The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
These actions arise from the June 25, 1996 bombing at Khobar Towers, a residence on a United States military base in Dhahran, Saudi Arabia. The plaintiffs in this consolidated action are the family members and estates of 17 of the 19 servicemen killed in the attack. Plaintiffs allege that the Islamic Republic of Iran ("Iran"), the Iranian Ministry of Information and Security ("MOIS"), the Iranian Islamic Revolutionary Guard Corp ("IRGC" or "the Pasdaran"), and "John Does 1-99" are liable for damages from the attack because they provided material support and assistance to Hezbollah,*fn1 the terrorist organization that orchestrated and carried out the bombing.*fn2 Plaintiffs have relied upon causes of action founded upon provisions of the Foreign Sovereign Immunities Act ("FSIA"), inter alia, 28 U.S.C. § 1605(a)(7).
In their second amended complaints, plaintiffs named as defendants (1) the Islamic Republic of Iran; (2) the Iranian Ministry of Information and Security ("MOIS"); (3) the Iranian Islamic Revolutionary Guard Corps ("IRGC" or "the Pasdaran"); (4) and "John Does 1-99[.]" Second Amended Complaints, ¶1; see also id., ¶¶ 24, 25, 27, 29. Plaintiffs sought damages for wrongful death (Count I); survival action (Count II); "economic damages" (Count III); intentional infliction of emotional distress (Count IV); for plaintiffs Ibis S. Haun, Marie R. Campbell, Shyrl L. Johnson, Katie L. Marthaler and Dawn Woody, loss of consortium (Count V); solatium (Count VI); and "punitive damages" (Count VII).
Plaintiffs requested judgment in their favor against all of the defendants. In addition, the plaintiffs in Civil Action No. 00-2329 sought compensatory damages against all defendants in the amount of $890,000,000, "plus economic damages in an amount to be determined at trial for each of Decedents' Estates"; punitive damages against defendants MOIS, the IRGC and John Does 1-99 in the amount of $500,000,000; and reasonable costs, expenses and attorneys' fees.
The plaintiffs in Civil Action No. 01-2104 sought compensatory damages against all defendants in the amount of $3,660,000,000 "plus economic damages in an amount to be determined at trial for each of Decedents' Estates"; punitive damages against defendants MOIS, the IRGC and John Does 1-99 in the amount of $500,000,000; and reasonable costs, expenses and attorneys' fees.
On February 1, 2002, the court (Jackson, J.) consolidated the two civil actions, and in Civil Action No. 00-2329, granted the plaintiffs' motion for entry of default as to defendants Islamic Republic of Iran, MOIS and the IRGC. February 1, 2002 Order (Docket No. 9, Civil Action No. 00-2329) at 1. On February 6, 2002, the Clerk entered a default in Civil Action No. 00-2329 against defendants Islamic Republic of Iran, MOIS and the IRGC. Default (Docket No. 10, Civil Action No. 00-2329). On July 30, 2002, both actions were referred to Magistrate Judge Robinson for all purposes. (July 30, 2002 Order (Docket No. 11) at 1.) On October 4, 2002, Magistrate Judge Robinson granted plaintiffs' motion in Civil Action No. 01-2104 for entry of default as to defendants Islamic Republic of Iran, MOIS and the IRGC. (October 4, 2002 Order (Docket No. 11, Civil Action No. 01-2104) at 1.) On October 8, 2002, the Clerk entered a default in Civil Action No. 01-2104 against defendants Islamic Republic of Iran, MOIS and the IRGC. Default (Docket No. 12, Civil Action No. 01-2104) at 1. On March 14, 2003, plaintiffs moved for a continuance of the hearing on liability and damages. Plaintiffs' counsel represented that counsel "has learned that certain immediate family members of the soldiers killed in the Khobar Towers terrorist attack -- family members who have cognizable claims under the Foreign Sovereign Immunities Act ("FSIA") -- are not currently named as parties in these consolidated actions." (Motion for Continuance of Trial Date and Request for Scheduling Conference (Docket No. 16) at 2.) Counsel further represented that the firm "is in the process of identifying all such family members and anticipates filing amended complaints within the next several weeks." Id. Magistrate Judge Robinson granted plaintiffs' motion, and, in accordance with the request of plaintiffs' counsel, "tentatively" scheduled the hearing for "the period of December 1, 2003 to December 18, 2003[.]" (March 17, 2003 Order (Docket No. 17) at 1.) Plaintiffs filed their second amended complaints on May 6, 2003.
Upon consideration of plaintiffs' motions to vacate their consent to proceed before a magistrate judge for all purposes and to clarify the purpose of the referral to a magistrate judge, the court re-referred the consolidated civil actions to Magistrate Judge Robinson "to hear and determine pretrial matters as permitted thereby, and pursuant to 28 U.S.C. § 636(b)(1)(B), to conduct hearings, and to submit proposed findings and recommendations for the disposition by the Court of any motion for judgment by default upon the evidence submitted in accordance with 28 U.S.C. § 1608(e)." (Docket No.  at 1-2.) The Court denied plaintiffs' motion for clarification of the referral. (August 22, 2003 Order (Docket No. 25) at 1.) On September 3, 2003, Magistrate Judge Robinson scheduled the hearing on liability and damages for December 1 through December 18, 2003. (September 3, 2003 Order (Docket No. 26) at 1.)
