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Dammarell v. Islamic Republic of Iran

December 14, 2005

ANNE DAMMARELL, ET AL., PLAINTIFFS,
v.
ISLAMIC REPUBLIC OF IRAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

(REVISED FINDINGS & CONCLUSIONS)

This case has been in the vanguard of mass-tort lawsuits brought by victims of terrorism against foreign states, as permitted by a 1996 amendment to the Foreign Sovereign Immunities Act ("FSIA") that revoked jurisdictional protection for terrorist-sponsoring governments. During the more than four years that have passed since the eighty-three plaintiffs in this action first filed suit against the Islamic Republic of Iran ("Iran") and its Ministry of Intelligence and Security ("MOIS") for their involvement in the 1983 bombing of the United States Embassy in Beirut, Lebanon, several court rulings have altered the relevant legal landscape. Two decisions by the United States Court of Appeals for the District of Columbia Circuit -- Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004), and Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004) -- presented potential ramifications for the conclusions of law (and corresponding damage awards) that this Court issued on September 8, 2003, with respect to the claims of twenty-nine of the plaintiffs ("the Phase I litigants").*fn1 See Dammarell v. Islamic Republic of Iran, 281 F.Supp. 2d 105 (D.D.C. 2003) (hereinafter "Dammarell I"). Consistent with the D.C. Circuit's rulings, this Court subsequently affirmed that plaintiffs could allege cognizable claims against the defendants based on the FSIA's terrorism exceptions to sovereign immunity, but determined that plaintiffs needed to amend their complaint to plead specific causes of action under the common law or statutes of their respective home states.*fn2 See Dammarell v. Islamic Republic of Iran, 370 F.Supp. 2d 218, 220-21 (D.D.C. 2005) (opinion on plaintiffs' motion for clarification and reconsideration of the Court's March 29, 2005, order) (hereinafter "Dammarell III"). The Court granted plaintiffs leave to file an amended complaint and required them to submit a supplemental brief addressing the proper choice-of-law determination for each individual or estate. Id. All of that has happened, and the Court now renders revised findings of fact and conclusions of law, enters judgment for the Phase I litigants, and awards compensatory damages totaling $126,061,657.

BACKGROUND

On April 18, 1983, at approximately 1:05 p.m., an unidentified driver crashed a vehicle laden with hundreds of pounds of explosives into the main entrance of the United States Embassy in Beirut. See generally Exs. 2-10; Ex. 11. Upon crashing into the Embassy, the vehicle exploded with a force so powerful that seven floors in the center section of the crescent-shaped building collapsed, or "pancaked." See Ex. 17 at 3-4. Portions of the Embassy, including the Marine security guard post, the cafeteria, the United States Information Service library, the personnel section, and the consular section, were completely destroyed by the blast. Other parts of the building were severely damaged. See Tr. Vol. I at 131, 133; see also Ex. 16 at 6-17; see generally Exs. 2-11.*fn3 As a result of the blast, sixty-three people, including seventeen U.S. citizens, were killed. Over one hundred others were injured. See, e.g., Tr. Vol. I at 117, 135; see also Exs. 2-11.

The bombing was the first large-scale attack against a U.S. Embassy anywhere in the world. See Ex. 19 (Oakley Dep. Tr.) at 22; see also Tr. Vol. I at 121-22; Ex. 35 at 13. At the time, it was not immediately clear who was responsible for the bombing. See, e.g., Tr. Vol. II at 27-28; Tr. Vol. I at 121. But by 1984, the U.S. State Department, in its annual publication "Patterns of Global Terrorism: 1983," noted that "radical Lebanese Shi'a using the nom-de-guerre Islamic Jihad" and "operat[ing] with Iranian support and encouragement" were "responsible for the suicide attack[s] against the U.S. Embassy." See Ex. 20 at 11 (also at Oakley Dep. Ex. 1); Ex. 22 (discussing Islamic Jihad terrorist activities, including, inter alia, the 1983 Beirut Embassy bombing, as "part of a major terrorist campaign aimed at the elimination of U.S. and western influence in Lebanon"); Oakley Dep. Tr. at 23-25. The terrorist group Islamic Jihad has been known by various names, including Right Against Wrong, the Revolutionary Justice Organization, and, perhaps most commonly, Hizbollah.*fn4 See Ex. 19 (Oakley Depo. Tr.) at 46; see also Oakley Dep. Ex. 10 (also at Ex. 29) at 304. In connection with the evidentiary hearing in this matter, Ambassador Robert Oakley -- who, as the coordinator of the State Department's counterterrorism efforts, was tasked with assessing who was behind the 1983 Beirut Embassy bombing, see Ex. 19 (Oakley Dep. Tr.) at 9 -- testified that it ultimately became "very clear that Islamic Jihad [Hizbollah] was behind the bombing in 1983." Id. at 21. Ambassador Oakley further expressed "confiden[ce] that the government of Iran was involved directly in the Hisballah organization, which was created, armed, trained, protected, provided technical assistance by the Iranian Revolutionary Guards." Id. at 21.

Among other things, the complexity of the attack upon the U.S. Embassy in Beirut evidenced Iran's central role in the attack. Dr. Patrick Clawson, Deputy Director of the Washington Institute for Near East Policy, see Tr. Vol. II at 3, and an expert in Iranian politics, the Iranian economy, and Iranian sponsorship of terrorism, testified:

[T]here's no question that Iran was responsible for the selection of the target, provided much of the information for how to carry out the bombing, the expertise for how to build the bomb, the political direction that said that this was an important target to bomb, provided financial support for the bombers. It has the Iranians' fingerprints all over it. . . .

[T]his was quite a sophisticated and large bomb against a well-guarded target. And at the time, the people from the Shi'a community who claimed responsibility for this were just getting into the business of having a militia and having -- and engaging in some kinds of bombings. They hadn't done a whole lot. They didn't have established expertise; they didn't have a group of people locally whom they could draw upon to do this.

And furthermore, at this time they were so dependant upon financial support from Iran, they had no independent means of financial support, and furthermore, they were so dependant upon political guidance from Iran, Iran was quite directly ordering what targets to do, what not to do.

Tr. Vol. II at 20-21.

The bombing of the U.S. Embassy in Beirut in April 1983 represented a turning point with respect to Iran-sponsored terrorism conducted in Lebanon by Hizbollah. As Ambassador Oakley testified:

I think it was a seminal event in anti-U.S. terrorism[,] and Lebanon seems to be the easiest place for the Iranians to operate. As I've said before, they had several purposes, one was to drive the United States out of Lebanon, its military forces and also ... cultural influence. Same thing is true of the French who were supporting universities there and also had military forces there as part of the Multinational Force. The Iranians wanted to drive us out so they could put in an Iranian Shiìa revolutionary state. The second thing they wanted to do is to punish the United States for its support of Iraq, against Iran in the Iraq/Iran war, which at that stage was at its peak and the Iranians were at the losing end of it at that stage so they wanted to make it very, very clear they were going after us. The third thing they wanted to do was -- all of these were helped by blowing up our embassy, was to show the power which Iran and its supporters could generate. And here you have something that's not quite as powerful, but almost as the removal of the Shah as supported by the United States and indirectly by Israel. And finally they wanted to cement their relationship within the entire Middle East by showing what they could do against us, which made them a force throughout the [Muslim] world, if you will.... So it serve[d] several different purposes for the government of Iran and did so with a degree of success. [Although] we stood our ground, we weren't driven out of Lebanon at this stage. It was only later on when they blew up the [Marine] barracks, which was a huge shock to the American people that finally public and political pressure convinced the Reagan administration they should pull the U.S. forces out of Lebanon.

