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Campuzano v. Islamic Republic of Iran

September 10, 2003

DIANA CAMPUZANO, AVI ELISHIS, AND GREGG SALZMAN, PLAINTIFFS,
v.
THE ISLAMIC REPUBLIC OF IRAN (AKA IRAN, THE REPUBLIC OF IRAN, REPUBLIC OF IRAN, THE GOVERNMENT OF IRAN, IRANIAN GOVERNMENT, AND: IMPERIAL GOVERNMENT OF IRAN), THE IRANIAN MINISTRY OF INFORMATION AND SECURITY, AND THE IRANIAN REVOLUTIONARY GUARD, DEFENDANTS.
JENNY RUBIN, DEBORAH RUBIN, DANIEL MILLER, ABRAHAM MENDELSON, STUART E. HERSH, RENAY FRYM, NOAM ROZENMAN, ELENA ROZENMAN, AND TZVI ROZENMAN, PLAINTIFFS,
v.
THE ISLAMIC REPUBLIC OF IRAN (AKA IRAN, THE REPUBLIC OF IRAN, REPUBLIC OF IRAN, THE GOVERNMENT OF IRAN, IRANIAN GOVERNMENT, AND IMPERIAL GOVERNMENT OF IRAN), THE IRANIAN MINISTRY OF INFORMATION AND SECURITY, AYATOLLAH ALI HOSEINI KHAMENEI, ALI AKBAR HASHEMI-RAFSANJANI, AND ALI FALLAHIAN-KHUZESTANI, DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No. 30 Document Nos. 14, 20

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. INTRODUCTION

On September 4, 1997, Hamas carried out a triple suicide bombing ("the bombing") at the crowded Ben Yehuda Street pedestrian mall in Jerusalem, Israel. The plaintiffs in these two consolidated actions are American citizens who were injured by the bombing. They allege that the defendants are responsible for the bombing because the defendants provided training and support to the terrorist group Hamas. Pursuant to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602 et seq., the plaintiffs seek compensatory and punitive damages for their personal injuries caused by the bombing.

These consolidated cases are before the court on the plaintiffs' motions for default judgment. Because the defendants failed to appear or respond to the plaintiffs' complaints, the Clerk of the Court entered defaults against them. Pursuant to the FSIA's hearing requirement, the court held a hearing from January 6 through January 9, 2003 to hear the plaintiffs' evidence. Based on its review of this evidence, the court makes the following findings of fact and conclusions of law and grants the plaintiffs' motions for default judgment.

II. FINDINGS OF FACT

A. Procedural Background

1. The Campuzano plaintiffs (Diana Campuzano, Avi Elishis, and Gregg Salzman) filed suit against defendants Islamic Republic of Iran ("Iran"), the Ministry of Information and Security ("MOIS"), and the Iranian Revolutionary Guards ("IRG") on September 9, 2000. The Rubin plaintiffs (Jenny Rubin, Daniel Miller, Abraham Mendelson, Stuart Hersh, Noam Rozenman, Deborah Rubin, Renay Frym, Elena Rozenman, and Tzvi Rozenman) filed suit against defendants Iran, MOIS, and senior Iranian officials Ayatollah Ali Hoseini Khamenei, Ali Akbar Hashemi-Rafsanjani, and Ali Fallahian-Khuzestani on July 31, 2001. Despite being properly served with process pursuant to 28 U.S.C. § 1608, the defendants failed to respond or appear for either of these now-consolidated cases.

2. The Clerk of the Court entered default against the Campuzano defendants on December 6, 2001 and against the Rubin defendants on March 6, 2002. Because both cases arise out of the same terrorist bombing, the court consolidated the two cases for trial pursuant to Federal Rule of Civil Procedure 42(a).

3. Despite the defendants' willful default, the court had to conduct an evidentiary hearing before it could enter a judgment by default against the defendants. 28 U.S.C. § 1608(e); Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 6 (D.D.C. 1998). Accordingly, the court held a hearing from January 6 through January 9, 2003.

B. The Bombing Incident

4. On the afternoon of September 4, 1997, three Hamas suicide bombers with cases of powerful explosive bombs arrived at the crowded Ben Yehuda Street pedestrian mall in downtown Jerusalem. Trial Ex. ("Ex.") 28 at 1. The bombers packed the bombs with nails, screws, pieces of glass, and chemical poisons to cause maximum pain, suffering, and death. Id.

