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.
The Court then referred plaintiffs' claims to two special masters
The Court hereby adopts all facts found by the special masters relating to all plaintiffs in this case, including findings regarding
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.
"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.,
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).
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). 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 the economic loss reports). The Court adopts the findings and recommendations of the special master as to economic losses to be awarded to the estate of the deceased victim.
Courts determine pain-and-suffering awards for survivors based on factors
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' recommendation to award no pain-and-suffering damages to the estate of the victim who was 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. In this case, the special masters recommend awarding pain-and-suffering damages only to one plaintiff, Irene Kung'u; Special Master Williams recommends an award of $3,000,000. Because this is consistent with the guidelines discussed 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), the Court adopts that recommendation.
"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
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 here.
In one instance, a special master recommended that the spouse of a deceased victim receive $10 million. See Report of Special Master Brad Pigott Concerning Evans Onsongo [ECF No. 83] at 7. Because the Court adopts the Peterson II guidelines, that recommendation will be adjusted and that plaintiff will be awarded $8 million. 515 F.Supp.2d at 52. Similarly, in one instance, a special master recommended that a parent of a deceased victim receive $3.5 million. See Report Concerning Evans Onsongo [ECF No. 83] at 10-11. The Court will increase that award to $5 million. 515 F.Supp.2d at 52.
The special masters also recommended against awarding solatium damages to a deceased victim's child who was born after the bombings occurred. While 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 7, 15 (D.D.C.2012); 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
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 the few exceptions noted above.
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 the proper amount of punitive damages by considering four factors: "(1) the character of the defendants' act, (2) the nature and extent of harm to the plaintiffs that the defendants caused or intended to cause, (3) the need for deterrence, and (4) the wealth of the defendants." Oveissi II, 879 F.Supp.2d at 56 (quoting Acosta, 574 F.Supp.2d at 30). In this case, the first three factors weigh heavily in favor of an award of punitive damages: the character of defendants' actions and the nature and extent of harm to plaintiffs can accurately be described as horrific. Scores were murdered, hundreds of families were torn asunder, and thousands of lives were irreparably damaged. The need for deterrence here is tremendous. And although specific evidence in the record on defendants' wealth is scant, they are foreign states with substantial wealth.
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 master 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 Brad Pigott Concerning Evans Onsongo [ECF No. 83] at 4-6 (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
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.
Upon consideration of [50-230] the special masters' reports, and the entire record herein, it is hereby
Total Award (with Total Award (subtotal Name of Victim Injured/ Family Members Relation Economic Damages Pain & Suffering Solatlum Damages Punitive Damages Subtotal applicable with prejudgment Deceased Damages prejudgment interest, plus punitive interest) damages) 1 Eric Abur Onyango Juliana Onyango Sister $2.500,000 $5,654,625 $2,500,600 $5,654,625.00 $11,309,250.00 2 Manila Onyango Sister $2,500,000 $6,817,439 $2,500,000 $6,817,439.10 $13,634,878.19 3 Evans Onsongo Deceased Evans Onsongo $1,162,814 $0 $0 $1,162,814 $0.00 $0.00 4 Mary Onsongo Wife $8,000,000 $18,094,800 $8,000,000 $18,094,800.00 $36,189,600.00 5 Enoch Onsongo Son $5,000,000 $11,309,250 $5,000,000 $11,309,250.00 $22,618,500.00 6 Peris Onsongo Daughter $5,000,000 $11,309,250 $5,000,000 $11,309,250.00 $22,618,500.00 7 Venice Onsongo Daughter $0 $0 $0 $0.00 $0.00 8 Salome Onsongo Mother $5,000,000 $11,309,250 $5,000,000 $11,309,250.00 $22,618,500.00 9 Bernard Onsongo Brother $2,500,000 $5,654,625 $2,500,000 $5,654,625.00 $11,309,250.00 10 George Onsongo Brother $2,500,000 $5,654,625 $2,500,000 $5,654,625.00 $11,309,250.00 11 Edwin Onsongo Brother $2,500,000 $5,654,625 $2,500,000 $5,654,625.00 $11,309,250.00 12 Gladys Onsongo Sister $2,500,000 $5,654,625 $2,500,000 $5,654,625.00 $11,309,250.00 13 Pinina Onsongo Sister $2,500,000 $5,654,625 $2,500,000 $5,654,625.00 $11,309,250.00 14 Irene Kung'u Injured Irene Kung'u $3,000,000 $6,785,550 $3,000,000 $6,785,550.00 $13,571,100.00 TOTALS $3,000,000.00 $40,500,000.00 $99,553,289.10 $44,662,814.10 $99,553,289.10 $199,106,578.19