Could Trump be sued for criminal negligence? (Re: testing for Covid-19.)

[skip fox]

Trump obviously made the final decision on refusing to buy W.H.O. test kits for the coronavirus months ago, and we all know his reasons (from childish denial to the worries about a spike in the number of cases, to run-of-the-mill xenophobia).

Isn't that criminal negligence?

[The Velveteen Ocelot]

1. Nope. Governmental immunity.

[at140]

2. Man, I am impressed with your general knowledge!

You are correct as usual.

[exboyfil]

6. If you could prove it was for financial gain

Do you think that dog might hunt? Less so if it was for political gain (or laws aren't really structured for that).

[KY_EnviroGuy]

9. Elections have consequences. Sometimes big consequences.

Just ask Iraq or Afghanistan.......

[FiveGoodMen]

3. The Senate has already declared that crimes don't count for Trump

So, maybe it's a crime, but what difference does that make?

[DonaldsRump]

4. Use it to defeat at the polls! n/t

[skip fox]

5. So . . . Having the suit brought and then thrown out of court

would foreground his negligence to the public?

[The Velveteen Ocelot]

7. A little more explanation:

In general, governmental bodies and officials are immune from negligence claims based on acts taken in the exercise of their discretion. The example I used when teaching a law course was this:

1. A city has placed stoplights at some intersections but not all of them, and a driver is injured when struck by another car at an intersection at which there is no stoplight. The city council decided not to place a stoplight at that intersection because it didn't think the traffic was enough to justify the expense.

2. A driver is injured when struck by another car at an intersection where the city had placed a new stoplight but it malfunctioned, showing green in both directions. The city did not install the stoplight correctly.

In the first instance, the city would be protected by governmental immunity because its decision not to put up a stoplight was a discretionary act (a decision based on the evaluation of various factors). In the second, however, it could be liable because it was merely performing a ministerial act (installation of a stoplight).

Of course, we know that Trump's decisions are stupid and incoherent, but they still fall within the general category of discretionary acts.

[Hoyt]

8. Definitely stupid. Here is a good article on what happened.

https://www.theverge.com/2020/3/17/21184015/coronavirus-testing-pcr-diagnostic-point-of-care-cdc-techonology

"Instead of using the WHO protocol, the CDC decided to create its own test using three different genes from the German test [German test was the basis of WHO test]. That’s not an entirely unusual decision — the agency also created its own test during the Ebola outbreak in West Africa in 2015. But when some state labs tried to validate the test, it appeared to cause false positive results. The agency had to redesign and remanufacture test kits, which contributed to the delays in getting widespread testing up and running."

"Normally, state public health labs and commercial labs would have been able to create their own PCR tests once it was clear the CDC test wasn’t working. But because the country is under a public health state of emergency, any new test had to be approved for emergency use by the Food and Drug Administration (FDA). That slow process also contributed to delays in testing. On February 29th, the agency relaxed that rule, and commercial labs started COVID-19 testing.

"Machines are available that can run PCR tests automatically, which also speeds the process. However, it took companies weeks to develop tests for those automated systems and for the Food and Drug Administration to approve them. The pharmaceutical and diagnostics company Roche, for example, didn’t get approval for an automated test until March 13th.

"Experts say the lag time and slow rollout was confusing. South Korea is working with the same technology as the US and was able to ramp up testing much more rapidly — although, notably, it doesn’t have the same regulatory barriers that the US does. But the US also has experience doing this well. “During H1N1, that test came out quickly and was distributed,” Klapperich says. “I’m not clear what went wrong here.” . . . . . ."

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Personally, I think the decision to not use WHO test was some form of national pride BS -- we can't always do it better, at least not quickly.