5. The detonated bombs killed five people and wounded nearly two hundred others, including all three of the Campuzano plaintiffs and five of the Rubin plaintiffs. The plaintiffs injured by the detonated bombs are Diana Campuzano, Avi Elishis, Gregg Salzman, Jenny Rubin, Daniel Miller, Abraham Mendelson, Stuart Hersh, and Noam Rozenman. Four of the Rubin plaintiffs, although not present at the bombing, were emotionally harmed as a result of the injury the caused to their family members. These four plaintiffs are Deborah Rubin, Renay Frym, Elena Rozenman, and Tzvi Rozenman.

6. Israeli police arrested and charged two Hamas operatives, Muaid Said Bilal ("Bilal") and Omar Abdel Rahman al-Zaban ("Zaban") for participation in the bombing. Exs. 3 §§ 69-70, 7 § 27. An Israeli court subsequently convicted both Bilal and Zaban of multiple counts of murder, attempted murder, and active membership in Hamas. Id. Bilal, Zaban, and other members of their Hamas cell gave Israeli authorities a detailed account of the planning, funding and execution of the September 4, 1997 bombing. Trial Tr. ("Tr.") at 1/29-31; Exs. 3 §§ 70-71, 7 § 28.*fn1

7. Hamas claimed responsibility for the bombing. Tr. at 1/9, 1/27-29, 1/53; Exs. 3 § 69-83, 4 § 22, 7 § 26.

C. The Relationship Between Iran and Hamas

8. Hamas, an Islamic militant terrorist organization, has a close relationship with Iran. Tr. at 1/15; Exs. 3 § 14, 40 at 3, 56 at 5.

9. Iran provides ongoing terrorist training and economic assistance to Hamas. Exs. 3, 4, 7 §§ 13-19, 56 at 9, 12. Dr. Bruce Tefft, an expert in the field of terrorism, testified that Iran's support of Hamas was $30,000,000 in 1995. Tr. at 1/17. Another expert in terrorist activities, Dr. Patrick Clawson, testified that Iran supported Hamas with $20,000,000-50,000,000 annually over the past decade. Id.

10. Iran funnels much of its support to Hamas through MOIS, a ministry with approximately 30,000 employees and a budget of between $100,000,000 and $400,000,000. Tr. at 1/78, 1/81; Ex. 4 § 33. With Iranian government funds, MOIS "spends between $50,000,000 and $100,000,000 a year sponsoring terrorist activities of various organizations such as Hamas." Tr. at 1/113.

11. IRG is the military wing of MOIS. Ex. 56 at 7-8. Under the direction of MOIS, IRG provides professional military and terrorist training to Hamas operatives responsible for executing terrorist acts throughout the Middle East. Id.; Ex. 3 § 32. Dr. Tefft testified that IRG is MOIS's "action arm or paramilitary arm" responsible for "implementing the military or quasi-military actions abroad." Tr. at 1/12.

12. Iranian governmental support for terrorism is an official state policy and the approval of high-ranking Iranian officials, including Ayatollah Ali Hoseini Khamenei, Ali Akbar Hashemi-Rafsanjani, and Ali Fallahian-Khuzestani, was necessary for Iran and MOIS to support Hamas with training and economic assistance. Tr. at 1/34, 1/50-53, 1/80-81; Exs. 3 §§ 50-54, 4 §§ 18, 34. Iran's support of Hamas could not have occurred without this senior leadership approval. Exs. 3 § 50, 4 § 34.

13. The bombing also would not have occurred without Iranian sponsorship. Until his death in November 2001, Hamas operative Mahmoud Abu Hanoud organized, planned, and executed a large number of deadly terrorist bombings, including the bombing at issue here. Tr. at 1/44, 1/51, 1/64-70; Exs. 3 §§ 39, 57-63, 7 §§ 14-18, 30. Without the material support and resources the defendants provided to Hamas, particularly the terrorist training of Hamas operative Mahmoud Abu Hanoud, Hamas could not have carried out the bombing. Tr. at 1/19-20, 1/71-72; Exs. 3 §§ 58-59, 4 § 35, 7 § 38-40.

14. Yigal Pressler, a counter-terrorism advisor to the Israeli prime minister who has specialized in terrorism for 30 years, confirmed Iran's sponsorship, training and economic support of Hamas. Ex. 56 at 12.

15. Since 1984, the U.S. Department of State has included Iran on its list of state sponsors of terrorism. Tr. at 1/76, Ex. 28 at 4. According to the 1997 Global Patterns report, Iran was the principal state sponsor of terrorism from 1996-1997. Id.

D. The Plaintiffs

1. The Plaintiffs Present at the Bombing

(1) Diana Campuzano

16. Diana Campuzano is, and was at the time of the bombing, an American citizen. Tr. at 2/8.

17. Prior to her visit to Israel and the bombing, Ms. Campuzano worked as a sales associate in a clothing store in New York, New York. Id.