Ex. 19 (Oakley Dep. Tr.) at 50-52.

Iran provided Hizbollah with military arms, training, and other supplies, and issued propaganda to encourage Lebanese Shi'ites to join the organization. Ex. 34(5) at 2; see also Ex. 34(1) at 2 (CIA analysis finding that Iran provided "training and military support to the radical Shi'a groups based in the Bekka Valley"). In fact, soldiers from Iran's elite military unit, the Revolutionary Guard, set up headquarters in Lebanon's Bekka Valley to train Hizbollah recruits.

Oakley Dep. Ex. 9 (also at Ex. 28); Ex. 10 (also Ex. 29) at 304; Ex. 34(5) at 2. By early 1985, the United States had "fresh and convincing evidence that radical elements highly placed within ... the government of Iran [were] giving operational policy advice to terrorists in Lebanon, specifically terrorists operating under the name 'Islamic Jihad' or Hizbollah." Ex. 27 at 1; (also at Oakley Depo. Ex. 8).

Iran also provided Hizbollah with financial support. Indeed, while support of Hizbollah was not specifically provided for in Iran's annual budget, "the supreme religious leader and the president openly acknowledged that Iran was providing financial support, in fact proudly acknowledged that Iran was providing the financial support" for Hizbollah. Tr. Vol. II at 30. Dr. Clawson estimated that in 1983, the year of the Beirut Embassy bombing, Iran spent in the range of $50 million to $150 million on its terrorist efforts. Tr. Vol. II at 31.

Hizbollah accomplished its terrorist acts not just with the support of the Iranian government generally, but with the specific assistance of MOIS. An Iranian government ministry, MOIS was formally established by law in 1983 or 1984, although it had previously existed as an offshoot of the secret police under the regime of the former Shah of Iran. See Tr. Vol. II at 32-33. As part of its operations, MOIS acted, and continues to act, as "a prime conduit to terrorist and extremist groups." Ex. 34 (8) at 2. See also Ex. 19 (Oakley Dep. Tr.) at 47; Oakley Dep. Ex. 10 (also at Ex. 34). In Lebanon in particular, MOIS supported Hizbollah, nurturing it with "financial assistance, arms and training." Oakley Dep. Attach. 10 at 304 (also at Ex. 29); see also Tr. Vol. II at 12; Ex. 34 (8) at 1-2. With this support, Hizbollah evolved into "one of the most capable and professional terrorist organizations in the world." Ex. 34 (8) at 2.

On January 19, 1984, President Reagan designated Iran a state sponsor of terrorism. See Ex. 32. This designation was in response to Iran's role in sponsoring a number of terrorist acts in Lebanon, including the April 18, 1983, Embassy bombing at issue here. See Tr. Vol. II at 28. Iran has ever since remained on the State Department list of state sponsors of terrorism. See 22 C.F.R. § 126.1(d) (2005); 31 C.F.R. § 596.201 (2005). In fact, according to the Department of Defense, "[f]or over two decades, Iran's involvement in international terrorism has been unmatched by any other state. Iran remains the world's most capable and persistent state sponsor of terrorism." Ex. 34(8) at 1. See also Ex. 29 at 304 ("Iran is currently one of the world's most active states supporting international terrorism and subversion against other countries."); Tr. Vol. II at 34 (Dr. Clawson responding, when asked whether Iran and MOIS continue to sponsor terrorism, "[o]h yes sir. No question about that.").

This action commenced on October 29, 2001, when plaintiffs filed a complaint seeking damages from Iran and the MOIS for their material support of Hizbollah in the embassy bombing. Each plaintiff is a United States citizen or the estate of a United States citizen. The plaintiffs fall into three categories: (1) individuals injured in the bombing, (2) family members of individuals killed in the bombing, and (3) the estates of individuals killed in the bombing. The complaint alleges that each of the plaintiffs was injured as "a direct and proximate result of the willful, wrongful, intentional, and reckless acts of Hizbollah members, whose acts were funded and directed by the Islamic Republic of Iran through its agent MOIS." See, e.g., Third Am. Compl. ¶ 190. As noted above, the claims are based on the common law and/or statutes of the jurisdiction where each plaintiff was legally domiciled as of April 18, 1983, the date of the embassy bombing.

ANALYSIS

At the outset of the analysis, three points warrant emphasis. First, although the conclusions of law that follow supersede any contrary conclusions contained in the Court's September 8, 2003, memorandum opinion, the findings of fact in that opinion should be considered incorporated into this opinion in their entirety. In other words, any factual determinations in this opinion supplement, rather than supplant, those contained in the earlier opinion. Second, even though this decision is governed by state substantive law, and although state statutes of limitations usually apply when federal courts adjudicate state-law claims, see Guaranty Trust Co. v. York, 326 U.S. 99, 108-10 (1945), any statutory time bars on state causes of action are irrelevant to these claims because Congress, through the FSIA, has pre-empted them for purposes of lawsuits brought against foreign states pursuant to the immunity exception for sponsors of terrorism. See 28 U.S.C. §1605(f) ("No action shall be maintained under subsection (a)(7) unless the action is commenced not later than 10 years after the date on which the cause of action arose. All principles of equitable tolling, including the period during which the foreign state was immune from suit, shall apply in calculating this limitation period."). Third, although many states permit recovery of punitive damages for torts in certain circumstances -- such as when the plaintiff establishes by clear and convincing evidence that the defendant acted maliciously --punitive damages are not available to any of the plaintiffs in this case, irrespective of otherwise-governing state law, because the FSIA's revocation of sovereign immunity is narrowly drawn to authorize claims for punitive damages only against an "agency or instrumentality" of a terrorist-sponsoring state, but not against the foreign state itself. This Court previously concluded that the MOIS does not fall within the statutory definition of an "agency or instrumentality," see Dammarell I, 281 F.Supp. 2d at 200-02, and it hereby reaffirms that conclusion. See also Roeder v. Islamic Republic of Iran, 333 F.3d 28, 234 (D.C. Cir. 2003) (Iran's Ministry of Foreign Affairs "must be treated as the state of Iran itself rather than as its agent").

The claims of the twenty-nine Phase I litigants are governed by the laws of seven separate jurisdictions, including the District of Columbia. To avoid repetition of the relevant law, this opinion is organized by applicable jurisdiction, rather than by plaintiff. For each jurisdiction, the Court will (1) provide a statement of the controlling legal principles, (2) identify the Phase I litigants who were domiciled in that jurisdiction as of April 18, 1983, (3) apply the law of that jurisdiction to the facts surrounding those plaintiffs' claims, and (4) award appropriate compensatory damages for the claims.

I. Claims Under District of Columbia Law

A. District of Columbia Law of Battery and IIED

To establish liability for the tort of battery in the District of Columbia, a plaintiff must plead and prove "an intentional, unpermitted, harmful or offensive contact with his person or something attached to it." Marshall v. Dist. of Columbia, 391 A.2d 1374, 1380 (D.C. 1978). "Once liability is established for [an] intentional tort[] such as ... battery, a plaintiff is entitled at least to nominal damages, as well as to compensation for 'mental suffering, including fright, shame and mortification ....'" Id. (citations omitted); see also Huber v. Teuber, 10 D.C. (3 MacArth.) 484 (1879) ("Compensatory damages include such as the jury may award for injuries done to the person, for all the expenses immediately resulting from such injuries, for loss of time, for disabilities, for loss of health, for bodily pain and for mental sufferings, including allowance on these accounts for the future.").

