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
Plaintiffs are four Tanzanian citizens injured and five estates of Tanzanian citizens killed in the Dar es Salaam bombings, as well as forty-nine immediate family members of the victims. Those injured and deceased were employees of entities that had contracts with the U.S. government, and were performing under those contracts within the scope of their employment at the U.S. Embassy in Dar es Salaam when the bombing occurred. 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. 214] 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 a special master, John Swanson, to prepare proposed findings and recommendations for a determination of damages. Feb. 27, 2012 Order Appointing Special Masters [ECF No. 33] 2. The special master has now filed completed reports on each plaintiff, and plaintiffs have filed proposed findings of fact and conclusions of law based on those reports. See Reports of Special Master John Swanson [ECF Nos. 36-44]; Proposed Findings of Fact & Conclusions of Law [ECF No. 53]. In completing those reports, the special master relied on sworn testimony, expert reports, medical records, and other evidence. The reports extensively describe the key facts relevant to each plaintiff and carefully analyze their claims under the framework established in mass tort terrorism cases. The Court commends John Swanson for his fine work and thorough analysis.
The Court hereby adopts all facts found by the special master relating to each plaintiff in this case. In addition, the Court adopts the special master's findings that all plaintiffs have established their 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 a few adjustments as described below. "Where recommendations deviate from the Court's damages framework, `those amounts shall be altered so as to conform with the respective award
On November 28, 2011, the Court granted summary judgment on liability against defendants in this case. Nov. 28, 2011 Order [ECF No. 214] 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 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 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 Jamahriya, 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 damages. 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.2d 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 jurisdiction is proper, but who lack a federal
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). To determine each surviving plaintiff's economic losses resulting from the bombings, the special master relied on economic reports submitted by Associate Professor James M. Warner, who estimated lost earnings, fringe benefits, retirement income, and the value of household services lost as a result of the injuries sustained from the bombing. Those reports were attached to each special master report where a plaintiff suffered economic damages. In turn, Associate Professor Warner 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, Ex. 1 [ECF No. 36-1] 2-8 (further explaining methodology employed in creating the economic loss reports). The Court adopts the findings and recommendations of the special master as to economic losses to be awarded injured victims and the estates of deceased victims.
The special master also recommended that some victims' children be awarded economic damages to compensate them for their parent's lost earning potential. Those damages, however, are not included in the category of damages recoverable by family members of victims under either the FSIA or D.C. law, as explained above, and the special master cites nothing to the contrary. Hence, the Court will adjust the special master's recommended awards accordingly.
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.
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). When the period of the victim's pain is longer, the award increases. Id. 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, 515 F.Supp.2d at 53.
The special master recommended pain and suffering awards to eight of the nine victims or their estates. The Court will adjust the special master's recommendations as described below to ensure consistency with prior cases and between plaintiffs in this case.
The special master's report on John Victim Bsmith suggests an award of $4 million in pain and suffering, based on his extensive injuries. Report of Special Master John Swanson Concerning John Victim Bsmith [ECF No. 41] ("Bsmith Report"). The Court believes that an upward adjustment from the special master's recommendation to the baseline amount is appropriate for John Victim Bsmith. Where plaintiffs suffer severe physical injuries, such as compound fractures, serious flesh wounds, and scars from shrapnel, as well as lasting and severe psychological pain, courts generally award $5 million in pain and suffering. See Valore, 700 F.Supp.2d at 84. John Victim Bsmith worked as a security guard at the U.S. Embassy in Dar es Salaam. Bsmith Report at 3. He only remembers experiencing the blast and then waking up in a hospital bed later that afternoon. Id. at 3-4. He suffered loss of hearing, cuts from shrapnel, spinal cord injuries, and impaired vision. Id. at 4, 10. Because of his injuries, he is no longer able to work. Id. at 5. Because his injuries are comparable to those of other plaintiffs receiving a $5 million award — in this and other cases — the Court will award $5 million to John Victim Bsmith.
