Khaliq v. Republic of Sudan
| Decision Date | 28 March 2014 |
| Docket Number | Civil Action No. 10–356 JDB |
| Citation | 33 F.Supp.3d 29 |
| Court | U.S. District Court — District of Columbia |
| Parties | Rizwan Khaliq, et al., Plaintiffs, v. Republic of Sudan, et al., Defendants. |
Jane Carol Norman, Bond & Norman, PLLC, Washington, DC, for Plaintiffs.
Over fifteen years ago, on August 7, 1998, the United States embassies in Nairobi, Kenya and Dares Salaam, Tanzania were devastated by simultaneous suicide bombings that killed hundreds of people and injured over a thousand. This Court has entered final judgment on liability under the Foreign Sovereign Immunities Act (“FSIA”) in this civil action and several related cases—brought by victims of the bombings and their families—against the Republic of Sudan, the Ministry of the Interior of the Republic of Sudan, the Islamic Republic of Iran, and the Iranian Ministry of Information and Security (collectively “defendants”) for their roles in supporting, funding, and otherwise carrying out these unconscionable acts.2 The next step in the case is to assess and award damages to each individual plaintiff, and in this task the Court has been aided by a special master.
Plaintiffs are two U.S. citizens injured in the Nairobi bombing, as well as seven immediate family members of the victims, all of whom are also U.S. citizens. Service of process was completed upon each defendant, but defendants failed to respond, and a default was entered against each defendant. This Court then held that it has jurisdiction over the defendants and that the U.S. nationals have a federal cause of action under 28 U.S.C. § 1605A(c). See Owens v. Republic of Sudan, 826 F.Supp.2d 128, 148–51 (D.D.C.2011). A final judgment on liability was then entered in favor of plaintiffs. Nov. 30, 2011 Order [ECF No. 25]. The deposition testimony and other evidence presented established that the defendants were responsible for supporting, funding, and otherwise carrying out the bombings in Nairobi and Dares Salaam. See Owens, 826 F.Supp.2d at 135–47.
The Court then referred plaintiffs' claims to a special master, Paul G. Griffin, to prepare proposed findings and recommendations for a determination of damages. Feb. 27, 2012 Order Appointing Special Masters [ECF No. 28] 2. The special master has now filed a completed report, and plaintiffs have filed proposed findings of fact and conclusions of law based on those reports. See Report of Special Master Paul Griffin [ECF No. 34]; Proposed Findings of Fact & Conclusions of Law [ECF No. 36]. In completing those reports and in finding the facts, the special master relied on sworn testimony, expert reports, medical records, and other evidence. The reports extensively describe the key facts relevant to each of the plaintiffs and carefully analyze their claims under the framework established in mass tort terrorism cases. The Court commends Paul Griffin for his excellent work and thoughtful analysis.
The Court hereby adopts all facts found by the special master relating to all plaintiffs in this case. Where the special master has received evidence sufficient to find that a plaintiff is a U.S. national and is thus entitled to maintain a federal cause of action, the Court adopts that finding. The Court also adopts all damages recommendations in the reports, with the few adjustments described below. “Where recommendations deviate from the Court's damages framework, ‘those amounts shall be altered so as to conform with the respective award amounts set forth’ in the framework, unless otherwise noted.” Valore v. Islamic Republic of Iran, 700 F.Supp.2d 52, 82–83 (D.D.C.2010) (). As a result, the Court will award plaintiffs a total judgment of over $49 million.
“To obtain damages in a Foreign Sovereign Immunities Act (FSIA) action, the plaintiff must prove that the consequences of the defendants' conduct were reasonably certain (i.e., more likely than not) to occur, and must prove the amount of the damages by a reasonable estimate consistent with application of the American rule on damages.” Valore, 700 F.Supp.2d at 83. Plaintiffs here have proven that the consequences of the defendants' conduct were reasonably certain to—and indeed intended to—cause injury to plaintiffs. See Owens, 826 F.Supp.2d at 135–46. As discussed in this Court's previous opinion, because the FSIA-created cause of action “does not spell out the elements of these claims that the Court should apply,” the Court “is forced ... to apply general principles of tort law” to determine plaintiffs' entitlement to damages on their federal claims. Id. at 157 n. 3.
Survivors here are entitled to recover for the pain and suffering caused by the bombings: acts of terrorism “by their very definition” amount to extreme and outrageous conduct and are thus compensable by analogy under the tort of “intentional infliction of emotional distress.” Valore, 700 F.Supp.2d at 77 (citing Restatement (Second) of Torts § 46(1) (1965) ); see Baker v. Socialist People's Libyan Arab Jamahi r ya, 775 F.Supp.2d 48, 74 (D.D.C.2011) (); Estate of Bland v. Islamic Republic of Iran, 831 F.Supp.2d 150, 153 (D.D.C.2011) (same). Hence, “those who survived the attack may recover damages for their pain and suffering, ... [for] economic losses caused by their injuries; ... [and] family members can recover solatium for their emotional injury....”
Oveissi v. Islamic Republic of Iran, 879 F.Supp.2d 44, 55 (D.D.C.2012) ( “Oveissi II ”) (citing Valore, 700 F.Supp.2d at 82–83 ); 28 U.S.C. § 1605A(c). Accordingly, all plaintiffs who were injured in the 1998 bombings can recover for their pain and suffering as well as their economic damages, and their immediate family members—if U.S. nationals—can recover for solatium. Bland, 831 F.Supp.2d at 153.
Having established that plaintiffs are entitled to damages, the Court now turns to the question of the amount of damages, which involves resolving common questions related to plaintiffs with similar injuries. The damages awarded to each plaintiff are laid out in the tables in the separate Order and Judgment issued on this date.
The special master recommends awarding economic damages to account for certain out-of-pocket medical expenses—which may be recovered under 28 U.S.C. § 1605A(c) —incurred by John Victim Doe as a direct result of the bombings. The Court adopts the special master's recommendations as to out-of-pocket medical expenses John Victim Doe incurred.
Courts determine pain-and-suffering awards for survivors based on factors including “the severity of the pain immediately following the injury, the length of hospitalization, and the extent of the impairment that will remain with the victim for the rest of his or her life.” See O'Brien v. Islamic Republic of Iran, 853 F.Supp.2d 44, 46 (D.D.C.2012) (internal quotation marks omitted). When calculating damages amounts, “the Court must take pains to ensure that individuals with similar injuries receive similar awards.” Peterson II, 515 F.Supp.2d at 54. Recognizing this need for uniformity, courts in this district have developed a general framework for assessing pain-and-suffering damages for victims of terrorist attacks, awarding a baseline of $5 million to individuals who suffer severe physical injuries, such as compound fractures, serious flesh wounds, and scars from shrapnel, as well as lasting and severe psychological pain. See Valore, 700 F.Supp.2d at 84. Where physical and psychological pain is more severe—such as where victims suffered relatively more numerous and severe injuries, were rendered quadriplegic, partially lost vision and hearing, or were mistaken for dead—courts have departed upward from this baseline to $7 million and above. See O'Brien, 853 F.Supp.2d at 47. Similarly, downward departures to a range of $1.5 to $3 million are warranted where the victim suffers severe emotional injury accompanied by relatively minor physical injuries. See Valore, 700 F.Supp.2d at 84–85.
The special master recommends an award of $5 million in pain and suffering for John Victim Doe, and a downward departure from the baseline to $1.5 million for his wife, Jane Spouse Doe. Report of Special Master Paul Griffin [ECF No. 34] 54–55. The Court will adopt these recommendations, while noting their consistency with awards in prior cases to plaintiffs who suffered similar injuries. See, e.g., Valore, 700 F.Supp.2d at 84–85.
“In determining the appropriate amount of compensatory damages, the Court may look to prior decisions awarding damages for pain and suffering, and to those awarding damages for solatium.” Acosta v. Islamic Republic of Iran, 574 F.Supp.2d 15, 29 (D.D.C.2008). Only immediate family members—parents, siblings, spouses, and children—are entitled to solatium awards. See Valore, 700 F.Supp.2d at 79. The commonly accepted framework for solatium damages in this district is that used in Peterson II, 515 F.Supp.2d at 52. See Valore, 700 F.Supp.2d at 85 ; Belkin, 667 F.Supp.2d at 23. According to Peterson II, the appropriate amount of damages for family members of injured victims is as follows: $4 million to spouses of injured victims, $2.5 million to parents of injured victims, and $1.25 million to siblings of injured victims. Peterson II, 515 F.Supp.2d at 52.
Although these amounts are guidelines, not rules, see Valore, 700 F.Supp.2d at 86, the Court finds the distinctions made by the...
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