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Ban Haim v. Islamic Republic of Iran

March 24, 2006

SETH CHARLES BEN HAIM, ET AL., PLAINTIFFS,
v.
THE ISLAMIC REPUBLIC OF IRAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: C. Lamberth, United States District Judge,

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case arises from a terrorist attack on a passenger bus traveling to the Gaza strip on April 9, 1995. Plaintiffs allege that defendants are liable for damages resulting therefrom because defendants provided material support and assistance to the terrorist organization that orchestrated the bombing, Palestine Islamic Jihad ("PIJ"). As such, defendants are subject to suit under the terrorism exception to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605(a)(7). Plaintiffs, who include a bombing victim and two immediate family members, initially named a number of defendants, but later withdrew their complaint as to all defendants except for the Islamic Republic of Iran ("Iran") and the Ministry of Information and Security ("MOIS"). Although defendants were served with process via diplomatic means pursuant to 28 U.S.C. § 1608, they failed to respond or enter an appearance. Accordingly, default [8] was entered against defendants on February 13, 2003.

An evidentiary hearing was initially scheduled for November 1, 2005, but was canceled upon plaintiffs' request, and plaintiffs submitted their evidence and Proposed Findings of Fact & Conclusions of Law [23] on January 3, 2006.*fn1 Plaintiffs also filed, at this Court's direction, a Memorandum of Law [22] addressing the impact of relevant cases decided in this Circuit since plaintiffs filed their complaint.

Plaintiffs support their liability claims with reference to several sources: (1) the findings made by this Court in a prior case arising from the same attack, Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C. 1998) (Lamberth, J.); (2) affidavit testimony by an expert witness; and (3) documentary evidence. Plaintiffs support their damages claims by affidavit and deposition testimony. Based on all of the evidence presented, the Court makes the following findings of fact and conclusions of law and will, consistent with them, enter default judgment in favor of plaintiffs and against defendants Iran and the MOIS.

FINDINGS OF FACT

The following findings of fact are based upon affidavit testimony and documents submitted in accordance with the Federal Rules of Evidence. Plaintiffs have "establishe[d] [their] claim or right to relief by evidence that is satisfactory to the Court," as required by 28 U.S.C. § 1608(e). This Court finds the following facts to be established by clear and convincing evidence, which would have been sufficient to establish a prima facie case in a contested proceeding:

I. Generally

1. Plaintiff Seth Klein Ben Haim ("Seth") was born on October 9, 1975 in the United States.

(Seth Klein Ben Haim Aff. (Ex. C) ¶ 1.) He has lived both in Israel and the United States since he was very young, but he maintained his United States citizenship throughout his life, and was a United States citizen at the time of the attack. (Id. ¶ 2.)

2. Plaintiff Lavi Klein Ben Haim ("Lavi") was born April 17, 1980 in Israel. (Lavi Klein Ben Haim Dep. at 5.) He is an American citizen, and the younger brother of plaintiff Seth. (Id.)

3. Plaintiff Bernard Klein Ben Haim ("Bernard") was born on January 10, 1947 in the United States. (Bernard Klein Ben Haim Dep. 5.) He is an American citizen who lives in Israel. (Id.) He is the father of plaintiffs Seth and Lavi. (Id. at 5-6)

4. As a high school student, Seth performed well academically, participated competitively and recreationally in a number of extracurricular activities, and enjoyed a very active social life. (Dr. Strous' Report at 4; Bernard Klein Ben Haim Dep. at 32; Lavi Klein Ben Haim Dep. at 17-18; Seth Klein Ben Haim Aff. ¶¶ 4-6.) He considered himself to be scholarly and he enjoyed reading. (Seth Klein Ben Haim Aff. ¶ 27.) He was living a very full and engaged life. (Id. ¶ 21.) He had no symptoms of mood disorder or behavior problems, and he reports no family history of psychiatric illness. (Dr. Strous' Report at 4.)

5. As a teenager, Seth had high hopes for the future: he dreamed of eventually attending medical school in the United States and becoming a doctor. (Seth Klein Ben Haim Aff. ¶¶ 7, 33.) He was particularly interested in psychiatry. (Id. ¶ 7.)

