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 196 plaintiffs in this case are Kenyan and Tanzanian citizens injured and killed in the bombings and their immediate
The Court then referred plaintiffs' claims to several special masters
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
On November 28, 2011, the Court granted summary judgment on liability against defendants in this case. Nov. 28, 2011 Order [ECF No. 54] 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.
"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 Jamahirya, 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).
This Court has previously held that it will apply District of Columbia law to the claims of any plaintiffs for whom
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.
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). The special masters recommended that twenty-four deceased plaintiffs and four injured victims be awarded economic damages. To determine each plaintiff's economic losses resulting from the bombings, the special masters 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, e.g., Report of Special Master Kenneth Adams Concerning Maurice Okatch Ogolla, Ex. 5 [ECF No. 70] at 45-47 (further explaining methodology employed in creating the economic loss reports). The Court adopts the findings and recommendations of the special masters as to economic losses to be awarded to injured victims and the estates of deceased victims.
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." O'Brien v. Islamic Republic of Iran, 853 F.Supp.2d 44, 46 (D.D.C.2012) (internal
Damages for extreme pain and suffering are warranted for those individuals who initially survive the attack but then succumb to their injuries. "When the victim endured extreme pain and suffering for a period of several hours or less, courts in these [terrorism] cases have rather uniformly awarded $1 million." Haim v. Islamic Republic of Iran, 425 F.Supp.2d 56, 71 (D.D.C.2006); see Peterson II, 515 F.Supp.2d at 53-55. When the period of the victim's pain is longer, the award increases. Haim, 425 F.Supp.2d at 72. And when the period is particularly brief, courts award less. For instance, where an individual "survived a terrorist attack for 15 minutes, and was in conscious pain for 10 minutes," a court in this district awarded $500,000. See Peterson II, 515 F.Supp.2d at 53. To the estates of those who are killed instantly, courts award no pain-and-suffering damages.
According to the special masters, the evidence showed that four plaintiffs who died in the bombings did not die instantly, and that they suffered before they ultimately perished. The Court accepts the special masters' recommendations as to two of those plaintiffs. The Court adjusts the recommended award, consistent with Haim, to two plaintiffs whose pre-death suffering lasted for several hours: the Court will adjust Kimeu Nzioka Nganga's award from $2 million to $1 million and Bakari Nyumbu's from $3 million to $1 million. 425 F.Supp.2d at 71 (noting that courts uniformly award $1 million to victims who suffered for several hours before dying in this context). The Court adopts the special masters' recommendations not to award pain-and-suffering damages to the estates of those plaintiffs who were killed instantly.
The need to maintain uniformity with awards to plaintiffs in prior cases and between plaintiffs in this case is particularly evident. A great number of plaintiffs were injured in the bombings. Those injuries, and evidence of those injuries, span a broad range. Although the special masters ostensibly applied the same guidelines, their interpretations of those guidelines understandably brought about recommendations of different awards even for plaintiffs who suffered very similar injuries
Many plaintiffs suffered little physical injury — or none at all — but have claims based on severe emotional injuries because they were at the scene during the bombings or because they were involved in the extensive recovery efforts immediately thereafter. Those plaintiffs will be awarded $1.5 million. See id. Typical of this category is Edward Mwae Muthama, who was working at the offsite warehouse for the United States Embassy in Kenya when the bombings occurred. Report of Special Master John Aldock Concerning Edward Muthama [ECF No. 93] at 4. Shortly after the attack, Muthama headed to the blast site and spent days assisting with the gruesome recovery efforts; to this day he suffers from emotional distress resulting from his time administering aid to survivors and handling the dead bodies (and body parts) of his murdered colleagues. Id.
Other plaintiffs suffered minor
To those who suffered more serious physical injuries, such as broken bones, head trauma, some hearing or vision impairment, or impotence, the Court will award $2.5 million. Typical is Francis Maina Ndibui, who was in the United States Embassy in Nairobi during the bombing. Report of Special Master Brad Pigott Concerning Francis Maina Ndibui [ECF No. 152] at 4. Ndibui became temporarily trapped under debris that fell from the ceiling, and he suffered minor lacerations similar to Minayo's. Id. Also as a result of the bombing, he continues to suffer from partial vision impairment, which has persisted even through reparative surgery. Id. He also suffers from severe emotional damage resulting from his experience. Id.