The special master's report on John Victim Esmith suggests an award of $6 million in pain and suffering, based on his extensive injuries. Report of Special Master John Swanson Concerning John Victim Esmith [ECF No. 39] ("Esmith Report"). The Court believes that a downward adjustment from the special master's recommendation to the baseline amount is appropriate for John Victim Esmith. John Victim Esmith was employed as a gardener at the U.S. Embassy in Dar es Salaam at the time of the bombing. Id. at 3. He recalls being taken to the hospital, but he does not recall the blast itself. Id. He sustained shrapnel wounds to his leg and face, a severe chest injury, and burns all over his body. Id. at 5. John Victim Esmith ultimately died of a chest infection eleven years after the bombing, but the record is insufficient to establish that the injuries sustained during the bombing caused his death. See id. at 5. As with John Victim Bsmith, the blast caused John Victim Esmith to suffer serious flesh wounds, scars from shrapnel, and lasting and severe psychological pain. Nothing, though, indicates that his injuries were so severe as to
The special master's report on John Victim Dsmith suggests an award of $5 million in pain and suffering, based on his injuries. Report of Special Master John Swanson Concerning John Victim Dsmith [ECF No. 44]. The Court believes that a downward adjustment from the special master's recommendation is also appropriate for John Victim Dsmith. John Victim Dsmith was a security guard at the U.S. Embassy in Dar es Salaam at the time of the bombing. Id. at 2. When the bombing occurred, he was far enough away that he was not affected by the blast itself, but he heard the blast and saw people running away from the blast site. Id. at 3. When trying to get a better vantage point to see what had happened, he climbed up to the first floor of the building, but a stampede of people forced him to jump into a nearby tree. Id. at 3. The branch on which he was standing broke, and he suffered injuries from the fall. Id. at 4. Nevertheless, he proceeded to the bomb site and aided the rescue efforts. Id. As a result of the bombing and its aftermath, he suffered back and leg injuries, loss of hearing, and vision and respiratory problems. Id. at 4-5. The record reflects lasting and severe psychological pain for John Victim Dsmith. But in light of his relatively less severe physical injuries when compared to plaintiffs who were injured by the bomb blast itself, a downward departure from the baseline is appropriate. For instance, in Valore, another judge in this district awarded $1.5 million where a plaintiff was knocked to the ground by a bomb blast, and suffered severe emotional turmoil from helping survivors. See Valore, 700 F.Supp.2d at 84-85; see also Peterson II, 515 F.Supp.2d at 55 (departing downward to $2 million where plaintiff experienced "nerve pain and foot numbness" as well as "lasting and severe psychological problems" from the attack). John Victim Dsmith suffered physical injuries during the bombing's aftermath and during his admirable rescue efforts, and his injuries are more severe than those of the plaintiff in Valore. Accordingly, the Court will award $2.5 million to John Victim Dsmith for pain and suffering.
"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 deceased victims is as follows: $8 million to spouses of deceased victims, $5 million to parents of deceased victims, and $2.5 million to siblings of deceased victims. 515 F.Supp.2d at 52. 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. Id. Courts in this district have differed somewhat on the proper amount awarded to children of victims. Compare Peterson II, 515 F.Supp.2d at 51 ($2.5 million to child of injured victim), with Davis v. Islamic Republic of Iran, 882 F.Supp.2d 7, 14 (D.D.C. 2012) ($1.5 million to child of injured victim).
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 not depart from those guidelines for any individual plaintiff except one: the Court agrees with the special master that awarding $4 million to John Sibling1 Ismith — rather than the $2.5 million typically awarded to siblings of deceased victims — is appropriate because of the closer-than-normal sibling relationship he shared with his twin brother, deceased victim John Victim Ismith. See Ismith Report at 2-4.
The Court finds that the special master has appropriately applied the solatium damages framework to many of the plaintiffs in this case, and will adopt his recommendations with the exceptions described below. Other courts in this district have held that it is inappropriate for the solatium awards of family members to exceed the pain-and-suffering awards of surviving victims. See Davis, 882 F.Supp.2d at 15; O'Brien, 853 F.Supp.2d at 47; Bland, 831 F.Supp.2d at 157. This Court agrees and will follow that approach here. The special master recommended a solatium award to Jane Spouse Dsmith that exceeds the pain-and-suffering award to her husband. Consequently, the Court will reduce her award from $5 million to $2.5 million to match her husband's pain-and-suffering award.
For the most part, the special master recommended that the family members of those killed in the bombings receive awards consistent with family members of injured victims. The Court will therefore adjust those awards to accord with the guidelines in Peterson.
The special master also recommended the award of solatium damages to some injured victims' children who were born after the bombings occurred. While the Court acknowledges that the bombings' terrible impact on the victims and
The special master also recommends, based on the evidence, that no damages be awarded to Jane Spouse Esmith, John Ismith, or Jane Ismith, and the Court adopts those recommendations because the record does not contain sufficient evidence to support the award of any damages to those plaintiffs. Esmith Report at 11; Ismith Report at 11.
An award of prejudgment interest at the prime rate is appropriate in this case. See Oldham, 127 F.3d at 54; Forman v. Korean Air Lines Co., Ltd., 84 F.3d 446, 450-51 (D.C.Cir.1996). Prejudgment interest is appropriate on the whole award, including pain and suffering and solatium, 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 the economic loss figures recommended by the special master have already been adjusted to reflect present discounted value, see District of Columbia v. Barritaeu, 399 A.2d 563, 568-69 (D.C.1979), the Court will not apply the prejudgment interest multiplier to the economic loss amounts. See Doe v. Islamic Rep. of Iran, 943 F.Supp.2d 180, 186 (D.D.C.2013) (citing Oldham, 127 F.3d at 54); see, e.g., Special Master Report Ex. 1 [ECF No. 36-1] 8. 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 have 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 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 Court will facilitate.
A separate Order consistent with these findings has issued on this date.
