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KERR v. ISLAMIC REPUBLIC OF IRAN

United States District Court, District of Columbia


February 11, 2003

ANN Z. KERR, ET AL., PLAINTIFFS
V.
THE ISLAMIC REPUBLIC OF IRAN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Thomas Penfield Jackson, District Judge

DECISION & ORDER

Plaintiffs in this wrongful death case are the widow of the decedent, Malcolm H. Kerr, the children of Malcolm and Ann Kerr, his surviving sister, and the estates of Malcolm Kerr and a deceased sister.*fn1 Defendants are the Islamic Republic of Iran ("Iran") and the Ministry of Information and Security ("MOIS") of the government of Iran. The cause of action upon which suit is brought is the murder of Malcolm Kerr in Beirut, Lebanon, in January, 1984, allegedly committed by defendants' agents as an act of terrorism in furtherance of defendants' political objectives.

Subject matter jurisdiction is conferred upon this Court by the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1330(b) and 1605(a)(7). Defendants have been properly served with process pursuant to 28 U.S.C. § 1608(a)(4), and have failed to answer or otherwise respond to the complaint within the time allotted or otherwise. The Clerk of Court has entered a default, and the case has, as others have done, therefore proceeded ex parte. Upon the evidence presented to the Court December 17-19, 2002, and the facts found therefrom as set forth below pursuant to Fed.R.Civ.P. 52(a), for the reasons hereinafter set forth the Court concludes that judgment will be given for the plaintiffs.*fn2

I.

Malcolm H. Kerr, born in Beirut in 1931 of American parents (and thus a U.S. citizen), was appointed President of the American University of Beirut ("AUB") by its Board of Trustees in March of 1982.*fn3 He was at the time 51 years of age, and, in the years since his graduation from Princeton in 1953, had become a world renowned scholar of Arabic and Middle Eastern politics and history, for most of his career as a member of the faculty of the University of California Los Angeles ("UCLA"). Among the many attributes commending him to the AUB trustees as its President, Dr. Kerr had lived in Beirut intermittently throughout his life, had previously both studied and taught at AUB, and spoke fluent Arabic.

Malcolm Kerr and his wife, Ann, also a U.S. citizen, met at AUB where both were students in 1954, and were married in 1956 in the U.S. Dr. Kerr received his Ph.D. from Johns Hopkins in 1958 and promptly returned to AUB as a member of the faculty.*fn4 After post-doctoral studies at Oxford University in 1961-62, the Kerrs came home to the U.S. and Malcolm Kerr began a 20-year academic career at UCLA, ultimately serving as chairman of its Department of Political Science.

The Beirut to which the Kerrs returned to begin Malcolm Kerr's tenure as President of AUB in the summer of 1982, however, was vastly different from the tranquil city they recalled from earlier years there. Lebanon's civil war had begun in 1975, and by 1982 nearly a score of factions, secular as well as sectarian, were actively engaged in armed conflict with one another vying for political control of the country. Two months prior to Dr. Kerr's arrival on campus the Israeli army had invaded Lebanon in pursuit of Palestinian militia who had fled to Lebanon, adding to the carnage. And perhaps most daunting (although its malevolence was not yet fully manifest) the Iranian government had surreptitiously adopted a policy of employing the indigenous Shi'ite population to commit acts of terrorism against Westerners in Beirut in an effort to export the tenets of its own Islamic fundamentalist revolution to Lebanon.*fn5

During Dr. Kerr's first months at AUB acts of terrorism became nearly as commonplace in Beirut as the pervasive conventional combat between factions. In April 1983 the United States Embassy in West Beirut was demolished by a suicide bomber with a truck bomb. The following October two military barracks occupied by U.S. Marines and French troops were similarly destroyed, with many lives lost.*fn6

The AUB campus remained an enclave of serenity, however, until the morning of January 18, 1984, when Dr. Kerr was assassinated by gunshot wounds to the back of his head as he approached his office on the third floor of AUB's College Hall. He died instantly. The assailants, glimpsed briefly by witnesses as they fled, were described as two young men. The killers were never identified or apprehended, but although responsibility for Dr. Kerr's murder might theoretically have been ascribed to any of the multitude of factions then battling for control of the city, according to the testimony of former U.S. Ambassador Robert Oakley, and U.S. Ambassador to Lebanon at the time, Reginald Bartholomew, U.S. intelligence agencies quickly identified the fundamentalist Islamic Shi'ite organization, Hizbollah, also sometimes known as Islamic Jihad, as the perpetrator, acting at the instigation, and with the logistical and financial support, of the Islamic Republic of Iran and MOIS.*fn7

As this Court has found on many prior occasions, Hizbollah's militant operatives actually committed terrorist acts in Lebanon in the 1980's — including Dr. Kerr's murder — at the bidding of its Iranian controllers in MOIS. Originally simply a component of the Lebanese Shi'a community, Hizbollah evolved from a militia known as Amal, and was developed by MOIS as an instrument of violence, the ultimate objective being to establish Lebanon as a fundamentalist Islamic state from which all Western influence — particularly American — had been expunged. To that end Iran enlisted and trained Hizbollah recruits, financed their operations, provided their weapons and other logistical support, and gave them sanctuary as needed to enable its agents to evade capture.