Plaintiffs filed their pretrial statement on October 31, 2003 ((Docket No. 30).) In accordance with Magistrate Judge Robinson's Final Pretrial Order (Docket No. 32), plaintiffs filed a memorandum regarding issues relevant to liability. See Supplemental Bench Memorandum on Liability Issues ("Memorandum on Liability") (Docket No. 33). In the memorandum, plaintiffs stated that they "do not expect to identify [Defendants] John Does 1-99 before the commencement of the trial[,]" and that "[a]ccordingly, Plaintiffs will not seek a finding of liability against the co-conspirators John Does 1-99, who were named as defendants when the complaints in this consolidated action were filed." (Memorandum on Liability at 9.) On November 19, 2003, plaintiffs moved for entry of default against the Islamic Republic of Iran, MOIS and the IRGC. (Plaintiffs' Motion for Entry of Default (Docket No. 38) at 1.) The Court granted the motion. November 26, 2003 Order. (Docket No. 39, Civil Action No. 00-2329; Docket No. 32, Civil Action No. 01-2104.)
Plaintiffs examined witnesses and offered other evidence with respect to liability and damages on December 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 16, 18 and 19, 2003. On December 19, 2003, plaintiffs moved to voluntarily dismiss Defendants "John Does 1-99," and Magistrate Judge Robinson granted the motion. (December 19, 2003 Tr. (Docket No. 128) at 69-70.) The magistrate judge recessed the hearing until February 5, 2004, the earliest date that plaintiffs' counsel, plaintiffs' witnesses and the court were be available to continue. Magistrate Judge Robinson received further evidence on February 5, 6, 9 and 10, 2004.
During the recess in the evidentiary hearing a panel of the District of Columbia Circuit decided Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004). Plaintiffs asked that the hearing resume on February 5, 2004 as scheduled. On February 6, 2004, when the schedule for the conclusion of the evidentiary hearing and for closing argument was addressed by Magistrate Judge Robinson, counsel for plaintiffs asked that counsel's closing argument be deferred until counsel filed Plaintiffs' proposed findings of fact and conclusions of law. Magistrate Judge Robinson ordered that plaintiffs file their proposed findings and conclusions on April 1, 2004, the date proposed by plaintiffs' counsel. Magistrate Judge Robinson scheduled plaintiffs' closing argument for April 15, 2004, the date proposed by Plaintiffs' counsel. On April 9, 2004, Magistrate Judge Robinson postponed the April 15 closing argument, intending to order supplemental briefing of issues relevant to the liability of the remaining defendants.
In light of the D.C. Circuit's opinions in Cicippio-Puleo and Acree v. Republic of Iraq,*fn3 plaintiffs moved to modify the magistrate judge's Final Pretrial Order, or in the alternative to file third amended complaints so as to incorporate claims based in state law. On August 4, 2004, Magistrate Judge Robinson denied plaintiffs' Motion for Reconsideration; granted plaintiffs' motion for leave to file third amended complaints; and ordered that plaintiffs file the third amended complaints by August 9, 2004. (Aug. 4, 2004 Order (Docket No. 103) at 2-3.)
Plaintiffs filed the third amended complaints on August 4, 2004. Plaintiffs named as defendants in the third amended complaints the Islamic Republic of Iran, the "Iranian Ministry of Information and Security[,]" and the "Iranian Islamic Revolutionary Guard Corps[.]" Plaintiffs again alleged that "[t]he Hizbollah terrorist organization is a creation and agent of the Islamic Republic of Iran"; that "[i]n 1995, Hizbollah began plotting a terrorist attack against United States interests in Saudi Arabia"; and that "[Hizbollah] ultimately detonated a bomb outside Khobar Towers." (Third Amended Complaints at 2.) Plaintiffs allege that "[u]nder United States law, the Islamic Republic of Iran --which funds, trains, and directs Hizbollah through the Iranian Ministry of Information and Security and the Iranian Revolutionary Guard Corps-- is responsible for this terrorist attack and for the murder of [Plaintiffs' decedents]." Id.
1. In June 1996, Master Sergeant Michael Heiser, Captain Leland Timothy Haun, Airman First-Class Justin R. Wood, Senior Airman Earl F. Cartrette, Jr., Airman First-Class Brian McVeigh, Sergeant Millard D. Campbell, Staff-Seageant Kevin J. Johnson, Airman First-Class Joseph E. Rimkus, Airman First-Class Brent E. Marthaler, Technical Sergeant Tranh ("Gus") Nguyen, Airman First-Class Joshua E. Woody, Airman First-Class Peter J. Morgera, Master Sergeant Kendall Kitson, Jr., Captain Christopher Adams, Airman First-Class Christopher Lester, Senior Airman Jeremy A. Taylor, and Technical Sergeant Patrick P. Fennig were citizens of the United States and members of the United States Air Force. They were stationed in Dhahran, Saudi Arabia, and resided in the Khobar Towers.
2. The United States military presence in Saudi Arabia was with the consent of that host country. Blais, 2006 WL 2827372, *2 (D.D.C. Sept. 29, 2006) (Lamberth, J.). It was part of a coalition of forces, primarily from the United States, Great Britain, and France, that was charged with monitoring Iraq's compliance with United Nations Security Council resolutions enforcing the cease-fire that had brought an end to the 1991 "Desert Storm" ejection of Iraqi occupying forces from Kuwait. Id.
