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.
Plaintiffs are 113 Kenyan, Tanzanian, and United States 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. Where the special masters have received evidence sufficient to find that a plaintiff is a U.S. national and is thus entitled to maintain a federal cause of action, the Court adopts that finding. 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 $1.7 billion.
On November 28, 2011, the Court granted summary judgment on liability against
"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, and their immediate family members — if U.S. nationals — can recover for solatium. 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 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
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 four deceased plaintiffs 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 Steven Saltzburg Concerning Francis Mbogo Njung'e, Ex. 1 [ECF No. 67-1] at 1-4 (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 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
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. The Court adopts the special masters' recommendations to award no 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 — particularly those plaintiffs who did not suffer severe physical injuries. For those plaintiffs, the Valore court explained that downward departures to a range of $1.5 million to $3 million are appropriate, and the Court will apply that guideline as described at length in this Court's opinion in Wamai v. Republic of Sudan, No. 08-1349, 60 F.Supp.3d 84, 2014 WL 3687179 (D.D.C. July 25, 2014). Those who suffered from injuries similar to plaintiffs who are generally awarded the "baseline" award of $5 million (involving some mix of serious hearing or vision impairment, many broken bones, severe shrapnel wounds or burns, lengthy hospital stays, serious spinal or head trauma, and permanent injuries) will be awarded that baseline. See Valore, 700 F.Supp.2d at 84. The Court adopts the recommendations by special masters of awards consistent with these adjusted guidelines, 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, and children — are entitled to solatium awards.
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 one plaintiff who clearly suffered much less than other plaintiffs.
In some instances, special masters recommended that spouses of deceased victims receive $10 million. See, e.g., Report of Special Master Deborah Greenspan Concerning Edwin Omori [ECF No. 220] at 5. Because the Court adopts the Peterson II guidelines, each of these recommendations will be adjusted and those plaintiffs will be awarded $8 million. 515 F.Supp.2d at 52.
One plaintiff, Hannah Ngenda Kamau, is one of two widows of deceased victim Vincent Kamau Nyoike. 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 Hannah Kamau to be
For some plaintiffs, the special masters recommend that no solatium damages be awarded because the record does not contain sufficient evidence to support their claims. See Peterson II, 515 F.Supp.2d at 46. The Court adopts those recommendations, and so Simon Ngugi, Charity Kiato, and Betty Orario will not be awarded damages. See Report of Special Master Kenneth Adams Concerning Vincent Kamau Nyoike [ECF No. 131] at 8-9; Report of Special Master Kenneth Adams Concerning Elizabeth Kiato [ECF No. 133] at 4; Report of Special Master Kenneth Adams Concerning Samuel Odhiambo Oriaro [ECF No. 181] at 5.
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
Previous courts in this district, confronted with similar facts, have calculated punitive damages in different ways. See, e.g., Baker, 775 F.Supp. 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 Estate of Doe v. Islamic Republic of Iran, 943 F.Supp.2d 180, 186 (D.D.C.2013) (citing Oldham, 127 F.3d at 54); Report of Special Master Steven Saltzburg Concerning Francis Mbogo Njung'e, Ex. 1 [ECF No. 67-1] at 1-4 (explaining how to properly apply interest here without double-counting). See Doe, 943 F.Supp.2d at 186 (citing Oldham, 127 F.3d at 54). 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, one plaintiff is listed in this case and in the Opati case (No. 12-1224), also currently pending before this Court. That plaintiff will be awarded damages in this case but not in the Opati case.