South Florida lawsuit accuses China of coronavirus cover-up, fueling loss of lives and jobs

In early March, when much of America was still wondering how far the coronavirus would spread, flight attendant Jessica Merritt was already wearing a mask and gloves to protect herself on an overseas trip to Southeast Asia.

Despite taking the same precautions on later flights, the Boca Raton 30-year-old started feeling constantly jet-lagged and soon lost her sense of taste. Merritt grew suspicious and wondered whether she might be infected with the novel coronavirus.

Towards the end of March, she got word from her employer that she may have been exposed to another airline crew member who had it but showed no symptoms. A few days later, she tested positive for the respiratory disease, COVID-19, bringing her nine-year career as a flight attendant to an abrupt halt.

Worried about her future, Merritt recently decided to join a growing South Florida class-action lawsuit that accuses the People’s Republic of China of knowing about the danger of the coronavirus in December, covering up its rapid spread by Chinese traveling to other countries through January, and ultimately causing the loss of tens of millions of jobs and the deaths of at least 78,000 Americans — a number likely to continue growing for months.

Merritt put her name on the suit along with dozens of other workers, healthcare professionals and business people from here, New York and other parts of the country. The South Florida native believes that if China had warned the world early on about the deadly virus that originated in the city of Wuhan, the United States could have been better prepared to contain its spread and devastation.

‘My life has been severely disrupted’

“China could have been a lot more open and forthcoming,” said Merritt, who survived her bout with coronavirus but is on a leave of absence and expects to be furloughed from her job. “My life has been severely disrupted by this virus in every way imaginable.”

The suit hinges on the argument that the coronavirus somehow migrated from a prominent virology lab in Wuhan — in which the Chinese government has a financial interest — into the “wet” markets where wild animals are sold to the public and ultimately through travelers to the United States.

The class-action case, filed last month, has gotten a potential boost from the shifting blame game in the White House, which initially praised Chinese leadership for handling the virus. Then, as the U.S. domestic death toll soared in recent weeks, President Donald Trump and other senior officials began to fault the Chinese government for covering up the pandemic’s severity, and possibly even letting the virus escape from that Wuhan lab — a theory the administration’s top health official has discounted.

Hatched in Las Vegas

The idea for the class-action suit was hatched during the second week of March when attorney Matthew Moore and colleague Jeremy Alters, a former lawyer who works as a strategist for the South Florida-based Berman Law Group, opened a branch office of the firm in Las Vegas.

During the visit, they attended a Pac-12 conference basketball tournament because Alters’ son was playing for one of the teams. But the tournament was canceled after the first day. Moore and Alters soon noticed that the famous Las Vegas Strip wasn’t as crowded as usual with tourists. The threat of the coronavirus was already starting to take its toll on Americans, they thought.

What pushed them over the edge was news from China. A Chinese official publicized a conspiracy theory on Twitter that U.S. soldiers may have brought COVID-19 to China during a visit last fall or that it may have originated in a U.S. military lab and spread there.

“We have to do something about this,” Moore told Alters.

Moore quickly researched the history of the coronavirus, and crafted the original lawsuit with a handful of class representatives that was filed on March 12 in the Southern District of Florida. The case was assigned to longtime Miami federal judge Ursula Ungaro. The news media coverage was immediate, mainly because it was the first such negligence case filed against China in the United States.

However, some legal experts immediately discredited the suit, saying it would go nowhere because China has sovereign immunity under U.S. law and cannot be sued under these circumstances.

Forging past legal hurdles

Moore and Alters said they were aware of the obvious legal hurdles, but have forged ahead. There is, for one thing, a track record of success in suing Chinese companies over defective and dangerous drywall. An initial $1 billion settlement in that class-action case between thousands of Florida homeowners and Chinese manufacturers was approved by a federal judge in 2013. A second agreement for $248 million with another Chinese company owned by the government was reached earlier this year.

“I think we have a good shot,” Alters said about the coronavirus case. “It’s such a powerful thing that has affected so many people, it’s hard to deny it.”

After the initial publicity, hundreds of people — some infected with the coronavirus and others who lost relatives to it — expressed interest in joining the class, including Merritt, the flight attendant.

Moore has since amended the suit, filing a new complaint in early May with a sharper argument on why the People’s Republic of China and the Chinese Communist Party can both be held liable in U.S. courts for the spread of the coronavirus, which causes the COVID-19 respiratory disease.

