The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case was referred to me, pursuant to Rule 53 of the Federal Rules of Civil Procedure and Local Rule 72.1(b)(5), to receive evidence, serving as a special master, and to prepare proposed findings and recommendations for the disposition the claims of the Phase II*fn1 plaintiffs.
Plaintiffs brought this action against the Islamic Republic of Iran ("Iran") and its Ministry of Intelligence and Security ("MOIS"), pursuant to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602 et seq.,*fn2 to recover for damages they sustained as a result of the April 18, 1983 car bombing of the United States Embassy in Beirut, Lebanon. Sixty-three people were killed, including seventeen United States citizens, and over one hundred others were injured in that bombing.
After the bombing, it was determined that a radical Lebanese group known by various names, including Hizbollah, was responsible for the attack on the United States Embassy. See Dammarell v. Islamic Republic of Iran, 404 F. Supp. 2d 261, 271-72 (D.D.C. 2005) (Judge Bates opinion regarding the Phase I plaintiffs' claims, hereinafter "Dammarell IV"). Moreover, it was discovered that Iran, through its MOIS, materially supported Hizbollah by providing assistance such as money, military arms, training, and recruitment. See id. at 272-73. Indeed, on January 19, 1984, President Reagan designated Iran as a state sponsor of terrorism, a designation that has remained to this date. See id. at 273-74. Based on this information, plaintiffs, consisting of various individuals who were injured in the bombing or the family members or estates of individuals killed in the bombing, brought this complaint alleging that they were 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." Third Amended Complaint at ¶ 190. A more detailed discussion of the events underlying plaintiffs' claims was provided in Judge Bates' December 14, 2005 opinion regarding the Phase I plaintiffs' claims and, in the following discussion, I will assume familiarity with that opinion. See Dammarell IV, 404 F. Supp. 2d at 271.
Defendants failed to appear in this action, and a default judgment was entered against them on September 6, 2002. The subsequent determination of damages recoverable from the defendants on that default judgment has been conducted in two phases. First, in Phase I, which consisted of twenty-nine of the eighty-two plaintiffs, a trial was held before Judge Bates in April 2003 and, on September 8, 2003, he issued extensive findings of fact and conclusions law. See Dammarell v. Islamic Republic of Iran, 281 F. Supp. 2d 105 (D.D.C. 2003) (hereinafter "Dammarell I"). Second, in Phase II, which consists of the remaining fifty-two plaintiffs, a trial was held before this magistrate judge in January and February of 2004. However, due to two decisions issued by the court of appeals, 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),*fn3 the determination of proposed findings and conclusions of law for the Phase II plaintiffs was stayed pending Judge Bates' determined how to proceed in light of those decisions.
After briefing from the plaintiffs, Judge Bates held that in order to succeed on their claims after Cicippio-Puleo and Acree, the plaintiffs must identify the specific state law claims which form the basis of each individual plaintiff's claims. See Dammarell v. Islamic Republic of Iran, No. 01-2224, 2005 WL 756090, at *17 (D.D.C. Mar. 29, 2005) (hereinafter "Dammarell II"). With regard to which state's law to apply to individual plaintiff's claims, Judge Bates determined that the law of the each plaintiff's domicile at the time of the bombing would provide the substantive rule of decision. Id. at *21. Specifically, for the estates of plaintiffs killed in the bombing, the law of the decedent's residence at the time of his death shall apply. Id. at *21-22. For plaintiffs who were injured in the bombing and plaintiffs who are surviving family members of plaintiffs killed in the bombing, the law of the state of the domicile of the individual plaintiff shall apply. Id. In circumstances where a plaintiff has changed his or her domicile since the embassy attack, the state of domicile will be assessed as of the date of the attack. Id. at *22. To that end, plaintiffs were ordered to amend their complaint and submit further briefing regarding the proper choice-of-law determination for each individual plaintiff. See Dammarell v. Islamic Republic of Iran, 370 F. Supp. 2d 218 (D.D. C. 2005) (hereinafter "Dammarell III").
On May 23, 2005, plaintiffs filed their Third Amended Complaint and, on August 3, 2005, they filed a memorandum of law explaining which state's law applies to each plaintiff's claims and the specific claims they were raising under such state's common and statutory law. Plaintiffs' Memorandum in Support of State Law Claims ("Pls. Mem. in Supp. of State Law Claims"). Based on these updated submissions, on December 14, 2005, Judge Bates issued revised findings of fact and conclusions law for the Phase I plaintiffs, which supplemented the findings of fact as stated in his earlier opinion, but superseded his legal conclusions. Judgment was entered in the Phase I plaintiffs' favor, and they were awarded compensatory damages totaling $126,061,657. Dammarell VI, 404 F. Supp. 2d at 271, 274. Now, based on the principles set for in Dammarell VI, I propose the following findings of fact, conclusions of law, and damage awards.
SPECIFIC FINDINGS AND CONCLUSIONS
The Phase II plaintiffs' claims involve consideration of the law of eleven different states. Plaintiffs who were injured in the bombing have asserted battery and intentional infliction of emotional distress claims. The estates and surviving family members of persons killed in the bombing have asserted wrongful death claims and, in some circumstances, intentional infliction of emotional distress claims and claims under survival statutes. In order to avoid repetition, the following discussion is organized by state, first providing an overview of that state's law and then discussing the claims of each plaintiff who is asserting claims under those laws.
Under California law, "[a] battery is any intentional, unlawful and harmful contact by one person with the person of another." Fluharty v. Fluharty, 69 Cal. Rptr. 2d 244, 497 (Ct. App. 1997) (quoting Ashcraft v. King, 228 Cal. App. 3d 604, 611 (1991)). Specifically, the tort of civil battery consists of the following three elements: (1) the defendant intentionally did an act that resulted in a harmful or offensive contact with the plaintiff; (2) the plaintiff did not consent to the contact; (3) the contact caused injury, damage, loss or harm to the plaintiff. Id. (quoting Barouth v. Haberman, 26 Cal. App. 4th 40, 46 n.4 (1994)). "Under California law, when a person is injured by the tortious acts of another, she is entitled to recover from the tortfeasor an amount that will compensate for all the detriment proximately caused by the tortious acts." Priest v. Rotary, 634 F. Supp. 571, 584 (N.D. Cal. 1986). Damages recoverable by the victim of a tortious act are not limited to damages resulting from physical injury, but may also include recovery for "the grief, anxiety, worry, mortification, and humiliation which one suffers by reason of physical injuries." Merrill v. Los Angeles Gas & Elec. Co., 158 Cal. 499, 512 (1910).
2. Intentional Infliction of Emotional Distress
To state a claim for intentional infliction of emotional distress under California law, a plaintiff must show "(1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation of the emotional distress." Agarwal v. Johnson, 25 Cal. App. 3d 932, 946 (1979), overruled on other grounds in White v. Ultrimar, 21 Cal. App. 4th 563, 574 n.4 (1999)). In order for defendant's conduct to be considered outrageous it "must be so extreme as to exceed all bounds of that usually tolerated in a civilized community." Cervantez v. J.C. Penny Co., 24 Cal. App. 3d 579, 593 (1979) (citing Restatement (Second) of Torts § 46 cmt. d). Damages for intentional infliction of emotional distress may be recovered for both economic losses, which include "[r]easonable compensation for any financial loss suffered by the plaintiff which was proximately caused by emotional distress," and non-economic losses, such as damages for "humiliation, anxiety, and mental anguish." Agarwal, 25 Cal. App. 3d at 953 (citations omitted).
Plaintiff Dundas McCullough ("Mr. McCullough") was assigned to the United States Embassy in Beirut as a Consular/Political Officer with the Department of State. Phase II Exh. 20 at 3 (Declaration of Dundas McCullough). Mr. McCullough was born on December 30, 1957 in Berkeley, California, and is a United States citizen. Id. at 1. He is married to plaintiff Rebecca McCullough, and, at the time of the Phase II testimony, resided in Bangladesh. Id. at 4, 16.
Mr. McCullough was raised in Japan and California. Id. at 1. He "developed a strong interest in politics and international affairs by the time [he] entered high school," and became interested in serving in the Foreign Service. Id. at 1-2. After graduating from high school in 1976, Mr. McCullough entered the University of California at Berkeley. Id. He received a Bachelor of Arts in History from Berkeley in June 1980. Id. at 2. During his senior year at Berkeley, Mr. McCullough passed the written and oral portions of the Foreign Service entrance exam. Id.
While awaiting a Foreign Service position, Mr. McCullough enrolled in a graduate program at American University, in Washington, D.C. Id. He joined the Foreign Service in March 1981, one semester short of obtaining a Masters from American University. Id. at 3. Shortly after he joined the Foreign service he was posted to Beirut, arriving in February 1982. Id.
In March 1982, Mr. McCullough received a visit from his then-girlfriend, Rebecca Jaramillo. Id. at 4. They decided to marry and did so at the United States Embassy in Beirut on April 4, 1982. Id. After returning to the United States to attend to personal matters, Ms. McCullough re-joined her husband in Beirut. Id.
In June 1982, the Israelis invaded Lebanon, and quickly descended upon Beirut. Id. The McCulloughs and their colleagues were evacuated from the city. Id. Mr. McCullough was evacuated first to Cyprus and then to Dubai, while his wife was evacuated to Cyprus and then the United States. Id. at 5. Mr. McCullough received a Meritorious Honor Award for his work at the Embassy in Cyprus. Id. The McCulloughs returned to Beirut in the fall of 1982. Id.
On April 18, 1983, Mr. McCullough was in the Consular Section of the Embassy. Id. at 6. Remembering that morning, he stated:
I was running late in my interviews of non-immigrant visa applicants. I was seated on a stool at an interviewing counter, with a plexiglass partition between me and the applicant. There was a cinder block wall behind me separating the interview area/waiting room from the second-floor consular filing room that overlooked the street. There were no windows in this area, just a staircase down to the visa entrance on the street. At . . . 1:06 in the afternoon, I became aware of a tremendously loud noise. First, I thought it was more of the thunder we'd had earlier that day, and then I realized my chin was pressed down hard on the countertop. I knew at that point that it was an explosion, but had no sense of imminent doom. However, after the blast, and the loss of power, my darkened area filled with smoke, and I became alarmed that I would suffocate. But the smoke cleared, and I was able to pull my petite translator from underneath the cinder blocks that had fallen on top of us. I climbed over the debris into the file room, and managed to pull a filing cabinet off of an injured Lebanese employee, who ended up losing an eye to the attack. I discovered that the smoke had cleared from my area because the whole streetside of the office had been blown away, leaving a gaping hole between us and the street. Five employees died in that filing room. The survivors were able to climb down the building debris to the street. My office, adjacent to the filing room and where I almost always was at that time of the day, was destroyed.
Id. at 6-7. See also Trial Transcript Volume VI at 86-87 (hereinafter "Tr. Vol.") (testimony of Rebecca McCullough describing how she could not enter her husband's work area after the bombing because it appeared to be "completely destroyed").
When he left the Embassy, the scene out front was "chaotic," but security forces and rescue workers were quickly on the scene. Id. at 7. Mr. McCullough was placed in an ambulance and taken to the American University of Beirut Hospital, where he received treatment. Id. He had multiple lacerations on his face, back, and hands from flying glass and other debris; he had glass embedded in his skin, some of which was removed and some of which worked its way out on its own; and a hematoma on his ear. Id.; Phase II Exh. 19 at 3 (photograph of Mr. McCullough after bombing). See also Tr. Vol. VI at 89-91 (Rebecca McCullough's description of husband's injuries). Mr. McCullough was met by his wife at the hospital. Phase II Exh. 20 at 8. See also Tr. Vol. VI at 92-93 (Rebecca McCullough's description of finding husband at hospital). After spending over four hours at the hospital, Mr. McCullough and his wife returned to their apartment and contacted their families. Phase II Exh. 20 at 8.
The following day, Mr. McCullough went back to the Embassy, helping to relocate the consular section to a nearby building and resuming his consular duties. Id. He was not aware of the full extent of the blast until that day, when he saw that the "entire mid-section of the building had collapsed," and realized that he "was very lucky to be alive." Id. He spent the next several weeks identifying the remains of persons killed in the bombing, meeting with relatives of deceased Lebanese employees, attending memorial services and funerals, and even scattering the cremated remains of a colleague. Id. It "never occurred" to Mr. McCullough not to return to work. Id. While a State Department psychiatrist came for several days to debrief the survivors, beyond that and a memorial service there was "no other attention paid to 'looking back.'" Id.
Mr. McCullough recalls that, three days before the bombing, an Embassy security officer had complained to Mr. McCullough regarding the State Department's desire to install vehicle access barriers on the Embassy's periphery. Id. at 8-9. Because the situation in Beirut was seen as stabilizing, the Embassy "had even stopped parking motor pool vehicles across the Embassy driveway entrance, so the vehicle carrying the bomb . . . had a clear, unobstructed path to the Embassy." Id. at 9. Mr. McCullough explained that he "felt frustrated by what I perceived to be a lack of accountability for this situation." Id.
In the "immediate aftermath of the bombing," Mr. McCullough was informed by his career development officer in Washington, D.C. that his assignment in Beirut was being curtailed. Id. He did not want to leave the city, particularly because he was about to begin his rotation as a political officer, which was the reason he had accepted the assignment to begin with. Id. He expressed his desire to stay in Beirut to a visiting senior official in the State Department, and was allowed to remain at post. Id. However, Mr. McCullough explained that this incident "triggered what became an uncomfortable relationship between me and the career development officer, whose first words to me when I walked into his office in Washington several months later were, 'I hope you don't expect special treatment just because you were in Beirut.'" Id. at 9-10.
Mr. McCullough's relationship with his immediate supervisor in Beirut also deteriorated after the bombing. Id. at 10. Because his supervisor was not at the Embassy during the bombing, Mr. McCullough felt "caught in the middle" between her and the Lebanese employees who had survived the bombing, with his sympathies leaning toward the Lebanese survivors. Id. Mr. McCullough stated that he had received "outstanding" reviews in his prior performance evaluation, but, in his review after the bombing, his supervisor "damned me with faint praise," and:
concluded that I required further evaluation before being recommended for tenure, or permanent status, in the Foreign Service. The after effects of this review have reverberated through my career, causing me to receive tenure a year later than most of my peers, and pushing back my first promotion two to three years.
After the bombing, the "situation in Beirut continued to deteriorate." Id. Mr. McCullough noted that the "Embassy bombing was a psychological turning point for Beirut, which afterwards saw mounting violence and instability," including increased attacks on foreigners. Id. at 9. These attacks included the October 1983 bombing of the United States Marine barracks and French military barracks; the January 1984 assassination of Malcolm Kerr, the President of American University of Beirut, and various attacks against diplomats and, on occasion, their spouses. Id. at 10. Mr. McCullough's wife left Beirut in January 1984, and, shortly thereafter, Mr. McCullough was evacuated because the "situation deteriorated further and a general uprising occurred against government forces." Id. at 10-11. By this time, Mr. McCullough felt that he was "fully ready to leave" Beirut. Id. at 11. In retrospect, he described the posting as "both one of the best and worst experiences of my life." Id. "It was challenging and, at least at the outset, exciting, but it also distorted my sense of proportion about people and events, and left me jaundiced about the capabilities and integrity of the State Department bureaucracy." Id.
Mr. McCullough was posted to Haiti in May 1984. Id. As it was another hardship assignment, Mr. McCullough "tried to get out of" it. Id. The Embassy agreed to release him, but Mr. McCullough's career development officer did not. Id. During this tour, Mr. McCullough received his Foreign Service tenure and outstanding performance evaluations. Id. at 12.
After leaving Haiti in December 1985, Mr. McCullough studied Arabic, a prestige language in the Foreign Service, for eighteen months at a language school in Tunisia. Id. In the summer of 1987, Mr. McCullough, his wife, and their newborn son moved to Yemen, where he served as the Chief Political Officer at the Embassy. Id. However, prior to leaving Tunisia, Mr. McCullough failed to get an expected promotion due to the "ripple of my Beirut experience." Id. Mr. McCullough stated that "[i]t was at that point that I felt I was beginning to fall behind my peers in terms of career advancement." Id. See Dammarell I, 281 F. Supp. 2d at 189-91 (discussing expert testimony that "one could predict overall lower occupational achievement and more difficulties along the way" among those with Post-Traumatic Stress Disorder and similar trauma-related disorders stemming from the Embassy bombing). Yemen proved to be a "conservative Islamic society without any of the trappings of modern or cosmopolitan life." Phase II Exh. 20 at 12. The post was a "hardship" on his family, especially his wife, who spent long periods of time in the United States. Id. Mr. McCullough finally received his promotion after his first year at the post. Id.
Mr. McCullough left Yemen in the summer of 1989, when he transferred back to the United States for a tour in the Intelligence and Research Bureau, which was not what Mr. McCullough desired. Id. at 13. As he explained:
I was disappointed not to receive a job offer in the Middle East Affairs Bureau, which would have been normal for a political officer who had served with distinction in the trenches. The job I wanted, on the Saudi desk, went to another officer who had also been in Beirut but who was an administrative, not a political, officer. At this point my former career development officer was a Deputy Assistant Secretary of State in the Middle East Affairs Bureau.
Id. In September 1990 Mr. McCullough accepted an unexpected vacancy at the Embassy in New Delhi, India, serving in that country for four years. Id. Mr. McCullough expected to be promoted during his fourth year in India, but was again disappointed. Id. The Inspector General's office, which reviewed the post that year, "took the highly unusual step of writing a memorandum to my personnel file stating that my promotion record was not commensurate with my observed level of performance" in New Delhi. Id. In addition, the Deputy Chief of Mission, who was not Mr. McCullough's supervisor, wrote a letter to his file "recommending my immediate promotion, which duly came through the following year." Id.
In 1994, Mr. McCullough returned to Washington, D.C., and served with the Bureau of Political and Military Affairs. Id. Again, Mr. McCullough was not assigned his first choice, the Middle Eastern Affairs Bureau. Id. at 13-14. In 1996, Mr. McCullough became the Nigerian desk officer. Id. at 14. In late 1997, the Ambassador to Nigeria asked Mr. McCullough to come to Nigeria as his economic counsel, a position "two grades above my rank." Id. He remained in Nigeria for 30 months. Id. Mr. McCullough was not promoted at the end of this tour, as expected, but was promoted the following year. Id. The late promotions placed Mr. McCullough at a disadvantage when bidding on new assignments, because he had to do so at a less senior rank. Id.
After leaving Nigeria in the summer of 2000, Mr. McCullough was transferred to Pakistan as the Deputy Political Counselor. Id. On September 11, 2001, Mr. McCullough was at work "when the first plane struck the World Trade Center." Id. Mr. McCullough watched the rest of the attack unfold in the Ambassador's office. Id. The attack itself "brought back vivid memories of Beirut, particularly the largely fruitless search for survivors, the arbitrariness of those who lived and who died, and the limits of people trying to cope with the aftermath of an attack of this dimension." Id. at 14-15. See Dammarell I, 281 F. Supp. 2d at 191 (discussing expert testimony that events such as September 11, 2001 attacks may "'precipitate reexperiencing' the trauma of the Embassy bombing").