To the extent that a battery plaintiff suffered emotional distress that might be seen as caused by something other than the battery itself -- for example, the more general trauma associated with being the target of a terrorist bombing -- and assuming that such events are dissociable, D.C. law provides plaintiffs with an additional route to recovery for psychological injuries: intentional infliction of emotional distress ("IIED"). The tort of IIED requires a showing of "(1) extreme and outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff severe emotional distress." See Howard University v. Best, 484 A.2d 958, 985 (D.C. 1984) (citations and internal quotations omitted). Intent or recklessness can be inferred from the outrageousness of the acts, and the plaintiff need not prove accompanying physical injury. Id. An IIED claimant, however, must "establish that the defendant proximately caused an emotional disturbance 'of so acute a nature that harmful physical consequences might not be unlikely to result.'" Ridgewells Caterer, Inc. v. Nelson, 688 F.Supp. 760, 764 (D.D.C. 1988) (citations omitted). Courts applying D.C. law have determined that various emotional conditions can support an award of compensatory damages for IIED. See, e.g., Estate of Underwood v. Nat'l Credit Union Admin., 665 A.2d 621, 642 (D.C. 1995) (upholding IIED verdict where plaintiff suffered from, among other things, depression and stress as a result of defendant's tortious conduct); Robinson v. Sarisky, 535 A.2d 901, 906 (D.C. 1988) (plaintiffs' "feelings of violation, anxiety, and helplessness" and personality changes constituted compensable emotional distress).

B. Plaintiff Anne Dammarell

Anne Dammarell was born on January 2, 1938, in Cincinnati, Ohio. She is a United States citizen and presently resides in Washington, D.C. See Tr. Vol. I at 12. On the date of the bombing, Ms. Dammarell was working at the U.S. Embassy in Beirut as a General Development Officer with the U.S. Agency for International Development ("AID"). See id. at 14-15; see also Ex. 12. As a federal government employee stationed overseas, Ms. Dammarell retained as her domicile in 1983 the state in which she last resided. See Dammarell II, 2005 WL 756090 at *22. Although she had a number of postings abroad during her service to AID, Ms. Dammarell had been domiciled in the District of Columbia since 1965. See Pls.' Mem. in Supp. of State Law Claims at 5. The law of the District of Columbia, therefore, applies to her claims.

Ms. Dammarell was in the Embassy cafeteria at the time of the bombing. See Tr. Vol. I at 33. As a result of the explosion, she suffered nineteen broken bones: her left foot was broken in three places; her left ribs were broken; her pelvic bone was broken; both arms were broken; two fingers in her left hand were broken; her collar bone was broken and her scapula was broken. See id. at 45. In addition to three surgeries, she required extensive physical and occupational therapy to recover her ability to walk and write. See id. at 55-56. Ms. Dammarell experienced anxiety attacks and feared that someone would attack and kill her. See id. at 60-61. She also endured recurrent nightmares about various tragedies that would result in her death. See id. at 61. To address her emotional distress, Ms. Dammarell sought treatment from a psychiatrist. See id.

Based on the pleadings and the evidence presented to the Court, Ms. Dammarell has stated a valid claim of battery under the law of the District of Columbia and is entitled to recover compensatory damages from defendants for "injuries done to [her] person, for all the expenses immediately resulting from such injuries, for loss of time, for disabilities, for loss of health, for bodily pain and for mental sufferings, including allowance on these accounts for the future." See Huber, 10 D.C. (3 MacArth.) at 484. The expert economic analysis presented to the Court demonstrated that, as a result of the Embassy bombing, Ms. Dammarell suffered $1,774,602 in economic losses. See Ex. 39 at Tab 5. The Court further values the loss associated with her physical pain and suffering and mental anguish caused by the battery at $5 million.*fn5 She will, therefore, be awarded a total of $6,774,602 in damages on this default judgment.

II. Claims Under Georgia Law

A. Georgia Law of Wrongful Death, Survival of Claims, and IIED

1. Wrongful Death

Georgia's wrongful-death statute creates a cause of action in tort for the surviving spouse or children of any person who is the victim of homicide (defined as "death ... result[ing] from a crime, from criminal or other negligence, or from property which has been defectively manufactured"). See Ga. Code Ann. § 51-4-1 (definitions); § 51-4-2 (right of recovery for homicide of spouse or parent). Where the decedent does not leave either a spouse or issue, Georgia law provides a right of recovery for the "homicide of a child." See Ga. Code Ann. § 51-4-4. The latter provision incorporates by reference a subsection of Georgia's domestic-relations code which declares that "[i]n every case of the homicide of a child, minor or sui juris, there shall be some party entitled to recover the full value of the life of the child" -- either the decedent's parents (one or both, depending on the circumstances), or, if there is no right of action in a parent or parents, the decedent's personal representative (acting for the benefit of the decedent's "next of kin"). See Ga. Code Ann. § 19-7-1(c)(1); § 51-4-5(a).*fn6

The right of action accrues to the statutory beneficiaries at the time of the decedent's death.

See Miles v. Ashland Chemical Co., 410 S.E.2d 290, 291 (Ga. 1991). Georgia law further provides that no "action or cause of action for the recovery of damages for homicide ... [shall] abate by the death of either party," Ga. Code Ann. § 9-2-41, and Georgia courts have interpreted that statute as conferring the right of action to the estate of the person who had possessed the right prior to death -- even if that person did not file suit during his or her lifetime, see Complete Auto Transit, Inc. v. Floyd, 104 S.E.2d 208, 213 (Ga. 1958) (construing the effect of a 1952 amendment adding "cause of action" to the non-abatement statute). Nevertheless, the non-abatement statute, by its own terms, applies only if "there is no right of survivorship in any other person." Ga. Code Ann. § 9-2-41; see also West v. Mathews, 121 S.E.2d 41, 43 (Ga. Ct. App. 1961) ("[I]t was the clear intention of the legislature that ... a cause of action would survive to the personal representative where there was no right of survivorship in any other person.").

Although the statute offers no explanation of the meaning of a "right of survivorship," the phrase clearly encompasses the right of a child of a homicide victim in the event that the victim's surviving spouse -- who possesses the right of action in the first instance -- dies before obtaining a recovery (or the right of a grandchild where the victim left no surviving spouse and the victim's child dies prior to recovery). See Ga. Code Ann. § 51-4-2(b) ("survival of action" provisions); see also Kennan Welding Supplies Co. v. Bronner, 111 S.E.2d 140, 142 (Ga. Ct. App. 1959) ("Surviving children have a cause of action for the negligent homicide of their father, after the death of the widow, who after the homicide died without instituting suit for the damages. Therefore, the cause of action survived to the children and not to the administrator of the widow's estate.") (citation omitted). In Hosley v. Davidson, 439 S.E.2d 742 (Ga. Ct. App. 1993), the Georgia Court of Appeals interpreted the non-abatement statute's "right of suvivorship" exception to apply with equal force when the wrongful-death action belonged to the parents of the homicide victim (i.e., where the victim left no spouse or issue) and one parent later died before filing suit. The court's conclusion appears to have been based on the language of survivorship contained in Ga. Code Ann. § 19-7-1(c)(2)(B) ("If either parent is deceased, the right shall be in the surviving parent.").*fn7 Thus, the court of appeals held, where a parent is living at the time of the child's death but dies prior to instituting a wrongful-death suit, that parent's right to bring a wrongful-death action will not survive to his or her estate "if there is a surviving parent or other person entitled to bring it." Id. at 745.*fn8