18. After the bombing, Ms. Campuzano was taken to the emergency room at Hadassah Hospital, where she arrived in a life-threatening condition. Ex. 64 at 22. She was completely disoriented, her skin was badly burned, her brain leaked cerebral spinal fluid from a massive skull fracture, and she was blind and hearing impaired. Id. at 22-24. She was hospitalized for about six weeks under the care of Dr. Sergey Spektor. Tr. at 2/13.

19. A team of doctors performed a five-hour craniotomy on Ms. Campuzano to remove multiple bone fragments, repair the ruptures in her brain coverings, and repair her anterior skull base fracture with mini plates, bone cement, and her own harvested tissue. Exs. 64 at 25-27, 64B. Dr. Spektor testified to the delicacy of this surgery and explained that it "leaves people very exposed to Post-Traumatic Stress Disorder" ("PTSD").*fn2 Id. Ms. Campuzano's multiple wounds and burns complicated her recovery and caused a life-threatening infection to spread throughout her body. Ex. 64 at 27-28. Doctors administered heavy narcotics to her to reduce the pain. Id.

20. Ms. Campuzano's permanent injuries include impaired vision, damage to the retina of her right eye, cataracts in both eyes, destroyed upper sinus cavity, loss of the ability to taste and smell, destroyed left eardrum. Tr. at 2/10-11; Exs. 62, 64 at 29-30, 64G. Photographs demonstrate the startling difference in her appearance before and after the explosion. Ex. 62.

21. Dr. Lisa Mellman is a psychiatrist who has treated Ms. Campuzano since March 1999. Ex. 66 at 1-14. Dr. Mellman testified to Ms. Campuzano's diagnoses of depression and PTSD. Id. at 8-9. Also, Dr. Mellman testified that Ms. Campuzano exhibits high anxiety, easily startles, often feels irritable and isolated, and has difficulty sleeping. Id. Dr. Mellman prescribed a variety of medications and cognitive therapy, which improved some of Ms. Campuzano's symptoms, but not her emotional injuries. Id. at 10-15. Each new wave of terrorist activity in Israel or the United States causes a serious setback in Ms. Campuzano's recovery. Id. at 14. Ms. Campuzano also continues to suffer from a very poor self-image. Id. at 21-23. Dr. Mellman explained that Ms. Campuzano's depression and PTSD symptoms will likely continue. Id. at 23.

22. After returning to the United States, Ms. Campuzano lived with her parents in Rochester, New York for about a year. Tr. at 2/14, 2/27-29. While seeking additional treatment for her vision and hearing and undergoing reconstructive surgery, she remained at home, often crying for hours. Id. Both parents testified to the startling change in her personality. Tr. at 2 / 25-30. When Ms. Campuzano returned to Manhattan after living with her parents, she encountered a number of difficulties in adjusting to life away from her parents. Tr. at 2 / 17-20. Although she works part-time as a volunteer secretary at a nearby synagogue, she remains unable to resume full-time employment. Tr. at 2 / 17-18. She does not feel able to leave her neighborhood for more than three hours, and she does not like to leave home after 8:00 p.m. Tr. at 2 / 19. She is easily exhausted. Tr. at 2 / 20. According to Dr. Mellman, Ms. Campuzano cannot resume full-time employment or any job that involves contact with strangers or accomplishing multiple tasks. Ex. 66 at 15-16.

23. John Devlin, CPA, provided expert testimony and analysis of Ms. Campuzano's loss of future income. Tr. at 2/31-40. After reviewing her tax returns filed prior to the bombing and her earnings from her current part-time volunteer position, Mr. Devlin opined that the present value of Ms. Campuzano's loss of future earnings is $1,952,725. Id. at 37.

(2) Avi Elishis

24. Avi Elishis is, and was at the time of the bombing, an American citizen. Tr. at 1/84.

25. At the time of the bombing, Mr. Elishis was eighteen years old, had recently finished high school, and was spending a year in Israel. Id.

26. After the bombing, an ambulance took Mr. Elishis to Bikur-Cholim Hospital where doctors removed a two-inch screw from his spleen. Tr. at 3 / 87. He suffered from lacerations and multiple entry wounds from the bomb shrapnel, a ruptured eardrum, and first- and second-degree burns covering his body. Ex. 61 at 4-7. The bleeding from these injuries caused him to go into shock. Tr. at 2/86; Ex. 61 at 3.

27. Mr. Elishis was transferred to another hospital, Hadassah Einkarem, where he arrived in critical condition, for further treatment of extensive injuries to his shrapnel-perforated lung and emergency surgery to remove three screws lodged next to his heart. Tr. at 1/88; Ex. 61. He underwent urgent surgery for removal of screws in his spleen that caused bleeding into his abdomen. Ex. 61 at 3. Dr. Eli Milgalter, a senior cardiac thoracic surgeon at Hadassah Medical Center, treated Mr. Elishis for about one month. Id. at 5.