3. The deployment of U.S. troops to the region was considered a peacetime deployment within a friendly host country. Id.
4. The seventeen decedents represented in this action were engaged in routine peace time operations while stationed in Saudi Arabia, and were charged with enforcing the "no fly zone" in southern Iraq.
5. Defendant Iran "is a foreign state and has been designated a state sponsor of terrorism pursuant to section 69(j) of the Export Administration Act of 1979 (50 U.S.C.A. § 2405(j)) continuously since January 19, 1984." Flatow v. Islamic Republic of Iran, 999 F. Supp.1, 11, (D.D.C. 1998) (Lamberth, J.).
6. Defendant the IRGC is a non-traditional instrumentality of Iran. It is the military arm of a kind of shadow government answering directly to the Ayatollah and the mullahs who hold power in Iran. It is similar to the Nazi party's SA organization prior to World War II. The IRGC actively supports terrorism as a means of protecting the Islamic revolution that brought the Ayatollah to power in Iran in 1979. It has its own separate funding sources, derived from confiscation of the assets of the former Shah of Iran in 1979, when the Shah was deposed. Blais, 2006 WL 2827372, at *2.
7. The Khobar Towers was a residential complex in Dhahran, Saudi Arabia, which housed the coalition forces charged with monitoring compliance with U.N. security council resolutions. Id. at *3.
The Attack on the Khobar Towers
8. At approximately 10 minutes before 10 pm on June 25, 1996, a large gasoline tanker truck pulled up alongside the perimeter wall of the Khobar Towers complex. The driver jumped out, ran into a waiting car that had pulled up near the truck, and sped off. Id.
9. Although security guards near the top of Building 131 started to give warnings about the unusual vehicle location, the truck exploded with great force within about 15 minutes. The investigation determined that the force of the explosion was the equivalent of 20,000 pounds of TNT. The Defense Department said that it was the largest non-nuclear explosion ever up to that time. Id.
10. The explosion sheared off the face of Building 131, where Paul Blais and his crewmates were housed, and reduced most of it to rubble. Nineteen United States Air Force personnel were killed in the explosion, and hundreds of others were injured. Id. Iranian Support and Sponsorship of the Attack
11. The attack was carried out by individuals recruited principally by a senior official of the IRGC, Brigadier General Ahmed Sharifi. Sharifi, who was the operational commander, planned the operation and recruited individuals for the operation at the Iranian embassy in Damascus, Syria. He provided the passports, the paperwork, and the funds for the individuals who carried out the attack. Id.
12. The truck bomb was assembled at a terrorist base in the Bekaa Valley which was jointly operated by the IRGC and by the terrorist organization known as Hezbollah. The individuals recruited to carry out the bombing referred to themselves as "Saudi Hezbollah," and they drove the truck bomb from its assembly point in the Bekaa Valley to Dhahran, Saudi Arabia. Id.
13. The terrorist attack on the Khobar Towers was approved by Ayatollah Khameini, the Supreme leader of Iran at the time. It was also approved and supported by the Iranian Minister of Intelligence and Security ("MOIS") at the time, Ali Fallahian, who was involved in providing intelligence security support for the operation. Fallahian's representative in Damascus, a man named Nurani, also provided support for the operation. Id.
14. Under Louis Freeh, the FBI conducted a massive and thorough investigation of the attack, using over 250 agents. Id.
15. Based on that investigation, an Alexandria, Virginia, grand jury returned an indictment on June 21, 2001, against 13 identified members of the pro-Iran Saudi Hezballah organization. The indictment's description of the plot to bomb the Khobar Towers complex frequently refers to direction and assistance from Iranian government officials. Id.
16. In addition, as a result of this investigation, the FBI also obtained a great deal of information linking the defendants to the bombing from interviews with six admitted members of the Saudi Hezbollah organization, who were arrested by the Saudis shortly after the bombing. Id. at 11-30. These six individuals admitted to the FBI their complicity in the attack on the Khobar Towers, and admitted that senior officials in the Iranian government provided them with funding, planning, training, sponsorship, and travel necessary to carry out the attack on the Khobar Towers. (Exh. 7 at 11, 13-14, 27; see also Dec. 18, 2003 Tr. at 24-30.) The six individuals also indicated that the selection of the target and the authorization to proceed was done collectively by Iran, MOIS, and IRGC, though the actual preparation and carrying out of the attack was done by the IRGC. (Dec. 18, 2003 Tr. at 25.)
17. According to Director Freeh. the FBI obtained specific information from the six about how each was recruited and trained by the Iranian government in Iran and Lebanon, and how weapons were smuggled into Saudi Arabia from Iran through Syria and Jordan. One individual described in detail a meeting about the attack at which senior Iranian officials, including members of the MOIS and IRGC, were present. (Dec. 18, 2003 Tr. at 23.) Several stated that IRGC directed, assisted, and oversaw the surveillance of the Khobar Towers site, and that these surveillance reports were sent to IRGC officials for their review. Another told the FBI that IRGC gave the six individuals a large amount of money for the specific purpose of planning and executing the Khobar Towers bombing.
18. Louis Freeh has publicly and unequivocally stated his firm conclusion, based on evidence gathered by the FBI during their five-year investigation, that Iran was responsible for planning and supporting the Khobar Towers attack. Blais at *4.