Plaintiffs with even more serious injuries — including spinal injuries not resulting in paralysis, more serious shrapnel injuries, head trauma, or serious hearing impairment — will be awarded $3 million. Typical is Victor Mpoto, who was at the United States Embassy in Dar es Salaam on the day of the bombing. Report of Special Master Jackson Williams Concerning Victor Mpoto [ECF No. 136] at 3. The blast knocked him to the ground and covered him in debris, causing minor physical injuries. Id. Because he was only about fifteen meters away from the blast, he suffered severe hearing loss in both ears that continues to this day and for which he continues to receive treatment. Id. He also suffers from severe emotional damage resulting from his experience. Id. at 4.
Those who suffered from injuries similar to those plaintiffs who are generally awarded the "baseline" award of $5 million (involving some mix of serious hearing or
And for a few plaintiffs, who suffered even more grievous wounds such as lost eyes, extreme burns, severe skull fractures, brain damage, ruptured lungs, or endured months of recovery in hospitals, upward departures to $7.5 million are in order.
Livingstone Busera Madahana was injured in the blast at the United States Embassy in Nairobi. Report of Special Master Kenneth Adams Concerning Livingstone Busera Madahana [ECF No. 175] at 4. Shrapnel from the blast completely destroyed his right eye and permanently damaged his left. Id. He suffered a skull fracture and spent months in a coma; his head trauma caused problems with his memory and cognition. Id. "He endured multiple surgeries, skin grafts, physical therapy, vocational rehabilitation, speech and cognitive therapy, and psychotherapy for depression." Id.
Gideon Maritim was injured in the blast at the United States Embassy in Nairobi. Report of Special Master Jackson Williams Concerning Gideon Maritim [ECF No. 222] at 3. The second explosion knocked him unconscious for several hours. Id. at 4 The blast ruptured his eardrums, knocked out several teeth, and embedded metal fragments into his eyes. Id. He also suffered deep shrapnel wounds to his legs and stomach, and his lungs were ruptured. Id. His hearing is permanently impaired, as is his lung function. Id. at 5. And he suffers from chronic back and shoulder pain. Id.
Charles Mwaka Mulwa was injured in the blast at the United States Embassy in Nairobi. Report of Special Master Jackson Williams Concerning Charles Mwaka Mulwa [ECF No. 132] at 3. The bomb blast permanently disfigured his skull, ruptured both his eardrums, and embedded glass in his eyes. Id. He continues to suffer from nearly total hearing loss, and his eyesight is permanently diminished. Id. And he suffered from other shrapnel injuries to his head, arms, and legs. Id.
Tobias Oyanda Otieno was injured in the blast at the United States Embassy in Nairobi. Report of Special Master Brad Pigott Concerning Tobias Oyanda Otieno [ECF No. 181] at 4. The blast caused permanent blindness in his left eye, and substantial blindness in his right. Id. He suffered severe shrapnel injuries all over his body, including a particularly severe injury to his hand, which resulted in permanent impairment. Id. His lower back was also permanently damaged, causing continuous pain to this day. Id. He spent nearly a year recovering in hospitals. Id.
Moses Kinyua was injured in the blast at the United States Embassy in Nairobi. Report of Special Master Deborah Greenspan Concerning Moses Kinyua [ECF No. 202] at 4. The blast knocked him into a coma for three weeks. Id. His skull was crushed, his jaw was fractured in four
Joash Okindo was injured in the blast at the United States Embassy in Nairobi. Report of Special Master Brad Pigott Concerning Joash Okindo [ECF No. 163] at 4. He spent about eight months in hospitals, and was in a coma for the first month because he suffered a skull fracture. Id. at 4-5. He suffered from severe shrapnel injuries to his head, back, legs, and hands, and the blast fractured bones in both of his legs. Id. at 4.
Each of these plaintiffs also suffered severe emotional injuries. The injuries suffered by these plaintiffs are comparable to those suffered by plaintiffs who were awarded $7-$8 million in Peterson II. See 515 F.Supp.2d at 55-57 (e.g., Michael Toma, who suffered "various cuts from shrapnel, internal bleeding in his urinary system, a deflated left lung, and a permanently damaged right ear drum"). Hence, the Court will award each of these plaintiffs $7.5 million for pain and suffering. The Court adopts the recommendations by special masters of awards consistent with the adjusted guidelines described above, and will adjust inconsistent awards accordingly.