28. Mr. Elishis's multiple wounds and burns complicated his recovery, and his extremely painful burn treatment lasted 23 months. Tr. at 1/90-91. He also underwent additional surgery to remove a bolt from his foot. Id.

29. Mr. Elishis has a permanent limp in his left leg, experiences difficulty breathing, suffers from pain in his abdomen and chest wall, has problematic bowel movements, has permanent cardiovascular limitations because of his perforated lung, has a permanent 50 percent loss of hearing and a constant ringing in his left eardrum, experiences numbness or hypersensitive in parts of his body because of the permanent and severe scars, and one screw remains lodged under his rib. Tr. at 1/88, 1/90; Ex. 61 at 4-7.

30. Mr. Elishis also received psychiatric treatment while hospitalized in Israel, but did not receive further psychiatric treatment in the United States because he could not bear to re-live the experience of the bombing. Tr. at 1 / 95-96; Ex. 61 at 4-7. Mr. Elishis and his mother testified regarding his personality changes: he now avoids crowds, is easily startled by loud noises, and is easily irritated. Tr. at 1/97, 1/110-11. Also, Mr. Elishis exhibits common symptoms of PTSD, including a fear of large crowds, heightened sensitivity to sudden and loud noises, nervousness, irritability, emotional reactions to news of other terrorist attacks, and depression. Tr. at 1/111-12.

31. After he returned to his family in New York, Mr. Elishis received medical treatment for removal of additional shrapnel, laser surgery for burn scars, surgical repair to his eardrum, and dermatology treatment. Exs. 59a-59c. Mr. Elishis's mother paid $10,882.87 for his medical treatment. Ex. 59; Tr. at 1/111.

(3) Gregg Salzman

32. Gregg Salzman is, and was at the time of the bombing, an American citizen. Tr. at 1/114.

33. Before the bombing, Mr. Salzman worked as a chiropractor. Id.

34. After the bombing, Mr. Salzman spent eight days at Shaarei Zedek Hospital for treatment of his first- and second-degree burns, a perforated eardrum, and wounds from shrapnel that struck him in the midline of his upper lip below his nose. Tr. at 1/117.

35. Mr. Salzman has permanent nerve injury from the shrapnel wound to his upper lip. Tr. at 1/118. Treatment for his wound included root canals, tooth extractions and a titanium implant in his gums. Tr. at 1/118-23; Exs. 67A-E. Dr. Keith Hope, a dental specialist in endodontics at Hadassah Hospital, testified that the palliative care for Mr. Salzman is ineffective and the trauma of the shrapnel caused further nerve damage to surrounding tissue. Ex. 68. Dr. Hope explained that there is no practical treatment for Mr. Salzman's injuries "because now the nerve damage is in the brain, not at the site of injury." Id. at 5, 7.

36. Dr. Hope also testified that the only treatment available to Mr. Salzman is "psychological counseling or pain counseling. He will just live with this pain." Id. Dr. Sam Strauss, also a dental specialist in endodontics, confirmed this prognosis and concluded that Mr. Salzman suffers from a permanent disability that will forever impact his personal and professional life. Ex. 67e at 3.

37. Although Mr. Salzman still is able to work as a chiropractor, he works shortened days and has debilitating headaches. Tr. at 1/123. He suffers from PTSD and experiences constant physical pain. Tr. at 1/123-24.

(4) Jenny Rubin

38. Jenny Rubin is, and was at the time of the bombing, an American citizen. Tr. at 3/38.

39. At the time of the bombing, Ms. Rubin was 16 years old. Tr. at 3/26, 3/39.

40. After the bombing, Ms. Rubin was taken to a hospital. Tr. at 3/18. Because she had no obvious physical injuries, the hospital released her to her mother's care. Id.

41. Ms. Rubin has permanent tinnitus, a constant ringing or buzzing sound, which disrupts concentration and her ability to think and sleep. Id. As a result, Ms. Rubin's concentration and memory are permanently impaired. Tr. at 3/126.

42. Ms. Rubin received psychiatric treatment for her emotional injuries. Tr. at 3/24-25. She was diagnosed with elective mutism, a psychiatric brain condition. Tr. at 3/122. Ms. Rubin and her mother testified about Ms. Rubin's personality changes. Tr. at 3/30-32. Dr. Edgar Garcia-Rill, an expert in the field of neurophysiology and the pathophysiology of PTSD, testified that because of the bombing, Ms. Rubin exhibits common symptoms of PTSD ...


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