Berman Complaint Against China
Berman Complaint Against China
Berman Complaint Against China
Plaintiffs,
CASE NO. __________________
v. CLASS ACTION
JURY TRIAL DEMANDED
PEOPLE’S REPUBLIC OF CHINA;
NATIONAL HEALTH COMMISSION
OF THE PEOPLE’S
REPUBLIC OF CHINA;
MINISTRY OF EMERGENCY MANAGEMENT
OF THE PEOPLE’S REPUBLIC OF CHINA;
MINISTRY OF CIVIL AFFAIRS OF THE
PEOPLE’S REPUBLIC OF CHINA;
THE PEOPLE’S GOVERNMENT OF HUBEI
PROVINCE; and THE PEOPLE’S GOVERNMENT
OF CITY OF WUHAN, CHINA.
Defendant.
_______________________________/
CLYNE, and THE PITCHING LAB LLC d/b/a TBT TRAINING (collectively, “Named
Plaintiffs”), on behalf of themselves and all those similarly situated, and by and through
their undersigned counsel, hereby sue the PEOPLE’S REPUBLIC OF CHINA (“the
INTRODUCTION
business owners in the United States and State of Florida, for damages suffered as a
result of the Coronavirus pandemic, against Defendants, the People’s Republic of China
and its various government entities overseeing the response to the Coronavirus
pandemic in China generally and within Hubei Province and the City of Wuhan.
2. The world has been devastated in recent days by the ongoing march of
the new strain of the Coronavirus, more commonly known as COVID-19. The virus
began in Wuhan, Hubei Province, China in December 2019, and has quickly spread
3. The PRC and the other Defendants knew that COVID-19 was dangerous
and capable of causing a pandemic, yet slowly acted, proverbially put their head in the
Named Plaintiffs and Class Members, and such injury and harm will only multiply in
coming days and weeks. The Defendants’ conduct has caused and will continue to
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PARTIES
injured and damaged by Defendants’ conduct, as described herein, and is otherwise sui
juris.
injured and damaged by Defendants’ conduct, as described herein, and is otherwise sui
juris.
8. Stephen Clyne, is a resident of Palm Beach County, Florida who has been
injured and damaged by Defendants’ conduct, as described herein, and is otherwise sui
juris.
9. The Pitching Lab LLC d/b/a TBT Training (“TBT Training”), is a Florida
limited liability company that has been injured and damaged by Defendants’ conduct.
10. Class Members are those individuals and entities similarly situated to
12. The National Health Commission of the People’s Republic of China is the
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the PRC.
17. This Court has subject matter jurisdiction over this class action pursuant to
the Class Action Fairness Act of 2005 (CAFA) and 28 U.S.C. § 1332(d). The matter in
controversy, exclusive of interest and costs, exceeds the sum or value of $5,000,000,
there exists minimal diversity between parties, and there are millions of putative class
members.
18. This Court further has jurisdiction under the Foreign Sovereign Immunities
Act (FSIA) of 1976, 28 U.S.C. §§ 1602 et seq., and particularly the exceptions of §
1605(a)(2) (for acts outside the territory of the United States in connection with a
commercial activity of the Defendants, that cause a direct effect in the United States),
and § 1605(a)(5) (for money damages for personal injury or death, or damage to or loss
of property, occurring in the United States and caused by the tortious acts or omissions
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as Defendants have acted clearly contrary to the precepts of humanity, and/or their
conduct is prohibited by the internal laws of the PRC and its provincial and municipal
governments.
20. This Court has personal jurisdiction over Defendants because Defendants
have caused tortious harm to Named Plaintiffs and Class Members, in the United States
and Florida and this District and have sufficient contacts in Florida and this District to
21. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) and (c)
because a substantial part of the events or omissions giving rise to Named Plaintiff’s
22. All conditions precedent to the filing of this lawsuit have been met and/or
GENERAL ALLEGATIONS
23. As of March 12, 2020, there are over 140,000 confirmed worldwide cases,
nearly 5,000 deaths, and an exponentially larger number of undiagnosed cases. These
numbers are expected to continue to explode in the coming days and months.