Shortly thereafter, all dependents, including Mr. McCullough's wife and children, were evacuated from Pakistan. Phase II Exh. 20 at 15. The separation "was a great hardship and disappointment since we had hoped Islamabad would provide some family stability." Id. While Mr. McCullough asked to have his assignment curtailed due to family reasons, he agreed to remain in Pakistan after the Ambassador, citing his long experience in Indo-Pakistani affairs, strongly urged him to remain. Id. Mr. McCullough finally left Pakistan in June 2003. Id. As of the date of the Phase II testimony, he was stationed in Bangladesh. Id. at 16. While Mr. McCullough had considered taking early retirement out of frustration with his career and the "quality and direction of State Department leadership," he opted to remain, "almost exclusively for financial reasons," and announced his intent, in September 2002, to compete for promotion into the ranks of the Senior Foreign Service. Id. at 15-16. From that point, Mr. McCullough has seven years to either be promoted or retire. Id. at 16.
Mr. McCullough explained that he decided to participate in this lawsuit "out of a desire both to seek a formal reckoning of accountability of the Beirut bombing and to seek compensation of what in hindsight I have come to recognize was a life-changing experience that negatively affected my career and the well being of my family." Id.
The substantive rule of decision is to be governed by the law of the individual plaintiff's domicile as of the date of the bombing. Dammarell II, 2005 WL 756090, at *21. As a federal government employee stationed overseas, Mr. McCullough retained as his domicile the state in which he was last domiciled. Id. at *22. On the date of the bombing, his last state of domicile was California. Although he briefly lived in Washington, D.C. before going to Beirut, he was merely a student there and the last state in which he lived with any sense of permanency was California. Therefore, the law of California applies to Mr. McCullough's claims.
Based on the pleadings and the evidence presented to the Court, Mr. McCullough has stated a valid claim for battery under the law of California and is entitled to recover compensatory damages from defendants "for all the detriment proximately caused by the tortious acts." Priest, 634 F. Supp. at 584. The expert economic analysis presented to the Court demonstrated that, as a result of the Embassy bombing, Mr. McCullough suffered $710,000 in economic losses, specifically in lost earning capacity. Phase II Exh. 1 at 24-26. The Court further values the loss associated with his physical pain and suffering and mental anguish caused by the battery at $750,000.*fn4 Because, under California law, Mr. McCullough can recover for his mental anguish via his battery claim, there is no need for the Court to consider his intentional infliction of emotional distress claim, which could result in a double recovery. Accordingly, Mr. McCullough should be awarded a total of $1,460,000 on this default judgment.
Plaintiff Rebecca McCullough ("Ms. McCullough") accompanied her husband Dundas McCullough to Beirut, and worked at the United States Embassy as an administrative assistant in the Office of Military Cooperation. Tr. Vol. VI at 78. She and Mr. McCullough have two children. Id. at 58. At the time of the Phase II testimony, Ms. McCullough was living in Bethesda, Maryland. Id. at 59.
Ms. McCullough was born May 27, 1958 in McAllen, Texas, and is a United States citizen. Id. at 58. After graduating from high school, she worked and attended community college for two years. Id. at 59-60. In 1979, Ms. McCullough enrolled at the University of California at Berkeley, and graduated in 1981 with a Bachelor of Arts in Diplomatic History. Id. at 60. She met her husband during her junior year at Berkeley. Id. at 61.
After graduating from Berkeley, Ms. McCullough worked for several months to save money, and then moved to Washington, D.C., where she began working as a clerk/typist for the Department of Commerce. Id. at 62-63. During this time, she was still in contact with Mr. McCullough, who teased her that the two would marry. Id. at 64. In early 1982, Ms. McCullough obtained a position with a consulting firm in Washington, D.C. Id. During a week off between her position with the Department of Commerce and her position with the consulting firm, Ms. McCullough flew to Beirut, where Mr. McCullough was posted with the State Department at the United States Embassy. Id. at 64-66. Ms. McCullough testified that she had intended to "come back with a ring on my finger, or I would then be free." Id. at 66. Remembering that trip to Beirut, she testified:
We went out that night to a Lebanese restaurant. We drank wine . . . we had wonderful food. It just -- he had a beautiful apartment overlooking the Mediterranean. It was just absolutely fabulous, and we just had a wonderful time. We never thought about safety. We were young and stupid and in love, and within three days he had proposed.
Id. at 67. The couple were married on April 4, 1982, at the United States Embassy, and had their wedding reception at a Marine Security Guard barbecue. Id. at 68-69. See Phase II Exh. 19 at 1-2 (photographs of Ms. and Mr. McCullough's wedding in Beirut). After getting married, Ms. McCullough decided to remain in Beirut and obtained a position at the United States Embassy in the Consular Section as an assistant. Id. at 69-71.
In June 1982, the Israelis invaded Lebanon and soon began bombing Beirut. Id. Because her husband was deemed non-essential, plans were made to evacuate the McCulloughs (along with other Embassy personnel) from Beirut. Id. at 73. Ms. McCullough, her husband, and other Embassy personnel were evacuated from Beirut, flown to safety in Cyprus, and then on to other points. Id. at 74-76. Mr. McCullough returned to Beirut a few months later, and Ms. McCullough joined him around Thanksgiving. Id. at 76-77. Upon her return, Ms. McCullough began working at the Embassy in the Office of Military Cooperation as an administrative assistant. Id. at 78.
Ms. McCullough remembers that April 18, 1983 was a "weird morning" because the weather had started to get warm, but winter was not yet over. Id. at 79. Ms. McCullough and her husband, who was dressed in his wedding suit, decided to walk to work along the Corniche, which is the road that ran along the sea. Id. Once at work, Ms. McCullough ordered breakfast from her favorite waiter and inquired about the lunch menu. Id. Upon hearing that it was her favorite food, beef with artichoke hearts, she made a note to eat lunch in the cafeteria. Id. at 79-80. She then went to work on a large cable, ordering materials for the Lebanese Army. Id. at 80. At some point she escorted a reporter, David Ignatius, into the office for an interview with her boss. Id. Because she was hungry, Ms. McCullough ordered lunch at her desk at around 11:00 a.m., prompting the waiter to joke with her about the possibility of being pregnant. Id. at 80-81. At about 1:00 p.m., Ms. McCullough escorted the reporter out of the Embassy. Id. at 81. Ms. McCullough would have normally accompanied her husband to lunch at that time, but, because she needed to finish writing the cable, she returned to her office on the sixth floor. Id. at 81-82. Just as she was putting a form into her typewriter, the bomb exploded. Id. at 82. Describing the explosion, Ms. McCullough testified: at that moment I looked and I saw glass coming in, and it came in at a level, level, level, and then it dropped down onto the floor.
And I thought that was the oddest thing I had ever seen in my life, and then all of a sudden I heard horrible noises, and it dawned on me that there was a horrible explosion. But it didn't -- I didn't hear anything at first.
Ms. McCullough initially thought that the Embassy had been hit by a rocket propelled grenade. Id. at 84-85. She did not realize that it was something more serious until she turned around and saw that the oversized, solid wood doors leading to her office were blown off their hinges. Id. at 85. She picked up the telephone, but her line was dead; she then waited for the public announcement system to issue instructions, but it failed to do so. Id. When Ms. McCullough and her colleagues began to smell smoke and tear gas and heard bullets firing, they decided to leave the area. Id. at 85-86. A Marine found them and motioned for them to leave the building. Id. at 86. They followed the Marine down a stairwell, which was "covered in glass and blood." Id. Ms. McCullough testified that after reaching the second floor:
I sort of think of myself as a coward, and I've never really quite forgiven myself, but I looked down the hallway, and the place where I would have entered my husband's office area was completely destroyed. I mean it was just -- everything was completely down, but I thought for a minute of going in there and trying to find my husband, but I thought I just couldn't stand the idea of seeing his crushed body.
Ms. McCullough followed others outside of the Embassy, and was taken to an apartment building next to the Embassy where there were other wives for whom their husbands were unaccounted. Id. at 87-88. Ms. McCullough waited there for three hours before receiving word that her husband was alive. Id. at 88. She then learned that her husband had helped survivors from his area out of the Embassy, and had gone to the hospital. Id. at 90.
After learning that her husband was at the hospital, Ms. McCullough left the apartment to find him. Id. at 91. As she passed by the Embassy on the way to the hospital, Ms. McCullough saw the front of the building for the first time. Id. at 92. She testified that "it was the first suicide bomb, and to have gone to this building every day for a year . . . still to this day I can't imagine how somebody could have destroyed a building like that with just . . . chemicals. So it was just horrible." Id.
When Ms. McCullough arrived at the hospital she saw a colleague who was in the process of "doing morgue duty right out" in the corridor. Id. Ms. McCullough "averted" her eyes and continued into the emergency room. Id. at 92-93. Ms. McCullough testified that she then saw her husband who was: sort of just standing there in the corner, and he's got a big bandage around him, and he's got his tie cut off, and he's wearing his suit, and it's all covered with blood, and he's just standing there without his glasses . . . it's like he's just waiting for a bus or something, and he didn't even think about calling me or telling me. He was just sort of standing there patiently waiting for them to finish up with him, and all this stuff was going, there were bodies, there were people getting worked on in surgery, and he's just sort of standing there as if none of it's existing. And I went up to him and I gave him a big hug.
Id. at 93. See Phase II Exh. 19 at 3 (photograph of Mr. McCullough after the bombing). Mr. McCullough expressed no surprise at seeing his wife, as it did not occur to him that she could have been injured, a belief that upset Ms. McCullough. Tr. Vol. VI at 93.
Over the next several days, Ms. McCullough drafted press releases listing the names of those killed in the bombing, and gathered and transmitted to the family members the personal effects of the dead. Id. at 96-97. Mr. McCullough was assigned to the morgue, where he was responsible for identifying remains and arranging for their transport back to the United States. Id. at 96-97. Ms. McCullough stated that neither she nor her husband "had any background in this.
I was 24 years old, my husband was 24 years old. We had never done any of this stuff. We had never had any grief counseling, but there was nobody else to do it." Id. at 97. Ms. McCullough spent days "gathering up the shoes and the earrings of these people who are our friends and colleagues, and smelling the dead flesh, and the burnt flesh, and doing this as a labor of love." Id. at 100.
The McCulloughs stayed in Beirut into 1984. Id. The State Department tried to convince Mr. McCullough to leave Beirut and take a position in Africa, but the McCulloughs felt that they had too much "emotional investment" in Beirut to leave. Id. After the assassination of Malcolm Kerr, the President of the American University of Beirut, in January 1984, Ms. McCullough "had finally had enough" and decided to leave Beirut. Id. at 101-03.
In May 1984, Mr. McCullough was assigned to the United States Embassy in Haiti. Id. at 103-04; Phase II Exh. 20 at 11. Thereafter, Mr. McCullough was posted to Yemen, did a one-year tour in the United States, received a posting to India, returned to the United States from 1994-1997, took a position in Nigeria in 1997, where he remained until 2000, and was transferred to Pakistan in 2001. Phase II Exh. 20 at 12-15. Ms. McCullough and her children were evacuated from Pakistan to the United States after the September 11, 2001 attacks, and Mr. McCullough left Pakistan in June 2003. Id. at 14-15.
During these various postings, Ms. McCullough was "anxious and unhappy." Tr. Vol. VI at 107. Some of her symptoms included agoraphobia, suicidal thoughts, mania, and weight gain. Id. at 106-14. She testified that, at time, she was "non functioning." Id. at 106. As a result, the McCulloughs experienced marital problems and Ms. McCullough's ability to parent was negatively effected. Id. at 106, 117. Ms. McCullough was diagnosed with depression, ran up $40,000 worth of debt, separated from her husband for one year, and was then diagnosed with bi-polar disorder. Id. at 106, 113. Ms. McCullough found it difficult to maintain employment, even though she had passed the Foreign Service exam. Id. at 110, 116. For example, Ms. McCullough was offered a position with the State Department helping coordinate the evacuation of personnel from Pakistan after the September 11, 2001 attacks, but, because of her mental health, she was unable to accept the job. Id. at 115. As such positions often lead to more work, Ms. McCullough believes that she might, but for her illness, still be employed by the State Department today. Id.
Ms. McCullough began searching for relief in such things as "yoga, therapists, exercise, diet, everything I could think of." Id. at 106, 110. Ultimately, after the family was evacuated from Pakistan back to the United States in 2001, she was diagnosed with Post-Traumatic Stress Disorder. Id. at 107. Ms. McCullough stated that her psychiatrist informed her that her "brain chemistry was changed in the trauma of the bombing and the aftermath of the bombing." Id. at 112. Ms. McCullough began taking medication to treat the disorder and felt an "immediate change." Id. at 107. She no longer "think[s] about suicide anymore," which had been a familiar thought for twenty years. Id. at 114. While it is "humiliating to take psychotropic drugs" and they have some unpleasant side effects, Ms. McCullough intends to remain on the medication. Id. at 108, 114. She feels like she is finally "on the right path after 20 years . . . . I feel as if now I'm living the life that I should have been living before." Id. at 109, 111, 114.
At the time of her Phase II testimony, Ms. McCullough was residing in Bethesda, Maryland, and her husband was posted to Bangladesh. Id. at 120. Ms. McCullough is unable to accompany her husband to that country because the State Department revoked her medical clearance without examination, because she was "unstable." Id. at 120-22. Consequently, the McCulloughs are supporting two households, causing extra financial burden. Id. at 122-23.
Explaining why she decided to participate in this lawsuit, Ms. McCullough testified:
I think that if Iran wants to rejoin or really be a part of the family of states, it needs to account for this period in its life when it did these horrible things against officials of another state, and it needs to make amends, and it needs to apologize, and it needs to promise to never do it again. Because they intended to kill every one of us in that building. They intended to kill the diplomats of a fellow country. And then on a personal basis, I want personal justice because they killed so many friends of mine . . . and they almost killed me, and they hurt me and they hurt my husband, and so I would like to see some semblance of justice.
As a federal government employee stationed overseas, Ms. McCullough retained as her domicile the state in which she last resided. See Dammarell II, 2005 WL 756090, at *22. As of April 1983, Ms. McCullough had not changed her domicile from California. See Pls. Mem. in Supp. of State Law Claims at 16. The law of California, therefore, applies to her claims.
Based on the pleadings and the evidence presented to the Court, Ms. McCullough has stated a valid claim for battery under the law of California and is entitled to recover compensatory damages from defendants "for all the detriment proximately caused by the tortious acts." Priest, 634 F. Supp. at 584. Although, based on the evidence presented to the Court, it is not clear whether she was directly physically harmed in the bombing (i.e. lacerations or broken bones), there was unquestionably a harmful or offensive contact with the Ms. McCullough to which she did not consent (i.e., the destruction of a building while she was in it, causing her to breathe concrete dust and tear gas), and caused her injury (i.e., Post-Traumatic Stress Disorder). The expert economic analysis presented to the Court demonstrated that, as a result of the Embassy bombing, Ms. McCullough suffered $966,000 in economic losses, specifically in medical expenses for her mental health treatment and lost earning capacity. Phase II Exh. 1 at 26-28. The Court further values the loss associated with her mental anguish caused by the battery at $750,000. Because, under California law, Ms. McCullough can recover for her mental anguish via her battery claim, there is no need for the Court to consider her intentional infliction of emotional distress claim, which could result in an impermissible double recovery. Accordingly, Ms. McCullough should be awarded a total of $1,716,000 on this default judgment.
Plaintiff Catherine Nylund ("Ms. Nylund") was posted at the Embassy in Beirut as a secretary with the United States Department of State. Phase II Exh. 13A at 3 (Declaration of Catherine Nylund). At the time of the Phase II testimony, she was residing in Torrance, California, with her husband. Id. at 1.
Ms. Nylund was born on October 28, 1926 in Ingram, Pennsylvania, and is a United States citizen. Id. at 1. She graduated from high school in June 1944 and then worked for the Pennsylvania Railroad. Id. Several years after high school, she moved to California and began working as a secretary, first at Douglas Aircraft and later for the Veterans Administration. Id. She also took medical-related classes at the University of California, Los Angeles ("UCLA") and, subsequently, began working as a medical secretary at the UCLA School of Public Health. Id.
Eventually, Ms. Nylund joined the United States Department of State as a Foreign Service secretary. Id. at 2. She was posted to Caracas, Venezuela, for two years. Id. After that posting, she was married and left the foreign service, relocating to California and working as a secretary. Id. After the death of her first husband, Ms. Nylund rejoined the Foreign Service. Id.
Ms. Nylund married her present husband, Don Nylund ("Mr. Nylund"), in 1973. Id.
Mr. Nylund subsequently accompanied Ms. Nylund overseas, as a dependent. Id. After her marriage, Ms. Nylund was posted to Chad for eighteen months, and thereafter to Greece for two years. Id. After Greece, the Nylunds returned to the United States. Id. Mr. Nylund applied for a position with the State Department, and he was accepted as a Communicator. Id. at 2-3. Once they were both members of the Foreign Service, they were posted as a "tandem" team on their overseas assignments. Id. After several more postings, in June 1982, Ms. Nylund and her husband were posted to the United States Embassy in Beirut. Id. at 3.
On April 18, 1983, Ms. Nylund was at the Embassy when she decided to take an early lunch with her husband in the Embassy cafeteria at about 11:30 a.m. Id. at 4. After lunch, she returned to the Political Section of the Embassy, and her husband returned to the Communications Section. Id. at 5. A little after 1:00 p.m., the bomb exploded. Id. Describing the explosion, Ms. Nylund stated:
I recall this time well, as the clock on the wall near my desk stopped at 1:07 p.m. From my vantage point, the blast blew out the entire first floor of the Embassy, with the center of the Embassy being nothing but blue sky. Immediately after the blast, broken pipes began spewing water. All of my friends who occupied offices a short distance down the corridor from me were killed in the blast, probably instantly. After the bomb exploded, a dust of fine glass and debris hit me. I was saved from death, or at a minimum from much more severe injures, by my desk and a magazine that I was holding in front of my face. When the dust and debris finally settled, every surface around me was covered with fine pieces of broken glass and other debris. A political officer then came walking through the office, yelling at everyone to get under their desks as there might be a second blast. We waited, huddled under our desks, for what seemed like hours.
"After what seemed like an eternity," Ms. Nylund and others from her section crawled out from under their desks and walked into the hallway. Id. An Embassy Security Officer gathered survivors and instructed them to "'stay together, walk in a single file line, follow me, and we'll get out safely.'" Id. As Ms. Nylund began to walk, a woman appeared, "bloody from head to foot." Id. Ms. Nylund took the woman's arm, and asked another colleague to assist the injured woman out of the building. Id. at 5-6. Ms. Nylund and other personnel then began "walking" and "stumbling" to the exit. Id. at 6. She crawled down a ladder and over a steel fence to reach the ground. Id. Ms. Nylund noted how "great it was to breathe fresh air, and to be free." Id. She also felt a "great sense of fear that terrorists could have gotten to the Embassy so easily." Id. See Dammarell I, 281 F. Supp. 2d at 189-91 (discussing expert testimony that fears and anxieties are among first symptoms of trauma among those severely injured in an attack).
Ms. Nylund and some colleagues proceeded to the American University of Beirut Hospital for treatment. Phase II Exh. 13A at 6. She received stitches in her ear, was "bandaged from ear to ear, and over my head," and was treated for lacerations on her knee. Id. In the years since the bombing, Ms. Nylund has "suffered from recurring ear-related problems, including hearing loss and tinnitus." Id.
After leaving Beirut, Ms. Nylund and her husband were posted to the United States Embassy in Lima, Peru. Id. at 8. Ms. Nylund began to have a series of health problems, including a diagnosis of endometrial carcinoma, and a bout of severe chest pain, for which she was airlifted out of Lima for treatment. Id. Mr. Nylund was also in poor health at this time. Id. She also believes that her chest pains were caused by her worry over her husband's health problems. Id.