II. The Attack

This Court takes judicial notice of its findings in Flatow, in which Iran and the MOIS were determined to have been liable for the bombing of the Number 36 Egged bus. These findings as to defendant's liability are also supported by plaintiffs' additional evidence in this case. (Ronni Shaked Aff. (Ex. B) ¶¶ 26-53.)

6. On April 9, 1995, Seth was a passenger on the number 36 Egged bus (Seth Klein Ben Haim Aff. ¶ 8), which was traveling from Ashkelon, Israel to a Mediterranean resort in the Gush Katif community. Flatow, 999 F. Supp. at 9, ¶ 5.

7. "At or about 12:05 p.m. local time, near Kfar Darom in the Gaza Strip, a suicide bomber drove a van loaded with explosives into the number 36 Egged bus, causing an explosion that destroyed the bus." Flatow, 999 F. Supp. at 9, ¶ 6.

8. "The Shaqaqi faction of PIJ claimed responsibility for and in fact perpetrated the terrorist act which caused" Seth Klein Ben Haim's injuries. Id. at 10-11, ¶¶ 16-18. Defendant Iran "provided approximately two million dollars to PIJ annually in support of its terrorist activities." Id. at 10-11, ¶ 18.

9. Defendant Iran "is a foreign state and has been designated a state sponsor of terrorism pursuant to section 6(j) of the Export Administration Act of 1979 (50 U.S.C.A. § 2405(j)) continuously since January 19, 1984." Id. at 11, ¶ 19. "Defendant provides material support and resources to PIJ by supplying funds and training for the Shaqaqi faction's terrorist activities in the Gaza Strip region." Id. at 11, ¶ 19.

10. Defendant Iran "sponsors the Shaqaqi faction's terrorist activities within the meaning of 28 U.S.C. § 1605(a)(7)" by providing it with all of its funding." Id. at 11, ¶ 20.

11. "Defendant the Iranian Ministry of Information and Security is the Iranian intelligence service, functioning both within and beyond Iranian territory." Flatow, 999 F. Supp. at 11, ¶ 21. "Specifically, the Iranian Ministry of Information and Security acted as a conduit for the Islamic Republic of Iran's provision of funds and training to the Shaqaqi faction for its terrorist activities in the Gaza Strip region." Id.

12. Defendants Iran and the MOIS "conspired to provide material support and resources to the Shaqaqi faction of PIJ, a terrorist organization, within the meaning of 28 U.S.C. § 1605(a)(7)," "which caused" the injuries to Seth. Id. at 11, ¶ 25.

13. Seth Klein Ben Haim's injuries were "caused by a willful and deliberate act of extra-judicial killing because the explosion was caused by a bomb that was deliberately driven into the bus by a member of the Shaqaqi faction of the PIJ acting under the direction of defendants the Islamic Republic of Iran and the Iranian Ministry of Information and Security." Id. at 11, ¶ 26.

III. Seth's Injuries

14. At the time of the explosion, Seth recalled being forcefully thrown into the air. (Seth Klein Ben Haim Aff. ¶ 9.) As a result of the explosion, shrapnel punctured Seth's body and skull in several locations, and other parts of his body were wounded and bleeding. (Id. ¶ 13.) Seth suffered from tremendous pain and a loss of vision. (Id. ¶¶ 13-14.) He was treated at the scene and then transported by ambulance to Barzilai Hospital in Ashkelon. (Dr. Friedman Aff. ¶ 12.)

15. Bernard heard about the attack while driving in his car, and suspected that Seth might have been on the bus. He immediately returned home to his younger son, Lavi. (Bernard Klein Ben Haim Dep. 9-10.) Upon calling the bus station, Bernard confirmed that the bus that had been attacked was the same one Seth had told his father he would be taking. (Id. at 10-11, 13.) Bernard and Lavi then went to Barzilai Hospital, in the hope that they would find Seth or information about him. (Id. at 11.)