Even if the Chinese government is protected from being sued because of sovereign immunity, Moore maintains the Chinese Communist Party that controls it is not.

“If they show up [in federal court], they are going to say they are the government and cannot be sued. But we disagree,’’ he said. “The Chinese government was very active in this virus research in Wuhan and helped it along. ... It’s a multibillion-dollar industry.”

Research and commercial activity

A key part of the suit argues that the operation of the Wuhan Institute of Virology, which has been conducting research on the novel coronavirus SARS-CoV-2 for years, amounts to a “commercial activity” that should open the door for litigation against China in U.S. courts.

The suit claims that the virus may have “originated” at the institute while scientists did research on horseshoe bats, and eventually spread to Wuhan’s wet markets. From there, the suit claims, the virus was eventually carried by travelers to the United States, closing the loop for liability on the part of the Chinese government.

Some legal critics give it little chance of success. One South Florida law professor dismissed the civil action as “crazy,” while a Yale law professor said its claims — under the Foreign Sovereign Immunities Act — does not include exceptions for suing China despite its involvement in the Wuhan lab.

If Moore’s legal team can overcome the daunting jurisdictional challenge of suing China and its Communist Party in American court, the goal would be to prove the country’s negligence.

In court, Moore and his team would have to show that Chinese officials allowed the virus to spread from the virology lab to the wet markets in Wuhan and did not alert the world to the threat of a pandemic. They would also have to show that Chinese officials carried out a cover-up by asserting the virus could only be transmitted by animals — not humans — and letting millions of Chinese travel to the United States and other countries through January.

“China had an obligation to say something and they said nothing,” Moore told the Miami Herald. “What China has done is what they have always done — they have chosen secrecy over transparency.”

Revised intelligence report

His amended suit highlighted a recent Newsweek story on a revised intelligence report to boost the class-action case: “The report, dated March 27 and corroborated by two U.S. officials, reveals that U.S. intelligence revised its January assessment in which it ‘judged that the outbreak probably occurred naturally’ to now include the possibility that the new coronavirus emerged ‘accidentally’ due to ‘unsafe laboratory practices’ in the central Chinese city of Wuhan, where the pathogen was first observed late last year.”

But Dr. Anthony Fauci, the director of National Institute of Allergy and Infectious Diseases who has become the public face of the pandemic, also told Newsweek earlier this month that he did not believe the Wuhan lab was the source of the coronavirus outbreak.

Regardless of whether that theory proves true, there is a consensus, at least outside China, that the coronavirus outbreak began in Wuhan in December.

The Centers for Disease Control and Prevention on Jan. 21 announced the first travel-related case of novel coronavirus in the United States involving a person in Washington State, who had traveled from Wuhan. At the end of the month, Trump declared his plan to restrict travel from China, which took effect in early February.

Trump barred non-U.S. citizens from traveling from China, but there were exceptions, and Hong Kong, Macao and Taiwan were not included. U.S. citizens and permanent residents could still travel from China but were subject to screening and a possible 14-day quarantine.

Restrictions came too late

But those restrictions apparently came too late. Merritt, the Boca Raton flight attendant, said that she and other airline workers were taking precautions by wearing masks and gloves on both domestic and international flights. Those safeguards did not spare her from contracting the coronavirus in late March, most likely from a fellow crew member who was asymptomatic.

After driving around South Florida looking for a place to be tested for COVID-19, she was finally allowed into a mobile site outside the Cleveland Clinic in Weston. A few days later, she received her result: positive.

“I got a hive-like rash on my face, a loss of appetite and aches and pains,” said Merritt, who quarantined herself at a home she shares with her boyfriend, a firefighter. “My highest fever was 99.9. My boyfriend moved to the other side of the house. We took social distancing to the extreme to make sure he was not exposed.”

Although Merritt has recovered, she took a leave of absence in early May from her job with a major airline. As a result, she’s no longer earning a paycheck from her employer. Her immediate prospects for employment in the airline industry seem bleak because it is still reeling from the crushing economic impact of the coronavirus on the U.S. economy.

“Unfortunately, I have only worked as a flight attendant for nine years,” she said. “I don’t have enough seniority, so I’m probably going to be furloughed from my job for quite a while.”

This story was originally published May 10, 2020 at 6:00 AM.