24. As of March 12, 2020, there are over 1635 confirmed cases and there
have been 40 deaths. These numbers are expected to rise exponentially in the coming
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25. The exponential rise in cases, even reaching people like Tom Hanks and
his wife Rita Wilson, and a professional basketball player Donovan Mitchell of the Utah
Jazz, as of March 11th, demonstrates that COVID-19 spreads easily and rapidly.
26. The virus causes cold and flu like symptoms, that lead to pneumonia and
28. The news from countries like Italy has demonstrated how easily and fully
COVID-19 has and will bring countries to a halt, causing not only injuries and deaths,
29. Because of the rising threats, the United States has barred plane travel
from China, the European Union and other countries. The New York Stock Exchange
has suffered its worst losses since the 2008 “great recession.” Public functions and
events are being cancelled one after another, including the shuttering of sporting
events, Broadway shows, and other gatherings. Hotels have shuttered, several cruise
lines have suspended operations for the next two months, and the travel industry overall
to their supply chains and a scarcity of patrons and customers. The public is in panic,
wiping out stocks of toilet paper, hand sanitizers, face masks, and other items. And it
30. The PRC and other Defendants, acting from their own economic self-
interest and looking to protect their place as a super-power, failed to report the outbreak
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as quickly as they could have; underreported cases; and failed to contain the outbreak
b. Even after the first death on January 9th, they continued to downplay the
dangers and assured the public that the situation was not serious and that
c. It took 17 days from the time Chinese researchers discovered the COVID-
wide peers.
d. They knew COVID-19 was spread human to human by January 3rd, but
told the public otherwise, and would not confirm the ease of human to
human transmission until January 20th, after the virus had already spread
beyond China.
contain the virus on January 7th, but it has since emerged that he did not
containment, and still did not make any efforts public until it was too late.
f. Despite early January deaths, they would only attribute the deaths to
g. Wuhan’s leaders held a public dinner for over 40,000 families on January
18, despite knowing the ease of human to human spread of the virus.
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32. Furthermore, there are only two known Chinese government bio-weapon
research labs in the PRC and one of them — the National Biosafety Laboratory at the
Wuhan Institute of Virology — is, at its name suggests, in Wuhan, and is close in
China’s only “level 4” microbiology lab – meaning it deals with the deadliest of viruses.
An alternative theory here is that COVID-19 escaped from the Wuhan lab because of
lax controls, or that Chinese researchers sold lab animals to the marketplace in
PRC law requires. In either case, such conduct, as an alternative theory, has caused
the pandemic.
33. Defendants’ conduct has set off a world-wide pandemic assault that is
34. In short, Defendants’ conduct has been egregious and clearly contrary to
the precepts of humanity, and/or their conduct is prohibited by the internal laws of the
PRC and its provincial and municipal governments, and never should have been
and Class Members have or are virtually certain to suffer physical illness or death, as
well as emotional distress, and its physical manifestations, from the effects of the
Class Members who own or operate businesses have or are virtually certain to suffer
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37. This pandemic is likely to injure a substantial majority of all persons and
38. The personal injuries being sustained are universal and not linked to
individualized factors.
39. Any condition precedent to the filing of this lawsuit has been satisfied, met,
and/or waived.
40. The Named Plaintiffs with claims against Defendants assert National and
Florida Non-Commercial Tort Classes pursuant to Rules 23(a), (b)(1), (b)(2), (b)(3)
and/or 23(c)(4) of the Federal Rules of Civil Procedure, on behalf of themselves and
those similarly situated, against the Defendants for whom they have standing. The
All persons and legal entities in the United States who have suffered
injury, damage, and loss related to the outbreak of the COVID-19 virus.
All persons and legal entities in the State of Florida who have suffered
injury, damage, and loss related to the outbreak of the COVID-19 virus.
41. Plaintiff TBT Training also asserts a National and Florida Commercial
Classes, pursuant to Rules 23(a), (b)(1), (b)(2), (b)(3) and/or 23(c)(4) of the Federal
Rules of Civil Procedure, on behalf of itself and those similarly situated, against the
Defendants for whom they have standing. TBT Training defines the National
All persons and legal entities in the United States whose businesses have
suffered injury, damage, and loss related to the outbreak of the COVID-19
virus.