"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,
Although these amounts are guidelines, not rules, see Valore, 700 F.Supp.2d at 86, the Court finds the distinctions made by the Valore court to be responsible and reasonable, and hence it will adopt the same guidelines for determining solatium damages here. In the interests of fairness and to account for the difficulty in assessing the relative severity of each family member's suffering, in this case and in related cases, the Court will depart from those guidelines only for a few plaintiffs for whom the special master's report is particularly convincing.
One deceased Kenyan victim, Joseph Kamau Kiongo, had three wives at the time of his death. Report of Special Master John Aldock Concerning Joseph Kamau Kiongo [ECF No. 79] at 5. Four more, Geoffrey Mulu Kalio, Dominic Musyoka Kithuva, Frederick Maloba, and Vincent Kamau Nyoike, each had two wives when they were killed. Report of Special Master Deborah Greenspan Concerning Geoffrey Mulu Kalio [ECF No. 211] at 3; Report of Special Master Oliver Diaz Concerning Dominic Musyoka Kithuva [ECF No. 217] at 3; Report of Special Master Jackson Williams Concerning Frederick Maloba [ECF No. 229] at 3; Report of Special Master Jackson Williams Concerning Vincent Kamau Nyoike [ECF No. 239] at 3. Courts in Kenya generally recognize that more than one wife of a decedent may be entitled to an inheritance, and so this Court will consider each of these wives (Lucy Kiongo, Alice Kiongo, Jane Kamau, Jane Kathuka, Bernice Ndeti, Kamali Musyoka Kithuva, Beatrice Martha Kithuva, Elizabeth Maloba, Margaret Maloba, and Josinda Katumba Kamau) to be immediate family members entitled to solatium awards. See Charity Gacheri Kaburu v. Mary Gacheri M'ritaa, Succession Cause No. 251 of 2000 (High Court of Kenya 2014)
In some instances, special masters recommended that spouses of deceased victims receive $10 million. See, e.g., Report of Special Master Kenneth L. Adams Concerning Lawrence Ambrose Gitau [ECF No. 69] at 5. Because the Court adopts the Peterson II guidelines, each of these
The special masters also recommended against awarding solatium damages to some injured victims' children who were born after the bombings occurred. Although the Court acknowledges that the bombings' terrible impact on the victims and their families continues to this day, in similar cases courts have found that children born following terrorist attacks are not entitled to damages under the FSIA. See Davis, 882 F.Supp.2d at 15; Wultz v. Islamic Republic of Iran, 864 F.Supp.2d 24, 36 (D.D.C.2012). In holding that a plaintiff must have been alive at the time of an attack to recover solatium damages, the Davis court recognized the need to draw lines in order to avoid creating "an expansive and indefinite scope of liability" under the FSIA — or example, liability to children born fifteen years after an attack (a real possibility in this drawn-out litigation). 882 F.Supp.2d at 15. The Court agrees with the special masters and with the Davis court's interpretation of the FSIA, and holds that those plaintiffs not alive at the time of the bombings cannot recover solatium damages. Hence, the Court dismisses the claims of Rachel Wambui Watoro (born one month after the bombings). See Report of Special Master John Aldock Concerning Francis Watoro Maina [ECF No. 119] at 6.
For one plaintiff, the special masters recommended that no solatium damages be awarded because the record does not contain sufficient evidence to support her claims. See Peterson, 515 F.Supp.2d at 46. The Court adopts that recommendation, and so Fatuma Omar will not be awarded damages. See Report of Special Master Oliver Diaz Concerning Hindu Omari Idi [ECF No. 197] at 6.
The Court finds that the special masters have appropriately applied the solatium damages framework to most of the plaintiffs in this case, and will adopt their recommendations with a few exceptions.