No reported Georgia decision has addressed the unusual situation where both parents of the victim are alive at the time of the homicide and subsequently both parents die before instituting a wrongful-death action. Applying the rule of Hosley, the death of the first parent would vest the right of action exclusively in the second parent. Upon the death of the second parent, two possibilities exist: (1) the right of action passes to another individual by "right of survivorship" or (2) if there is no right of survivorship in any other person, the right of action "survives to the personal representative" of the second parent, by operation of the non-abatement statute. Beyond the reference in § 19-7-1(c)(2)(B) regarding the effect of the death of one parent of a homicide victim when another parent survives, the statutes governing the child-homicide tort do not contain any additional obvious survivorship language. But § 19-7-1(c)(3) does provide that "[i]f, in any case, there is no right of action in a parent or parents under the above rules, the right of recovery shall be determined by Code Section 51-4-5," which in turn vests the right of action in the "administrator or executor of the decedent" (who brings it "for the benefit of the [decedent's] next of kin").*fn9 Thus, in a contest for the right to pursue a "homicide of a child" cause of action between the personal representative of the decedent and the personal representative of the decedent's last-deceased parent (who survived the decedent but did not file suit prior to his or her own death), the outcome turns on whether § 19-7-1(c)(3) creates a "right of survivorship" in the administrator or executor of the decedent, and thereby prevents operation of the non-abatement statute, which otherwise would allow the parent's right of action to succeed to the parent's estate. In light of the Hosley court's indication that some "other person" besides a surviving parent might be "entitled to bring" a wrongful-death suit by right of survivorship, 439 S.E.2d at 745, and the fact that the child-homicide statute refers to no other proper plaintiff besides the personal representative of the decedent, the Court is compelled to conclude that the right of action passes by "survivorship" to the personal representative of the decedent, pursuant to Ga. Code Ann. § 19-7-1(c)(3), when the decedent leaves neither a spouse nor issue and both parents die prior to instituting the action.*fn10

The measure of damages for a claim of wrongful death in Georgia is the "full value of the life" of the decedent, as shown by the evidence. See Ga. Code Ann. § 51-4-2(a); § 19-7-1(c)(1). That is further defined as "the full value of the life of the decedent without deducting for any of the necessary or personal expenses of the decedent had he lived." Ga. Code Ann. § 51-4-1.*fn11

"Georgia is unique in its measure of damages for a wrongful death action, because it uses the value of the decedent's life to him," as opposed to the value of the decedent's life to his survivors. Robert E. Cleary, Jr., Georgia Wrongful Death Actions § 6-1 (3d ed. 2005) (emphasis added). Thus, "the measure of damages is the same as [it would be] for a person who survives a tortious injury but is totally and permanently disabled." Id. "[O]ther elements of damages, which are not associated with the decedent but are associated with a statutory beneficiary," such as mental anguish or grief over the relative's death, "are prohibited." Id.; see also Southwestern R.R. Co. v. Paulk, 24 Ga. 356 (1858) (jury in a wrongful-death action "cannot take into consideration the mental sufferings occasioned to survivors, by the death"); Elsberry v. Lewis, 231 S.E.2d 789, 791 (Ga. Ct. App. 1976) ("It is well settled that there can be no recovery for solatium" in a wrongful-death action.). A calculation of the "full value of life," however, is not limited to estimates of the present value of the decedent's projected monetary income; it also permits jurors to assign a cash value to the services that the decedent would have provided to others without cash compensation. In other words, wrongful-death damages in Georgia take account of the non-pecuniary value (sometimes referred to as "psychic value"*fn12 ) to the decedent of activities she would have engaged in during her lifetime. As the Georgia Court of Appeals has explained:

[D]amages [for wrongful death] may be categorized as: (1) those items having a proven monetary value, such as lost potential lifetime earnings, income, or services, reduced to present cash value or (2) lost intangible items whose value cannot be precisely quantified, such as a parent's 'society, advice, example and counsel ...' as determined by the enlightened conscience of the jury.

Consol. Freightways Corp. of Del. v. Futrell, 410 S.E.2d 751, 752 (Ga. Ct. App. 1991) (citations omitted);*fn13 see also Bulloch County Hosp. Auth., 183 S.E.2d 586, 590 (Ga. Ct. App. 1971) ("jury is not bound to find that lifetime earnings reduced to present value is the 'full value of the life of the decedent'"); Southern Ry. Co. v. Turner, 81 S.E.2d 291, 294 (Ga. Ct. App. 1954) (value of the deceased's guidance and assistance to his daughter in furtherance of her education "may be considered ... on the question of the value of the life of the deceased").

2. Survival of Claims

Although a wrongful-death action under Georgia law provides for a recovery for the "full value of the life of the decedent," that amount does not include damages for pain and suffering by the decedent, if any, during the time period between the fatal injury and death. See Complete Auto Transit, Inc., 104 S.E.2d at 212 ("The cause of action for wrongful death is a separate and distinct cause of action from that of the [decedent] for her pain and suffering."). Such inter vivos pain-and-suffering damages are recoverable through a separate action -- such as battery -- under Georgia's common law of torts. See Hendricks v. Southern Bell Tel. & Tel. Co., 387 S.E.2d 593, 594-95 (Ga. Ct. App. 1989) ("Any act of physical violence ... inflicted on the person of another, which is not necessary, is not privileged, and which constitutes a harmful or offensive contact, constitutes an assault and battery.").

The distinction between a wrongful-death action and a battery action is not limited to the variation in the measure of damages. The identity of the plaintiff often will be different, as well. Unlike wrongful-death claims, which belong to statutorily designated individuals, personal-injury claims such as battery are vested in the victim -- and, by operation of the non-abatement statute, they survive to the victim's personal representative upon the victim's death. See Ga. Code Ann. § 9-2-41; Smith v. Mem'l Med. Ctr., 430 S.E.2d 57, 59 (Ga. Ct. App. 1993) ("[A]n individual's claim for wrongful death and an estate's claim for the decedent's pain and suffering are distinct causes of action."); In re Ray, 545 S.E.2d 617, 620 (Ga. Ct. App. 2001) ("[T]he right to recover damages for pain and suffering vests in the child, not the parent," though the parent may have a proper claim for homicide of the child and for medical and funeral expenses.). As noted above, the personal-injury action need not have commenced prior to the victim's death for the right of action to survive to the decedent's estate administrator or probate executor. See Complete Auto Transit, Inc., 104 S.E.2d at 212-13.

3. IIED

Independent of a wrongful-death claim or a battery claim that survives a plaintiff's death, Georgia law also provides a civil remedy for individuals who suffer emotional distress due to the negligent or malicious act of another.

Whenever emotional distress is an actual and foreseeable consequence of a tortious act that also causes physical harm (or actual injury to tangible property), the victim of the tortious act is free to prove the existence of psychological injury as part of a broader claim for damages. See, e.g., Westview Cemetery, Inc. v. Blanchard, 216 S.E.2d 776, 779 (Ga. 1975) ("Where there is a physical injury or a pecuniary loss, compensatory damages include recovery for accompanying 'mental pain and suffering' ...."); Lee v. State Farm Mutual Ins. Co., 533 S.E.2d 82, 84 (Ga. 2000) ("So far as mental suffering originating in physical injury is concerned, it is rightly treated as undistinguishable from the physical pain.") (quoting Chapman v. Western Union Tel. Co., 15 S.E. 901 (1892)); Ga. Code Ann. § 50-21-22(3) (defining "loss" under the Georgia Tort Claims Act to include "mental anguish").