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All persons and legal entities in the State of Florida whose business have
suffered injury, damage, and loss related to the outbreak of the COVID-19
virus.
42. Excluded from the Classes are the following: (1) the Defendants, and any
parent, subsidiary or affiliate organizations, and the officers, directors, agents, servants,
or employees of same, and the members of the immediate family of any such person;
(2) all persons and entities who timely opt out of this proceeding; (3) all persons who
have given valid releases releasing Defendants from the claims asserted in this
Complaint; (4) all persons who, prior to the filing of this Complaint, have filed a non-
class action claim against the Defendants (or any of them) for the claims asserted in this
Complaint; and (5) the judge(s) to whom this case is assigned, their employees and
43. The Classes are sufficiently numerous such that the joinder of all
United States is over 327,000,000 and the population of Florida is over 21,000, and a
substantial majority of those persons and related entities have been or will in the
44. There are numerous common questions of law and fact that predominate
over any questions affecting only individual members of the Classes and/or Subclasses.
Among these common questions of law and fact are the following:
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45. The claims of the Named Plaintiffs are typical of the claims of each
a. The Named Plaintiffs’ claims arise from the same course of conduct of
Defendants giving rise to the claims of other Class Members;
b. The claims of the Named Plaintiffs and each member of the Class are
based upon the same legal theories;
c. The Named Plaintiffs and each member of the Classes have an interest in
prevailing on the same legal claims;
they participate because, together with their legal counsel, each will fairly and
adequately protect the interests of Classes. Named Plaintiffs and all Class Members
have a similar, if not identical interest in obtaining the relief sought. Proof of the claims
of the Named Plaintiffs will also prove the claims of the Class. Named Plaintiffs are not
subject to any unique defenses. Named Plaintiffs have no known conflict with the Class
action litigation, mass torts, and complex litigation involving such widespread harm.
Counsel will fairly and adequately protect the interests of the Classes
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48. The various claims asserted in this action are certifiable under the
varying adjudications with respect to individual Class Members that would establish
incompatible standards of conduct for the party opposing the Classes; or adjudications
dispositive of the interests of the other Class Members who are not parties to the
their interests.
49. The claims for injunctive relief in this case are certifiable under Fed. R.
Civ. P. 23(b)(2). Defendants have acted or refused to act on grounds that apply
generally to the Classes, so that final injunctive relief and/or declaratory relief is
50. Plaintiffs’ legal claims are properly certified pursuant to Rule 23(b)(3) in
that: (1) a class action is superior in this case to other methods of dispute resolution; (2)
the Class Members have an interest in class adjudication rather than individual
the resolution of these claims in this single forum because it would be difficult and highly
unlikely that the affected Class Members would protect their rights on their own without
this class action case; (4) the disparity between the resources of Defendants and Class
Members; (5) the prosecution of separate actions by individual Class Members, or the
individual joinder of all Class Members is impractical and would create a massive and
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unnecessary burden on the Court’s resources; and (6) Management of the class will be
efficient and far superior to the management of individual lawsuits. Moreover, currently,
the undersigned counsel is unaware of any other pending litigation regarding this
51. The issues particularly common to the Class Members’ claims, some of
which are identified above, are alternatively certifiable pursuant to Fed. R. Civ. P.
23(c)(4), as resolution of these issues would materially advance the litigation, and class
trials.
52. Named Plaintiffs have retained the above counsel to represent them in
this lawsuit, and are obligated to pay said counsel reasonable attorneys’ fees provided
recovery is obtained.
COUNT I – NEGLIGENCE
(Named Plaintiffs and each Class and Sub-Class; Against all Defendants)
foregoing allegations in paragraphs 1 through 52, as if fully set forth herein, and further
allege:
54. Defendants had a duty to persons in the United States, including Named
Plaintiffs and the members of the classes, to not act negligently in their handling of the
55. Defendants breached their duty to Plaintiffs and the members of the
a. Failure to admit their knowledge of the dangers of the virus, its lethalness,
and the ease of human to human transmission;
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b. Failure to contain the virus in its early stages when they knew or should
have known of its dangers and ease of transmission;
c. Failure to contain the virus more quickly when the spread was apparent;
herein, Named Plaintiffs and the members of the classes have been injured and
harmed, and have suffered damages and economic harms, and seek actual, special,
foregoing allegations in paragraphs 1 through 52, as if fully set forth herein, and further
allege.
