Davis v. Islamic Republic of Iran

• Decision Date: 30 March 2012
• Docket Number: No. 07–cv–1302 (RCL).,07–cv–1302 (RCL).
• Citation: 882 F.Supp.2d 7
• Parties: Carolyn DAVIS, et al., Plaintiffs, v. ISLAMIC REPUBLIC OF IRAN, et al., Defendants.
• Court: U.S. District Court — District of Columbia

882 F.Supp.2d 7

Carolyn DAVIS, et al., Plaintiffs,

v.ISLAMIC REPUBLIC OF IRAN, et al., Defendants.

No. 07–cv–1302 (RCL).

United States District Court,

District of Columbia.

March 30, 2012.

Caragh Glenn Fay, Joseph William Fay, Thomas Fortune Fay, Fay Kaplan Law, P.A., Steven R. Perles, Perles Law Firm, P.C., David Brian Ginsburg, Wingfield & Ginsburg P.C., Washington, DC, for Plaintiffs.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

I. Introduction

This action arises out of the devastating 1983 bombing of the U.S. Marine barracks in Beirut, Lebanon. The attack decimated the facility, killed 241 U.S. servicemen and left countless others wounded. Various affected servicemen and family members now bring suit against defendants Islamic Republic of Iran (“Iran”) and the Iranian Ministry of Information and Security (“MOIS”). Their action is brought pursuant to the state-sponsored exception to the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1330, 1602 et seq., which was enacted as part of the National Defense Authorization Act for Fiscal Year 2008 (“NDAA”). Pub.L. No. 110–181, § 1083, 122 Stat. 3, 338–44 (2008). That provision, codified at 28 U.S.C. § 1605A, provides “a federal right of action against foreign states” that sponsor terrorist acts. Haim v. Islamic Republic of Iran, 784 F.Supp.2d 1, 4 (D.D.C.2011) (quoting reference omitted).

II. Liability

On February 1, 2010, this Court took judicial notice of the findings of fact and conclusions of law in Peterson v. Islamic Republic of Iran and Boulos v. Islamic Republic of Iran, which also concern the Marine barracks bombing, and entered judgment in favor of the plaintiffs and against Iran and MOIS with respect to all issues of liability. Davis v. Islamic Republic of Iran, No. 1:07–cv–01302–RCL, ECF No. 27 (D.D.C. Feb. 2, 2010). This Court then referred this action to a special master for consideration of plaintiffs' claims for damages Id., ECF No. 29. Since the issue of liability has been previously settled, this Court now turns to examine the damages recommended by the special master.

III. Damages

Damages available under the FSIA-created cause of action “include economic damages, solatium, pain and suffering, and punitive damages.” 28 U.S.C. § 1605A(c). Accordingly, those who survived the attack may recover damages for their pain and suffering, as well as any other economic losses caused by their injuries; estates of those who did not survive can recover economic losses stemming from wrongful death of the decedent; family members can recover solatium for their emotional injury; and all plaintiffs can recover punitive damages. Valore v. Islamic Republic of Iran, 700 F.Supp.2d 52, 82–83 (D.D.C.2010).

“To obtain damages against defendants in an 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 this [Circuit's] application of the American rule on damages.’ ” Salazar v. Islamic Republic of Iran, 370 F.Supp.2d 105, 115–16 (D.D.C.2005) (quoting Hill v. Republic of Iraq, 328 F.3d 680, 681 (D.C.Cir.2003) (internal quotations omitted)). As discussed in Peterson II, plaintiffs have proven that the defendants' commission of acts of extrajudicial killing and provision of material support and resources for such killing was reasonably certain to-and indeed intended to-cause injury to plaintiffs. Peterson v. Islamic Republic of Iran (Peterson II), 515 F.Supp.2d 25, 37 (2007).

The Court hereby ADOPTS, just as it did in Peterson II,Valore,Bland,Anderson, and O'Brien all facts found by and recommendations made by the special master relating to the damages suffered by all plaintiffs in this case. Id. at 52–53;Valore, 700 F.Supp.2d at 84–87;Bland v. Islamic Republic of Iran, 831 F.Supp.2d 150 (D.D.C.2011);Anderson v. Islamic Republic of Iran, No. 1:08–cv–535–RCL, 839 F.Supp.2d 263 (D.D.C. Mar. 20, 2012), 2012 WL 928256;O'Brien v. Islamic, Republic of Iran, No. 1:06–cv–690–RCL, 853 F.Supp.2d 44 (D.D.C. Mar. 28, 2012), 2012 WL 1021471. However, if the special master has deviated from the damages framework that this Court has applied in previous cases, “those amounts shall be altered so as to conform with the respective award amounts set forth” in the framework. Peterson II, 515 F.Supp.2d at 52–53. The final damages awarded to each plaintiff are contained in the table located within the separate Order and Judgment issued this date, and this Court discusses below any alterations it makes to the special master recommendations.