Where, however, the plaintiff's mental suffering did not "originat[e] in physical injury," and the actions of the defendant that caused the suffering were merely negligent, Georgia adheres to the so-called "impact rule" and denies recovery. See Lee, 533 S.E.2d at 85-86. Absent physical impact, the only way a plaintiff can recover for purely psychological injury is by establishing that the defendant's conduct was malicious, willful, or wanton. See Westview Cemetery, Inc., 216 S.E.2d at 779 (noting that "recovery where the only injury is to peace, feelings or happiness was disfavored at common law"); Pike Nurseries, Inc. v. Allen, 558 S.E.2d 834, 836 (Ga. Ct. App. 2002). In short, for a Georgia plaintiff to recover for negligent infliction of emotional distress, there must be some accompanying physical harm, but emotional distress standing alone is compensable if it is intentionally inflicted, regardless of whether there was any physical impact on the plaintiff.

To sustain a claim of intentional infliction of emotional distress, the plaintiff must prove the following four elements: "(1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; and (4) The emotional distress must be severe." See Everett v. Goodloe, 602 S.E.2d 284, 292 (Ga. Ct. App. 2004). Georgia courts also require that the act complained of be "directed towards the plaintiff." See Strickland v. Hodges, 216 S.E.2d 706, 709 (Ga. Ct. App. 1975) ("It was the absence of this element of being 'directed towards the individual plaintiff' which was the basis of other decisions holding that without a showing of physical injury there was no cause of action for emotional harm."); Ryckeley v. Callaway, 412 S.E.2d 826, 827 (Ga. 1992) ("[E]ven malicious, willful or wanton conduct will not warrant a recovery for the infliction of emotional distress if the conduct was not directed toward the plaintiff."). Generally speaking, this rule restricts the availability of claim of IIED that is based purely on the psychological trauma associated with learning about physical harm inflicted on a loved one. Under those circumstances, the plaintiff must show that the malicious act was directed not only toward the physical well-being of the person who was immediately targeted, but also that it was directed toward the emotional well-being of that victim's family.

B. Plaintiffs

1. Estate of Janet Lee Stevens, by Jo Ann Stevens, Administrator

Janet Lee Stevens was working in Beirut in April of 1983 as a freelance journalist for the Japanese newspaper Asahi and the English-language periodical Monday Morning. See Tr. Vol. V at 104, 125, 144-45; Ex. 50 at 2. Ms. Stevens was born December 1, 1950, in Michigan. She was a United States citizen and was raised in the state of Georgia. Tr. Vol. V at 89-90. Ms. Stevens began living and working in the Middle East in the mid-1970s. She first went to the American University in Cairo, where she studied and taught Arabic. Id. at 97. From Cairo she moved to Tunisia, where she lived for almost two years and was married to a Tunisian playwright. That marriage, however, ended in divorce. Id. at 149. While she was living abroad, most of Ms. Stevens's immediate family continued to reside in Georgia. See Pls.' Mem. in Supp. of State Law Claims at 102. Ms. Stevens was interviewing U.S. AID personnel in the Embassy cafeteria at the time of the bombing, and she sustained fatal injuries as a result of the attack. She was survived by her parents, Jean Hadley Stevens and Hazen Henry Stevens (though both later died; her mother in 1995 and her father in 1997); by her twin sister, Jo Ann Stevens; and by her two brothers, Hazen Hadley Stevens and Scott Stevens. See Ex. 49. Jo Ann Stevens is the Administrator of the estate of Janet Lee Stevens. See id.; Tr. Vol. V at 91. The estate was probated in Georgia. See Ex. 49.

For the reasons explained above, see § II-A-1, supra, Jo Ann Stevens, as Administrator of her sister's estate, is the proper plaintiff to maintain an action under Georgia law for the wrongful death of Janet Lee Stevens because the decedent left no spouse or issue and both of her parents died prior to instituting the action. Pursuant to Section 51-4-5(a) of the Georgia Code, any recovery by the estate's administrator is for the benefit of Ms. Stevens's "next of kin" -- here, her brothers and sisters. Based on the pleadings and the evidence presented to the Court, Jo Ann Stevens has made out a valid claim for "homicide of a child," within the meaning of the Georgia wrongful-death statutory scheme, see Ga. Code Ann. § 51-4-4, and therefore is entitled to recover the "full value of the life of the decedent," including "lost potential lifetime earnings, income, or services, reduced to present cash value [and] lost intangible items whose value cannot be precisely quantified," as determined by this Court, see Futrell, 410 S.E.2d at 752. The expert economic analysis presented to the Court demonstrated that, were it not for Ms. Stevens's untimely and wrongful death, she would have earned wages, benefits, and retirement pay amounting to $1,949,000. See Ex. 39 at Tab 1; see also Dammarell I, 281 F.Supp. 2d at 195 (explaining the methodology used by the expert to calculate economic damages for victims who were killed in the Embassy bombing). As for the "intangible" aspect of the value of Ms. Stevens's life, the Court concludes that there is evidence in the record to support such an award -- specifically, for the value to Ms. Stevens of the personal support she would have provided to her family during her lifetime. But the Court nonetheless will decline to award such damages in this case because the beneficiaries of the wrongful-death recovery also are plaintiffs in their own right for IIED, based on the same event that caused Ms. Stevens's death, and an assessment of the non-pecuniary value of the life of the decedent would be, for all intents and purposes, wholly duplicated in any calculation of the IIED damages to her siblings and her late father. In other words, the Court will take full account of the intangible losses occasioned by this homicide in the context of the claims of IIED brought by her next of kin, which are discussed below.

Plaintiffs' brief suggests that the estate of Janet Lee Stevens also can maintain a cause of action that is "separate and distinct" from the wrongful-death claim, see Pls.' Mem. in Supp. of State Law Claims at 149 (citing Complete Auto Transit, Inc., 104 S.E.2d at 212), based on the Georgia law that permits a tort claim to survive the death of the plaintiff, see Ga. Code. Ann. § 9-2-41. But, as explained above, see § II-A-2, supra, that statute is relevant only if the decedent suffered damages during the time period between the fatal injury and death (e.g., medical expenses or pain and suffering). In this case, there is no factual support for such a claim by the estate of Janet Lee Stevens.

Accordingly, the Court will award the estate of Janet Lee Stevens, by Jo Ann Stevens as Administrator, a total of $1,949,000 in damages, for the benefit of Janet Lee Stevens's next of kin, on this default judgment.

2. Jo Ann Stevens

Plaintiff Jo Ann Stevens is the identical twin sister of Janet Lee Stevens. See Tr. Vol. V at 90; Ex. 50 at 3-9. Jo Ann Stevens is a United States citizen and was domiciled in Georgia on April 18, 1983. See Tr. Vol. V at 89-90. At that time she was working at CNN headquarters in Atlanta, and she learned of the Embassy attack through information transmitted to CNN by various news wires. See id. at 103. She did not, at this point, think that her sister had been at the Embassy, though she was concerned that she might have been in the general area. Ms. Stevens returned to her apartment that evening, and went to sleep. Sometime later, she received a phone call from her sister's boss at Asahi, who reported that Janet Stevens had been in the bombing. After the passage of a period of time, Jo Ann Stevens "gathered enough courage" to call her father, Hazen Stevens, and tell him that Janet Stevens had been killed. Id. Ms. Stevens testified that she spent the next six months of her life consumed by grief, thinking only about her sister and the memories of "everything that we did together and wanted to do." Id. at 111. While Ms. Stevens recognized that her sister "would be mad at [her] for, you know, being sort of like a victim," getting over her sister's death proved to be "easier said than done." Id.