58. Due to the negligence described herein, Named Plaintiffs and the
members of the classes have suffered discernable physical manifestations and injuries
of trauma from the negligent conduct, including, but not limited, to physical pains,
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59. These physical injuries and manifestations have been directly caused by
the by the psychological trauma suffered due to Defendant’s egregious conduct and its
60. Named Plaintiffs and the members of the classes have been in close
61. Named Plaintiffs and the members of the classes have a close personal
relationship to the directly injured persons if it not themselves who have been directly
injured.
herein, Named Plaintiffs and the members of the classes have been injured and
harmed, and have suffered damages and economic harms, and seek actual, special,
foregoing allegations in paragraphs 1 through 52, as if fully set forth herein, and further
allege:
intentionally and/or recklessly out of their own economic self-interest, and knew or
should have known that emotional distress would likely result from their conduct.
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66. Defendants’ conduct has caused severe emotional distress to the Named
conduct, as described herein, Named Plaintiffs and the members of the classes have
been injured and harmed, and have suffered damages and economic harms, and seek
foregoing allegations in paragraphs 1 through 52, as if fully set forth herein, and further
allege:
69. Upon information and belief, the only two registered bio-weapons
laboratories in the PRC are located in the City of Wuhan, and one of them, the National
Biosafety Laboratory at the Wuhan Institute of Virology, is the only declared site in
China capable of working with deadly viruses, and handles, according to various press
70. In February, after the PRC’s President Xi Jinping finally began speaking
openly about the outbreak and its spread, it was reported by the media that the Chinese
viruses like the novel coronavirus.” Clearly, Defendants knew or should have known
about containment issues within their microbiology labs, such as the ones operating in
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71. The Wuhan laboratories are in close proximity to the “wild animal”
72. Furthermore, it has been reported in the media that some Chinese
researchers are in the habit of selling their laboratory animals to street vendors after
because:
b. The activities at the lab are not a matter of common usage; and
74. The harms alleged herein are the result of Defendants’ ultrahazardous
activity.
75. The harms suffered by the Named Plaintiffs and members of the classes
are within the abnormal risk of harm posed by Defendants’ ultrahazardous activity.
described herein, Named Plaintiffs and the members of the classes have been injured
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and harmed, and have suffered damages and economic harms, and seek actual,
damages to Named Plaintiffs and the members of the classes, Defendants are strictly
foregoing allegations in paragraphs 1 through 52, as if fully set forth herein, and further
allege:
80. Defendants, and more specifically the PRC, Hubei Province and the City
of Wuhan, had a duty to the public at large, including Named Plaintiffs and members of
the classes, not to use the property where the Wuhan Institute of Virology is located,
81. Defendants, and more specifically the PRC, Hubei Province and the City
of Wuhan, had a duty to the public at large, including Named Plaintiffs and members of
the classes, not to use the city and province as, essentially a giant Petri dish, continuing
to conduct extraordinarily large public gatherings, knowing of the dangers of the virus
82. Defendants, and more specifically the PRC, Hubei Province and the City
of Wuhan, breached that duty through the conduct described herein, including by
allowing COVID-19 to escape into Wuhan and/or flourish in Wuhan and Hubei, and
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subverted public order in the United States and Florida, is indecent and immoral, and
has caused annoyance, inconvenience and damage to the public, including Named
herein, Named Plaintiffs and the members of the classes have been injured and
harmed, and have suffered damages and economic harms, and seek actual, special,
Named Plaintiffs, on their own behalf and on behalf the Classes and Sub-
STEPHEN CLYNE, and THE PITCHING LAB LLC d/b/a TBT TRAINING, individually
and as putative Class Representatives, demand judgment against Defendants, and pray
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