Onsongo v. Republic of Sudan, Civil Action No. 08–1380JDB

• Decision Date: 25 July 2014
• Docket Number: Civil Action No. 08–1380JDB
• Citation: 60 F.Supp.3d 144
• Court: U.S. District Court — District of Columbia
• Parties: Mary Onsongo, et al., Plaintiffs, v. Republic of Sudan, et al., Defendants.

60 F.Supp.3d 144

Mary Onsongo, et al., Plaintiffs

v.Republic of Sudan, et al., Defendants.

Civil Action No. 08–1380JDB

United States District Court, District of Columbia.

Signed July 25, 2014

Allen Louis Rothenberg, Law Firm of Allen L. Rothenberg, Philadelphia, PA, Michael Joseph Miller, The Miller Firm, LLC, Orange, VA, for Plaintiffs.

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge

Over fifteen years ago, on August 7, 1998, the United States embassies in Nairobi, Kenya and Dar es 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, the Iranian Revolutionary Guards Corps, and the Iranian Ministry of Information and Security (collectively “defendants”) for their roles in supporting, funding, and otherwise carrying out these unconscionable acts. 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 several special masters.

The fourteen plaintiffs in this case are Kenyan citizens injured and killed in the Nairobi bombings and their immediate family members.¹ Service of process was completed upon each defendant, but defendants failed to respond, and a default was entered against each defendant. The Court has held that it has jurisdiction over defendants and that the foreign-national plaintiffs who worked for the U.S. government are entitled to compensation for personal injury and wrongful death under 28 U.S.C. § 1605A(c)(3). See Owens v. Republic of Sudan, 826 F.Supp.2d 128, 148–51 (D.D.C.2011). The Court has also held that, although those plaintiffs who are foreign-national family members of victims lack a federal cause of action, they may nonetheless pursue claims under the laws of the District of Columbia. Id. at 153–57. A final judgment on liability was entered in favor of plaintiffs. Nov. 28, 2011 Order [ECF No. 41] at 2. 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 Dar es Salaam. See Owens, 826 F.Supp.2d at 135–47.

The Court then referred plaintiffs' claims to two special masters² to prepare proposed findings and recommendations for a determination of damages. Feb. 27, 2012 Order Appointing Special Masters [ECF No. 44] at 2. The special masters have now filed completed reports on each plaintiff. See Special Master Reports [ECF Nos. 83, 114, 134]. In completing those reports and in finding facts, the special masters 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 both of the special masters for their excellent work and thorough analysis.

The Court hereby adopts all facts found by the special masters relating to all plaintiffs in this case, including findings regarding the plaintiffs' employment status or their familial relationship necessary to support standing under section 1605A(a)(2)(A)(ii). See Owens, 826 F.Supp.2d at 149. 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) (quoting Peterson v. Islamic Republic of Iran, 515 F.Supp.2d 25, 53 (D.D.C.2007)(“ Peterson II ”), abrogation on other grounds recognized in Mohammadi v. Islamic Republic of Iran, 947 F.Supp.2d 48, 65 (D.D.C.2013) ). As a result, the Court will award plaintiffs a total judgment of over $199 million.

I. CONCLUSIONS OF LAW

On November 28, 2011, the Court granted summary judgment on liability against defendants in this case. Nov. 28, 2011 Order [ECF No. 41] at 2. The foreign national U.S.-government-employee victims have a federal cause of action, while their foreign-national family members have a cause of action under D.C. law.

a. The Government–Employee Plaintiffs Are Entitled To Damages On Their Federal Law Claims Under 28 U.S.C. § 1605A

“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 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 by this Court previously, 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 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 also Baker v. Socialist People's Libyan Arab Jamahi r ya, 775 F.Supp.2d 48, 74 (D.D.C.2011) (permitting plaintiffs injured in state-sponsored terrorist bombings to recover for personal injuries, including pain and suffering, under tort of “intentional infliction of emotional distress”); 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, ... [and for] economic losses caused by their injuries....” 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 ); see 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 losses. Bland, 831 F.Supp.2d at 153. In addition, the estates of those who were killed in the attack are entitled to recover compensatory damages for wrongful death. See, e.g., Valore, 700 F.Supp. at 82 (permitting estates to recover economic damages caused to deceased victims' estates).

b. Family Members Who Lack A Federal Cause Of Action Are Entitled To Damages Under D.C. Law

This Court has previously held that it will apply District of Columbia law to the claims of any plaintiffs for whom jurisdiction is proper, but who lack a federal cause of action under the FSIA. Owens, 826 F.Supp.2d at 153–57. This category includes only the foreign-national family members of the injured victims from the 1998 bombings. Individuals in this category seek to recover solatium damages under D.C. law based on claims of intentional infliction of emotional distress. To establish a prima facie case of intentional infliction of emotional distress under D.C. law, a plaintiff must show: (1) extreme and outrageous conduct on the part of the defendant which, (2) either intentionally or recklessly, (3) causes the plaintiff severe emotional distress. Larijani v. Georgetown Univ., 791 A.2d 41, 44 (D.C.2002). Acts of terrorism “by their very definition” amount to extreme and outrageous conduct, Valore, 700 F.Supp.2d at 77 ; the defendants in this case acted intentionally and recklessly; and their actions caused each plaintiff severe emotional distress, see Owens, 826 F.Supp.2d at 136–45 ; Murphy v. Islamic Republic of Iran, 740 F.Supp.2d 51, 74–75 (D.D.C.2010). Likewise, D.C. law allows spouses and next of kin to recover solatium damages. D.C. Code § 16–2701. Based on the evidence submitted to the special masters, the Court concludes that the foreign-national family members of the victims of the 1998 bombings have each made out claims for intentional infliction of emotional distress and are entitled to solatium damages (with the few exceptions detailed below).

II. DAMAGES

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.

a. Compensatory Damages

1. Economic damages

Under the FSIA, injured victims and the estates of deceased victims may recover economic damages, which typically include lost wages, benefits and retirement pay, and other out-of-pocket expenses. 28 U.S.C. § 1605A(c). Special Master Pigott recommended that the one deceased plaintiff in this case, Evans Onsongo be awarded economic damages. To determine the economic losses resulting from his death, Pigott relied on economic reports submitted by the Center for Forensic Economic Studies (“CFES”), which estimated lost earnings, fringe benefits, retirement income, and the value of household services lost as a result of the injuries sustained from the bombing. In turn, CFES relied on information from the survivors as well as other documentation, including country-specific economic data and employment records. See Report of Special Master Brad Pigott Concerning Evans Onsongo [ECF No. 83] at 4–6 (further explaining methodology employed in creating...