In early 1987, Ms. Nylund and her husband were posted to Oslo, Norway. Id. They were thereafter posted to Washington, D.C. Id. During their medical clearance exams for their next posting, Mr. Nylund was denied clearance to work overseas due to his health problems. Id. at 8-9. This effectively ended his State Department career, and he retired. Id. at 9. Ms. Nylund was then transferred to Belgium, and her husband joined her as a dependent. Id. After her posting in Belgium ended in 1989, she retired from the Foreign Service. Id. Ms. Nylund had planned to work until age 65 or longer, but felt that she could no longer do so, especially given her husband's medical condition. Id. She had also planned to remain in the Foreign Service until she obtained a position as an Ambassador's secretary, but felt that, because of her bombing-related hearing loss, she was prevented from doing so. Id.
Testifying about the impact the bombing had on her life, Ms. Nylund stated:
Over the past twenty years, I have largely put the Beirut Embassy bombing behind me, and have gone on with my life. Today, I have more pressing concerns, such as my husband's health. Yet, the Beirut bombing definitely had an impact on me. After the bombing I continued to work overseas, but seemed to have lost some of my enthusiasm for the Foreign Service. I was not as social as before -- I kind of hung back, and was less active. Since the bombing, it has also been hard for me to understanding [sic] how anyone could want to kill such a large number of people at one time. There are times when this thought comes rushing back, as it did on September 11, 2001.
Id. at 9-10. See Dammarell I, 281 F. Supp. 2d at 189-91 (discussing expert testimony that events such as Oklahoma City bombing and events of September 11, 2001, may trigger memories of a trauma and bring onset or recurrence of psychological symptoms of trauma or Post-Traumatic Stress Disorder).
Ms. Nylund testified that she decided to participate in this lawsuit:
because I think that the victims of the 1983 attack on the U.S. Embassy in Beirut should get compensation for the horror we went through. I have, for the past twenty years, suffered from a partial loss of hearing in my right ear due to injuries received in the attack. This, in turn, ultimately affected my career. Some of my husband's health problems I believe resulted from the attack. When I heard about the chance to participate in a lawsuit about the Embassy attack, I just felt that I should do something.
On the date of the bombing, Ms. Nylund was working as a secretary at the Embassy in Beirut. Id. at 3. As a federal government employee stationed overseas, Ms. Nylund retained as her domicile in 1983 the state in which she last resided. See Dammarell II, 2005 WL 756090, *22. Immediately before she joined the Foreign Service, Ms. Nylund lived and worked in California. The law of California, therefore, applies to her claims.
Based on the pleadings and the evidence presented to the Court, Ms. Nylund has stated a valid claim for battery under the law of California and is entitled to recover compensatory damages from defendants "for all the detriment proximately caused by the tortious acts." Priest, 634 F. Supp. at 584. No evidence was presented to the Court regarding any economic losses suffered by Ms. Nylund as a result of the bombing upon which to based an award damages. However, the Court values the loss associated with his physical pain and suffering and mental anguish caused by the battery at $750,000. Because, under California law, Ms. Nylund can recover for her mental anguish via her battery claim, there is no need for the Court to consider her intentional infliction of emotional distress claim, which would result in an impermissible double recovery. Accordingly, Ms. Nylund should be awarded a total of $750,000 on this default judgment.
Section 13-20-10 of Colorado Revised Statutes provides, "[a]ll causes of action . . . shall survive and may be brought or continued notwithstanding the death of the person in favor of or against whom such action has accrued." Colo. Rev. Stat. § 13-20-10. In personal injury actions, however, the potential recovery is limited to the "loss of earnings and expenses sustained or incurred prior to death" and cannot include damages for "pain, suffering, or disfigurement, not prospective profits or earnings after death." Id.
2. Wrongful Death Statute
Colorado's wrongful death statute provides:
When the death of a person is caused by a wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable, if death had not ensued, shall be liable in an action notwithstanding the death of the party injured.
Colo. Rev. Stat. § 13-21-202. A wrongful death action under the Colorado statute is not brought by the estate's representative, but rather, is brought by the decedent's surviving heirs, most commonly the surviving spouse and any surviving children. Colo. Rev. Stat. §§ 13-21-201, 203. A wrongful death action may be brought by the decedent's parents only if there is no surviving spouse or any surviving children. Colo. Rev. Stat. §§ 13-21-201(c).
Damages recoverable under Colorado's wrongful death statute include both economic losses and non-economic losses. Economic losses are measured as the "net pecuniary benefit which plaintiff might reasonably have expected to receive from the deceased in case his life had not been terminated by the wrongful act . . . of the defendant." Landsberg v. Hutsell, 837 P.2d 205, 208 (Colo. Ct. App. 1992) (quoting Pierce v. Connors, 37 P.2d 721 (Colo. 1894)). In determining such net pecuniary benefit, Colorado courts consider the "age, health, condition in life, habits of industry or otherwise, [and] ability to earn money, on the part of the deceased, including his or her disposition to aid or assist the plaintiff." Id. Non-economic losses and injuries may include the plaintiff's "grief, loss of companionship, pain and suffering, and emotional stress." Colo. Rev. Stat. § 13-21-102.5.
Although Colorado generally limits non-economic damages to $250,000, there is no such limitation where the "wrongful act . . . constitutes a felonious killing, as defined in section 15-11-803(1)(b), C.R.S., and as determined in the manner described in section 15-11-803(7) C.R.S. . . . ." Colo. Rev. Stat. § 13-21-203(1)(a). "To prove a felonious killing for purposes of § 15-11-803, it need only be shown that the conduct of the person who caused death meet the elements of first or second degree murder or manslaughter." Estate of Wright v. United Servs. Auto. Ass'n, 53 P.2d 683, 686 (Colo. Ct. App. 2002). Under section 15-11-803(7), "'[n]ot withstanding the status or disposition of a criminal proceeding,' a court may independently determine whether, under a preponderance of the evidence standard, the elements of a felonious killing have been met." Estate of Wright, 53 P.2d at 685 (quoting Colo. Rev. Stat. § 15-11-803(7)). "The language [of section 15-11-803(7)] is broad enough to allow such a determination even where the person was acquitted or was convicted of a lesser offense, or where no criminal proceeding was ever initiated." Id. at 686.
1. The Estate and Surviving Family Members of Thomas Blacka
a. Estate of Thomas Blacka
Thomas Blacka ("Mr. Blacka"), the husband of Plaintiff Beryl Blacka ("Mrs. Blacka") and the father of Plaintiffs Thomas Blacka, Jr. and Jane Blacka ("Ms. Blacka"), was assigned to the United State Embassy in Beirut as the Controller of the Agency for International Development ("US AID"). Tr. Vol. V at 26. Mr. Blacka sustained fatal injuries as a result of the Embassy bombing. Id. at 4. For purposes of this litigation, his estate, which was probated in Colorado, is represented by his widow, Beryl Blacka, as personal representative. Id. at 4-5; Phase II Exh. 14 (estate papers appointing Beryl Blacka personal representative of Estate of Thomas Blacka).
Mr. Blacka was described by his daughter, Jane, as "being very tall and broad shoulder[ed]" even though he was only about five-eight. Tr. Vol. V at 38. She explained that she believed he was so tall because of the way that "he shouldered problems. He was responsible for any problems that were in the family, which really made a big difference for me when my brother became ill." Id. While he would "share the joys and the good things in the family . . . he would take care of the problems." Id. Ms. Blacka stated that although her father was the family disciplinarian, he was also "very supportive" and had a "good sense of humor." Id. at 38-39. Her father "liked people. He was very well liked in his job . . . as a family, we were very close, and I just grew up and I loved him very much." Id. at 39. Mr. Blacka was described by his son Thomas, as "a proud American" who was "knowledgeable and loving." Phase II Exh. 16 at 3, 8. He added that his father was "diligent and successful, both in terms of his career and in terms of being there for his family. He was an experienced Foreign Service officer who had his feet on the ground, and provided his family with love, guidance, and wisdom. I was proud of him and his accomplishments, and loved him very much." Id. at 8. Mr. Blacka was born December 8, 1923 in Connellsville, Pennsylvania, and was a United States citizen. Tr. Vol. V at 8. Mr. Blacka graduated from the University of Miami with a Bachelor of Arts in Accounting and Economics in 1949. Id. at 12. He received a Master's from the University of Denver in Economics and Public Administration in the mid-1950's. Id. at 13.
Mr. Blacka met his wife, Beryl, in early 1945 when he was serving with the United States military in England during World War II. Id. at 9-11. They were married in November 1945, and shortly thereafter moved to the United States. Id. at 11. Over the next several years, Mr. and Mrs. Blacka lived in, among other places, Miami, Florida, and Denver, Colorado, while Mr. Blacka worked and attended school. Id. at 12-13.
In the mid-1950's, Mr. Blacka joined US AID. Id. at 14. During his career, Mr. Blacka, accompanied by his wife and children, was posted both in the United States and abroad. Id. Mr. Blacka was posted to Ceylon (now Sri Lanka) around 1956, as an Assistant Controller with US AID. Id. at 15. After two and a half years in Ceylon, Mr. Blacka was posted to Reykevick, Iceland. Id. He thereafter had postings in Spain, Cyprus, the United States, Pakistan, and Laos. Id. at 15-20. After Laos, Mr. Blacka was transferred back to Washington, D.C., where he was appointed as the Controller for the entire agency. Id. at 21. The family remained in the Washington area for about three years, after which Mr. Blacka was transferred to Thailand in 1982. Id. While in Thailand, Mr. Blacka retired from US AID at the age of sixty. Id. at 23, 24.
Motivated in part by financial obligations related to the health of his son, who had been diagnosed with paranoid schizophrenia, Mr. Blacka accepted several contract positions in Thailand after he retired. Id. at 23-24, 26. In late 1982, he returned to US AID, accepting a Controller position at the United States Embassy in Beirut, Lebanon. Id. at 26. He arrived in Beirut in January, 1983. Id. at 27. Just a few months later, he was killed in the Embassy bombing. Id. at 4.
For purposes of this lawsuit, the domicile of the estate is that of Mr. Blacka on the date of the bombing. See Dammarell II, 2005 WL 756090, at *22. As a federal government employee stationed oversees, Mr. Blacka retained as his domicile in 1983 the state in which he had last resided. See id. Prior to his employment with US AID, Mr. Blacka and his wife lived in Colorado and, from the time that he first starting working for US AID through the date of the bombing, the Blacka family was primarily posted overseas, with only brief stays in the Washington, D.C. area. Plaintiffs argue that the law of Colorado should govern the claims of Mr. Blacka's estate because Colorado had functioned as a "home-base of sorts," both of his children were born there, and his estate was probated there. See Pls. Mem. in Supp. of State Law Claims at 87-88. The Court agrees, and, therefore, the law of Colorado applies to the claims of the Estate of Thomas Blacka.
The Estate of Thomas Blacka, through his surviving heirs, has asserted claims under Colorado's wrongful death statute. Pls. Mem. in Supp. of State Law Claims at 117-18. Based on the pleadings and the evidence presented to the Court, the Estate of Thomas Blacka has made out a valid claim for wrongful death under Colorado law and is entitled to recover the "net pecuniary benefit which [each beneficiary] might reasonably have expected to receive from the deceased in case his life had not been terminated by the wrongful act . . . of the defendant." See Landsberg, 837 P.2d at 208. The expert economic analysis presented to the Court demonstrated that, were it not for Mr. Blacka's untimely and wrongful death, he would have earned wages, benefits, and retirement pay amounting to $1,440,000. SeePhase IIExh. 1 at 10-12; 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). The Court should award 75% of the $1,440,000 to Mr. Blacka's surviving spouse, Beryl Blacka because she would have been the principal beneficiary of his income over the remainder of his natural life, and 25% of the $1,440,000 to his son Thomas Blacka Jr., who due to his mental illness would likely have remained substantially dependent on his father. As for the intangible aspect of the wrongful-death recovery, the Court will address those awards below, beneficiary-by-beneficiary.
Plaintiff Beryl Blacka is the widow of Thomas Blacka, who was killed in the Embassy bombing, and the mother of Plaintiffs Jane Blacka and Thomas Blacka, Jr. Tr. Vol. V at 4-6.
Mrs. Blacka was born in Surrey, England, but became a United States citizen in the 1950's. Id. at 4. She met Thomas Blacka in early 1945, while Mr. Blacka was stationed in England with the United States military during World War II. Id. at 11. The two began dating, and married in November 1945. Id. Shortly thereafter, the couple moved to the United States. Id.
While her husband attended university in Florida and Colorado, Mrs. Blacka worked in the Registrar's Office at the University of Miami, and in the Admission's Office at the University of Colorado. Id. at 12, 14. Mrs. Blacka stopped working upon the birth of her son, Thomas, in 1955. Id. at 14. Mrs. Blacka and her children accompanied Mr. Blacka on his postings with US AID, both in the United States and abroad. Id. at 15-23. During several of these postings, Mrs. Blacka performed either volunteer or paid work, but Mr. Blacka remained, at all times, the family's primary wage earner.Id. at 15-23, 33. When her husband took a position at the United States Embassy in Beirut, Mrs. Blacka and their children did not accompany him. Id. at 27. In January 1983, Mrs. Blacka saw her husband off to Beirut at the airport in Bangkok, Thailand, where the couple was then living. Id. It was the last time that Mrs. Blacka saw her husband alive. Id. After Mr. Blacka left for Beirut, Mrs. Blacka packed-up their belongings in Bangkok and flew to Denver, Colorado, to live near their daughter, Jane. Id. While in Denver, Mrs. Blacka received numerous letters from her husband. Id. at 27-28.
On April 18, 1983, Mrs. Blacka was at a friend's house in Denver, Colorado. Id. at 28. The friend told Mrs. Blacka that she had heard that "there had been trouble in Beirut." Id. At about the same time, the telephone rang. Id. at 29. The government official on the line "didn't say anything about death. They said there'd been a bomb explosion." Id. Sometime later, the government called Mrs. Blacka again, and confirmed that her husband had been killed in the bombing. Id. Mrs. Blacka stated that the rest of the day is a "blur." Id. Mrs. Blacka recalls calling her daughter, Jane, to tell her the news. Id. Of that conversation, Mrs. Blacka testified that she "wished there had been some way to soften -- soften it, to say it. I felt like I had been abrupt saying it." Id. at 29-30. Mrs. Blacka did not have any contact with her son, Thomas, that day, or in the days following, as the family did not know his whereabouts at the time. Id. at 30.
Several days after the bombing, Mrs. Blacka traveled to Washington, D.C. Id. She attended the ceremony at Andrews Air Force Base where the remains of the Americans killed in the bombing were returned to the United States. Id. Mrs. Blacka "appreciated" when President and Mrs. Reagan greeted each family member personally. Id. at 30-31. She believed the ceremony was "very solemn," but "handled beautifully." Id.at 31. Mrs. Blacka also attended a ceremony for the victims of the bombing held at the National Cathedral. Id. Mr. Blacka was buried at Arlington National Cemetery. Id. at 31-32.
Mrs. Blacka testified that she misses her husband's presence: "He was always there. He was the center of the family, the core of the family. He was a strong -- when I say strong, I don't mean -- I just mean we counted on him. He was -- he was there for all of us, the best he could be." Id. at 35. As a result of her husband's death, Mrs. Blacka had to shoulder responsibilities that had previously been her husband's, such as family finances. Id. at 34. In addition, Mr. Blacka's death left only Mrs. Blacka and her daughter to care for her son, Thomas, who had become mentally ill. Id. at 34-35.
She decided to participate in the lawsuit "[f]or the future. For my children. And the responsibility my daughter has faced since she was young, the full responsibility she will face" regarding the care of Thomas H. Blacka. Id. at 36.
Although Colorado generally limits non-economic damages under its wrongful death statute to $250,000, that limitation is inapplicable in this case because, plaintiffs have shown by a preponderance of the evidence, that defendants' wrongful acts constitute a felonious killing. See Colo. Rev. Stat. § 13-21-203(1)(a); Estate of Wright, 53 P.2d at 685. Based on the findings of fact in Dammarell I and Dammarell IV, it is clear that defendants, at the very least, "recklessly cause[d] the death of another person." See Colo. Rev. Stat. § 18-3-102 (statute defining manslaughter); Dammarell I, 218 F. Supp. 2d at 109-13; Dammarell IV, 404 F. Supp. 2d at 271-73. Without this limitation, based on the pleadings and the evidence presented, the Court values the loss associated with Mrs. Blacka's "grief, loss of companionship, pain and suffering, and emotional stress" resulting from the her husband's death at $10 million. See Dammarell I, 281 F. Supp. 2d at 196-98 (explaining typical damage awards for solatium claims).
Plaintiff Jane Blacka is the daughter of Thomas Blacka. Tr. Vol. V at 37. She was born October 27, 1959 in Denver, Colorado, and is a United States citizen. Id.
Ms. Blacka's first memories of her father were from when the family was living in Washington, D.C. when she was five or six years old. Id. at 39. At that time, the Blackas lived a "very suburban lifestyle . . . and American existence." Id. at 39-40. The family often had "barbecues out in the yard" and took "trips around the area." Id. at 40. As Ms. Blacka testified, "I was a little girl then, so he was my daddy and I loved him." Id.
In 1967, when Ms. Blacka was eight-years-old, the Blackas moved to Pakistan, where they remained until she was twelve. Id. Ms. Blacka stated that living in Pakistan "was a very happy time" for her family. Id. at 40-41. Her father insisted that the family always eat dinner together -- "sometimes he would make a big show and we'd have candles and things like that." Id. at 41. The family "took a lot of trips together" in her father's "old Chevy Nova that would overheat all the time." Id. Ms. Blacka testified that she was "always very close to my father, and I always felt very, very comfortable with" him, as he was the "center of the family" and "always very approachable, very supportive." Id. at 42.
After leaving Pakistan, the family spent nine months in Washington, D.C. During this "transitional period" Ms. Blacka suffered a great deal of "homesickness" for Pakistan. Id. at 42-43. She stated that "I remember crying, and [my father] would come into my room at night and he'd comfort me." Id. at 43.
The family then moved to Vientiane, Laos, for two years. Id. Ms. Blacka testified that as she got older, she could: really appreciate [her father] more, more as an adult -- well, I wasn't quite an adult, but -- and he was encouraging. I got to understand more why, you know, he chose to work for AID . . . .
[O]ne thing that was very different about the way my father treated me than my friends' fathers sometimes treated them was he would listen to you. He was very -- he treated both my brother and I with quite a bit of respect. He listened to what we had to say, and he never disparaged us, our ideas. He let us talk. He was -- it was very encouraging.
When Ms. Blacka was in her mid-teens, her family returned to Washington, D.C. Id. She experienced some "culture shock" in returning to the United States after living abroad. Id. at 46. Even though her father worked "much longer hours" than he had previously worked and the family members were all beginning to "get more busy with" their "own lives," Ms. Blacka testified that "my relationship with my father was great during that time." Id. at 46, 47.
After she graduated from high school in 1977, Ms. Blacka enrolled at Allegheny College, in Pennsylvania. Id. at 47-48. As a result, when Mr. and Mrs. Blacka moved to Thailand, Ms. Blacka did not accompany them. Id. at 47. After a year at Allegheny, she joined her parents and brother in Thailand. Id. at 48. Living with her family in Bangkok "was wonderful." Id. Ms. Blacka "got a job working in my dad's office . . . . My dad and my brother and I learned to scuba dive during that year. We did lots of trips." Id. A year later, Ms. Blacka returned to the United States to attend Colorado College in Colorado Springs. Id. at 49. While at Colorado College, Ms. Blacka was in regular contact with her parents through letters, phone calls, and visits. Id.