19. Dale Watson was formerly the deputy counterterrorism chief of the FBI in 1996, and subsequently became the section chief for all international terrorism in 1997. Mr. Watson was responsible for day to day oversight of the FBI investigation of the Khobar Towers attack. Mr. Watson has given sworn testimony that information uncovered in the investigation, "clearly pointed to the fact that there was Iran MOIS and IRGC involvement in the bombing." Id.
20. Dr. Patrick Clawson testified as an expert in three areas: (1) the government of Iran; (2) Iran's sponsorship of terrorism; and (3) the Iranian economy. Dr. Clawson's expert opinion regarding the perpetrators of the Khobar Towers bombing is based on his involvement on a Commission investigating the bombing, his top-secret security clearance, his discussions with Saudi officials, as well as his academic research on the subject. Exh. 9 at 62-63.
21. Dr. Clawson testified that the government of Iran formed the Saudi Hezbollah organization. Id. at 56. He testified that the IRGC was responsible for providing military training to Hezbollah terrorists as to how to carry out a terrorist attack. Id. at 28. He also testified as to the defendants' state-sponsorship of terrorism, noting that at the time of the Khobar Towers bombing, Iran spent an estimated amount of between $50 million and $150 million on terrorist activities. Exh. 10 at 46.
22. In light of all these facts, Dr. Clawson stated conclusively his opinion that the government of Iran, MOIS, and IRGC were responsible for the Khobar Towers bombing, and that Saudi Hezbollah carried out the attack under their direction. Exh. 9 at 67-68.
23. Dr. Clawson's expert opinion is supported by Dr. Bruce Tefft, whose expert opinion this Court adopted in Blais. Dr. Tefft was one of the founding members of the CIA's counterterrorism bureau in 1985. He served in the CIA until 1995, and has continued to work as a consultant on terrorism since that time, including work as an unofficial adviser to the New York Police Department's counterterrorism and intelligence divisions. He retains a top-secret security clearance in connection with his work. He has been qualified as an expert witness in numerous other cases involving Iranian sponsorship of terrorism. He was qualified as an expert witness on terrorism in this case. Id.
24. Dr. Tefft expressed the opinion that defendants the Islamic Republic of Iran and the Iranian Revolutionary Guards Corp were responsible for planning and supporting the attack on the Khobar Towers, including providing operational and financial support. He stated that there was "no question about it. It wouldn't have happened without Iranian support." Id.
25. Dr. Tefft based his conclusion on publicly available sources that were not inconsistent with classified information known to him from his time at the CIA and from his security clearances since that time. He relied on the public sources described above, as well as several others, which he described as authoritative and reliable, including congressional testimony by Matthew Levitt, senior fellow and director of the Washington Institute's Terrorism Studies Program, and articles published by the Federation of American Scientists as well as the Free Muslims Coalition. Id.
In the United States, the Foreign Sovereign Immunities Act provides the sole basis for asserting jurisdiction over foreign sovereigns. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434-34 (1989). Normally, a party may not bring an action for money damages in U.S. courts against a foreign state. 28 U.S.C. § 1604. The "state-sponsored terrorism" exception, however, removes a foreign state's immunity to suits for money damages brought in U.S. courts where plaintiffs are seeking damages against the foreign state for personal injury or death caused by "an act of torture, extra-judicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources (as defined in section 2339A of title 18) for such an act if such act or provision of material support is engaged by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment or agency." 28 U.S.C. § 1605(a)(7).
In order to subject a foreign sovereign to suit under section 1605(a)(7), plaintiffs must show that: (1) the foreign sovereign was designated by the State Department as a "state sponsor of terrorism"; (2) the victim or plaintiff was a U.S. national at the time the acts took place; and (3) the foreign sovereign engaged in conduct that falls within the ambit of the statute. Prevatt v. Islamic Republic of Iran, 421 F. Supp. 2d 152, 158 (D.D.C. Mar. 28, 2006).
Each of the requirements is met in this case. First, defendant Iran has been designated a state sponsor of terrorism continuously since January 19, 1984, and was so designated at the time of the attack. See 31 C.F.R. § 596.201 (2001); Flatow, 999 F. Supp. at 11, ¶ 19. Second, the plaintiffs have described themselves as "the Estates and family members" of 17 of the 19 servicemen who were killed on June 25, 1996, after "Hizbollah terrorists detonated a 5,000 pound truck bomb outside of Khobar Towers, a United States military complex in Dhahran, Saudi Arabia." Second Amended Complaint, at 3. Both the plaintiffs and the victims to which they are related were United States nationals at the time the bombing occurred. Finally, defendant Iran's support of an entity that committed an extra-judicial killing squarely falls within the ambit of the statute. Defendants MOIS and the IRGC are considered to be a division of state of Iran, and thus the same determinations apply to their conduct. Roeder, 333 F.3d at 234; see also Salazar v. Islamic Republic of Iran, 370 F. Supp. 2d 105, 116 (D.D.C. 2005) (Bates, J.) (analogizing the IRGC to the MOIS for purposes of liability, and concluding that both must be treated as the state of Iran itself).
Personal jurisdiction exists over a non-immune sovereign so long as service of process has been made under section 1608 of the FSIA. See Stern v. Islamic Republic of Iran, 271 F. Supp. 2d 286, 298 (D.D.C. 2003) (Lamberth, J.). In this case, service of process has been made. Accordingly, this Court has in personam jurisdiction over defendants Iran, MOIS, and IRGC.