This Court has repeatedly found Iran liable for terrorist acts committed by Hizbollah. See. e.g., Stethem v. Islamic Republic of Iran, 201 F. Supp.2d 78 (D.D.C. 2002); Wagner v. Islamic Republic of Iran, 172 F. Supp.2d 128 (D.D.C. 2001); Anderson v. Islamic Republic of Iran, 90 F. Supp.2d 107 (D.D.C. 2000); Cicippio v. Islamic Republic of Iran, 18 F. Supp.2d 62 (D.D.C. 1998). The Court takes judicial notice of the record in those cases, and the evidentiary record in this case as well amply demonstrates that Hizbollah was directly responsible for Malcolm Kerr's murder. Not only did "Islamic Jihad" publicly take credit for it at the time, Dr. Kerr's assassination fits into a pattern of terrorist attacks perpetrated against prominent Americans by Hizbollah starting with the kidnapping of AUB's acting president, David Dodge, in 1983.*fn8 Following Dr. Kerr's assassination, save for suicide bombings and the hijacking murder on TWA Flight No. 847, Hizbollah reverted primarily to multiple hostage takings as its preferred terrorist tactic. From the hostage release negotiations, it became apparent that Hizbollah would seize and hold the hostages, but the duration of their captivity, however, was then dictated exclusively by Iran.

II.

Foreign states are immune from suit in the United States courts unless one of the exceptions to the FSIA, 28 U.S.C. § 1601-1611 applies. The so-called "Flatow Amendment" to the FSIA in 1996 authorized suits against foreign states that sponsor terrorism for:

personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources (as defined in section 2339A of title 18) for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.

28 U.S.C. § 1605(a)(7).*fn9 Dr. Kerr's murder qualifies as an extrajudicial killing*fn10 and this Court may entertain this claim under the FSIA if: (1) Iran has been designated a state sponsor of terrorism at either the time the incident occurred or as a result of the terrorist act in question; and (2) either Malcolm Kerr or plaintiffs were United States citizens at the time of the incident. Both of these requirements are satisfied in this case.*fn11

III.

Plaintiff Ann Kerr, as executrix of the estate of Malcolm Kerr, seeks compensatory damages for his wrongful death. As the Court has previously found, Dr. Kerr was a distinguished scholar in Middle Eastern studies, and presumably, had he not been murdered, would have continued with his academic career at a salary commensurate with his stature. Indeed his services were highly valued, as evidenced by the generous salary he was paid, and numerous fringe benefits he received at AUB. Malcolm Kerr's estate is entitled to recoup the economic loss caused by his wrongful and untimely death.

Dr. Bradley R. Schiller, an expert economist, testified that the economic loss caused by Dr. Kerr's death, in terms of lost salary and benefits, was $7,642,205, and he estimated that the pension he did not live to collect would have been worth $383,091. Thus, the net total economic loss recoverable by his estate as a result of Dr. Kerr's death is $8,025,296. The Court will accordingly award compensatory damages for economic loss in that amount.*fn12

Plaintiffs also seek monetary damages for loss of consortium and solatium, or the loss of Malcolm Kerr's society and companionship, and the mental anguish occasioned by the circumstances and prematurity of his death.*fn13 In computing awards for loss of consortium and solatium, the Court appropriately considers the following factors:

(1) whether the decedent's death was sudden and unexpected; (2) whether the death was attributable to negligence or malice; (3) whether the claimants have sought medical treatment for depression and related disorders resulting from the decedent's death; (4) the nature (i.e. closeness) of the relationship between the claimant and the decedent; and (5) the duration of the claimant's mental anguish in excess of that which would have been experienced following the decedent's natural death.

See United States v. Stethem, 201 F. Supp.2d 78, 90 (D.D.C. 2002).

Malcolm Kerr's death was unforeseen, sudden, violent, egregiously malicious, and took place on the AUB campus, a place long associated by the Kerr family with peace and tranquility, as well as with pleasant family memories of two generations. Dr. Kerr's wife, four children, and surviving sister testified about the initial impact of Malcolm's murder upon their own lives. Each plaintiff has a vivid recollection of the horrific moment they first learned of it. Although none of the plaintiffs have sought professional counseling to help cope with their grief, choosing instead to rely on one another for solace, they nonetheless continue to experience intense sorrow and anguish at the remembrance of his death. The Kerrs were, and remain, an extremely closeknit family, of which Malcolm was once an integral figure as a beloved and loving husband, father, and brother. He had cultivated unique and strong relationships with both sisters, a cherished wife, and each of his children. Even 19 years after Malcolm's death, his absence is still mourned at every family milestone: the weddings of his children, for example, and the birth of each grandchild.

It is therefore, this 11th day of February, 2003,

ORDERED, that judgment be entered in favor of the plaintiffs against defendants the Islamic Republic of Iran and its Ministry of Information and Security, jointly and severally, for compensatory damages as follows:

Ann Z. Kerr, as executrix of the Estate of Malcolm H. Kerr: $8,025,296.00

Ann Z. Kerr: $10,000,000.00

Susan (Kerr) Van de Ven: $3,000,000.00

John M. Kerr: $3,000,000.00

Stephen D. Kerr: $3,000,000.00

Andrew S. Kerr: $3,000,000.00

Dorothy (Kerr) Jessup: $1,500,000.00

Susan Miller Muhammad, as executrix of the Estate of Marion Kerr Miller: $1,500,000.00

It is FURTHER ORDERED, that the Clerks of Court forthwith enter judgments in accordance with the foregoing; and it is

FURTHER ORDERED, that plaintiffs may arrange for this Decision and Order to be translated into Farsi and, at plaintiffs request, the Clerk's Office shall cause a copy of the translated Decision and Order to be transmitted to the U.S. Department of State for service upon defendants through diplomatic channels.


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