A. Pain and Suffering of Survivors

Assessing appropriate damages for physical injury or mental disability can depend upon a myriad of factors, such as “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.” Peterson II, 515 F.Supp.2d at 52 n. 26 (citing Blais v. Islamic Republic of Iran, 459 F.Supp.2d 40, 59 (D.D.C.2006)). In Peterson II, this Court adopted a general procedure for the calculation of damages that begins with the baseline assumption that persons suffering substantial injuries in terrorist attacks are entitled to $5 million in compensatory damages. Id. at 54. In applying this general approach, this Court has explained that it will “depart upward from this baseline to $7–$12 million in more severe instances of physical and psychological pain, such as where victims suffered relatively more numerous and severe injuries, were rendered quadriplegic, partially lost vision and hearing, or were mistaken for dead,” Valore, 700 F.Supp.2d at 84, and will “depart downward to $2–$3 million where victims suffered only minor shrapnel injuries or minor injury from small-arms fire,” id. The Court typically awards $1 million to servicemen who survive a few minutes to a few hours after the bombing. See Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97, 113 (D.D.C.2000). However, “i[f] death was instantaneous there can be no recovery....” Id. at 112 (citation omitted). When a serviceman suffers severe emotional injury without physical injury, this Court has typically awarded the victim $1.5 million. See Valore, 700 F.Supp.2d at 85;Bland, 831 F.Supp.2d at 155, 2011 WL 6396527 at *3.

Again, this Court ADOPTS all of special master awards for pain and suffering unless otherwise discussed below:

The special master recommends a $5 million pain and suffering award for serviceman Gary Wayne Allison. Report of Special Master Concerning Counts LIII–LVI [ECF No. 76], at 9. Mr. Allison suffered hearing loss and severe PTSD as a result of the bombing. Id. at 7. In light of the less severe nature of his physical injuries, while not ignoring his severe emotional injuries, the Court finds a more appropriate pain and suffering award to be $2 million.

The special master recommends a $5 million pain and suffering award for serviceman John W. Nash. Report of Special Master Concerning Counts CXII–CXVI [ECF No. 109], at 31. Mr. Nash was “covered in cuts and bruises by the blast, and coated in gray dust and debris from the building, but [was] otherwise unharmed.” Id. at 7. In light of the less severe nature of his physical injuries, while not ignoring his severe emotional injuries, the Court finds a more appropriate pain and suffering award to be $2 million.

The special master recommends a $3 million pain and suffering award for serviceman Charles Simmons. Report of Special Master Concerning Count CLII–CLV [ECF No. 40], at 10. Mr. Simmons was “asleep in his tent with several other motor pool staff at the time of the bombing.” Id. at 5. While the record reflects that Mr. Simmons suffered severe emotional injuries, it does not reflect that he suffered any physical injury, and therefore the Court finds a more appropriate pain and suffering award to be $1.5 million.

The special master recommends a $5 million pain and suffering award for serviceman Thomas Andrew Walsh. Report of Special Master Concerning Counts CLXV–CLXIX [ECF No. 105], at 19. Mr. Walsh suffered hearing loss and severe PTSD as a result of the bombing. Id. at 5–6. In light of the less severe nature of his physical injuries, while not ignoring his severe emotional injuries, the Court finds a more appropriate pain and suffering award to be $2 million.

The special master recommends a $5 million pain and suffering award for serviceman Gerald Wilkes, Jr. Report of Special Master Concerning Counts CLXXV–CLXXIX [ECF No. 112], at 11. While the record reflects that Mr. Wilkes suffered severe emotional injuries, it does not contain any medical evidence that he suffered physical injury, and therefore the Court finds a more appropriate pain and suffering award to be $1.5 million.

The special master recommends a $2 million pain and suffering award for serviceman Michael Corrigan. Report of Special Master Concerning Counts LXX–LXXII [ECF No. 38], at 10. Mr. Corrigan was stationed on the USS Iowa Jima at the time of the attack, but participated extensively in the rescue operations. Id. at 4. He later received a 70% VA disability rating. Id. at 7. While the record reflects that Mr. Corrigan suffered severe emotional injuries, it does not reflect that he suffered any physical injury, and therefore the Court finds a more appropriate pain and suffering award to be $1.5 million.

B. Economic Loss

In addition to pain and suffering, several plaintiffs who survived the attack and the estates of several survivors have proven to the satisfaction of the special master, and thus to the satisfaction of the Court, lost wages resulting from permanent and debilitating injuries suffered in the attack or loss of accretions to the estate resulting from the wrongful death of decedents in the attack. See Valore, 700 F.Supp.2d at 85. The Court therefore ADOPTS without modification the damages awarded for economic loss...