On April 5, 2021, a judge for New York’s Southern District dismissed a proposed class action lawsuit filed against the World Health Organization (WHO). The suit alleged the WHO was negligent and reckless in its response to the COVID-19 pandemic. Residents of New Rochelle and Mount Vernon, New York brought the lawsuit against the WHO. These areas were early hot spots for COVID-19 after one resident was diagnosed March 2, 2020—nine days before the WHO declared COVID-19 a pandemic.
According to the court’s decision, the WHO cannot be held liable as a specialized agency of the United Nations responsible for international public health. It is immune under its own constitution as well as the International Organization Immunities Act. The court’s opinion is part of a larger question as to the viability of COVID-19 lawsuits. It also highlights the difficulty in proving liability and causation in such cases.
Complaints Against the WHO
New York residents diagnosed and treated for COVID-19 represent this plaintiff group. Collectively, they allege they sustained damages as a proximate result of the WHO’s negligent conduct. Specifically, the complaint alleges that between the first coronavirus case detection in November 2019 until March 11, 2020, when the WHO declared a pandemic, the WHO intentionally misled the international community. The complaint alleges that, along with the Chinese government, the WHO conspired to “cover-up” the severity of the pandemic. It asserts this includes knowledge that the Chinese government was destroying medical testing and data. It further alleges the Chinese government was intimidating scientists, doctors, journalists, and lawyers.
In addition, the plaintiffs claim that the WHO knew that the Chinese government failed to timely report and contain the virus’s outbreak. The WHO purportedly accepted that Chinese officials underreported its severity and resultant deaths. The complaint asserts that the WHO acted recklessly and negligently in assisting China in these efforts. The plaintiffs accuse the WHO of “politicizing” the pandemic by admonishing the Trump administration’s widespread travel bans and restrictions. They cite the WHO’s statement that this could “have the effect of increasing fear and stigma, with little public health benefit.”
Acknowledging Immunities
The plaintiffs do acknowledge that the WHO enjoys certain privileges under the International Organizations Immunities Act (IOIA). This act provides immunities to international organizations, their officers, and employees. But they also note a U.S. Supreme Court ruling indicating an international organization’s immunity is not absolute. The complaint highlights that international organizations (like foreign governments) can be sued under The Foreign Sovereign Immunities Act of 1976 (FSIA), specifically, under its tort exception.
The Court’s Ruling
Judge Cathy Seibel of the Southern District of New York did not agree. She explained that the WHO is independently immune under the IOIA. This grants organizations immunity “from suit and every form of judicial process as is enjoyed by foreign governments.” The only exception from immunity is in cases of express waiver or by the terms of any contract. The court also found that any exception to immunity of foreign sovereigns under the FSIA was not properly pled. The plaintiffs failed to demonstrate that the “entire tort” occurred within the United States—as required for tort exception immunity under the FSIA. The court dismissed arguments that the WHO’s online dissemination of information proved the entire tort occurred in the country.
The court further held that, even if the plaintiffs could satisfy the “entire tort” rule, the WHO still maintains immunity if its allegedly negligent acts are discretionary. Acts are discretionary if they involve an element of judgment or choice. This means neither statute nor regulation may compel an act. Further, considerations of public policy must be the basis for the act. The court deemed many of the plaintiffs’ assertions as too general and vague. This was the case in the claim that “the WHO negligently failed to provide effective leadership and implementation of its core global functions.” The court dismissed the plaintiffs’ complaint with prejudice, declining sua sponte the plaintiffs the opportunity to amend any of its deficiencies.
COVID-19 Liability Moving Forward
The court’s decision was largely based on the specific issues arising from the immunity of international organizations. But the case also signifies the general difficulties of proving liability in the context of COVID-19. International organizations are not the only entities enjoying certain liability privileges. Many states have implemented legislation immunizing hospitals and physicians from negligence claims stemming from COVID-19 treatment. Likewise, states have also granted immunity to essential businesses from civil suits involving injuries or deaths that may have resulted from potential COVID-19 exposure.
The purpose behind such legislative efforts is, in part, to encourage medical treatment and essential services during an unprecedented crisis. But these cases demonstrate the difficulty in establishing causation. Particularly, plaintiffs face an uphill battle in actually proving that the exposure from one particular defendant caused a COVID-19 diagnosis. As these cases continue, we’ll certainly see a slew of other issues arise related to a pandemic that has affected over 30 million people nationwide.