Plaintiffs request punitive damages under section 1605A(c). Punitive damages "serve to punish and deter the actions for which they are awarded." Valore, 700 F.Supp.2d at 87. Courts calculate
Previous courts in this district, confronted with similar facts, have calculated punitive damages in different ways. See, e.g., Baker, 775 F.Supp.2d at 85 (surveying cases). One attractive method often used in FSIA cases is to multiply defendants' annual expenditures on terrorist activities by a factor of three to five. See, e.g., Valore, 700 F.Supp.2d at 88-90. Unfortunately, there is not enough evidence in the record on defendants' expenditures during the relevant time period to adopt that approach here. Other courts have simply awarded families of terrorism victims $150 million in punitive damages. See, e.g., Gates v. Syrian Arab Republic, 580 F.Supp.2d 53, 75 (D.D.C.2008), aff'd, 646 F.3d 1 (D.C.Cir.2011). Using that approach here would result in a colossal figure, given the number of families involved.
This case, when combined with the related cases involving the same bombings where plaintiffs seek punitive damages,
An award of prejudgment interest at the prime rate is appropriate in this case. See Oldham v. Korean Air Lines Co., 127 F.3d 43, 54 (D.C.Cir.1997); Forman v. Korean Air Lines Co., 84 F.3d 446, 450-51 (D.C.Cir.1996). Prejudgment interest is appropriate on the whole award, including pain and suffering and solatium — although not including the punitive damage award, as that is calculated here by reference to the entire compensatory award — with one exception. See Reed v. Islamic Republic of Iran, 845 F.Supp.2d 204, 214-15 (D.D.C.2012) (awarding prejudgment interest on the full award). But see Oveissi v. Islamic Republic of Iran, 768 F.Supp.2d 16, 30 n. 12 (D.D.C.2011) (declining to award prejudgment interest on solatium damages). Because some of the economic loss figures recommended by the special masters have already been adjusted to reflect present discounted value, see District of Columbia v. Barriteau, 399 A.2d 563, 568-69 (D.C.1979), the Court will not apply the prejudgment interest multiplier to the economic loss amounts except those calculated in 1998 dollars. See Doe, 943 F.Supp.2d at 186 (citing Oldham, 127 F.3d at 54); Report of Special Master Kenneth Adams Concerning Maurice Okatch Ogolla, Ex. 5 [ECF No. 70] at 45-47 (explaining how to properly apply interest here without double-counting). Awards for pain and suffering and solatium are calculated without reference to the time elapsed since the attacks. Because plaintiffs were unable to bring their claims immediately after the attacks, they lost use of the money to which they were entitled upon incurring their injuries. Denying prejudgment interest on these damages would allow defendants to profit from the use of the money over the last fifteen years. Awarding prejudgment interest, on the other hand, reimburses plaintiffs for the time value of money, treating the awards as if they were awarded promptly and invested by plaintiffs.
The Court will calculate the applicable interest using the prime rate for each year. The D.C. Circuit has explained that the prime rate — the rate banks charge for short-term unsecured loans to creditworthy customers — is the most appropriate measure of prejudgment interest, one "more appropriate" than more conservative measures such as the Treasury Bill rate, which represents the return on a risk-free loan. See Forman, 84 F.3d at 450. Although the prime rate, applied over a period of several years, can be measured in different ways, the D.C. Circuit has approved an award of prejudgment interest "at the prime rate for each year between the accident and the entry of judgment." See id. Using the prime rate for each year is more precise than, for example, using the average rate over the entire period. See Doe, 943 F.Supp.2d at 185 (noting that this method is a "substantially more accurate `market-based estimate'" of the time value of money (citing Forman, 84 F.3d at 451)). Moreover, calculating interest based on the prime rate for each year is a simple matter.
The 1998 embassy bombings shattered the lives of all plaintiffs in this case. Reviewing their personal stories reveals that, even more than fifteen years later, they each still feel the horrific effects of that awful day. Damages awards cannot fully compensate people whose lives have been torn apart; instead, they offer only a helping hand. But that is the very least that these plaintiffs are owed. Hence, it is what this Court will facilitate.
A separate Order consistent with these findings has issued on this date.
Similarly, a small number of plaintiffs are listed in this case and in two other cases pending before this Court: the Onsongo case (No. 08-1380), and the Opati case (No. 12-1224). Those plaintiffs will be awarded damages in this case, but will not be awarded damages in those cases.