and this must always be analyzed before other jurisdictional considerations are considered.

But, U.S. District Courts are allowed to adjudicate civil lawsuits where the amount in controversy exceeds $75,000 and the defendants are not citizens of the same U.S. state. This is a civil lawsuit, the amount in controversy exceeds $75,000, the plaintiffs are citizens of New York State, and the Defendant is not a New York State entity. So, the federal court has subject matter jurisdiction over the case.

Venue

Venue is proper in a federal district court if the district court can assert personal jurisdiction over the defendant.

A district court, in turn, has personal jurisdiction over any defendant over whom a state court of general jurisdiction in the state where the district court is located would have personal jurisdiction.

Note, as an aside, that where none of the events giving rise to the suit took place in the state, and the defendant does not reside in the state, any of the U.S. District Courts in the state is a proper venue, whether or not the Plaintiffs reside there, if the general jurisdiction state courts of the state would have personal jurisdiction over the Defendant.

Personal Jurisdiction

General Jurisdiction

It appears that the WHO does not have a permanent office for the conduct of business in the United States (it's headquarters is in Switzerland and none of its regional offices are in the U.S.), although it might have a full time representative at the UN offices in New York City.

Therefore, a federal district court in New York State (or a state court in New York State) would probably not have the authority to assert "general personal jurisdiction" (i.e. jurisdiction over any case against the defendant without regard to how it arose) over the WHO because this is not a "headquarters" or equivalent permanent office in New York State.

Specific Jurisdiction

To have "specific personal jurisdiction" over over the WHO (i.e. arising from the facts of the particular case and limited to that case), the WHO would have to have taken actions directed as someone within the state in which the District Court in question is located which would suffice to personally avail itself of the laws of that state and the United States.

Failure to adequately take actions in China for the general benefit of the world, would not suffice to meet that standard. While the injury may have occurred in New York State, the actions alleged did not occur in New York State and were not directed in any particular way to New York State as opposed to anywhere else, and no one is alleging that the WHO intentionally or negligently itself sent coronavirus germs to New York State, even if it may have failed to take certain steps that it had a duty to take, and that failure made the arrival of those germs in New York State possible.

Tag Jurisdiction

A third way to acquire personal jurisdiction in some cases is called "tag jurisdiction." "Tag jurisdiction" provides a court with personal jurisdiction over an individual in a particular case in the state where personal service of process upon that individual took place, without regard to other considerations. But, "tag jurisdiction" does not apply to entities such as the WHO.

Governmental Immunity

Moreover, even if a U.S. District Court did have personal jurisdiction over the WHO, this action would be a "tort" action and the WHO would also almost certainly have some form of sovereign immunity under U.S. law from a tort action of this type.

The relevant U.S. statute is the International Organizations Immunities Act (full text here). The key provision for purposes of this question is 22 U.S.C. §288a(b) which states:

International organizations, their property and their assets, wherever located, and by whomsoever held, shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract.

The definition of an International Organization for the purposes of the act is 22 U.S.C. § 288 which provides a general rule protecting international organizations in the absence of an executive order to the contrary. The President may revoke an international organization's immunity prospectively by executive order (except in the case of 13 organizations who are covered by a specific statutory provision; the WHO is not one of them), but neither a private organization nor a U.S. state or local government, may do so. And, an executive order purporting to revoke an organization's immunity retroactively would be void as an ex post facto determination.

Conclusion

In summary, then, this lawsuit will very likely be dismissed either for lack of personal jurisdiction, or on account of an immunity from tort liability doctrine, in response to a motion to dismiss, without ever getting any further. It might also be dismissed for failure to state a claim upon which relief can be granted on other grounds (e.g. the lack of a legal duty or the lack of plausible allegations sufficient to support the claim that the WHO's actions or inactions were a legal cause of the harm suffered).

Footnote Re Legal Basis For The Claim On The Merits

It is unclear which statute is violated.

It would be unusual for a claim for personal injury to arise under a statute. Most claims for personal injury are brought on the basis of a common law claim of negligence which would arise from the case law of New York State's state courts in this case (pursuant to the Erie doctrine).

A negligence claim has four canonical elements:

  1. The existence of a legal duty (normally the legal duty to use reasonable care to refrain from causing injury to others) of the defendant that runs to the plaintiffs.

  2. Breach of the legal duty by the defendant.

  3. The causation of the damages alleged by the breach of the legal duty by the defendant in a foreseeable manner.

  4. Actual damage to the plaintiffs.

5
  • @ohwillike Why would the WHO enjoy a form of sovereign immunity? I am not challenging the statement: IANAL BTW: Very nice answer.
    – gatorback
    Apr 22, 2020 at 0:40
  • 4
    @gatorback because WHO is an intergovernmental entity formed by treaty between sovereign states.
    – Dale M
    Apr 22, 2020 at 1:44
  • The WHO is indeed a distinct entity from the UN, but because it is one of a class of such entities known as "specialized agencies of the United Nations," I am puzzled by the statement that it is probably not "legally considered to be an agency of the UN." What do you mean by that? Also, the WHO has, as you suspect, an office in New York to represent it to the UN: who.int/about/collaborations-and-partnerships/…
    – phoog
    Apr 23, 2020 at 4:35
  • @phoog I mean that as opposed to the Department of Commerce of the United States government, which is a division of another entity, rather than an entity of its own, the WHO is its own entity, having, for example, a relationship more like the Tennessee Valley Authority or U.S. Post Office to the United States government.
    – ohwilleke
    Apr 23, 2020 at 17:02
  • 1
    Thanks for clarifying. That makes sense. Perhaps "agency" isn't the best word here, since it can mean different things in different contexts, but I can't think of a better one.
    – phoog
    Apr 25, 2020 at 3:16

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .