In re Estate of Marcos Human Rights Litigation

• Decision Date: 30 November 1995
• Docket Number: No. MDL 840.,MDL 840.
• Parties: In re ESTATE OF Ferdinand E. MARCOS HUMAN RIGHTS LITIGATION. This Document Relates to all Cases.
• Court: U.S. District Court — District of Hawaii

910 F. Supp. 1460

In re ESTATE OF Ferdinand E. MARCOS HUMAN RIGHTS LITIGATION This Document Relates to all Cases.

No. MDL 840.

United States District Court, D. Hawai`i.

November 30, 1995.

Robert A. Swift, Kohn, Savett, Klein & Graf, P.C., Philadelphia, PA, Sherry P. Broder, Honolulu, Hawai`i, for Class Plaintiffs.

Paul Hoffman, ACLU Foundation of Southern California, Los Angeles, CA, Randall H. Scarlett, Brown, Monzione, Fabbro, Zakaria & Scarlett, San Francisco, California, Melvin Belli, Caesar Belli, San Francisco, CA, for Individual Plaintiffs.

James Pau Linn, Linn & Helms, Oklahoma City, OK, Lex R. Smith, Kobayashi, Sugita & Goda, Honolulu, Hawai`i, for defendants.

OPINION

REAL, District Judge.

I. BACKGROUND

Victims of torture, summary execution and disappearance filed suits for damages, in the form of a class action as well as individual direct actions, against the Estate of the former President of the Philippines, Ferdinand E. Marcos (MARCOS), for human rights violations. Specifically, the violations are alleged to have occurred during the period in which MARCOS, as President of the Philippines, declared martial law, from September 21, 1972 to February 25, 1986.

In 1986 MARCOS fled the Philippines and arrived in the State of Hawaii. MARCOS was a resident of Hawaii at the time he was served with the complaints that are the subject of this litigation but he died during the pendency of these actions. The Estate of Ferdinand E. Marcos (the ESTATE) has been substituted in MARCOS' place; his widow, Imelda Marcos, and his son, Ferdinand E. Marcos, Jr., have appeared before this Court as representatives of the ESTATE.

The action was tried in the three phases: (1) liability, (2) exemplary damages, and (3) compensatory damages, over a nine year period — from 1986 to 1995. In the compensatory damages phase, Phase III, this Court allowed the jury to consider the damages to a random sample of plaintiffs as representative of the injuries suffered by those in the three subclasses; i.e. (1) plaintiffs who were tortured; (2) the families of those individuals who were the subjects of summary execution; and (3) the families of those who disappeared as the result of the actions of MARCOS. Pragmatically, the jury could not hear testimony of nearly 10,000 plaintiffs in this action within any practicable and reasonable time, to do justice to the class members. The individual plaintiffs who opted out of the certified class action each presented his or her individual claim for compensatory damages to the jury in a separate part of the Trial.

This opinion addresses the compensatory damages phase of the trial. The Court deals here with the propriety of the use of inferential statistics to ascertain the damages suffered by each of the 9,541¹ class members.

II. MARCOS REGIME

MARCOS was elected President of the Philippines in 1965 and was re-elected in 1969. The Philippine Constitution of 1935, still in effect in 1972, was similar to the United States Constitution, in that it limited election of the President to two four-year terms. Thus, MARCOS would have had to leave the office of the Presidency by the end of 1973, but he did not.

On September 21, 1972 MARCOS imposed martial law on all of the Philippines through Proclamation 1081, which suspended the Constitution, in order to keep himself in office. The stated purpose for the imposition of martial law, as expressed in Proclamation 1081, was:

"to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction."²

At the time martial law was declared, a Constitutional Convention, elected by the people, had been meeting and was near completion of proposed revisions to the 1935 Constitution. On orders from MARCOS, some delegates to the Convention were arrested and placed under detention while others went into hiding or left the country leaving the revisions uncompleted.

Without allowing for ratification of the new Constitution by a plebiscite, on January 17, 1973, MARCOS ordered ratification of a revised Constitution, tailor-made for his maintenance of power. With those actions MARCOS planted the seeds for what grew into a virtual dictatorship in the Philippines.

The new Constitution nullified the term limits for the President and provided that MARCOS could function as President, using his own judgment, for as long as necessary. Until he convened a new legislative body, MARCOS also had sole authority to rule in the Philippines.

Proclamation 1081 not only declared martial law, but also set the stage for what plaintiffs alleged, and the jury found, to be acts of torture, summary execution, disappearance, arbitrary detention, and numerous other atrocities for which the jury found MARCOS personally responsible.

MARCOS gradually increased his own power to such an extent that there were no limits to his orders of the human rights violations suffered by plaintiffs in this action. MARCOS promulgated General Order No. 1 which stated he was the Commander-in-Chief of the Armed Forces of the Philippines. The order also stated that MARCOS was to govern the nation and direct the operation of the entire Government, including all its agencies and instrumentalities. By General Orders 2 and 2-A, signed by MARCOS immediately after proclaiming martial law, MARCOS authorized the arrest, by the military, of a long list of dissidents. By General Order 3, MARCOS maintained, as captive, the executive and judicial branches of all political entities in the Philippines until otherwise ordered by himself personally.³

Immediately after the declaration of martial law the issuance of General Orders 1, 2, 2A, 3 and 3A caused arrests of persons accused of subversion, apparently because of their real or apparent opposition to the MARCOS government. These arrests were made pursuant to orders issued by the Secretary of Defense Juan Ponce Enrile ("ENRILE"), or MARCOS himself.

The arrest orders were means for detention of each of the representatives of the plaintiff class as well as each of the individual plaintiffs. During those detentions the plaintiffs experienced human rights violations including, but not limited to the following:

1. Beatings while blindfolded by punching, kicking and hitting with the butts of rifles;

2. The "telephone" where a detainee's ears were clapped simultaneously, producing a ringing sound in the head;

3. Insertion of bullets between the fingers of a detainee and squeezing the hand;

4. The "wet submarine", where a detainee's head was submerged in a toilet bowl full of excrement;

5. The "water cure", where a cloth was placed over the detainee's mouth and nose, and water poured over it producing a drowning sensation;

6. The "dry submarine", where a plastic bag was placed over the detainee's head producing suffocation;

7. Use of a detainee's hands for putting out lighted cigarettes;

8. Use of flat-irons on the soles of a detainee's feet;

9. Forcing a detainee while wet and naked to sit before an air conditioner often while sitting on a block of ice;

10. Injection of a clear substance into the body a detainee believed to be truth serum;

11. Stripping, sexually molesting and raping female detainees; one male plaintiff testified he was threatened with rape;

12. Electric shock where one electrode is attached to the genitals of males or the breast of females and another electrode to some other part of the body, usually a finger, and electrical energy produced from a military field telephone is sent through the body;

13. Russian roulette; and

14. Solitary confinement while handcuffed or tied to a bed.

All of these forms of torture were used during "tactical interrogation"⁴, attempting to elicit information from detainees concerning opposition to the MARCOS government. The more the detainees resisted, whether purposefully or out of lack of knowledge, the more serious the torture used.

Eventually, MARCOS, his family and others loyal to him fled to Hawaii in February of 1986. One month later, a number of lawsuits were filed, including those that are the subject of this case.

III. CLASS ACTION

On September 22, 1992, in the liability phase of the trial, the jury found defendants liable to 10,059 plaintiffs, for the acts of torture, summary execution and disappearance. On February 23, 1994 the jury awarded plaintiffs $1.2 billion in exemplary damages.

In the compensatory damages phase, the class action plaintiffs presented their case to the jury by using damages sustained by a random sample of plaintiffs as representative of damages suffered by the entire class. After reviewing the deposition of 137 claimants and hearing the live testimony of several class members who could come to Court, the Special Master presented a report to the jury recommending the damages suffered by the 137 claimants, to give the jury a statistically valid representation of damages suffered by the entire class. On January 20, 1995, the jury reconvened and after hearing several representatives of the class and the testimony of the Special Master found the defendant liable to the class for over $766 million in compensatory damages, with individual plaintiff's awards ranging from $150,000 to $700,000.

The Court held that damages of 137 of the claimants, presented to the jury in the form of a report presented by the Special Master, was representative of damages sustained by the entire class, and introduction of such report did not offend due process. Furthermore, the fact that defendants did not have the opportunity to cross-examine all class plaintiffs, because only the testimony of 137 claimants was presented in the report, did not violate defendant's right to a jury trial under the Seventh Amendment of the United States Constitution.⁵

This opinion will address judgment as to the class plaintiff...