Jo Ann Stevens has asserted a personal claim against defendants for IIED, which is governed by the law of Georgia. Based on the pleadings and the evidence presented, the Court has no hesitance in concluding that defendants' actions in facilitating the Embassy bombing were intentional, malicious, extreme, and outrageous, and that their conduct was the proximate cause of severe emotional distress experienced by Jo Ann Stevens following the murder of her twin sister. See Everett, 602 S.E.2d at 292 (outlining the elements of an IIED claim in Georgia). Furthermore, the Court finds that the acts of defendants were "directed towards the plaintiff." See Ryckeley, 412 S.E.2d at 827. As this Court has previously observed, in a case arising out of the same Embassy bombing: "[A] terrorist attack -- by its nature -- is directed not only at the victims but also at the victims' families. In this case, the evidence demonstrates that defendant's campaign of attacks against Westerners was intended not only to harm the victims, but to instill terror in their loved ones and others in the United States." See Salazar v. Islamic Republic of Iran, 370 F.Supp. 2d 105, 115 n.12 (D.D.C. 2005) (citations omitted). The Court, therefore, will enter a judgment by default against defendants on the IIED claim of Jo Ann Stevens and award her compensatory damages totaling $3 million.

3. Hazen Hadley Stevens

Plaintiff Hazen Hadley Stevens is the oldest brother of Janet Lee Stevens. See Tr. Vol. V at 117-18; Ex. 50 at 3-11. Mr. Stevens is a United States citizen. See Tr. Vol. V at 117. At the time of the Embassy bombing, he was living in a hotel in Washington, D.C., on a temporary basis. See Pls.' Mem. in Supp. of State Law Claims at 103. Although he subsequently moved to New York for a work assignment before returning to Georgia, at all times relevant to this litigation Georgia remained his place of domicile. Georgia law, therefore, governs his personal claim against defendants for IIED.

On April 19, 1983, the day after the Embassy attack, Mr. Stevens saw an article about the bombing in The Washington Times. See Tr. Vol. V at 126. The article, which was accompanied by a picture of Janet Lee Stevens, indicated that his sister was believed to have been killed in the attack. See id. This was the first indication to Mr. Stevens that his sister had been at the Embassy on April 18. See id. In the aftermath of his sister's death, Mr. Stevens, as the oldest of the Stevens siblings, "[t]ried to be a little stronger and tried to be protective to some degree, and helpful." Id. at 130. At the family funeral service held for his sister in Atlanta, Mr. Stevens was in charge of escorting his mother, who was mentally ill. He indicated that the entire situation was "extremely difficult for her," and that she "would refuse to go to the funeral and really refused to go to the graveside ceremony." Id. at 129. In terms of his own grieving process, Mr. Stevens stated, "I think that I tried to block a lot of things out." Id. at 131. From his observations, his sister Jo Ann Stevens went through a prolonged period of grief; as he testified, "I think it took her a number of years [before] she came back to some kind of really feeling of confidence and reality." Id. at 130. He does not think that his father ever recovered from the loss. See id.

Like Jo Ann Stevens, Hazen Hadley Stevens has asserted a personal claim against defendants for IIED, which also is governed by the law of Georgia. Based on the pleadings and the evidence presented, Mr. Stevens has stated a valid claim of IIED under the law of Georgia and is entitled to recover from defendants for his own severe emotional distress. The Court, therefore, will enter a judgment by default against defendants on the IIED claim of Hazen Hadley Stevens and award him compensatory damages totaling $2.5 million.

4. Scott Stevens

Plaintiff Scott Stevens is the brother of Janet Lee Stevens. See Tr. Vol. V at 134; Ex. 50 at 2-6, 12-18. At the time of the Embassy bombing, Mr. Stevens -- who is a United States citizen -- resided in Georgia. The last time that Scott Stevens saw his sister Janet was in December 1981, when Janet came to visit her family for the Christmas holidays. See id. at 142. As he recalled, "[s]he was homesick for us, and we were certainly homesick for her." Id. at 143. According to Mr. Stevens, he, his brother, and his father made "comments" to Janet Stevens along the lines of "hey, Janet, it's time to come home. It's time to get out of harm's way." Id. Indeed, Mr. Stevens felt that the circumstances in the Middle East were such that his sister was in danger. See id. Janet Stevens considered her family's concerns, but opted to return to the Middle East. See id. at 144.

Scott Stevens heard news reports about the Embassy attack on April 18, 1983, but "[n]ever even made a connection that Janet would be at the embassy because of her position." He recalled that when he heard the news of Janet's death from their father, he was "very angry" that "anybody ... could take innocent life." Id. at 146. Mr. Stevens, who was married with three children at the time, said he avoided dealing with his grief for some time. "[W]hat I ended up doing is I ended up avoiding, I guess for several years, the impact by concentrating on trying to advance my own personal career and make more money, and you know, take the children to soccer games every Saturday.... So there was a lot of opportunity for me to -- there was a lot of opportunity for me to bury myself in my own family." Tr. Vol. V at 149. Despite these efforts, none of these activities took away Mr. Stevens's grief, or his feeling that "our family got cheated, cheated [out] of the times and the future memories." Id.

Scott Stevens has asserted a personal claim against defendants for IIED, which is governed by the law of Georgia, his state of domicile in 1983. Based on the pleadings and the evidence presented, Mr. Stevens has stated a valid claim of IIED under the law of Georgia and is entitled to recover from defendants for his own severe emotional distress. The Court, therefore, will enter a judgment by default against defendants on the IIED claim of Scott Stevens and award him compensatory damages totaling $2.5 million.

III. Claims Under Florida Law

A. Florida Law of IIED

The Florida Supreme Court has "explicitly recognized the independent tort called intentional infliction of emotional distress (as contrasted with emotional distress as an element of damages caused by another tort)." Williams v. City of Minneola, 575 So. 2d 683, 690 (Fla. Dist. Ct. App. 1991). Florida's definition of the tort tracks Section 46 of the Restatement (Second) of Torts, which provides that "[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress." See id. Based on that description, Florida courts have established the following necessary elements for an IIED cause of action: "(a) deliberate or reckless infliction of mental suffering; (b) outrageous conduct; (c) the conduct must have caused the emotional distress; and (d) the distress must be severe." Id. An IIED claim does not require that the plaintiff demonstrate that he or she suffered any "impact" or physical injury from the defendant's conduct. See id. at 693. The causation prong of the tort, however, does demand that the plaintiff establish that the alleged tortfeasor either intended his conduct to cause the plaintiff's emotional distress or acted in deliberate disregard of a substantial probability that the plaintiff's mental suffering would follow from his conduct. See id. at 692. In other words, the plaintiff must be a foreseeable victim. "Several Florida cases have held that even where the requisite outrageousness occurred in the defendant's acts toward the original victim, the emotional distress felt by close relatives of that victim when they learned of the acts was not actionable if the relatives were not present during the acts and the defendant's conduct was not directed at the relatives." Id. at 694 (citing cases). But, in the Williams case, the District Court of Appeal made clear that presence by the plaintiff is not a prerequisite for IIED recovery. See id. at 690. In holding that a plaintiff could maintain an action for IIED based on the outrageous display of pictures of the dead body of a spouse, child, sibling, or parent, regardless of whether the plaintiff witnessed the outrageous conduct, see id., the appeals court tacitly acknowledged that some forms of outrageous behavior, though directed in the most immediate sense at one person, can be directed at others who are not present.

By statute in Florida, "[n]o cause of action dies with the person." See Fla. Stat. Ann. § 46.021 (West 2005). Rather, "[a]ll causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law." Id. Therefore, any claim for personal injury, which includes IIED, can be maintained by the personal representative of the claimant once the claimant dies -- unless the personal injury was the cause of the claimant's death, in which case the only proper cause of action is for wrongful death. See ACandS, Inc. v. Redd, 703 So. 2d 492, 493 (Fla. Dist. Ct. App. 1997); Fla. Stat. Ann. § 768.20 ("When a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate.").