Ms. Blacka learned in late 1982, while finishing her college education, that her father had been posted to Beirut. Id. at 49-50. When she voiced her concerns to her father regarding the posting, he "didn't totally dismiss [her fear], but his response was . . . I think it's pretty safe." Id. at 50. He then reminded his daughter of all the places the family had lived where there was war or conflict. Id. Ms. Blacka last saw her father in January 1983, while he was still living in Thailand. Id. at 52.
On April 18, 1983, Ms. Blacka was in her apartment in Colorado Springs. Id. Ms. Blacka testified that:
[T]he telephone rang, and I picked it up and it was my mother's friend on the phone saying, oh, I have some tragic -- some terrible news for you, or whatever, and I just thought why is she calling me. She never calls me. And then my mother took the phone from her, and she told me, "Jane, your father -- you know, your dad has been killed in Beirut." And it was a real shock. But I'm glad she told me because her friend was just -- it just made it worse. It was just -- but it was a terrible shock.
Id. at 52-53. Ms. Blacka had a friend drive her to Denver to be at her mother's side. Id. at 53. Seeing her mother for the first time was "pure shock." Id. Ms. Blacka was also worried for her brother, stating:
Tom doesn't know about this, my brother, and where is he. And so those two events . . . were very very intertwined . . . for me and for my mom, because there was my father's death and then there was also the fact that my brother was somewhere out there. He wasn't on medicine, and he didn't know about my father.
Ms. Blacka accompanied her mother to Washington, D.C. Id. at 53-54. She attended the ceremony at Andrews Air Force Base where her father's remains were returned to the United States. Id. at 54. Of that ceremony, Ms. Blacka testified:
I was young, I was 23. I had been following the situation in Beirut. I was very much opposed to what the U.S. government there -- the way they were handling the situation in Beirut. So part of my response then was I was angry. I was very, very angry, and the representatives of the government, I felt they were partially if not -- they were partially responsible for my father's death.
So -- and they were going through all this ritual and I looked at it as being -- you know, this is all politics. They're doing this because they -- they really messed up, and this is their way of taking care of it.
So when I was at Andrews Air Force Base, you know, my mother remembers it as being a beautiful ceremony, and it soothed her. To me, it made me angry. And I saw the press there, and the Secret Service agents, and both the President and the wife came around supposedly to comfort us, but I didn't -- to me, it wasn't a positive -- but I think at my age now, I would look at it differently than I did then when I was 23.
Id. at 54-55. Ms. Blacka also attended the ceremony at the National Cathedral. Id. at 55. While "a lot of [the ceremony] was a blur," Ms. Blacka recalls "a lot of anger, too." Id.
Of her father's funeral service and burial at Arlington National Cemetery, Ms. Blacka testified that the person who conducted the service "didn't really know my father" which "bothered" her, although the "room was filled" with people who knew her father. Id. at 56-57. The days and weeks after her father's death were "very, very hard" because she and her mother were "worried about" her brother, Thomas. Id. at 58. They "didn't know where he was. He was also delusional to a certain extent." Id. After the funeral, Ms. Blacka and her mother returned to Colorado Springs. Id. Shortly thereafter, they rented a house in Denver. Id. at 59. When contact was re-established with her brother, he too moved to Denver. Id. at 59-60.
The death of Ms. Blacka's father was especially difficult, because of the additional burdens that were placed on her. Id. at 61-62. Ms. Blacka had always been close to her brother, as they had "had the same experiences." Id. at 61. Ms. Blacka "felt very responsible towards my family when my father died . . . . And so my father's death . . . made me much [more] responsible for my brother than I probably otherwise would have been. And also responsible for my mother." Id. at 62-63. In addition, Ms. Blacka lost her father's guidance. Id. at 63. "[W]hen my father died, I was young, I was in my 20s. I was getting ready to start my own career . . . . I was up in the air and I really think that I missed having him guiding me careerwise . . . . I just think if my father had lived, I may have been more confident in my choices." Id.
Ms. Blacka eventually sought therapy to deal with her father's death, which helped her realize that she had never ever properly grieved for him. Id. at 63-64. Life events such as her attainment of a graduate degree in applied linguistics were "hard" to celebrate without her father because he "always encouraged education." Id. at 65. Ms. Blacka testified that she misses:
[T]he fact that I didn't have a father there all these years, and I don't have a father here now to share lots of different things with. Not just problems, but happy things, too.
I miss his sense of humor. I miss the fact that he wouldn't take things that weren't important too seriously.
I miss the fact that he was just a solid strong force and the center of the family that was there, that you could trust . . . .
I looked to him -- you know, he would make things right. He would make things okay.
I miss the fact that he's just not there to talk to. I miss the fact that I can't tell him I love him. I miss the fact that he's not going to be there, he's not going to grow old.
There are just so many things in my life that I just miss . . . . It's like I never learned to do my taxes properly. If my father had lived, I would have been able to do my taxes . . .
I also think, I mean it's been my choice, but I took a lot of added responsibility with my mother and brother, and we all took a lot of that responsibility for each other . . . . I think if he [my father] had been there, we would have just felt more safe as a group, and we . . . would have done more. I would have done more. I would have felt less like I needed somehow to replace him in the family.
Ms. Blacka decided to participate in this lawsuit to find "security for the future:
The worst thing would be is if my . . . brother ended up in a state mental institution . . . . And I'm eventually going to be the sole support for my brother, and . . . if he knows he has that security, that will benefit him because he feels very, very, very insecure about his future . . . he's terribly afraid that he's going to be abandoned and left.
Based on the pleadings and the evidence presented, the Court values of the loss associated with Jane Blacka's "grief, loss of companionship, pain and suffering, and emotional stress" resulting from the her father's untimely death at $5 million. See Dammarell I, 281 F. Supp. 2d at 196-98 (explaining typical damage awards for solatium claims).
Plaintiff Thomas Blacka, Jr. ("Mr. Blacka") is the son of Thomas Blacka. Phase II Exh. 16 at 1 (Declaration of Thomas H. Blacka). He was born September 13, 1955 in Denver, Colorado, and is a United States citizen. Id.
Mr. Blacka's first memories of his father was from when the family was living in Madrid, Spain in the early 1960's. Id. He remembers that his family lived in a "beautiful house" with a "wonderful yard" that he "enjoyed playing in." Id. He has firmer memories from when the family lived in Nicosia, Cyprus. Id. at 2. Mr. Blacka recalled that his father suspended a parachute in the yard for him and his sister to play with, which he "enjoyed . . . immensely." Id. The family traveled throughout Cyprus, often to a "hidden sea cove on the coast in Kyrenia." Id. Mr. Blacka remembers when he was evacuated from Cyprus to Beirut with his mother and sister for several months. Id. During this time, his father would visit every two weeks, and the family would "take outings to the Phoenicia Hotel, located near the sea, and spend the day swimming and relaxing." Id.
In 1965, the family moved to Washington, D.C. Id. He remembers that, while in Washington, the family spent a great deal of time together, often visiting grandparents in both the United States and England. Id. at 3. Mr. Blacka remembers spending time alone with his father, for instance, when his father taught him to fish and crab. Id.
In 1967, the Blacka family moved to Pakistan. Id. Mr. Blacka remembers that, while in Pakistan, his father collected stamps with him, helping him to "research and expand" the collection, until he had "hundreds of thousands" of stamps. Id. The family often traveled together, visiting Afghanistan, India, and Bangladesh. Id. at 4. During this time, his father also taught him how to drive. Id. Mr. Blacka remembers that the years he spent in Pakistan "were happy ones," and his father "continued to be there" for him and his sister. Id.
When his parents and his sister returned to Washington, D.C. in 1972, Mr. Blacka did not accompany them, because his parents had enrolled him in a Swiss boarding school called Ecolint. Id. at 5. He attended for the eleventh and twelfth grades. Id. In April 1974, he re-joined his family in Laos, his father's new posting. Id. He spent that spring researching an "extensive report on Laos," which he completed in lieu of concluding his studies on campus at Ecolint. Id. His father was instrumental in helping him with the report, providing an "invaluable international perspective" and assistance in typing and delivering the paper to Switzerland. Id.
In the fall of 1974, Mr. Blacka enrolled in college in Washington, D.C. Id. But after a period of time, he left school, and returned to Laos to be with his family. Id. at 5-6. The family was later evacuated from Laos and returned to Washington, D.C., where his father became the Controller of US AID. Id. at 6. After three years in Washington, in late 1977, the Blacka family moved to Thailand. Id. Mr. Blacka was pleased to be back in Asia because he "knew and liked" the area. Id. Thailand proved a "pleasant experience" for the family, and Mr. Blacka spent time with his father scuba diving and enjoying the Thai culture. Id. Mr. Blacka later enrolled in the University of Colorado, but eventually withdrew and returned to Thailand. Id.
His father accepted a posting in Beirut in early 1983, but Mr. Blacka and his mother and sister did not accompany him. Id. at 7. At the time, the family was living in Thailand. Id. In late March of that year, his mother left Bangkok to return to the United States and, several weeks later, Mr. Blacka began traveling back to the United States on his own. Id. During this time, he had very little contact with his family, and thus, did not learn of the Embassy bombing. Id. Mr. Blacka, therefore, did not attend any of the ceremonies held in Washington, D.C. to honor the bombing victims, nor did he attend his father's funeral. See Tr. Vol. V at 30, 32-33, 53, 58-61.
Mr. Blacka first learned of the bombing when he tried to telephone his father from Hawaii and a government official told him that his father had been killed in the Embassy bombing. Phase II Exh. 16 at 7. He explained that he "did not want to believe" the news. Id. He flew to San Francisco, and contacted his mother, who joined him in California. Id. About a month later, he returned to Denver to be with his mother and sister. Id. Except for a period of time in the late 1980's and early 1990's, Mr. Blacka has since lived with his mother and sister in Washington, D.C. Id.
Explaining how the loss of his father has effected his life, Mr. Blacka stated: "My father's death left a hole in my life. Had he not been killed, I feel that his love and guidance would have motivated me to complete my education, among other things." Id. at 8. He stated that agreed to participate in this lawsuit because "I desire a sense of closure, which I have never gotten, and the knowledge of future security created through directly dealing with the sort of terrorism that led to my father's death." Id.
Based on the pleadings and the evidence presented, the Court values of the loss associated with Thomas Blacka, Jr.'s "grief, loss of companionship, pain and suffering, and emotional stress" resulting from the his father's untimely death at $5 million. See Dammarell I, 281 F. Supp. 2d at 196-98 (explaining typical damage awards for solatium claims).
III. DISTRICT OF COLUMBIA
To establish liability for the tort of battery in the District of Columbia, a plaintiff must plead and establish that the defendant caused "an intentional, unpermitted, harmful or offensive contact with his person or something attached to it." Marshall v. District of Columbia, 391 A.2d 1374, 1380 (D.C. 1978). A successful battery plaintiff "is entitled at least to nominal damages, as well as to compensation for 'mental suffering, including fright, shame and mortification . . . .'" Id. (citations omitted).
2. Intentional Infliction of Emotional Distress
Under the law of the District of Columbia, a claim for intentional infliction of emotional distress requires a plaintiff to establish that there was "(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 Univ. v. Best, 484 A.2d 958, 985 (D.C. 1984) (citations and internal quotations omitted). To prevail on an intentional infliction of emotional distress claim, the plaintiff 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). District of Columbia courts have awarded compensatory damages under intentional infliction of emotional distress claims for a variety mental health related consequences of the tortious conduct. See, e.g., Estate of Underwood v. Nat'l Credit Union Admin., 665 A.2d 621, 642 (D.C. 1995) (upholding intentional infliction of emotional distress 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).
Plaintiff Beth Samuel ("Ms. Samuel") was assigned to the United States Embassy in Beirut as a secretary with the United States Information Agency ("USIA"). Tr. Vol. I at 69-70. She is married, but has no children. Id.at 61.
Ms. Samuel was born in Bayside, Texas, and is a United States citizen. Id. She graduated from high school in Corpus Christi, Texas in 1952. Id. After graduation, she took a job overseeing export shipments for a local manufacturing company. Id. at 62 After three years, she moved to Kansas City, Missouri, where she met and married her first husband. Id. From Kansas City, the couple moved to Los Angeles, California. Id. Ms. Samuel and her husband divorced in 1958, at which point she began working as a secretary for the Kaiser Group. Id. She left this position after a year to work as a flight attendant with a charter airline. Id. at 62-63.
As a flight attendant, she had the opportunity to fly to Europe and decided that she wanted to live there. Id. at 63. To that end, she applied for a position as a secretary with the Foreign Service. Id. She was accepted and joined the Foreign Service in August 1962. Id. at 63-64. When she joined the Foreign Service she did not intend to make it a career, planning instead "to go live in Europe and ski two or three years and go back to the beach in Southern California." Id. at 64. Once in the Foreign Service, Ms. Samuel was assigned to work for USIA. Id.
Ms. Samuel first position was as the secretary of the Deputy Director of USIA in Washington, D.C. Id. at 64-65. The Deputy Director subsequently resigned to return to a position with Time Life in New York, and Ms. Samuel briefly left the Foreign Service to go work for him. Id. at 65-66. Ms. Samuel testified, "I loved living in New York, but it wasn't what I had come there to do, I wanted to go live overseas, I wanted to be in the Foreign Service." Id. at
66. Her boss contacted the Director of Human Resources at USIA, who in turn found a position for Ms Samuel as a regional Foreign Service secretary based in Bonn, West Germany. Id. at 66.
After rejoining the Foreign Service, Ms. Samuel had a number of overseas postings, including assignments in Paris; Hong Kong; Bangkok; Caracas; and Taipei. Id. at 67. While posted in Bangkok she met her current husband, whom she married in 1976. Id.
In 1981, Ms. Samuel returned to the United States, and worked as a personnel officer making overseas assignments for Foreign Service secretaries and administrative assistants. Id. at
68. While making assignments, Ms Samuel heard about an opening for a Foreign Service secretary in Beirut, Lebanon. Id. She had previously visited Beirut in the early 1970's, recalling that at the time, Beirut "was glorious, it was truly the Paris of the Middle East it was called, it was a wonderful city, and I had a great time." Id. at 70. So, Ms. Samuel and her husband moved to Beirut in February 1982. Id.
Ms. Samuel testified that April 18, 1983 began as "a normal Monday morning." Id. at 79. After finishing lunch at approximately 1:00 p.m., Ms. Samuel returned to her office on the sixth floor of the Embassy. Id.at 79-80. Ms. Samuel was standing at her desk, going through cables, when the Embassy was bombed, as she remembers:
I heard a thud, and it never occurred to me that it was happening to us, I just thought for a fleeting second that was pretty close.
And then I found myself on the floor covered up with debris and . . . there was smoke and chaos and noise everywhere.
And I -- finally I got up off the floor and I shouted to John Reed [sic] who was my supervisor in the next office, I said, John, are you all right, and he said, no, I'm not.
And by that time I had finally gotten myself up from under the debris that was on top of me.
And so the military people from the military assistance group came running in the office calling my name.
And I said I think I'm okay, but John is not, so they proceeded to his office, and by that time he had gotten himself out from under the boards that were on top of him, and he came staggering out. And they took each of us by the arm and led us out to the hallway. There was lots of confusion, lots of screaming and crying, and smoke everywhere. And at one point I thought I felt so sticky and I looked down and my sweater was stuck to me, it was all blood, and I'm thinking, oh, I must be hurt, but I had no idea where or how badly I was hurt.
So they took us out to the hallway, and I was bleeding so profusely, they said just sit down here, we don't want you to -- they sat me down on the floor. And there were lots of other people also injured in various ways, running and screaming and crying. And they left us there for several minutes because they wanted to make sure that the stairways were safe and that there were no more bombs or something.
They came back to get us, they had us all hold hands, and they led us out, I can't remember exactly whether it was the back entrance, there was a courtyard. And I remember there was a lock that had rusted shut, and they couldn't get it open, and one of the young marines was there, and he said, shoot the bastard off. And I thought, oh, please, don't, and he didn't, of course. And then they turned us around and took us to another exit, and there were a lot of people there, all injured.
And at that point I heard sirens coming, . . . and I saw the ambulances coming in, and they pulled me over a wall and put me in an ambulance, we were taken to AUH, American University Hospital.
Ms. Samuel remembers that, once she and the others arrived at the hospital, "the doctors and nurses were standing outside waiting for us. And they were wonderful, I mean, they just grabbed us, and they took us up to the ER, and looked at everybody, and got a place for us all to lie down." Id. at 83. Ms. Samuel testified that she was treated for:
[g]lass, cuts in my face, I had 18 stitches in my face, and I had a large cut right here somewhere along the collarbone. And I had a big hematoma that developed on the side of my face, it had gotten bigger and uglier everyday for a while. But it was all glass, small cuts, that were not life-threatening, but they were just messy.
Id. at 84. After being treated Ms. Samuel left the hospital with John Reid and went to the apartment of a friend who had a phone with an international line, so that they could contact their families. Id. at 85-86.
After making her calls Ms. Samuel headed back to her apartment, but found she couldn't stay by herself. Id. at 88. As she explained: there was a lady there who was on temporary duty in the communications unit, and she said, I don't want to be alone, either, why don't I stay with you. So she kind of moved into my apartment, stayed for about a week until we both felt better, then she moved back to her own place.
The morning after the bombing, the Embassy's Deputy Chief of Mission asked everyone who could to report to his apartment so that he could "see who all was still there and how badly people were injured and account for everyone." Id. at 90. Ms. Samuel recalls that this first day back was: probably the most emotional day because we didn't know who was where, we kept hearing lots of rumors of people who had been killed, and people who were injured, and we didn't know. So there was great relief and great joy when you would see one of your colleagues, and then, of course, you would see how badly they were injured. And there were lots of tears, but they were probably joyful tears more than anything else that day.
From this point forward, Ms. Samuel was "absolutely inundated with the media from all over the world." Id. at 91. In between her regular work responsibilities, she attended memorial services for those killed in the bombing, including services for three Lebanese employees that had worked in her office. Id. at 92. She also attended a memorial service at the Beirut Airport for the Americans killed in the Embassy attack as there were transported back to the United States. Id. at 92-93.
Several days after the bombing, Ms. Samuel was permitted to go inside the bombed-out Embassy. Id. at 93-94. Her colleague John Reid's desk, in the office next to hers, had "gone down in the hole" where the center of the Embassy had collapsed. Id. at 94. As she testified, "I think at that point it really hit both of us how close we had come to death. . . ." Id.
Ms. Samuel ended her tour in Beirut in October 1983. Id. at 99. Her transition back to the United States was "a little bit difficult." Id. Ms. Samuel stated:
[W]hen I came back to Washington, it was sort of like, everybody was so carefree, nobody -- they would say, oh, how was Beirut. And I felt that their attitude was a little bit frivolous, that they didn't take things that were going on seriously. So it was a little bit hard for me to get used to that carefree attitude after we had been so serious and so under strain for such a long time, it took me a while to adjust to it.
Id. at 99-100. While Ms. Samuel was glad to be back, she felt that "some part of me, I almost wanted to be back with my colleagues who were still there." Id.at 100.
After her return from Beirut, Ms. Samuel was permitted to select any post she wanted for her next assignment, and chose Madrid, Spain. Id. at 100-01. After several further postings, she retired from the Foreign Service in 1991 and returned to the United States to care for her elderly parents. Id. at 101.
In the twenty years since the bombing, certain events have triggered emotional memories of the Beirut bombing. As Ms. Samuel explained:
[F]or a long time my reaction was if a car would backfire or something, I would jump and get teary and things like that.