II. Legal Standard for FSIA Default Judgment
Under the Foreign Sovereign Immunities Act, "[n]o judgment by default shall be entered by a court of the United States or of a state against a foreign state . . . unless the claimant establishes his claim or right to relief by evidence satisfactory to the court." 28 U.S.C. § 1608(e); Roeder v. Islamic Republic of Iran, 333 F.3d 228, 232-33 (D.C. Cir. 2003), cert. denied, 542 U.S. 915 (2004). In default judgment cases, plaintiffs may present evidence in the form of affidavits. Bodoff v. Islamic Republic of Iran, 424 F. Supp. 2d 74, 82 (D.D.C. Mar. 29, 2006) (quoting Campuzano v. Islamic Republic of Iran, 281 F. Supp. 2d 258, 268 (D.D.C. 2003)). Upon evaluation, the court may accept plaintiffs' uncontroverted evidence as true. Campuzano, 281 F. Supp. 2d at 268. This Court accepts the uncontested evidence and testimony submitted by plaintiffs as true in light of the fact that the defendants in this action have not objected to it or even appeared in this action to contest it.
III. Magistrate Judge's Report and Recommendation of Proposed Findings of Fact and Conclusions of Law
A. Standard of Review of a Magistrate Judge's Proposed Findings and Recommendation
Under the Federal Magistrate's Act, "a judge may . . . designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition." 28 U.S.C. § 636(b)(1)(B). Once the magistrate judge's proposed findings and recommendation are submitted to the court and copies have been served on the parties, the parties may serve and file within ten days from receipt of service written objections to any proposed finding or recommendations made within the magistrate judge's report and recommendation. 28 U.S.C. § 636(b). In reviewing the objections made to the magistrate judge's report and recommendation, the district court judge shall make a de novo review of the portions of the report and recommendation objected to by the parties. Id. Upon review, "[a] judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.; see also Roell v. Withrow, 538 U.S. 583, 585 (2003) (noting that a district court is "free to do as it sees fit with [a] magistrate judge's recommendations" made under authority of 28 U.S.C. § 636(b)(1)).*fn5 The district court "must not be a rubber stamp" of the magistrate judge's recommendations. Reese v. Meritor Automotive, Inc., 113 F. Supp. 2d 822, 824 (W.D.N.C. 2000) (quoting 12 CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERALPRACTICE AND PROCEDURE § 3070.2 (2006)).
B. Magistrate Judge Robinson's Proposed Findings of Fact and Recommendation
In her Report and Recommendation, Magistrate Judge Robinson recommended that plaintiffs' motion for default judgment be denied on the basis that plaintiffs had not presented evidence satisfactory to the Court of defendants' liability. (Rep. and Reco.  30.) The magistrate judge proposed that "Plaintiffs failed to establish a nexus between the June 25, 1996 bombing and any action or decision of any of the Defendants in these consolidated actions." Id. As a result, Magistrate Judge Robinson recommended that this Court find that plaintiffs failed to "[establish] [their] claim or right to relief by evidence that is satisfactory to the Court[.]" Id. (quoting Haim v. Islamic Republic of Iran, 2006 U.S. Dist. LEXIS 12816, at *3) (internal citation omitted). The magistrate judge also discussed generally, but made no specific findings or recommendations concerning, two additional issues, namely: (1) whether plaintiffs, as members of the United States Air Force operating under peacetime rules of engagement, may qualify for recovery under the FSIA; and (2) whether an apparent conflict of interest existed with respect to plaintiffs' representation by DLA Piper Rudnick Gray Cary US LLP.*fn6 (Rep. and Reco.  15-17, 25-26.)
Plaintiffs objected to the magistrate judge's finding as to the insufficiency of the evidence,*fn7 as well as to other portions of the report and recommendation. (See Pl.'s Obj. to Report and Recommendation  4-5.) In addition to the objection as to the sufficiency of their evidence, plaintiffs objected to: (1) whether Magistrate Judge Robinson had jurisdiction to preside over an evidentiary hearing or to make a report and recommendation regarding default judgment; (2) the magistrate judge's discussion of whether plaintiffs, as members of the United States Air Force, could recover as noncombatants under peacetime rules of engagement at the time of their deaths; and (3) her discussion of an apparent conflict of interest with respect to plaintiffs' counsel. (Pl.'s Obj. to Report and Recommendation  5.)
Having reviewed de novo the objected-to portions of Magistrate Judge Robinson's report and recommendation to this Court, and for the reasons set forth in this opinion, this Court makes the following determinations. First, the Court finds that Magistrate Judge Robinson had proper jurisdiction to hear evidence and render a report and recommendation in this matter. Second, the Court finds that plaintiffs may properly recover under the FSIA as noncombatants under peacetime rules of engagement. Third, this Court finds that no conflict of interest presently exists arising out of plaintiffs' representation by DLA Piper Rudnick Gray Cary US LLP. Finally, the Court finds that plaintiffs have provided evidence satisfactory to this Court to establish their claim or right to relief. In light of the foregoing findings, judgment shall be entered in favor of the plaintiffs and against the defendants.