16. At Barzilai Hospital, Bernard and Lavi were first told that Seth had not been brought to any hospital. (Id. at 11-12; Lavi Klein Ben Haim Dep. at 6-7.) Bernard understood that to mean that Seth had been killed, and he became hysterical. (Bernard Klein Ben Haim Dep. at 11-13.) Soon thereafter, however, a doctor informed them that Seth was indeed a patient in the hospital's emergency room. (Id. at 12-13.) The doctor also told them that Seth's injuries were not serious, and took them to the emergency room where Seth was being treated. (Id.)

17. When Bernard and Lavi saw Seth, he was covered in blood and screaming. (Bernard Klein Ben Haim Dep. at 13-14; Lavi Klein Ben Haim Dep. at 7, 9.) At this point, Bernard believed that Seth was more seriously injured than was previously indicated. (Bernard Klein Ben Haim Dep. at 13-14.) This belief was confirmed a little later by a doctor, who admitted that they had been mistaken in their initial assessment of Seth's injuries. (Bernard Klein Ben Haim Dep. at 14; Lavi Klein Ben Haim Dep. at 10.)

18. A CT scan was performed at Barzilai Hospital, and revealed that Seth was in critical condition. (Bernard Klein Ben Haim Dep. at 15-16.) His primary injuries were a large right Occipital lobe brain hematoma and a tear in the neck affecting the thyroid cartilage, Piriformis sinus, and pharynx. (Dr. Friedman Aff. ¶ 12.) Bernard was told that Seth's brain had been seriously damaged by broken bones and a great deal of shrapnel. (Bernard Klein Ben Haim Dep. at 16.) The doctors indicated that Seth's condition was so critical that he had to be transported by helicopter to Hadassah University Hospital in Jerusalem, about one and a half hours away by car. (Id.)

19. Seth's condition was so severe, in fact, that he could not be transported safely. (Id.) Doctors were concerned that he was losing so much blood from the wound in his neck, and that he might die en route. (Id.) Thus, they performed surgery to close up the wound before placing him in the helicopter. (Id.)

20. Bernard and Lavi traveled to Hadassah University Hospital in a cab. (Bernard Klein Ben Haim Dep. at 16-17.) After they arrived, they were told that Seth had arrived in very unstable condition, and that doctors had stabilized his condition before taking him into emergency surgery that lasted many hours. (Id. at 18.) The operations performed at that time were a repair of the neck lacerations, a right Occipital craniectomy, craniotomy, and partial right Occipital lobectomy to remove the hematoma and edematous brain tissue. (Dr. Friedman Aff. ¶ 13.)

21. Bernard and Lavi waited, having been told that it was not likely that Seth would survive the surgery. (Bernard Klein Ben Haim Dep. at 18-19.) Eventually, they were told that Seth would live. (Id. at 19.) The neurosurgeon informed them that it is very rare for a patient in Seth's condition to survive, due to the quantity of shrapnel in the brain and the fact that the brain had been crushed and a major bone had been broken. (Bernard Klein Ben Haim Dep. at 21-22; Lavi Klein Ben Haim Dep. at 12.) They were also told that Seth might be blind or partially blind. (Lavi Klein Ben Haim Dep. at 13.)

22. As a result of the operation, part of Seth's skull was removed, leaving his brain exposed and very vulnerable. (Seth Klein Ben Haim Aff. ¶ 16.) In November of 1995, doctors performed a cranioplasty in an attempt to place surgical cement over this exposed area.

(Dr. Friedman Aff. ¶ 15; Seth Klein Ben Haim Aff. ¶ 17.) The surgery was not successful in fully covering the area, partly because Seth suffered a post-operative seizure. (Dr. Friedman Aff. ¶ 15; Bernard Klein Ben Haim Dep. at 29.)

23. Seth was heavily sedated and unconscious for several days following the attack. (Bernard Klein Ben Haim Dep. at 25; Lavi Klein Ben Haim Dep. at 13.) He continued to suffer from a complete loss of vision on his left side (Dr. Friedman Aff. ΒΆ14; Bernard Klein Ben Haim Dep. at 24-25), which caused him a great deal of stress (Psychological Evaluation of Dr. Strous (attached to Ex. G) [hereinafter "Dr. Strous' Report"] at 1-2.). He remained in the hospital for several weeks. (Bernard Klein Ben ...


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