Yes, things do happen, sometimes on the news, and you just all of a sudden think back to that day. And when the Oklahoma bombing took place, it was very difficult to look at that building because it looked so much like the embassy building when it was bombed. And, of course, that brought back a lot of bad memories, the Oklahoma bombing.
Id. at 102. See Dammarell I, 281 F. Supp. 2d at 191 (discussing expert testimony that survivors of Embassy bombing may be "affected by terrorist events such as the 1995 Oklahoma City bombing . . . . These events serve as reminders that may 'precipitate reexperiencing' the trauma of the Embassy bombing").
Ms. Samuel explained to the Court why she decided to participate in this litigation:
Maybe this will acknowledge the fact that this happened to us, that people lost their lives, families were torn apart, all of us were traumatized for the rest of our lives in certain ways. And maybe, perhaps, if we hit them in their pocketbook enough they can't continue to keep sponsoring terrorists, we hope.
As a federal government employee stationed overseas, Ms. Samuel retained as her domicile in 1983 the state in which she last resided. See Dammarell II, 2005 WL 756090, at *22. Plaintiffs assert that Texas law should apply to Ms. Samuel's claims. Pls. Mem. in Supp. of State Law Claims at 49. However, according to the evidence presented to the Court, Ms. Samuel has lived in several other states after living in Texas and prior to her posting to Beirut. First, she moved to Missouri, then to California, then to the District of Columbia, then to New York, and then back to the District of Columbia. There is no evidence on the record that these were intended to be temporary domiciles and that she actually intended to return to Texas. In fact, she testified that, at one point, her plan was to take a position with the Foreign Service so that she could live in Europe for a few years and then return to Los Angeles. Tr. Vol. 1 at 64. Based on Ms. Samuel's testimony, I find that her last domicile prior to her posting in Beirut was the District of Columbia. In fact, for much of the time that she was in Beirut, her husband lived in the District, and the District is where she chose to take her leave shortly after the bombing. Accordingly, the law of the District of Columbia applies to Ms. Samuel's claims.
Based on the pleadings and the evidence presented to the Court, Ms. Samuel has stated a valid claim for battery under District of Columbia law and is entitled to recover compensatory damages from defendants. See Marshall, 391 A.2d at 1380. No evidence has been provided to the Court upon which to base an award for economic damages, such as lost income or medical expenses. However, the Court values the loss associated with her pain and suffering and mental anguish resulting from the battery at $750,000. Because Ms. Samuel can recover for her mental anguish under her battery claim, it is not necessary for the Court to consider her intentional infliction of emotional distress claim, which would result in an impermissible double recovery. Accordingly, the Court should award Ms. Samuel $750,000 on this default judgment.
Under Illinois law, "an actor commits a battery if: '(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results.'" Cohen v. Smith, 648 N.E.2d 329, 332 (Ill. App. Ct. 1995) (citing Restatement (Second) of Torts § 13). In other words, "a battery must include an intentional act on the part of the defendants and a resulting offensive contact with the plaintiff's person." McNeil v. Carter, 742 N.E.2d 1277, 1281 (Ill. App. Ct. 2001) (citing McNeil v. Brewer, 710 N.E.2d 1285 (Ill. App. Ct. 1999)). Recoverable damages may be based on "the loss of earnings reasonably certain to be received in the future, the nature, extent and duration of the injuries received, the pain and suffering experienced and reasonably certain to be experienced in the future, and the reasonable expense of medical care and disability resulting from the injuries." Kren v. Payne, 401 N.E.2d 19, 22 (Ill. App. Ct. 1980) (quoting Izzo v. Zera, 205 N.E.2d 644, 647 (Ill. App. Ct. 1965)).
2. Intentional Infliction of Emotional Distress
To state a cause of action for intentional infliction of emotional distress under Illinois law, a plaintiff must show "(1) that the defendant's conduct was extreme and outrageous; (2) that the defendant knew that there was a high probability that his conduct would cause severe emotional distress; and (3) that the conduct in fact caused severe emotional distress." Kolegas v. Heftel Broad. Corp., 607 N.E.2d 201, 211 (Ill. 1992) (citing McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988)). In order to recover under an intentional infliction of emotional distress claim, "the conduct must be so extreme in degree as to go beyond all possible bounds of decency, and the distress suffered must be such that no reasonable man could be expected to endure it." Heying v. Simonaitis, 466 N.E.2d 1137, 1143 (Ill. App. Ct. 1984) (citing Pub. Fin. Corp. v. Davis, 360 N.E.2d 765, 767 (1976)).
It is important to note that "[i]t is well established that for one injury there should only be one recovery irrespective of the availability of multiple remedies and actions." Robinson v. Toyota Motor Credit Corp., 775 N.E.2d 951, 963 (Ill. 2002) (citing Wilson v. The Hoffman Group, Inc., 546 N.E.2d 524 (Ill. 1989)). Therefore, to the extent that a plaintiff who was injured in the embassy bombing can recover for mental distress under a battery claim, that plaintiff could not recover for the same mental distress under an intentional infliction of emotional distress claim.
Plaintiff Faith Lee ("Ms. Lee") was posted to the United States Embassy in Beirut as a Communicator with the United States Department of State. Tr. Vol. IV at 39-40. She presently resides in Chicago, Illinois. Id. at 31. Ms. Lee is divorced, and has two children. Id.
Ms. Lee was born January 23, 1933, and is a United States citizen. Id. at 31. She graduated from high school in 1950 and, thereafter, attended Roosevelt University for two years. Id. at 32. After leaving school, Ms. Lee was employed in a variety of positions, including as a clerk at A&P; a long-lines operator with Illinois Bell; a switchboard operator with Paramount Plastic; a teletype operator with the Federal Aviation Administration and later the United States Army Aerial Support Command; a reservationist with United Airlines; and a teletype operator with the Community Services Administration. Id. at 32-36.
In 1978, Ms. Lee joined the United States Department of State as a Communicator. Id. at 37-38. By this time, Ms. Lee was divorced and her two children were adults. Id. at 38. Her first posting was to East Berlin, Germany, in March 1979. Id. at 38-39. She remained in Germany until 1981, when she volunteered for a posting at the United States Embassy in Beirut as a Communicator. Id. at 39-40.
On April 18, 1983, Ms. Lee reported to work around 7:30 a.m. Id. at 43. Upon entering the Embassy, she passed by Marine Post One, where Corporal Robert McMaugh was on duty. Id. Corporal McMaugh, who often gave female Embassy personnel flowers, gave Ms. Lee a rose. Id. She went to her office and proceeded to distribute the morning's communications. Id. Around 12:30 p.m., she went to the cafeteria with a colleague for lunch. Id. at 43-44. After lunch, she returned to her office. Id. Shortly thereafter, as she was handing communications over to a member of the Embassy staff, the Embassy was bombed. Id.
Remembering the explosion, Ms. Lee testified:
[A]ll I could say was what was that? I had heard bombs before. In fact, maybe a couple weeks before, an [Rocket Propelled Grenade] had come through one of the military offices on the fourth floor . . . . And so [the bomb] shook the building so that we had a lot of dust from the cement, from the ceiling, and it shook our air conditioners, and across the hallway from us was a little storage room that we kept . . . tear gas [in], and it disrupted the whole office, the room, and the tear gas canisters were exploding.
Ms. Lee instructed her co-workers to place wet paper towels over their faces to protect them from the tear gas. Id. at 45. Ms. Lee testified, "[w]hen I came out of the office, there was nothing there. You could see the sea. It had just been all blown away. I mean it was just nothing. And I thought, oh, my God, how are we going to get out of here." Id. at 46. Ms. Lee started down some back stairs with other personnel. Id. She testified that she could hear "mumbling, but it wasn't loud crying or shouting or anything. The people were walking like they were in a trance, like they were zombies. Of course, everybody was traumatized." Id. People were covered in blood. Id.Ms. Lee was guided to an area with a large window and from there climbed onto a rooftop. Id. at 47. As there was no ladder, she was forced to jump, and in the process broke her toe. Id.
Ms. Lee and one of her colleagues went directly to Ms. Lee's apartment and called their families. Id. at 48. After her colleague left, Ms. Lee returned to the Embassy and saw that the "area was filled with emergency vehicles." Id. at 48-49. After gaining access, she saw plaintiff John Reid, whose head was bandaged, and he told her "that so many people had been killed" and she remembers that,
[T]here was a guy that was injured that was between the slabs on the embassy that crunched down like that, pancaked him in. And he pointed to where the man was hanging. That man hung there three days before they could get equipment to lift the slabs up to remove him.
Ms. Lee left the Embassy and went to the hospital to have her broken toe tended to, but was told that there was nothing the staff could do for it. Id. at 49. The rest of that day and in the following days, Ms. Lee visited each injured person who was at the hospital and she went back to work at the Embassy, which had been relocated to the Deputy Chief of Mission's house. Id. at 49-52.
Ms. Lee left Beirut on June 6, 1983. Id. at 53. Her next posting was to Tokyo, Japan. Id. While in Japan, a State Department psychiatrist visited her to discuss the bombing, and as Ms. Lee testified, "of course I started crying." Id. Ms. Lee told the psychiatrist that the one way she could heal from the trauma of the bombing would be to return to Beirut. Id. The psychiatrist advised against it, but she returned to Beirut in April 1984 for a temporary duty assignment. Id. at 53-54. Ms. Lee explained that this was a "healing trip" for her, as she had the opportunity to visit many of the injured Lebanese personnel. Id. at 54. She also got to see the Embassy operational again. Id.
Ms. Lee was posted to Tokyo until July 1985, and thereafter was posted to Cairo, Egypt. Id. at 57. She left Egypt after a four-year tour, retired from the Foreign Service, and returned to the United States to take care of her ailing mother. Id. at 57-58. In 1992, Ms. Lee returned to work part-time with an agency called Operation Able, where, as of the date of the Phase II testimony, she continues to work. Id. at 58.
After the bombing, Ms. Lee experienced nightmares and found that she was easily startled by loud noises. Id. These symptoms lasted for approximately one year. Id. at 58-59. See Dammarell I, 281 F. Supp. 2d at 189-90 (discussing expert testimony explaining that a characteristic symptom associated with Post-Traumatic Stress Disorder is an "exaggerated startle response"). Ms. Lee has also developed arthritis in the toe that she broke when escaping from the Embassy. Tr. Vol. IV at 59.
When asked why she decided to participate in this lawsuit, Ms. Lee testified, "I thought that it would bring out perhaps more details of what had happened if various people were able to tell their own personal stories of what had happened so long ago in '83, you know. But I thought it was good." Id. at 60.
On the date of the bombing, Ms. Lee was working in Beirut. As a federal government employee stationed overseas, Ms. Lee retained as her domicile in 1983 the state in which she last resided. See Dammarell II, 2005 WL 756090, at *22. At all times prior to her employment with the United States Department of State, Ms. Lee lived in Illinois. The law of Illinois, therefore, applies to her claims.
Based on the pleadings and the evidence presented to the Court, Ms. Lee has stated a valid claim for battery under the law of Illinois and is entitled to recover compensatory damages for any "loss of earnings reasonably certain to be received in the future, . . . the pain and suffering experienced and reasonably certain to be experienced in the future, and the reasonable expense of medical care and disability resulting from the injuries." See Kren, 401 N.E.2d at 22. No evidence was presented to the Court upon which to base an award of damages for economic losses, such as lost income or medical expenses, suffered by Ms. Lee. However, the Court values the loss associated with her physical pain and suffering and mental anguish resulting from the battery at $750,000. Because Ms. Lee can recover for her mental anguish under her battery claim, there is no need for the Court to consider to intentional infliction of emotional distress claim. Accordingly, the Court should award Ms. Lee $750,000 on this default judgment.
Under Indiana law, battery is defined as "'[a] harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff or a third person to suffer such a contact, or apprehension that such a contact is imminent.'" Fields v. Cummins Employees Fed. Credit Union, 540 N.E.2d 631, 640 (Ind. Ct. App. 1989) (quoting W. Keeton, Prosser and Keeton on The Law of Tort, § 9 (5th ed. 1984)). The victim of a battery may recover damages equivalent to "such sum as would reasonably compensate the victim both for bodily injuries and for pain and suffering" as well as "past, present, and future expenses reasonably necessary to the plaintiff's treatment and all financial losses suffered, or to be suffered, as a result of the inability to engage in his usual occupation." Zambrana v. Armenta, 819 N.E.2d 881, 890-91 (Ind. Ct. App. 2004).
2. Intentional Infliction of Emotional Distress
Under Indiana law, to establish an claim for intentional infliction of emotional distress, the plaintiff must show that the defendant engaged in extreme and outrageous conduct that intentionally or recklessly caused severe emotional distress to the plaintiff. Branham v. Celadon Trucking Servs., Inc., 744 N.E.2d 514, 523 (Ind. Ct. App. 2001) (citing Bradley v. Hall, 720 N.E.2d 747, 752 (Ind. Ct. App. 1999)). Intentional infliction of emotional distress can be established only "where conduct exceeds all bounds usually tolerated by a decent society and causes mental distress of a very serious kind." Id. (citing Ledbetter v. Ross, 725 N.E.2d 120, 124 (Ind. Ct. App. 2000)).
Although a plaintiff may assert claims for both battery and intentional infliction of emotional distress, "elementary principles of tort law command that a plaintiff is entitled to only one recovery for a wrong." Myers v. State, 848 N.E.2d 1108, 1110 (Ind. Ct. App. 2006). Accordingly, to prevent a double recovery, a plaintiff who recovers damages for emotional distress arising out of the physical injury on the basis of a battery claim, would only be entitled to recover damages under an intentional infliction of emotional distress claim to the extent that those damages did not arise out of the battery.
Plaintiff Brian Korn ("Mr. Korn") was posted to the United States Embassy in Beirut as a Marine Security Guard. Tr. Vol. I at 126-27. He is married, but does not have any children. Id. at 116. Brian Korn was born on April 1, 1961 in Evansville, Indiana, and is a United States citizen. Id. He grew up in Evansville, and graduated from high school in 1979. Id. at 117. Shortly thereafter he joined the Marine Corps and reported to basic training at Parris Island in January 1980. Id. at 118-19. At the time, he intended to make the military a full twenty to thirty year career. Id. After basic training, Mr. Korn went to Fort McClellan, Alabama, for military police training and, thereafter, went to Camp Pendleton, California. Id. at 119-20.
Mr. Korn testified that, while at Camp Pendleton, he "[s]tarted thinking about putting in for marine security guard duty" because he "wanted to do a little bit of traveling, go overseas and meet different kinds of people, different cultures." Id. at 121. Mr. Korn applied for Marine Security Guard ("MSG") School, was accepted, and went to Quantico, Virginia for training in the summer of 1981. Id. at 121-22. After six weeks of training, he was posted to the consulgeneral's offices in Casablanca, Morocco, where he reported in the fall of 1981. Id. at 122-23. Mr. Korn's second posting was to Beirut, where he arrived around December 1982. Id. at 126-27.
On April 17, 1983, the day before the Embassy was bombed, Mr. Korn worked Marine Post One, which was located at the main entrance of the Embassy, until 11:00 p.m. Id. at 131-133. He then went to the Marine house, which is located on an upper floor of the Embassy, where he joined Corporal Robert McMaugh for a few beers in the "Marine bar," until Corporal McMaugh indicated that he needed to get to bed, because he had to stand duty at Post One later that day. Id. at 131-32. Corporal McMaugh was standing duty at Post One at the time that the Embassy was bombed, and died in the attack. Mr. Korn went back to his room, and went to bed sometime between 4:00 and 4:30 a.m., setting his alarm for a meeting scheduled to take place immediately behind Post One at 1:00 in the afternoon of April 18. Id. at 128-29, 132-33.
The alarm clock did not wake Mr. Korn up. Id. at 134. Instead, as he testified, "I got a very rude wake-up call, I got blown out of my bed" as the Embassy was bombed. Id. After being thrown out of bed Mr. Korn recalled, "I was sitting in my -- I remember I was sitting in my wall locker and just trying to clear my head, very disoriented at the time . . . . So I get up, put my camouflage utilities on, put my boots on, grab my helmet, and make my way to the weapons vault to receive a weapon." Id. After grabbing his weapon, Mr. Korn and another Marine, Charles Pearson,*fn5 made their way to the Ambassador's suite make sure that everyone was safe, and to assist them in exiting the building. Id. at 135. As Mr. Korn testified:
After that point, we worked our way down the stairway to the first floor, but we were going floor by floor, so it took a while.
We were carrying people out that was hurt and injured down different stairwells, and they had ladders set up from different floors to ambulances that was pulled up around the back of the embassy.
So we were carrying people across ladders, lowered down, and putting them in the ambulances.
Id. Describing what he and Mr. Pearson saw as they went through the Embassy, Mr. Korn testified:
We seen it's bad, there was a bunch of people just blown to kingdom come.
People with -- you ran across people that you knew were dead, there was nothing you could do for them.
You ran across people like that was cut from their ear all the way down their neck, just, I mean, it's just hard to imagine unless you were there.
There was blood everywhere.
After working his way through the Embassy, Mr. Korn helped his Gunnery Sergeant set up a perimeter around the front of the Embassy helping people to safety. Id. at 136, 139. A perimeter was necessary because, "there was a bunch of the local people riding up to the embassy, some were trying to help, and some were actually trying to go into the embassy, and they were looting, stealing things or whatever." Id. at 139. Within ten to fifteen minutes after the Embassy Marines had established a perimeter around the bombed Embassy, Marines from the Marine Amphibious Unit ("MAU") arrived to help. Id. Once the MAU was in place, Embassy Marines, including Mr. Korn, were told "to more or less go around policing up there and things of this nature," which involved helping people who were injured, looking for survivors in the wreckage, and recovering the bodies of people who had not survived. Id. at 143-44.
Mr. Korn finally had an opportunity to rest around 1:00 or 2:00 a.m. on the morning of April 19. Id. at 144. He testified that, when he arrived at the temporary accommodations that had been designated for the Marines' use, "[a]ll I remember is sitting down and getting ready to lie down, I took off my boots and someone had said something to me that my foot was -- or my sock was full of blood." Id. When Mr. Korn removed his sock, he discovered that one of his toes had been partially torn off. Id. at 144-45. He testified that he did not receive any treatment for his toe: "I just more or less cleaned it up the best that I could or whatever, I went about, found some gauze, or whatever, put something on there, I don't remember exactly, or a Band-Aid or whatever." Id. at 145.
Around 5:00 a.m. on the morning of April 19, Mr. Korn returned to the Embassy site to assist in the recovery efforts. Id. at 146. At some point, he went past what had been Post One where Corporal McMaugh had been working at the time of the bombing. Id. at 147. As Mr. Korn testified:
I told Charles Light, I said, here's where post one used to be, and I said, it's nothing but rubble now, and I said, Robert's there.
. . . I told Sergeant Light, Robert's here, I said, we need to get him out of here. . . .
And probably about 45 minutes sooner or later after we had dug through a bunch of rubble, we found him.
He was standing straight up, bent over, his head was smashed like a pancake, real flat, real long, both his legs were broke, from what they had told us, both arms or shoulders, or whatever, and had a steel rod going through the back of his chest into his back. Sergeant Light went out and he got the medical people, they backed up an ambulance, they came in there and proceeded to -- they got him the rest of the way out, put him in a body bag, put him in an ambulance, and drove off.
But I wasn't going to -- I wasn't going to leave him there.