B. Plaintiff Estate of Hazen Stevens, by Scott Stevens, Administrator

Hazen Stevens was the father of Janet Lee Stevens. See Tr. Vol. V at 151; Ex. 50. Mr. Stevens, who was alive at the time that his daughter was killed in the Beirut Embassy bombing and was a U.S. citizen, died in 1997 in Sarasota County, Florida. See Ex. 49. On April 18, 1983, Hazen Stevens was domiciled in Florida, and his estate was probated in that state. See Pls.' Mem. in Supp. of State Law Claims at 104. The estate of Hazen Stevens is represented by Scott Stevens, as administrator, for purposes of this litigation. See Tr. Vol. V at 151; Ex. 49A.

Jo Ann Stevens, Hazen Hadley Stevens, and Scott Stevens each presented testimony regarding the effect that the loss of his daughter Janet had on Hazen Stevens. From the perspective of Hazen Hadley Stevens, the oldest of the Stevens siblings, Hazen Stevens never got over the loss of his daughter Janet in the Beirut Embassy bombing. As Mr. Stevens testified:

My father never recovered, and he just -- he was very -- it was a very difficult time for him for the rest of his life, which was about 15 years. And I mean, he would break into tears from time to time when you go visit him, just out of nowhere. For a great man, he wasn't acting so great. Of course, I've never lost a child.

Tr. Vol. V at 130. This grief affected every aspect of Mr. Stevens' life. As Scott Stevens testified:

He made very poor decisions economically, retreated. I think he had a very difficult time. I think he tried to overcome it. I think his experience with our mother, who was mentally ill, I think it probably kept him from seeking professional help himself because that was a hard experience for him to go through. So he did the best he could. He just made a lot of mistakes. Made a lot of mistakes economically, made some very -- took his retirement money and made some investments in oil, which was very speculative, you know, instead of looking out for his economics and those kind of things.

Id. at 148-49. As a result of these decisions, Mr. Stevens "lost his condominium" and "went from owning a condominium on the ocean to living five miles inland struggling to pay rent." Id. at 149.

The estate of Hazen Stevens has asserted a personal claim against defendants for IIED, which is governed by Florida law. Based on the pleadings and the evidence presented -- and consistent with the Florida District Court of Appeal decision in Williams, 575 So. 2d at 690, and with this Court's conclusion that the attack on the Embassy was directed not only at those individuals who were present, but also was directed at their families, see § II-B-2, supra -- the Court finds that Mr. Stevens has stated a valid claim of IIED under the law of Florida. Furthermore, that claim survived Mr. Stevens's death, pursuant to Section 46.021 of the Florida Statutes, and his estate is, therefore, entitled to recover from defendants for Mr. Stevens's severe emotional distress. The Court will enter a judgment by default against defendants on the IIED claim of the estate of Hazen Stevens and will award Scott Stevens, as Administrator, compensatory damages totaling $3.5 million.

IV. Claims Under North Carolina Law

A. North Carolina Law of Battery and IIED

In North Carolina, "[t]he elements of battery are intent, harmful or offensive contact, causation, and lack of privilege." Hawkins v. Hawkins, 400 S.E.2d 472, 475 (N.C. Ct. App. 1991).*fn14 "Under North Carolina law, a plaintiff may recover the present worth of all damages that naturally flow from the defendant's conduct." In re Air Crash Disaster at Charlotte, N.C., 982 F.Supp. 1101, 1111 (D.S.C. 1997) (citing King v. Britt, 148 S.E.2d 594, 597 (N.C. 1966)). "Specifically, under North Carolina law, a personal injury plaintiff may recover damages for pecuniary loss and expenses, loss or diminution of earnings during incapacity, impairment of future earning capacity, and pain and suffering, including mental suffering." Id.

Where a battery claim is based on outrageous and malicious conduct by the defendant and the plaintiff suffers emotional trauma, there frequently will be more than one route to recovery in tort; that is, the plaintiff can seek damages for battery and for intentional infliction of emotional distress. See Holloway v. Wachovia Bank & Trust Co., 452 S.E.2d 233, 240-41 (N.C. 1993) (A battery "may amount to extreme and outrageous conduct which is intended to cause and which does cause severe emotional distress. If so, then [it] satisf[ies] the elements of an IIED claim and all damages proximately flowing from plaintiff's severe emotional distress caused in turn by this conduct are recoverable."). "The essential elements of a claim for intentional infliction of emotional distress are '1) extreme and outrageous conduct by the defendant 2) which is intended to and does in fact cause 3) severe emotional distress.'" Id. at 240 (citing Dickens v. Puryear, 276 S.E.2d 325, 335 (N.C. 1981)). A battery claim, however, typically will allow a more complete recovery than an IIED claim, because any recovery for IIED would not include "damages resulting from ... physical injuries inflicted by the battery," see id. at 242, whereas the damages recoverable for the battery usually would encompass any mental suffering that followed (assuming there is a sufficient causal link between the battery and the subsequent emotional distress), see Iadanza v. Harper, 611 S.E.2d 217, 221 (N.C. Ct. App. 2005) ("Compensatory damages provide recovery for, inter alia, mental or physical pain and suffering, lost wages and medical expenses."). Although a plaintiff is free to advance multiple theories of liability and to obtain full recovery for his damages, he is "not entitled to 'double recovery' for the same loss or injury." See Markham v. Nationwide Mut. Fire Ins. Co., 481 S.E.2d 349, 357 (N.C. Ct. App. 1997).

B. Plaintiff Charles Light

In 1983, plaintiff Charles Light was a Sergeant in the Marine Security Guard contingent assigned to protect the Beirut Embassy. See Tr. Vol. IV at 7-8; see also Ex. 44. Mr. Light was born January 26, 1950, in Hobbs, New Mexico, and is a United States citizen. See Tr. Vol. IV at 3. At the time of the Embassy bombing, Mr. Light maintained his legal domicile in North Carolina. See Pls.' Mem. in Supp. of State Law Claims at 10-11. The law of the state of North Carolina, therefore, applies to his claims.

On the morning of April 18, 1983, Mr. Light was preparing his troops for an inspection. See Tr. Vol. IV at 10-11. When the bombing took place, Mr. Light was shining his boots in his office, which was on the front of the Embassy and approximately forty feet away from Marine Security Guard Post 1. See id. at 11-12. As Mr. Light testified:

Well, [the blast] knocked me out. The blast. As you can see, that embassy is sort of a half moon shape, and on the back of the embassy was a V-shaped retaining wall. It was very tall in places. The blast evidently had gone through and hit that retaining wall and then came through a window that was next to me, picked me up and blew me through a cinder block wall into the next office. And then the cinder block ceiling fell on top of me, and I woke up in that situation, probably six, seven minutes after the initial blast....

There was probably a million tons of debris floating in the air; and I took a breath and it coated my throat, and I thought I was choking to death. In fact -- but luckily, as I was going to my knees, my head went below the strata of the debris, and I took a breath; and that's the first time I looked around and noticed that the building was no longer the one I thought I was in a few minutes ago, you know.

The RSO, regional security officer's armory had gone up in smoke, and all the CSCN, all the gas was cooking off and it was burning, you know. A few days later, in fact, all the skin on my eyeballs peeled off like a sunburn. Rounds were popping off, were cooking off, what we call in the Marine Corps cooking off, and rounds were going off everywhere you looked.