IV. Analysis and Review of Objections to Magistrate Judge Robinson's Report and Recommendation
A. Plaintiff's Objection that Magistrate Judge Robinson Lacked Jurisdiction to Hear Evidence and Render an Opinion in this Matter
Plaintiffs objected to the magistrate judge's report and recommendation in its entirety on the grounds that she lacked jurisdiction to conduct an evidentiary hearing or issue a recommendation on plaintiffs' motion for default judgment against the defendants. At the heart of their objections is the notion that appointment of a magistrate judge in lieu of an Article III Judge is unauthorized by the Magistrates Act and might run afoul of the parties' due process and Article III rights under the U.S. Constitution.*fn8
Plaintiffs' objection is unfounded. As noted above,*fn9 such an appointment is clearly authorized by the Magistrates Act. The plain language of 28 U.S.C. § 636(b)(1)(B) clearly states that a district court "may . . . designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition." 28 U.S.C. § 636(b)(1)(B). Additionally, the Supreme Court held that this statute "strikes the proper balance between the demands of due process and the constraints of Article III." Raddatz, 447 U.S. at 683-84. Delegation under this provision does not run afoul of Article III "so long as the ultimate decision is made by the district court." Raddatz, 447 U.S. at 683. Moreover, the parties' due process rights are protected by the fact that "the district court judge alone acts as the ultimate decisionmaker, [and] the statute grants the judge the broad discretion to accept, reject, or modify the magistrate's proposed findings." Id. at 680. Here, Magistrate Judge Robinson heard evidence from the parties, and rendered a report and recommendation to this Court, pursuant to 28 U.S.C. § 636(b), and this Court alone is responsible for rendering the ultimate decision as to the merits of this case. Accordingly, this Court finds that neither of the parties' due process or Article III rights were violated by appointing Magistrate Judge Robinson to conduct an evidentiary hearing. This Court finds that Magistrate Judge Robinson had proper jurisdiction under 28 U.S.C. § 636(b) to conduct an evidentiary hearing and submit a report and recommendation thereon.
B. Plaintiffs' Ability to Recover Under State-Sponsored Terrorism Exception to the FSIA
Magistrate Judge Robinson raised in her report and recommendation the issue of whether plaintiffs, as relatives of active servicemen on duty at the time of their deaths, were able to recover for damages arising from those servicemen's deaths. Plaintiffs argued that they are not excluded under the state-sponsored terrorism exception to the FSIA from recovering.
Previously, this Court has awarded damages to United States service members who were injured or killed as a result of state-sponsored terrorist attacks and their families.*fn10 In Peterson, this Court held that a service member and his or her family may recover under the state-sponsored terrorism exception to the FSIA only if the service member was a non-combatant not engaged in military hostilities. There, the Court established a two-prong test to determine whether a military service member was a non-combatant. Under this test, a service member is deemed a non-combatant if he or she was: (1) engaged in a peacekeeping mission; and (2) operating under peacetime rules of engagement. Peterson, 264 F. Supp. 2d at 60.
Here, plaintiffs have conclusively demonstrated that the servicemen who died at the Khobar Towers satisfy the two-prong test under Peterson. Colonel Douglas Cochran testified on December 2, 2003, that the service members who died at the Khobar Towers were deployed as a part of a peacekeeping mission sanctioned by United Nations Resolutions. (Dec. 12, 2003 Tr. at 12.) He also stated that the decedents were operating under standing rules of engagement,*fn11 under which the decedents did not have the right to participate directly in hostilities. Id. at 10-12, 15. The decedents were not allowed to attack unless attacked or in peril of immediate attack resulting in death or serious bodily harm. Id. at 15. Moreover, as noted by the Reports of Casualty and personnel records for each of the decedents in this case, the cause of the service members' deaths was indisputably the result of a terrorist bombing, and not a result of combat hostilities. (Dec. 1, 2003 Tr. at 29; see also Dec. 2, 2003 Tr. at 35-38.) In light of the above-mentioned evidence, this Court finds that plaintiffs have satisfied the two-prong test under Peterson. Therefore, this Court finds that plaintiffs are not excluded from recovering under the state-sponsored terrorism exception to the FSIA.
C. Apparent Conflict of Interest
Next, in her discussion of the procedural history of the case, the magistrate judge discussed an apparent conflict of interest resulting from plaintiffs' representation in this matter by DLA Piper Rudnick Gray Cary US LLP (the "Firm"), and the Firm's representation of the Government of Sudan ("Sudan"), the defendant in the separate matter of Owens v. Republic of Sudan (Civ. Action No. 01-2244 (JDB)).*fn12 The magistrate judge was concerned that the Firm's representation in the Owens matter created a conflict of interest because defendants Iran, IRGC, and MOIS were co-defendants with Sudan in Owens, and because the Firm's representation of Sudan would cause the Firm to make an argument in Owens that was directly contrary to the arguments it made on behalf of plaintiffs in this matter. Plaintiffs raise an objection and allege that no conflict of interest (apparent or otherwise) exists in this matter.
Under District of Columbia Rules of Professional Conduct 1.7, unless a lawyer obtains informed consent from both clients, a lawyer shall not represent one client in a matter if the position taken by that client is adverse to the position taken by another client. D.C. Rule of Prof. Conduct 1.7. As the District of Columbia Bar Legal Ethics Committee has noted, "the lawyer may not, without informed consent of all parties, accept simultaneous representation of both clients where such representation creates a substantial risk that representation of one client will adversely effect the representation of the other." District of Columbia Bar Legal Ethics Committee Formal Op. 265 (1996).