About seven to nine days after the bombing, Mr. Korn contacted his family for the first time. Id. at 148-49. When Mr. Korn spoke with his parents, and they responded, "Thank God you're alive." Id. at 149. For the next week or two, Mr. Korn and other Marines continued to work on clearing the Embassy site. Id. at 146.
Mr. Korn was still posted in Beirut in the fall of 1983, when the Marine barracks at the Beirut Airport, housing the MAU, were bombed. Id. at 153. He testified that, around 6:00 a.m. on the morning of the attack, he was lying in bed "about ready to get up and I hear this big -- like woom, woom. And I was thinking, well, something else has been hit somewhere." Id. at 152.
Mr. Korn left Beirut around December 1983 and was sent to a Marine Security Guard posting in Rabat, Morocco, where he remained until around March 1984, when he processed out of the Marines Corps. Id. at 156-57. Explaining that his decision to leave the military was related in part to the bombing of the Embassy, Mr. Korn testified:
I didn't mind serving my country and serving on embassy duty and different things like that, but something like that, as I said, it stays with you the rest of your life, and things like that.
And you never know what's going to happen in any situation, anytime, anywhere, where you go, I don't care where you're at. In the military, it doesn't even have to be in the military, but you're more or less putting yourself in a situation like that. When you're in the military, you're more high profile for something like that, for something like that to happen, anyway.
But another big part of it was my father, like I said, when he heard that the embassy had been bombed that morning, he had dropped my mother off at work, and he crossed the highway, when he heard it on the radio, he sat there for 45 minutes holding his chest, he made it home.
And, like I said, for another seven or eight days until we were able to make -- everybody had been able to make the call, they didn't know if we were dead or alive just like everybody else's families did.
So and I guess it was probably, it was the same year, a few months after I got out of the Marine Corps and I got home my father had a heart attack. So, but that was one of the big reasons, he wanted me out, he was -- he more or less -- he won't admit it to this day because, I guess, pride and everything else, but he was on the -- he said, son, please come home, he said, you did enough.
Id. at 157-59. Mr. Korn received a Purple Heart and a Navy Achievement Medal for his service in Beirut. Id. at 159. At the time that he processed out, Mr. Korn had served four years and four months -- not the full military career he had envisioned upon enlisting.
Shortly after his return to Indiana, Mr. Korn joined the Vanderburgh County Indiana Sheriff's Department, and started his 20th year there on January 1, 2004. Id. at 161.
Mr. Korn has experienced "a lot of sleepless nights" since the April 1983 Beirut Embassy bombing and thinks, almost on a daily basis, about people, such as Robert McMaugh, who were killed in the attack. Id. at 161-62. As Mr. Korn explained:
[T]he really big thing that really brought me down and hurt me again so far as mental-wise and psychological-wise is when 911 hit again.
So I would go to my doctor and he had to prescribe different anxiety medications and stronger ones for me, and told me if I needed to talk to someone, he would set it up for me. . . . I don't get very much sleep at all anymore, a lot of rest, but not much sleep.
Id. at 162. See Dammarell I, 281 F. Supp. 2d at 189-91 (discussing expert testimony regarding symptoms of traumas such as Beirut Embassy bombing, including anxiety, depression, sleeplessness, and increased sensitivity to subsequent terrorist attacks such as the events of September 11, 2001).
When asked why he elected to participate in this lawsuit, Mr. Korn replied:
Because the Iranian government has been doing terroristic -- terroristic acts and attacks and different things for years. And they've been getting by with it, no one did nothing to them, they froze their assets years back ago, but nothing ever happened with them, or anything else.
I think it's about time that someone put their foot down, put a stop to it. And I think the only way that I guess that you're going to do anything to them because they're not scared of anything else, I guess, they just think Allah's going to save them when they do acts like that and terrorist attacks I guess is to get in their pockets. Something needs to be done to them, I mean, because you're taking people's lives and screwing people's lives up, and they're killing people and everything else, and something needs to happen.
As a member of the United States military stationed overseas, Mr. Korn retained as his domicile in 1983 the state in which he last resided. See Dammarell II, 2006 WL 756090, at *22. Prior to his military career, Mr. Korn lived in Indiana and, therefore, the law of Indiana applies to his claims.
Based on the pleadings and the evidence presented to the Court, Mr. Korn has stated a valid claim for battery under the law of Indiana and, therefore, he is entitled to recover compensatory damages from defendants for "past, present, and future expenses reasonably necessary to plaintiff's treatment and all financial losses suffered, or to be suffered as a result of the inability to engage in his usual occupation." See Zambrana, 819 N.E.2d at 890-91. The expert economic analysis presented to the Court demonstrated that, as a result of the Embassy bombing, Mr. Korn suffered $1,448,000 in economic losses, comprised of the greater income that he would have earned had he continued he career with the Marines. Phase II Exh. 1 at 22-24. The Court further values the loss associated with the mental anguish caused by the battery at $750,000. Because Mr. Korn can recover for his mental anguish via his battery claim, there is no need for the Court to consider his intentional infliction of emotional distress claim, which would result in an impermissible double recovery. Accordingly, the Court should award Mr. Korn $2,198,000 on this default judgment.
1. Intentional Infliction of Emotional Distress
To impose liability for intentional infliction of emotional distress under Maryland law, a court must find that (1) the conduct was intentional or reckless; (2) the conduct was extreme and outrageous; (3) there was a causal connection between the wrongful conduct and the emotional distress; and (4) the resulting emotional distress was severe. Caldor, Inc. v. Bowden, 625 A.2d 959, 963 (Md. 1993) (quoting Harris v. Jones, 380 A.2d 611, 614 (Md. 1977)). Maryland courts impose liability for intentional infliction of emotional distress sparingly -- "its balm reserved for those wounds that are truly severe and incapable of healing themselves." Figueiredo-Torres v. Nickel, 584 A.2d 69, 75 (Md. 1991) (quoting Hamilton v. Ford Motor Credit Co., 502 A.2d 1057, 1065 (Md. 1986)). "[E]motional distress may form the basis for the recovery of actual damages where the emotional distress arises from an intentional tort." Laubach v. Franklin Square Hosp., 556 A.2d 682, 689 (Md. 1989).
Ordinarily, for a plaintiff to recover for extreme and outrageous conduct directed principally at another, the plaintiff must be present to witness the conduct. Homer v. Long, 599 A.2d 1193, 1198-99 (Md. Ct. Spec. App. 1992). However, the requirement of presence has been relaxed in particularly compelling circumstances. Id. at 1199. Although it appears that Maryland courts have not had the opportunity to consider the applicability of the presence requirement where the plaintiff is a surviving family member of a victim of terrorist activities, the courts that have addressed the issue have repeatedly held that terrorists' act are "directed at" the victims family members. See, e.g., Prevatt v. Islamic Republic of Iran, 421 F. Supp. 2d 152, 160 (D.D.C. 2006) (applying Georgia law, the court found that terrorist bombing of Marine barracks was directed towards the emotional well-being of the victim's family members); Salazar v. Islamic Republic of Iran, 370 F. Supp. 2d 105, 115 n.12 (D.D.C. 2005) ("Courts have uniformly held that a terrorist attack -- by its nature -- is directed not only at the victims but also at the victims; families"). Indeed, the Court in this case has already held that the attack on the embassy was directed at the victims' family members. Dammarell VI, 404 F. Supp. 2d at 283. Therefore, even though the attack on the United States Embassy in Beirut was primarily directed at the individuals in the Embassy at the time, I find that it was also directed at those individuals' family members and that this is the type of compelling situation where Maryland would likely relax the presence requirement.
Plaintiff Gregory Votaw ("Mr. Votaw") is the younger brother of Albert Votaw, who was killed in the April 18, 1983 bombing of the United States Embassy in Beirut. Tr. Vol. IX (afternoon) at 2.*fn6
A more detailed discussion of Albert Votaw and his family will be provided later in this opinion, in section X(B)(1).
Mr. Votaw was born in April 1928 in Chester, Pennsylvania, and is a United States citizen. Id. He is married with three grown children, and presently resides in Bethesda, Maryland. Id. at 2, 15, 32. Mr. Votaw stated that growing up with his brother was "very exciting. I guess it is always an advantage to have an older brother . . . because he knows so much more than you do and you can learn a lot from him." Id. at 3. For instance, Mr. Votaw remembers that:
Al was a very venturesome person. I was inclined to be afraid of taking risks . . . but he would jump off the high loft in a hay barn . . . and I was barely able to crawl up into it. He had as a result a lot of injuries. He lost part of a tooth playing baseball and things like that. I found that very instructive for my non-risk taking temperament.
Although the two brothers were a few years apart in age, they spent time together at various schools, such as a boarding school called Westtown, Deep Springs College in California, and ultimately the University of Chicago. Id. at 7-8, 11. Following a few years behind his brother in school was beneficial to Mr. Votaw because his brother was "known to be extraordinarily gifted intellectually, high achiever, very universal in his interests . . . Fortunately my teachers gave me the benefit of the doubt because they would say, his brother was pretty smart, he can't be as stupid as he seems to be." Id. at 3, 7-8. Remembering their time together at Deep Springs College, Mr. Votaw testified that, "[w]e didn't see a whole lot of each other, but it was nice to know that if I got into really big trouble he would be there to pull me out." Id. at 8. Remembering spending time together in Chicago, Mr. Votaw testified that he saw his brother "often," and particularly "enjoyed" watching his brother bartend at a jazz club, as the two had grown up in a "straight-laced Quaker household." Id.
Mr. Votaw and his brother both earned Master's degrees from the University of Chicago in 1950. Id. at 11-12. Mr. Votaw thereafter went to England, where he studied at Oxford University, and obtained a second Master's Degree in 1952. Id. at 12. After a period of time serving as a conscientious objector and holding a number of private and public sector positions in the economic development field, Mr. Votaw joined the World Bank around 1962. Id. at 14-15. Joking about the similarities of their ultimate international development careers, the brothers joked that "Al took the Southern Hemisphere" in his work for various organizations and Gregory Votaw "had to deal with the Northern Hemisphere." Id. at 15-16. When Mr. Votaw's work overlapped with his brother's, Mr. Votaw's colleagues: always spoke very highly of the quality of his [brother's] work and understanding and depth of appreciation of the places where he was working. They always gave me the impression that whenever they have a chance say to visit Azerbaijan [sic, Abidjan] they looked for an early opportunity to consult with him and get advice on what their project should be.
Id. at 16. During this time period, from the mid 1950's through the 1970's, Mr. Votaw visited his brother Albert as often as he could, which was, according to Mr. Votaw, unfortunately not very often. Id. at 15, 17. The two often kept informed of each other through mutual friends and acquaintances and correspondence. Id. at 17.
Mr. Votaw last saw his brother in January 1983, when Albert was in the United States for the US AID's annual meeting. Id. He remembers that his brother had just been informed that he was being reassigned to Beirut and, when the they went out to dinner, he was unusually quite. Id. Gregory Votaw was doing some work in the Middle East at the time, and learned from friends that the decision to "mount a major reconstruction effort in Lebanon had come from the White House . . . . The people at AID were instructed, as I understand it, to find the best people in each sector . . . [and] assign them to Beirut whether they wanted to go there or not." Id. at 18. Coincidentally, Mr. Votaw was offered a position in Beirut at the same time as his brother Id. at 18-19. He "considered that very briefly with the thought that it would kind of be amusing. It would be the first time that Al and I ever had an opportunity to work together." Id. at 19. Despite this, Mr. Votaw believed that there was "too much chaos . . . intrigue . . . [and] violence" in Beirut to do anything useful, and declined the position. Id.
On April 18, 1983, Mr. Votaw was working in Cairo, Egypt. Id. at 20-21. He spent the day rewriting a report and then went to a reception at the Israeli Embassy. Id. On the way to the reception, Mr. Votaw and his friend stopped to pick up his friend's girlfriend, who asked the men whether they had heard about the bombing in Beirut. Id. at 21-22. When he arrived at the reception, he looked for the American ambassador and asked him if he had a list of people who had been injured in the bombing. Id. at 22. The ambassador did not, but promised to let Mr. Votaw know as soon as he had any information. Id. Mr. Votaw returned to his hotel after the reception, where he received several phone calls, including one from his niece Claire Votaw and one from the American Embassy in Cairo, confirming his brother's death. Id. at 22-23. During the next several days Mr. Votaw made arrangements to return to the United States. Id. at 23.
When he returned the United States, he spent some time with his family in Bethesda and with his niece, Claire Votaw, before driving to Philadelphia to be with his parents. Id. Mr. Votaw described the service at the National Cathedral as "as good as any such service could be." Id. at 24. Mr. Votaw recalls two things about the ceremony at the National Cathedral "very clearly." Id. The first was that Mr. Votaw introduced his mother to a friend, Bishop Walker, who was "the only person in these weeks that gave her any comfort," a fact that Mr. Votaw's mother spoke of in later years. Id. at 25. The second was that, when Mr. Votaw hugged his niece's mother-in-law, whom he barely knew. Id. As he explained, it was "the first time that I could really break down. There was really nobody else I would, how should I say, take comfort with. Everybody else's grief seemed so much more immediate than mine that somehow or other that embrace allowed me to let go of it." Id.
The death of his brother changed Mr. Votaw's responsibilities with respect to his family members and the relationships he enjoyed with them. As the only remaining son, Mr. Votaw's choice of work assignments was restricted because he wanted to be near his parents as they grew older. Id. at 25-26. He has had to look after his parents' finances as they aged, and find care for them when they both began to suffer from dementia. Id. at 31-32. Mr. Votaw has also had a lot of involvement with his nieces, he was even asked to walk his niece Marianne down the aisle at her wedding, but testified that "[i]t is a very very poor substitute clearly for the real person." Id. at 31.
With respect to the impact that his brother's death had on him, Mr. Votaw stated:
I am not sure I can put it into words like that. There is the sense of certain injustice. If somebody had to go why did it have to be him? I thought the whole adventure in Lebanon frankly was a good showing off for the Reagan White House which was very-ill conceived . . . . I was outraged in the immediate aftermath . . . that the whole thing seemed to be passed over as . . . and . . . I wanted to frankly raise hell about it.
Id. at 28. Mr. Votaw even discussed the matter with his Congressman, Michael Barnes, in September 1983, asking him why Congress had not investigated the destruction of the Embassy. Id. at 28-29. Mr. Votaw feared that if the terrorists made "a noise and nobody pays any attention" they would "find an opportunity to make a louder noise." Id. at 29. Three weeks later, in October 1983, the Marine Corps barracks were destroyed in Beirut. Id. at 30. The Congressman called Mr. Votaw that day and both started to "cry on each others shoulders . . . that we hadn't done anything." Id. at 30.
Mr. Votaw decided to participate in this lawsuit for several reasons:
I think it is shocking that this particular episode was so easily forgotten, as if it were swept under the carpet. I find it astonishing that this case should be, may I say, resisted as near as I can tell by successive administrations of my government and no interest at all, so far as I can figure out, of the Congress. I feel very strongly that if we had paid more attention to what was happening in 1983, we might have saved ourselves a great deal of grief that has happened since.
Gregory Votaw has asserted a personal claim against defendants for intentional infliction of emotional distress, which, based on his domicile at the time of the bombing, is governed by Maryland law. See Pls. Mem. in Supp. of State Law Claims at 110, 155. Based on the pleadings and the evidence presented to the Court, Mr. Votaw has stated a valid claim for intentional infliction of emotional distress under the law of Maryland and is entitled to recover compensatory damages from the defendants for the mental anguish that he suffered as a result of his brother's death in the bombing. See Caldor, 625 A.2d at 963; Laubach, 556 A.2d at 689. I do not hesitate 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 the severe emotional distress experienced by Mr. Votaw after the death of his brother. See Caldor, 625 A.2d at 963. Accordingly, the Court values the loss associated with Gregory Votaw's mental anguish at $2.5 million. See Dammarell I, 281 F. Supp. 2d at 196-98 (explaining typical damage awards for solatium claims).
Plaintiff Philip Faraci, Jr. ("Mr. Faraci") was born on October 2, 1936 in Monessen, Pennsylvania, and is a United States citizen. Tr. Vol. XI at 4. Mr. Faraci is the brother of Nancy Phyllis Faraci ("Ms. Faraci"), who was killed in the April 18, 1983 bombing of the United States Embassy in Beirut. Id. Mr. Faraci is participating in the litigation both individually, and as the Administrator of the Estate of Phyllis Faraci. Id. at 5-6; Phase II Exh. 43 (Estate papers of Phyllis Faraci). The claims of the Estate of Phyllis Faraci will be discussed later in this opinion.
Philip Faraci and his sister were two years apart in age, though only one year apart in school. Tr. Vol. XI at 4, 7. The entire Faraci family was very close. Id. at 9, 12. As Mr. Faraci noted, "when we had birthdays or baptisms and all, everybody shows up, make an appearance." Id. at 9. When asked what it was like growing up with his sister, Mr. Faraci testified, "It was very good. I loved her." Id. at 8. He testified that "[s]he used to dance; ballroom dancing, tap dancing. She was a majorette. She belonged to Socals of Monessen Gymnastic Team, and they traveled all over the country." Id. He remembers that when his sister went to various dance-related activities, "I used to go sometime, and that's where I learned to dance, with her and the girls." Id.
Sometime in late 1981 or early 1982, Mr. Faraci learned that his sister had been assigned to go to Beirut, Lebanon. Id. at 12. He talked with his sister about taking the assignment, testifying, "I tried to tell her, 'Well, you've got to make sure that that's where you want to go. If not, then don't go.' She said, 'I'm going because,' she said, 'it's real nice like Hawaii.'" Id. She did not express any particular concerns about her safety before heading for Beirut. Id. at 12-13. The last time that Mr. Faraci spoke with his sister was before she left for Beirut. Id. at 13.
Remembering the morning of April 18, 1983, Mr. Faraci testified, "I got up late for work. I turned on the T.V. in the back room and all I seen was the picture on T.V. that said they blew up the Beirut embassy. I says, 'Well, I don't know if she was inside or outside for lunch.' I went to work because I was late." Id. at 14. He further testified:
I got dressed and went to work. I had to do what I had to do. I had a job to do, so I went to work. Maybe like three or four hours later somebody came from the Federal Government, two gentlemen. I sat down and talked with them with my boss, and they told me I should leave to go home . . .
They said they hadn't found her yet, but they were in the process. When I got to Pennsylvania, they said they found her in the night.
Id. at 15. Mr. Faraci, who had driven to Pennsylvania to be with his mother, learned that she had already been notified of his sister's death. Id. In learning that his sister had been killed, Mr. Faraci "was shocked in a way, because, you know, if they wanted to go overseas, you never know what's going to happen." Id. at 16.
After Phyllis Faraci's death was confirmed, the Faraci family was contacted regarding the memorial service that was to take place at Andrews Air Force Base. Id. at 17. The family attended and Mr. Faraci recalls that "[i]t was a very nice ceremony for all the deceased members of the Federal Government. We talked to Mr. Reagan -- talked to President Reagan and a few other dignitaries, and that was it." Id. The family also attended the memorial service held at National Cathedral and, as Mr. Faraci testified, "my mother was there, and my aunts and uncles and the godchildren. They all showed, and we went there with the rest of the people from the Federal Government." Id. His sister's body was transferred to Pennsylvania, where the family held a funeral that was well attended by friends and family. Id. at 19. Ms. Faraci was buried in Monessen, Pennsylvania. Id.