Id. at 12-13. A breeze then blew through the bombed Embassy, blowing away the dust and chemicals. See id. at 13. When Mr. Light stood up, he realized that his shoes had been blown off. See id. He also realized that the desk where he had been sitting -- and which had taken seven men to move into his office -- had been reduced to splinters. See id. The next thing that Mr. Light recalled was the chaos of the situation:

And I'm standing in the rubble anywhere from sofa size to grain particles. There's reinforcement bar everywhere. The place is on fire, the gases as I described before, and rounds popping off. And then my hearing came back to me, because it just about deafened me. And I started hearing screams and moans and pleas for help, and then I heard the Lebanese sirens and all that kind of business going on all at one time. It was absolute chaos. It was crazy.

Id. at 14. Mr. Light was also in "serious pain" at this point. "I suppose the window that was next to me had sort of vaporized into tiny, tiny particles of, you know, like hair filaments of glass, and it had penetrated through this arm and across this [part of my] face. And I had a serious problem with my neck, and it crushed this thumb here; and then part of my hip and then my feet, of course, were bleeding by now." Id. at 14-15. Despite his own injuries, Mr. Light worked twenty-two straight days, in twenty-hour shifts, on the "digging detail," meaning the rescue and recovery effort. Id. at 23.

Mr. Light first sought treatment for the injuries he had suffered in the Embassy bombing in late June, about two months after the attack. See id. at 24-25. He went to the headquarters of the Battalion Landing Team ("BLT") -- the same Marine detachment at the Beirut Airport that would be bombed later that year, and was sent from there on a small boat to an amphibious warship anchored off the shore of Lebanon, where an orthopedic surgeon examined Mr. Light and found that he had crushed the C4 and C5 vertebrae in his neck. See id. at 25. Soon thereafter, in late July, Mr. Light left Beirut. See id.

After leaving Beirut, Mr. Light reported to Bethesda, Maryland, where he was put on physical therapy for approximately one month before his crushed vertebrae were operated on. See id. at 26. In October 1983, a C4-C5 fusion was performed on Mr. Light, using a bone harvested from Mr. Light's right hip and titanium wire to fuse the vertebrae. See id. at 26-27. Mr. Light remained in the hospital for only two days following this operation because "the BLT was destroyed; and they were bringing in a lot of patients, and they needed the space for them." Id. at 27. After Mr. Light was released from Bethesda, he was placed in a neck brace, put on six months limited duty, and transferred to the Medical [Hold] platoon at Quantico, Virginia. See id. at 27.

He was thereafter sent to an interrogator/translator platoon at Camp Lejeune, North Carolina, and, in early 1984, to the Defense Language Institute to study Arabic. See id. at 27-28. After a year and six weeks of Arab language study, Mr. Light was sent on two "floats" with Marine Amphibious Readiness Groups, the first with the 24th Marine Expeditionary Unit, and the second with the 26th Marine Expeditionary Unit. See id. at 28. Mr. Light returned from the second tour in the spring of 1989. See id.

During the six years between the Beirut Embassy bombing and the end of his second "float," Mr. Light had been experiencing "serious pain." Id. at 29. He turned to various substances for relief, testifying, "I did crawl into a bottle. I believe it was Southern Comfort for about three years. I drank myself silly for about three years." Id. at 29. When asked why, Mr. Light responded:

First off, it did have an effect. It did help the pain. And second of all, I was trying to -- I guess I was feeling sorry for myself, actually. I was thinking about Beirut and the things that I'd seen. There were several people in that embassy that I actually loved....

You know, just things like that will eat on you after a while. So I took the easy way out, I suppose. I drank myself into oblivion for a few years.

Id. at 29. Mr. Light's wife Fadia, whom he had met in Beirut, convinced him to stop drinking by threatening to leave him. See id. at 30.

After completing his "floats," in 1989 Mr. Light reported to Cairo, where he still experienced pain from the injuries he had suffered in Beirut. See id. at 30. In Cairo, the United States Embassy doctor was "shooting [him] up with steroids," and Mr. Light found a Yugoslavian acupuncturist to administer treatment when the Embassy doctor reached the legal limit on the amount of steroids that he could administer. Id. at 30-31. While the acupuncture helped, Mr. Light stopped the treatments after three sessions when the government refused to pay for any more. See id. at 31.

After three years in Cairo, Mr. Light spent the next five years as the noncommissioned officer in charge of the interrogator/translator platoon at Camp Lejeune, North Carolina. See id. at 31. In 1997, he received orders to go to Okinawa as the intelligence chief of the 3rd Marine Expeditionary Force, where he was in charge of intelligence operations encompassing some 4,000 men. See id. While in Okinawa, he continued to experience pain from his Beirut injuries. Id. at 32. Neurosurgeons in Okinawa did another procedure on Mr. Light to repair the original fusion, which had collapsed. See id. Mr. Light's pain did not diminish and, after testing revealed that this second fusion had collapsed, doctors did a third fusion, this time harvesting bone from Mr. Light's left hip. See id. The neurosurgeons in Okinawa then decided that Mr. Light needed specialized care, and arranged for him to be transported to the Bethesda Naval Hospital to have yet another operation, during which titanium plates were installed on the inside of Mr. Light's neck. See id. at 32-33. As a result, Mr. Light testified, "[m]y spine was sandwiched in titanium plates bolted to my spine." Id. at 33. Only two days after this surgery, Mr. Light was put on a commercial flight back to Okinawa. See id. at 33. When he arrived in Okinawa, Mr. Light testified that he "was in so much pain that [he] couldn't stand it." Id. Further tests revealed that the doctor who had put the plates in Mr. Light's neck had put in screws that were twice too long, and had screwed them into the nerves of Mr. Light's spine. See id. Mr. Light was placed on a commercial flight back to Bethesda where his wound was reopened, the original screws taken out, and new screws put in. This time, Mr. Light was permitted to recuperate for 10 days. See id. As was the case with his previous surgeries, following this last operation, Mr. Light had to wear a neck brace for the next ninety days. See id. at 34.

Mr. Light continues to suffer pain from the injuries suffered in the 1983 Beirut Embassy bombing, and he described the pain as:

[A] sharp, stabbing pain in my neck. It radiates through my shoulders. It still continues to cause migraine headaches, serious migraine headaches, and it's constant. And the Veterans Administration has rated me at an 80 percent disability and has determined that there's never going to be any more operations on me. So they've got me into pain management, and they're prescribing drugs for me for the pain.

Id. at 33-34. He takes a variety of medications to control the pain. "I take six [oxycontin], maybe 12 tramadols, six or eight amocrystalline. There's six or seven tenzanadine, and there's several more that I quit taking because of the side effects. But I take 25 to 30 pills a day." Id. at 34.

Mr. Light rotated from Okinawa back to the United States in 2000 as a Master Gunnery Sergeant, E-9. See id. at 34-35. While this is the highest rank attainable as an enlisted man in the Marine Corps, Mr. Light feels that he would have achieved that rank earlier were it not for his injuries, noting that "the Marine Corps is very stringent on physical fitness." Id. at 35. In July 2001, Mr. Light retired from the Marine Corps. See id. After spending a year working for a defense contractor, Mr. Light joined the U.S. State Department as a GS-13 level security specialist. See id. at 35-36. Mr. Light's current career is not the one that he anticipated, and was, in his opinion, directly affected by the injuries suffered in the Beirut Embassy bombing. See id. at 37. As Mr. Light testified:

I wanted to be a carpenter, I wanted to be -- I wanted to restore antique vehicles and things of that nature, but I can't do anything that's very physical anymore. So I have to rely on jobs where I can use my mind and use a computer and use, you know, that kind of thing. So I can't work physical labor very well.

Id. at 37. He had also anticipated going back to the oil industry after his second enlistment in the Marines ended in 1983, noting that he made more money in 1970 as an oil field worker than he was making when he retired ...


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