Upon a review of the pleadings and evidence in this matter, the Court finds that no conflict of interest exists. First, the Firm's prior representation in another matter of a co-defendant to the defendants in this matter does not create a conflict of interest. Though the defendants in this matter were co-defendants along with Sudan in the Owens matter, the Firm has stated that it never represented Iran, MOIS, or IRGC in the Owens matter or any other matter. (Pl.'s Resp. to Apr. 16, 2004 Court Order 1.) Moreover, the Firm has withdrawn completely from representing Sudan in Owens as Rule 1.7 states it must in such situations.
Next, the Court is satisfied that no apparent conflict exists that would preclude the Firm from continuing to represent plaintiffs' interests in this matter. As the Firm's pleadings to the magistrate judge plainly show, upon discovering that an apparent conflict had arisen, the Firm took immediate steps to eliminate it. The Co-Chair of the Firm's Professional Responsibility function instructed the partners representing the Government of Sudan that they were not to continue to represent Sudan in light of the fact that such representation would force the Firm to argue conflicting positions in both matters. Unbeknownst to the heads of the Firm, however, the specific attorneys responsible for representing Sudan disregarded the partners' instruction, and continued to represent Sudan, entering filings on their behalf. Still, when the Firm's management discovered the actions of events, it promptly sought withdrawal as counsel for Sudan in the Owens matter, notified the D.C. Bar Counsel and this Court's Committee on Grievances of the sequence of events, and wrote off fees and expenses otherwise due from Sudan as a former client. In addition, the attorneys who disregarded the Firm's instructions to cease representation have left the Firm.*fn13
Finally, this Court is persuaded that no conflict of interest exists by considering the manner in which the magistrate judge ultimately dealt with the issue. After the Firm issued its responses on the conflict issue to Magistrate Judge Robinson's Orders dated April 13 and April 16, 2004,*fn14 the magistrate judge proceeded forth with the remaining portions of the trial, and never issued a ruling on whether a conflict existed as a result of the Firm's representation of plaintiffs in this matter, and their representation of Sudan in Owens. Moreover, in her report and recommendation to this Court, the magistrate judge included the "apparent conflict of interest" issue solely within her discussion of the case's procedural history. She neither issued nor recommended within her report and recommendation any finding that a conflict existed. Surely, were the magistrate judge of the opinion that a conflict of interest did exist, she would have taken more substantive steps to ensure that such a representation would not continue.
In light of these facts, the Court finds that no conflict of interest exists arising from the Firm's representation of plaintiffs in this matter and Sudan in the Owens case.
D. Sufficiency of Liability Evidence Provided by Plaintiffs
Magistrate Judge Robinson recommended that plaintiffs' motion for default judgment be denied on the grounds that she found plaintiffs had not submitted evidence satisfactory to the Court of defendants' liability. She found Director Freeh and Mr. Watson's respective testimony to be unsatisfactory on the grounds that each witness' testimony was largely conclusory, and that each was testifying in his personal capacity and not as a representative of the FBI. She also found that the testimony given by Doctor Clawson was conclusory as to defendants' liability, and failed to provide evidence of the link between Saudi Hezbollah, Hezbollah, and Iran.
Plaintiffs objected to these findings on three grounds. They argued that the evidence submitted is legally sufficient to sustain a finding of liability against defendants. They also argue that the evidence presented is consistent with, nearly identical to and--in some instances--more direct than liability evidence found by this Court to be sufficient as a matter of law in prior cases arising under the state-sponsor of terrorism exception to the FSIA. Finally, plaintiffs argue that the Court may take judicial notice of the facts and findings in Blais v. Islamic Republic of Iran 2006 WL 2827372 (D.D.C. Sept. 29, 2006) (Lamberth, J.), a case arising out of the same attack on the Khobar Towers. They argue that the facts from Blais, combined with the evidence submitted by plaintiffs in this matter, support a finding that defendants are liable in this matter.
1. Testimony of Director Louis J. Freeh and Dale L. Watson
To establish the defendant's liability for the bombing, plaintiffs offered the testimony of Louis J. Freeh, a former Director at the FBI, and Dale L. Watson, an agent and investigator at the FBI and CIA with over 20 years experience in the counterterrorism and counterintelligence fields. Over the course of the approximately four year investigation into the Khobar Towers bombing, both Freeh and Watson "reviewed all reports prepared by the FBI investigators, and spoke directly with FBI agents and Saudi officials" all of which established a link between the defendants and the bombing. All of the information conveyed to both Freeh and Watson was communicated by FBI agents who were on the scene.
Based on this knowledge of the investigation, Mr. Freeh testified at the evidentiary hearing before the magistrate judge as to the defendants' involvement in the Khobar Towers attack.*fn15 In his testimony, Director Freeh testified that, during the course of the investigation into the explosion, it was concluded that the Khobar Towers explosion was the cause of a fertilizer-based explosive device. (Dec. 18, 2003 Tr. at 10.) It was also concluded, Director Freeh testified, that the bombing was an act of terrorism. Id.