Mr. Faraci testified that in the aftermath of his sister's death, "it took me like about eight or nine months" to even been to feel normal again. Id. at 19-20. He said that it was particularly difficult because she had stayed with him whenever she was in the United States between postings. Id. at 19. He explained that "[s]ometime I was down in the dumps, but the summer was coming and I was ready to play golf and ball and everything else, so every day it like eased up." Id. at 20. He never sought counseling to deal with the loss of his sister, stating:
I figured I had friends. I stayed with them and talked with them. They says, "You've got to go on.' I am working. So I figured each day it helped me out going to work.
The only problem is I missed her in the apartment, because she would always be there sometime when she'd come in.
Certain things trigger memories of his sister and her untimely death in Beirut, as Mr. Faraci explained, "I see pictures every once in a while, when they show it on TV or come back with something. When something else happens, they always reflect to the bombing." Id. at 20-21.
Mr. Faraci has asserted a personal claim against defendants for intentional infliction of emotional distress, which, based on his domicile at the time of the bombing, is governed by Maryland law. See Pls. Mem. in Supp. of State Law Claims at 91, 124-25. Based on the pleadings and the evidence presented to the Court, Mr. Faraci has stated a valid claim for intentional infliction of emotional distress under Maryland law and is entitled to recover compensatory damages from the defendants for the mental anguish that suffered as a result of his sister's death in the bombing. See Caldor, 625 A.2d at 963; Laubach, 556 A.2d at 689. I do not hesitate 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 the severe emotional distress experienced by Mr. Faraci after the death of his sister. See Caldor, 625 A.2d at 963. Accordingly, the Court values the loss associated with Mr. Faraci's mental anguish at $2.5 million. See Dammarell I, 281 F. Supp. 2d at 196-98 (explaining typical damage awards for solatium claims).
Under North Carolina law, "[t]he elements of battery are intent, harmful or offensive contact, causation, and lack of privilege." Dammarell IV, 404 F. Supp. 2d at 286-87 (quoting Hawkins v. Hawkins, 400 S.E.2d 472, 475 (N.C. Ct. App. 1991)). A successful plaintiff "may recover the present worth of all damages that naturally flow from the defendant's conduct." Id. at 287 (quoting 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. (quoting In re Air Crash, 982 F.Supp. at 1111.)
2. Intentional Infliction of Emotional Distress
Under North Carolina law, "[t]he 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.'" Holloway v. Wachovia Bank & Trust Co., S.E.2d 233, 240 (N.C. 1993) (quoting Dickens v. Puryear, 276 S.E.2d 325, 335 (N.C. 1981)). A successful plaintiff may recover damages for his or her "mental or physical pain and suffering, inconvenience, or loss of enjoyment which cannot be definitively measured in monetary terms," as well as for pecuniary damages, such as medical expenses and loss of earnings. Iadanza v. Harper, 611 S.E.2d 217, 221 (N.C. Ct. App. 2005).
"Where a battery claim is based on outrageous and malicious conduct by the defendant, and plaintiff suffers emotional trauma, there frequently will be more than one route to recovery in tort; that is the plaintiff can seek damages from battery and for intentional infliction of emotional distress." Dammarell, 404 F. Supp. 2d at 287 (citing Holloway v. Wachovia Bank & Trust Co., 452 S.E.2d 233, 240-41 (N.C. 1993)). "Although a plaintiff is free to advance multiple theories of recovery for his damages, he is 'not entitled to 'double recovery' for the same loss or injury.'" Id. (quoting Markham v. Nationwide Mut. Fire Ins. Co., 481 S.E.2d 349, 357 (N.C. Ct. App. 1997)).
Plaintiff Dennis Foster ("Mr. Foster") was assigned to the United States Embassy in Beirut as a Political Officer with the United States Department of State. Tr. Vol. IV at 9-10. He presently resides in Rockville, Maryland and is married with two children. Id. at 4-5.
Mr. Foster was born on August 24, 1949 in Iron Station, North Carolina, and is a United States citizen. Id. at 4. He graduated from high school in June 1967 and then attended the University of North Carolina at Chapel Hill, graduating in 1971 with a Bachelor of Arts in History, Political Science, and French. Id. at 5. During his senior year at the university, Mr. Foster passed both the written and oral portions of the Foreign Service exam. Id. at 5-6.
Immediately after graduating, Mr. Foster was drafted into the United States Army, where he served from 1971 to 1974. Id. at 6-7. While in the Army he studied Russian at the National Language Institute in Monterey, California, and earned the Pushkin Award as the top student in his class. Id. After training, he was posted to various bases in Germany, where he worked in intelligence and psychological operations. Id. at 7.
In 1974, after leaving the Army, Mr. Foster entered Stanford Law School, graduating in 1977. Id. Following law school, he worked for the Department of Commerce for one year. Id. After that year, Mr. Foster attended the University of London School of Oriental and African Studies, where he earned a Master of Arts in Middle East studies, with a specialty in Developmental Economics, in 1981. Id. at 7-8. Upon graduating from the University of London, Mr. Foster joined the Foreign Service. Id. at 8. His first posting was to the United States Embassy in Beirut as a Political Officer. Id. at 9. He arrived in the fall of 1981. Id.
On April 18, 1983, Mr. Foster was in his office "reading cable material, writing reports for Washington, reading newspapers, things like that." Id. at 14. Remembering the explosion, he testified that, around 1:00 p.m., he was listening to the BBC News when he heard: a loud deep noise that at first made me think the local Lebanese fishermen were fishing with dynamite, which they often did . . . and I also remember thinking, well, this is too loud and too long to be a dynamite explosion under water. Perhaps it's a sudden thunderstorm, in a clear blue sky. That didn't seem right. And then I could sense heat and I could sense a lack of oxygen, and the whole building was swaying, and I wanted to get away from the heat, and then light that I could see going up my window, but I could not run. The building -- the movement of the building prevented me from running, and then I remember being around the corner of my desk and then I lost consciousness, and when I woke up, I was on the floor.
Id. at 15. When Mr. Foster awoke, he saw: thick white dust, concrete dust everywhere, and I could hear the sound of my blood falling on all the paper that was on the floor, and I remember hearing voices saying stay down, stay down, and then I got up and I -- the first person I met was my boss, Ryan Crocker . . . and he didn't have a scratch on him. But he looked at me and pushed open the wounds here and there and said you're okay.
Id. at 15-16. As Mr. Foster recalled: "[I] had blood up and down my arms, and there was blood falling around my face, but there was no longer a lot of blood." Id. at 16. See Phase II Exh. 10 (photographs of Mr. Foster's injuries suffered in the bombing and wreckage of Mr. Foster's office). The cuts that Mr. Foster had received "came from the shattered glass from the windows in my office. I had a large window behind me, and then I had a window half that size on the side of the building. And all the glass from those windows was blown in on me." Tr. Vol. IV at 16.
Mr. Foster left his office with some colleagues and walked down a staircase. Id. at 17. He testified that most of the people from his area did not appear to be seriously injured, however:
[A]s we walked down the staircase, we could see that the people were much more seriously injured, and many of them were bleeding severely, or covered in blood already. . . . To me, it looked like they also had been injured by the blowing glass, but they had been injured much more severely, so you could see that the force of the explosion had been much closer to them than it had been to the rest of us up on my floor.
Id. He left the Embassy through a back exit and over a retaining wall. Id. at 17-18. He then made his way home and visited friends, who cleaned his wounds, which at that point Mr. Foster determined to be cuts on his face and arms from glass and an exploded blood vessel in his hand. Id. at 18-19. See Phase II Exh. 10 (photograph of Mr. Foster's injuries). He subsequently learned during a State Department physical that the bombing had also caused internal bleeding, but the doctors concluded that the internal injuries would heal themselves without further treatment. Tr. Vol. IV at 20. In addition, subcutaneous glass was embedded in his face, ears, and neck. Id. at 21. Doctors determined that there was too much glass to remove surgically, and decided to allow it to surface from Mr. Foster's skin on its own, which it did for several years following the bombing. Id.
In the days following the bombing, Mr. Foster participated in the clean-up effort at the Embassy site, attempting to secure sensitive documents. Id. at 23. When his clean-up efforts were complete, he went to work in office space that the British Embassy had made available. Id. at 24.
Mr. Foster lost several friends in the bombing. Id. In the days after the bombing, he attended a ceremony at the Beirut airport where the bodies of the United States citizens killed in the bombing were returned home. Id. at 25. The ceremony was a "solemn and dignified occasion." Id.
Mr. Foster left Beirut in July 1983. Id. at 26. In subsequent years, he was posted to Genoa, Italy and Abu Dhabi, United Arab Emirates. Id. at 26-27. He left the Foreign Service in 1991. Id. at 27. After leaving the Foreign Service, he moved to Milan, Italy, where he practiced law until 2000. Id. He returned to the United States that year, and has lived and worked in the greater Washington, D.C. area since that time. Id.
The Oklahoma City bombing and the September 11, 2001 attack on the World Trade Towers brought back memories of the Embassy bombing. Id. at 27-28. See Dammarell I, 281 F. Supp. 2d at 189-91 (discussing expert testimony that events such as Oklahoma City bombing and events of September 11, 2001, may trigger memories of a trauma and bring onset or recurrence of psychological symptoms of trauma or Post-Traumatic Stress Disorder). The Oklahoma City bombing, in particular, "seemed to me directly comparable," and Mr. Foster "felt a lot of empathy" with the victims. Tr. Vol. IV at 28. When Mr. Foster thinks back on the bombing, he thinks:
I should have been killed in that explosion because I think the odds were better than even that one would have been killed. For whatever reason, my wing of the building stood up, and the corresponding wing on the other side collapsed, and the center collapsed, and so in that sense I think the life I have lived since then has been an additional gift. It's borrowed time.
Mr. Foster testified that he agreed to participate in this lawsuit because:
I do believe that countries such as Iran, such as Syria, that sponsor terrorism, that sponsor the nonobservance, the trampling down of basic international law, order, and morality, should somehow be called to account in every possible forum, including this one.
As a federal government employee stationed overseas, Mr. Foster retained as his domicile in 1983 the state in which he last resided. See Dammarell II, 2005 WL 756090, at *22. From the time that Mr. Foster graduated from the University of North Carolina through the date of the Embassy bombing, he had no consistent contacts with any particular state; however, he maintained his residency in North Carolina. See Pls. Mem. in Supp. of State Law Claims at 10-11. Accordingly, the law of North Carolina applies to Mr. Foster's claims.
Based on the pleadings and the evidence presented to the Court, Mr. Foster has stated a valid claim for battery under the law of North Carolina and is entitled to recover compensatory damages from defendants "for pecuniary losses and expenses . . and pain and suffering, including mental suffering." See Dammarell IV, 404 F. Supp. 2d at 287 (quoting In re Air Crash, 982 S. Supp. at 1111). No evidence was presented to the Court upon which to award Mr. Foster damages for economic losses, such as loss of income or medical expenses. However, the Court values the loss associated with his pain and suffering and mental anguish at $1,500,000. Because he can recover for his mental anguish via his battery claim, there is no need for the Court to consider his intentional infliction of emotional distress claim, which would result in an impermissible double recovery. Accordingly, the Court should award Mr. Foster $1,500,000 on this default judgment.
Plaintiff Jacques Massengill ("Mr. Massengill") was posted to the United States Embassy in Beirut as a Marine Security Guard. Tr. Vol. I. at 171, 176. He is married, and has two children. Id.at 167.
Mr. Massengill was born on January 3, 1962 in Chapel Hill, North Carolina, and is a United States citizen. Id. He received his high school diploma in 1980. Id. Prior to graduating, he had already joined the Marine Corps, having enlisted the day after he turned seventeen and arranging with his high school to allow him to leave school a year early. Id. at 167-68. At the time that he enlisted, Mr. Massengill planned to make the Marine Corps a full career. Id. at 169.
In October 1979, Mr. Massengill entered boot camp at Parris Island, South Carolina. Id. After basic training he was posted to Okinawa, Japan. Id. at 170. While on Okinawa, Mr. Massengill was approached by one of his senior supervisors, who told Mr. Massengill that if he wanted to progress in the Marine Corps and there was not a war, there were three other types of "special duties" that he should do -- drill instructor duty, recruiting duty, or marine security guard duty. Id. Mr. Massengill decided to apply for the Marine Security Guard ("MSG") program. Id. at 171. He was accepted into MSG school, and his training class began in March 1981 in Quantico, Virginia. Id. After his training, his first posting was to Khartoum, Sudan. Id. at 173. His second posting was to Beirut. Id. at 175. Before departing for Beirut, Mr. Massengill was promoted to corporal. Id. Mr. Massengill arrived at the United States Embassy in Beirut in May 1982. Id. at 176.
On the morning of April 18, 1983, Mr. Massengill was standing post outside the Embassy's consular section from approximately 8:00 a.m. until noon. Id. at 196-97. At noon, he relieved Robert McMaugh, who was assigned to Post One, for lunch. Id. at 198. Mr. Massengill left Post One just before 1:00, when Corporal McMaugh returned from lunch. Id. at 199. Corporal McMaugh, who was not feeling well, tried to talk Mr. Massengill into taking his duty for the rest of the day, but Mr. Massengill, who was at the end of a six-day cycle of standing post and who was about to start three days off, was too tired. Id. Mr. Massengill then went to his room on the sixth floor of the Embassy. Id. at 200. Shortly thereafter, the Embassy was bombed. Describing the explosion, Mr. Massengill testified:
So I went into my room at about 1 o'clock and then started changing to get ready -- I think I was going out somewhere that afternoon at 2 o'clock. And all of a sudden, the windows cave in and shredded the glass curtains, and naturally I hold up my hands, and I got cut on my arms, a little bit on my face, and on my feet. And it just ripped through the glass curtains.
Now, these curtains are pretty heavy-duty, we had lost the majority of our windows in the summer of 1982. They came back in and replaced them again, but, of course, we taped them up to minimize the glass shards if something like that happened. Well, this time it didn't work too well, the glass came through and it ripped these curtains that were very heavy-duty, they were supposed to catch the rest of the glass, but that didn't work, either.
Initially, I had thought that somebody had shot some RPGs down from the back of the building and hit that side of the building where we were at . . . .
So I grabbed my reaction gear which we kept in our bedrooms on the sixth floor which consisted of flap jackets, helmets, a rifle, submachine gun, pistol, radios, first-aid kits, gas masks, everything we needed . . . .
So I grab my gear and I start calling on the radio down to post one, I said, we've been hit, we've been hit.
Again, I thought it was an RPG attack, and having been there for 11 months and experienced that before, I was a little bit excited, I was real excited because I got cut, I had never been cut up or anything before 11 months prior, this is like wow, this is -- this is interesting.
So I'm on the radio, but nothing's coming back, so I keep going, post one, post one, we've been hit, we've been hit. Silence, silence, silence, post one, we've been hit, we've been hit, still nothing.
And that's very abnormal because usually that marine, he would command all the other marines, he would be like a command post, sending us through the building.
So I grab my gear and I start to move out into the common lounge area, and people from D[efense] A[ttache's] O[ffice] started streaming into our area.
Id. at 201-03. The first people that he encountered were from the Defense Attache's office, located near the front of the building. Id. at 203-04. He helped treat their wounds, which were severe. Id. at 204.
The hallways of the Embassy were filled with smoke and tear gas escaping from ruptured canisters. Id. at 204-05. Mr. Massengill initially put on his gas mask, but discovered that it did not keep out the smoke. Id. at 205. He testified that, as he walked down the hall toward the middle of the building:
[A]ll of a sudden like this breeze blows, and the smoke clears out a little bit and I look off to my left, which I was going that way, I look off to my left, which is out this way, to the front of the building, and I could see the Mediterranean.
And at that point I knew that we had a serious problem, because again there used to be 40 feet worth of offices between that stairwell and the front of the building. Now I'm standing right on the edge of it looking out, seeing the Mediterranean, and we've got a serious problem.
At that point I knew something was terribly wrong.
Mr. Massengill's first instinct was to head down to Marine Post One, because no one was coming on the radio and the Embassy's air horns, which were supposed to sound in the event of an attack, were not going off as they should have been. Id. at 206. When he reached where Post One had been, "it was uneven gaps, there was lots of debris, there was fire falling off of it, it was very dark, lots of smoke. It was sort of scary, looking in there, it just didn't look like it did 15 minutes earlier when I had been down there." Id. at 207. While he wanted "to go in there and get McMaugh," who had been standing duty at Post One, because "marines, they don't leave their own," he realized that Corporal McMaugh must have been killed. Id. at 207-08. He was told that he should move on to help the injured, which he realized in hindsight "was a real good decision." Id. at 208.
Mr. Massengill testified that "the destruction was so catastrophic, that we were just trying to help the people that were still alive." Id. at 210. As he explained:
[T]he injuries that were sustained by the people that were in that car bombing were very, very traumatic injuries. And we're talking amputations, lacerations that were deep, gouges, blinded, people were blinded by glass, couldn't see.
And, obviously, these people were very, very upset about what was going on. One of our jobs that we try to do is you try to be the calming factor, you try to help these people anyway you can. . . .
And so this went on, I don't know, for a couple of hours, we would try to take those people and get them out of there. . . .
So there was -- I mean, I think the vast majority of people that were in the building that day were hurt. And the vast majority of those, at least two thirds, having these really traumatic injuries that I had never seen before. And to top all that off, as I had mentioned, when the building collapsed on itself, it broke up, we had a vault with a lot of weapons and CS gas. And then you have all the CS or tear gas floating through the air as you're trying to do this.
Id. at 210-14. In addition to helping the wounded, Mr. Massengill and other Marines were responsible for securing classified information that had been in safes blown open by the force of the blast. Id. at 216. As he summed up the first three hours in the aftermath of the attack, he explained that, "[w]ithout a doubt it was a very bad day, to put it mildly, it wasn't a good situation." Id. at 214-15.
At 2:00 a.m. the day after the blast, Mr. Massengill and others were finally sent to get sleep, but as he testified, "that's just not going to happen after something like that. The adrenalin is flowing, the excitement, the fear, I don't think anybody got any sleep." Id. at 218. For the first time since the bombing, Mr. Massengill had an opportunity to examine injuries that he had sustained in the attack, which included "cuts from the glass that came in, cuts on my arms, one on the face, and the bottoms of my legs, . . . because I was changing out of my uniform" at the time of the blast, as well as a cut lip. Id. at 219, 225. See also Phase II Exh. 5 (photo of Mr. Massengill at Embassy shortly after attack, partially showing injuries sustained by Mr. Massengill in bombing). Mr. Massengill never received medical treatment for his injuries. Tr. Vol. I at 218.
At 5:00 a.m. the day after the blast, Mr. Massengill was back at the Embassy site. Id. By that time, Embassy operations had shifted from rescue to recovery, after "it became obvious that whoever was alive had been removed from the rubble and moved on." Id. at 219. He added that recovering bodies at this stage was difficult emotionally because, "the vast majority of these people you knew, and their families all the time were located over outside of the picture waiting for some type of news about where's my father, where's my son, where's my wife, where's my husband." Id. at 222. He remembers that when they located the body of Robert McMaugh, "I was just throwing up, because it was that bad." Id. at 222-23.
Mr. Massengill was not able to contact his family until over a week after the Embassy bombing. Id. at 227. His mother had, however, seen him "running in and out of the building" in news reports of the attack, so she knew that he was alive. Id.
Mr. Massengill left Beirut in June 1983, and went to Luxembourg for a twelve month posting. Id. at 228-29. The tour was shortened to eight months, after he began to experience some difficulties, as he explained:
[I]t seemed like a quiet place, and it certainly was, it's actually a nice place, but it seemed too quiet at the time. But I was also experiencing some problems with, I was drinking too much, fighting too much. And it looked like there was a chance that I would probably be relieved from duty if I stayed out there much longer. So I offered to come back to the fleet.
Id. at 229. When asked whether these difficulties were related to his experiences in Beirut, Mr. Massengill responded:
Without a doubt, at the time it lasted about four years, it wasn't only Luxemburg, I think I had a drinking problem probably from '83 on out to '86 or '87, and a lot of fighting.
And at that time I rationalized that's what young marines do, you drink and you fight, that's what we're supposed to do, that's what we're paid to do.
Time has a way of letting you look back at things, and with a little distance to it, it's obvious that that behavior was abnormal . . . . Luckily, I was working with some people who had been in Vietnam who I think that they sort of recognized some of the behaviors that I was experiencing or that I was displaying.
So they were able to take an incident that may have been more serious and able to make it not so serious and help me to get past that point in my life.
Id. at 229-30. See Dammarell I, 281 F. Supp. 2d at 190 (discussing expert testimony regarding responses to traumas such as Beirut Embassy bombing, including deterioration of performance in major life areas and personality changes).
After leaving Luxembourg, Mr. Massengill returned to the "fleet" in the Marine Corps and was assigned to an interrogator/translator position at Camp Pendleton. Tr. Vol. I at 230-31. From there he entered the Marine's Defense Language Institute, where he studied Korean, and subsequently spent two years in South Korea working with the Korean Marines. Id. at 231-32. He then returned to San Diego and, over the next four years, began taking college courses, along with his wife, and working as a "survival, evasion, resistance, escape" instructor. Id. at 232-33. He then left the Marine Corps and went to the University of California at San Diego full-time, double majoring in Political Science and Economics and earning a Bachelor of Arts in 1993. Id. at 233. After finishing his undergraduate degrees, Mr. Massengill decided to go to graduate school at Georgetown University, where he received Master of Science in Foreign Service. Id. at 234. He subsequently passed the Foreign Service exam, received a Presidential Management Intern position at the Pentagon, and was hired by the State Department. Id. at 234-35. After joining the State Department, he had postings in Seoul, Korea and Croatia. Id. at 235. He is currently on a leave of absence from the State Department while working for the Department of Defense. Id. Combining his years of military and civilian service Mr. Massengill, at the age of forty-two, now has twenty-five years of total service with the federal government. Id. at 235-36.
The Beirut Embassy bombing has had a continuing impact on Mr. Massengill's life. For example, every April 18, he sends emails to Ryan Crocker and Charles Light, both of whom were at the Embassy in Beirut the day of the bombing, "just to touch base with them, see how they're doing." Id. at 236. He has not slept for more than two hours in a row for over twenty years, explaining that "[t]he sleep's just not there anymore, you go to sleep, wake up, go to sleep, wake up." Id. at 237. He recalls that while working at the United States Embassy in Croatia for the State Department, he felt that the Embassy "was very vulnerable to attack," explaining:
[Y]ou sit at meetings down on the ground floor, you have a meeting, the ambassador, everybody in it, of course, you got to attend.
But you don't want to attend because any time somebody could hit that building, so you're sitting at these meetings, and they're talking about whatever issues going on.
And you're daydreaming about what are you guys going to look like when the whole bottom floor gets wiped out just like Beirut.
Id. at 237-38. See Dammarell I, 281 F. Supp. 2d at 189 (discussing expert testimony that victims of traumas, such as the Beirut Embassy bombing, that involve destruction of a building are likely to have concerns about structural integrity of, and seek escape routes from, any building they enter). He also testified that certain events still trigger memories of Beirut:
[a]nything that happens on TV, you see it, whether it's in the Gaza Strip, Israel, 911, Afghanistan, Iraq, you see the images . . . you see it, you smell it, you taste it, you feel it. You know what these people are going through, and so, in a sense, you relive it any time you turn on the TV.
Tr. Vol. I at 237. See Dammarell I, 281 F. Supp. 2d at 189-91 (discussing expert testimony regarding common responses to traumas such as Beirut Embassy bombing, such as sleeplessness, hypervigilence and a constant scanning of one's environment, and sensitivity to terrorist events such as the 1995 Oklahoma City bombing, and attacks of September 11, 2001 that serve as reminders of experienced attack). When asked why he elected to participate in this litigation Mr. Massengill testified:
Charlie Light called me and told me that Anne [Dammarell] was starting this off. Initially, I was doing it in support of Charlie, we sort of joke a little bit, what better way to get back at terrorists than with six American lawyers on them, what better nightmare is that, these lawyers. . . . Some times it's better to hit them in the wallet than it is to hit them in the face, you can get behavior adjusted the way that you want it.
And so that's how I view this lawsuit, who knows, maybe it will help adjust the behavior of the Government of Iran.
You never know, it's worth trying.
As a member of the United States Marines stationed overseas, Mr. Massengill retained as his domicile in 1983 the state in which he last resided. See Dammarell II, 2005 WL 756090, at *22. Mr. Massengill was born and raised in North Carolina and joined the Marines before he even graduated from high school. After basic training and MSG training, his second posting was to Beirut. The law of North Carolina, therefore, applies to his claims.
Based on the pleadings and the evidence submitted to the Court, Mr. Massengill has stated a valid claim for battery under North Carolina law and is entitled to recover compensatory damages from defendants for "all damages that naturally flow from the defendant's conduct." Dammarell IV, 404 F. Supp. 2d at 287 (quoting In re Air Crash Distaster at Charlotte, N.C., 982 F. Supp. at 1111). Although, under North Carolina law, successful battery plaintiffs can recover for economic losses, no evidence has been provided to the Court regarding any economic loss to Mr. Massengill. However, the Court values the loss associated with his pain and suffering and mental anguish caused by the battery at $750,000. Because Mr. Massengill can recover for his mental anguish under his battery claim, there is no need for the Court to consider his intentional infliction of emotional distress claim, which would result in an impermissible double recovery. Accordingly, the Court should award Mr. Massengill $750,000 on this default judgment.
Under Ohio law, "[a] person is subject to liability for battery when he acts intending to cause a harmful or offensive contact, and when a harmful contact results." Love v. City of Port Clinton, 524 N.E.2d 166, 167 (Ohio 1988) (citing Restatement (Second) of Torts § 13). Offensive contact is contact which would be offensive to a reasonable sense of personal dignity. Id. A successful plaintiff may receive compensatory damages "for the real injury received, including the physical and mental pain as well as the direct loss in earning capacity." Lake Shore Elec. Ry. v. Mills, 31 Ohio Cir. Dec. 146, 1911 WL 1631, at *2 (Ohio Cir. Ct. 1911). With regard to non-economic losses, "[t]here is no specific yardstick for determining the amount of damages to be awarded for pain and suffering," which includes not only compensation for "physical discomfort and stress, but also . . . the mental and emotional trauma that are recoverable as elements of compensatory damages." Volz v. Hudson, 761 N.E.2d 711, 714 (Ohio Mun. Ct. 2001).
2. Intentional Infliction of Emotional Distress
Under Ohio law, "[i]n order to recover for intentional infliction of emotional distress, a plaintiff must show that (1) the defendant intended to cause emotional distress or knew or should have known that its conduct would result in serious emotional distress to the plaintiff; (2) defendant's conduct was outrageous and extreme beyond all possible bounds of decency and was such that it can be considered as utterly intolerable in a civilized community; (3) defendant's conduct was the proximate cause of plaintiff's psychic injury; and (4) plaintiff's emotional distress was serious and of such a nature that no reasonable person could be expected to endure it." Ekunsumi v. Cincinnati Restoration, Inc., 698 N.E.2d 503, 506 (Ohio App. Ct. 1997) (citations omitted). However, where a plaintiff seeks damages under both battery and intentional infliction of emotional distress claims, damages for emotional distress that resulted from the battery can only be obtained via the battery claim. See Manin v. Diloreti, 641 N.E.2d 826, 827 (Ohio Ct. App. 1994) ("Any emotional distress plaintiff suffered was caused by the alleged battery and compensatory damages for that distress would be recoverable as part of the damages recoverable for the alleged battery.").
3. Wrongful Death Statute
Ohio's wrongful death statute provides:
When the death of a person is caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action and recover damages if death had not ensued, the person who would have been liable if death had not ensued . . . shall be liable to an action for damages, notwithstanding the death of the person injured.
Ohio Rev. Code § 2125.01. Wrongful death actions must be brought by the personal representative of the decedent's estate and damages recovered are "for the exclusive benefit of the surviving spouse, the children, and the parents of the decedent, all of whom are rebuttably presumed to have suffered damages by reason of the wrongful death." Ohio Rev. Code § 2125.02(A)(1).
Compensatory damages recoverable under Ohio's wrongful death statute include loss of support from the reasonably expected earning capacity of the decedent, loss of services and society of the decedent, loss of prospective inheritance, and mental anguish. Ohio Rev. Code § 2125.02(A)(1). The distribution of an award under a wrongful death statute is to be determined by an Ohio probate court, specifically, The amount received by a personal representative in an action for wrongful death under sections . . . shall be distributed to the beneficiaries or any one or more of them. The court that appointed the personal representative . . . shall adjust the share of each beneficiary in a manner that is equitable, having due regard for the injury and loss to each beneficiary resulting from the death and for the age and condition of the beneficiaries. If all of the beneficiaries are on an equal degree of consanguinity to the deceased person, the beneficiaries may adjust the share of each beneficiary among themselves. If the beneficiaries do not adjust their shares among themselves, the court shall adjust the share of each beneficiary in the same manner as the court adjusts the shares of beneficiaries who are not on an equal degree of consanguinity to the deceased person.
Ohio Rev. Code § 2125.03(A)(1).
Plaintiff Ronnie Victor Tumolo ("Mr. Tumolo") was posted to the United States Embassy in Beirut as a Marine Security Guard. Tr. Vol. VIII at 79-81. He is married and has two sons. Id. at 120.
Mr. Tumolo was born on May 22, 1963 in Cleveland, Ohio, and is a United States citizen. Id. at 75. He graduated from Valley Forge High School near Cleveland, Ohio in June 1981, and testified, "I had plans and already knew pretty much the middle of my senior year that I wanted to go in the military, and I talked a friend of mine into joining together, and that's what we did." Id. at 75-76. Shortly after graduation, he went to boot camp at Parris Island, South Carolina, arriving as a private first class. Id. at 76-77. At that point, he envisioned a twenty to thirty year career in the military, thinking that it "would be really great to be able to retire some day and not even be 40 yet." Id. at 76.
After completing basic training, Mr. Tumolo was assigned to military occupational school for logistics training. Id. at 77. In the fall of 1981, he was sent to Okinawa, Japan. Id. at 78. Once on Okinawa, he grew dissatisfied with his occupational specialty, explaining:
I always had this itch to do something else in the military, and, you know, I had these grandiose notions that everybody in the Marine Corps had polished boots and had starch in their uniforms, and I didn't really see that in Okinawa. So I was looking for something else to do.
Id. at 78-79. His career planning officer told him about the different types of "special duties" available in the Marine Corps, and he chose Marine security guard duty because, as he testified, "I wanted to see the world . . . . So I thought if I go on embassy duty, I'd [be] able to travel and see other places." Id. at 79. He applied for and was accepted into Marine Security Guard School. Id. at 80. At the end of his training course in Quantico, Virginia, he selected Beirut for his first posting. Id. He arrived in Beirut in early February 1983. Id. at 81.
On the evening of April 17, Mr. Tumolo began his scheduled duty at Post One. Id. at 85. He remembered that "[i]t was one of the quietest nights I think I had ever stood." Id. Between 6:30 a.m. and 7:00 a.m. on April 18, Robert McMaugh, who was Mr. Tumolo's "relief" on Post One, came downstairs and, as Mr. Tumolo testified, "I'll never forget what he said. He said to me, Tumolo, I'll give you 300 Lebanese lira if you stand my duty today, because I can't; I'm so sick." Id. at 86-87. He further testified:
I actually thought about it, because I was fresh out of MSG school and had spent most of my money upgrading my uniforms, but I didn't want to wake our gunny up and ask him at 6:30 in the morning if I could stay on post for Bob. So I said, Well, I don't think that's going to happen but we'll see how things go later in the day.
Id. at 87. At the end of his duty Mr. Tumolo left Post One, and went up to his room in the Embassy to get some sleep. Id.
At approximately 12:45 p.m., Mr. Tumolo received a call from Mr. Tony, the Marines' cook, telling him that the MSG battalion's gunnery sergeant, or gunny, was looking for him, and that he needed to come downstairs and eat before the dining facility closed. Id. at 88. He arrived downstairs to Post One just as the gunnery sergeant was walking out of the Embassy. Id. at 89. The gunnery sergeant indicated that he wanted to speak with Mr. Tumolo when he returned and, as Mr. Tumolo testified:
[B]ehind him, I could see Bob McMaugh, Corporal McMaugh, looking at me with this huge grin on his face because he knew that the gunny was probably going to chew me out, and it would be a break for him because he wouldn't be getting chewed out, because I was the youngest Marine at post, and before I got there, Bob was the youngest Marine at post.
Id. He looked at Corporal McMaugh and thought, "Man, you're not sick; there's nothing wrong with you." Id. Less than fifteen minutes later, Corporal McMaugh was killed in the Embassy bombing.
After speaking with his gunnery sergeant, Mr. Tumolo went to the Marine's mess hall to eat lunch. Id. at 89-90. Remembering the explosion and the moments immediately proceeding it, he testified:
Mr. Tony brought me over what was on his menu for the day, which was rice with chili, and he put it in front of me, and he turned around to walk away, and about that time, there was this enormous, enormous explosion. There was chards of glass and metal and plaster that just came off the walls, kind of swept behind me. It landed in my food. It landed on the table. It landed on the other Marines that were at the table.
And they looked at me and I looked back at them, and they said, Do you know what to do? And I said, Yes, I know what to do, and they said you better do it. They stood up. They took off. I went out to check on Mr. Tony, and he was standing in the kitchen. I told him to do what he could, leave the building, get out as soon as you can, because the kitchen was behind the wall, and there was no damage behind that wall. That wall protected him.
[A]t that point . . . that entire day went very much downhill. I immediately -- I had my radio on, and over the radio was another marine, Charles Pearson, and he said, Holy shit, we've been hit big time. And he started shouting the word "react," "react," which was a sign that we had -- when we heard that, we had to go to our rooms, get our gear, get our weapons, and meet in the center point.
Id. at 89-91. As he ran to get his gear Mr. Tumolo noticed that:
On the way, there was just people pouring out of their offices that still had offices intact, bleeding from the face and hands, and somebody must have been shopping in the PX or the commissary that we had in the embassy. There was a roll of paper towels laying in the hallway. So I picked it up and started unrolling the paper towels to form a compress just to hold on your face. There were a lot of open cuts and deep cuts in people's faces.
So I kept working my way. Eventually I got to the top floor where my bedroom was, and I went to my room and I went to open the door and it wouldn't open. So I stood back and I ran at my bedroom door full speed and it still wouldn't open. So then I stood back and kicked the door handle.
When I kicked the door handle, my bedroom door flung open, and all I could see was the Mediterranean. It was almost like riding in an [airplane] and looking out the back of it. All I could see was smoke, flames. There were 55 gallon drums on the roof of sodium nitrate, which we used in an emergency to destroy paper. That was on fire. Our riot gas was on fire, the smell of the explosion itself, and there was nothing but water from the burst pipes that were shooting down, and it was just something I had never seen anything like before in my life.
Id. at 91-92. Mr. Tumolo's room had been in the part of the Embassy that was sheared off in the explosion: "Everything from my room down was gone." Id. at 92.
Mr. Tumolo then made his way back downstairs:
[T]he majority of people that I saw were wounded, and they were hurt very badly, and some of them were not injured at all, but they were panicking and screaming. They were crying and didn't know what was going on, and there were people, one or two people, that were actually missing eyes. I could tell they were missing eyes because of the indentation of their eyelids and they had their hands over their eyes and blood was coming from their hands. I didn't know what else to do but suggest they take off a piece of clothing, use it to put direct pressure. I tried to lead people down out of the building.
Id. at 93. He got out of the building using a ladder setup at the rear of the embassy, recalling:
[A]t that point, I still had not realized what it [the Embassy] looked like, because all I could see was this tunnel vision view of the ocean and the debris that laid down below me. Once I got outside and I'd seen fire, I didn't know what to think. There was still remnants of the ambassador's motorcade that was in front. I could see the bodyguards in the vehicle still trapped, obviously dead.
The Marine gunnery sergeant gathered the Marines and started assigning various details, or tasks. Id. Soon thereafter, Marines from the Marine Amphibious Unit, headquartered at the Beirut airport, arrived to help. Id. at 95. He was familiar with the Embassy, so Mr. Tumolo took a group of Marines inside to make sure that all of the Americans were out of the building. Id. He testified that, while back in the building they "noticed that there was reams and reams of classified documents laying in the debris. There was actual safes, four-door heavy safes that weigh thousands of pounds that had actually blown out of the building." Id.
Mr. Tumolo remembers, "that entire day was just pretty much a search and recovery-type activity." Id. at 95-96. His gunnery sergeant did not place him on the "digging detail," which involved the recovery of remains of people killed in the attack. Id. at 96. As Mr. Tumolo noted, "I don't know if that was his way of saying, you know, you're the youngest one here, I don't want you to have to get involved with some of this stuff if you don't have to." Id. Instead, he was tasked with "some of the search for classified material and some of the evacuation procedures that were going on." Id. As evening fell, heavy equipment was brought in to help with recovery efforts. Id.
Mr. Tumolo and another Marine were dispatched to the AUB Hospital. Id. at 97. He remembers that, "[i]t was like time stood still. We walked down the middle of Beirut carrying M-16s and radios, and nobody challenged us. Nobody said anything to us. We walked, or ran, when it was possible, to the hospital." Id. Remembering his initial reaction when he arrived at the hospital, Mr. Tumolo testified:
[W]hen we arrived, they had already had several caskets sealed, and I can remember looking at them and seeing tall [sic] these American names and thinking, My God, this really is that bad. At that time, I hadn't realized the impact of lost life.
When Mr. Tumolo returned to the Embassy site he had an opportunity to assess, for the first time, the injuries that he had received in the bombing:
I had a lot of cuts and embedded glass in my back and back of my skull. The gunny actually realized I was injured when we were standing out in front of the embassy, and he called my name. When I turned, he could see blood running down the back of my head, and he said get over here. He called over one of the corpsmen, and he lifted up my shirt . . . and seen that I had a bunch of gouges and cuts and bruises and whatnot, . . . . So the corpsman treated me with some antibiotic or some antiseptic creams. He gave me some bandages, and we went back to work.
That evening, Mr. Tumolo and other Marines went to a residence that had been established as a "safe haven" to try to get some rest. Id. at 101. Describing the mood that evening, he stated:
It was unusual. We were just mad as hell because we didn't know what to do, and all we were going to be doing -- we didn't know. I don't know what to explain. It was a sick feeling of fear inside. You know that feeling of when somebody scares you and you get that feeling in your heart? That's how it went that whole night.
Id. See Dammarell I, 281 F. Supp. 2d at 189-91 (discussing expert testimony that fears and anxieties are among first symptoms of trauma among those severely injured in an attack). Over the next two to three days, Mr. Tumolo and others engaged in continuing recovery efforts. Tr. Vol. VIII at 102. As Mr. Tumolo testified:
We went back into the building. We tried to salvage clothes, something we could wear. I had pretty much lost everything because my entire room went down in the rubble, and that day was pretty much being on site, lending any assistance we could, organizing working parties or details with the Marines ...