According to Director Freeh, the FBI also obtained a great deal of information linking the defendants to the bombing from interviews with six individuals arrested by the Saudis shortly after the bombing. Id. at 11-30. These six individuals, who were members of the Saudi Hezbollah organization, admitted to the FBI their complicity in the attack on the Khobar Towers. Exh. 7 at 11, 13-14, 27. The six individuals admitted that senior officials in the Iranian government provided them with funding, planning, training, sponsorship, and travel necessary to carry out the attack on the Khobar Towers. (Id. at 13-14; see also Dec. 18, 2003 Tr. at 24-30.) The six individuals also indicated that the selection of the target and the authorization to proceed was done collectively by Iran, MOIS, and IRGC, though the actual preparation and carrying out of the attack was done by the IRGC. (Dec. 18, 2003 Tr. at 25.)
More specifically, Mr. Freeh testified, the FBI obtained specific information from the six about how each was recruited and trained by the Iranian government in Iran and Lebanon, and how weapons were smuggled into Saudi Arabia from Iran through Syria and Jordan. One individual described in detail a meeting about the attack at which senior Iranian officials, including members of the MOIS and IRGC, were present. (Dec. 18, 2003 Tr. at 23.) Several stated that IRGC directed, assisted, and oversaw the surveillance of the Khobar Towers site, and that these surveillance reports were sent to IRGC officials for their review. Another told the FBI that IRGC gave the six individuals a large amount of money for the specific purpose of planning and executing the Khobar Towers bombing.
Adding credence to Mr. Freeh's testimony is the reliability of the information he relied on in linking the defendants with the attack. First, Director Freeh testified that the information obtained from the six individuals was communicated to the FBI on more than one occasion. Second, there was a great deal of cross-corroboration among the individuals' stories, even when each was interviewed by the FBI separately. Third, he testified that the material portions of each of the individuals' accounts of the bombing did not contradict. Fourth, and perhaps most importantly, in many instances the FBI was able to corroborate independently the statements made by the six individuals.
As a result of this information and his direct participation in the four year investigation into the bombing, Director Freeh testified that it was his ultimate opinion that the bombing was the result of a terrorist attack by Saudi Hezbollah, organized and sponsored by the defendants in this case: Iran, MOIS, and IRGC.
Mr. Watson, who was also an active member in the investigation into the Khobar Towers bombing, testified similarly to Director Freeh. According to Mr. Watson, the bases for his opinion were the direct conversations with the six Saudi Hezbollah members, the corroborating facts discovered from their confessions, his historical knowledge and public record of the Hezbollah organization and statements proffered in an indictment filed in the Eastern District of Virginia. (Dec. 18, 2003 Tr. at 52, 63.) All of this information was information Mr. Watson gleaned as a result either of his own personal research or his involvement in the Khobar Towers bombing investigation. Most importantly, Mr. Watson reached the same conclusion as Director Freeh that the bombing was the result of a terrorist attack by Saudi Hezbollah members, organized and sponsored by the defendants.
2. Dr. Clawson's Expert Testimony as to Involvement by Iran, IRGC, and MOIS
Plaintiffs also relied upon the testimony of Dr. Patrick Clawson to establish a more complete picture as to the involvement of Iran, MOIS, and IRGC in helping carry out the attack on the Khobar Towers. At trial, Dr. Clawson testified as an expert in three areas: (1) the government of Iran; (2) Iran's sponsorship of terrorism; and (3) the Iranian economy. Dr. Clawson's expert opinion regarding the perpetrators of the Khobar Towers bombing is based on his involvement on a Commission investigating the bombing, his top-secret security clearance, his discussions with Saudi officials, as well as his academic research on the subject. Exh. 9 at 62-63.
Dr. Clawson testified that the government of Iran formed the Saudi Hezbollah organization. Id. at 56. He testified that the IRGC was responsible for providing military training to Hezbollah terrorists as to how to carry out a terrorist attack. Id. at 28. He also testified as to the defendants' state-sponsorship of terrorism, noting that at the time of the Khobar Towers bombing, Iran spent an estimated amount of between $50 million and $150 million on terrorist activities. Exh. 10 at 46. In light of all these facts, Dr. Clawson stated conclusively his opinion that the government of Iran, MOIS, and IRGC were responsible for the Khobar Towers bombing, and that Saudi Hezbollah carried out the attack under their direction. Exh. 9 at 67-68.
3. Judicial Notice of Findings and Conclusions in Blais v. Islamic Republic of Iran*fn16
Plaintiffs argue that the Court should take judicial notice of the facts and conclusions made by this Court in its recent consideration of the matter of Blais v. Islamic Republic of Iran, an action brought against the same defendants for damages resulting from the same 1996 attack on the Khobar Towers. As has recently been noted in a FSIA case within this Circuit, "[a] court may take judicial notice of related proceedings and records in cases before the same court." Salazar v. Islamic Republic of Iran, 370 F. Supp. 2d 105, 109 n.6 (D.D.C. 2005) (Bates, J.). As Judge Bates noted in Salazar, under Federal Rules of Evidence 201(e), a "party opposing judicial notice of a given fact must be afforded an opportunity to be heard . . . and may certainly make recognized objections to the admissibility of such judicially noticed facts as evidence in the case . . . ." Id. (internal citations omitted). Defendants in this case have failed to make such objections, or even make an appearance at all before this Court. Accordingly, in addition to the unopposed trial submissions made by plaintiffs in this matter, this Court will take judicial notice of the findings made in Blais as to the defendants involvement in and liability for the Khobar Towers bombing.
In Blais, this Court found as fact that the Khobar Towers attack was carried out by individuals who referred to themselves as the group "Saudi Hezbollah." Blais, 2006 WL 2827372, at *3. The Court found that these individuals were recruited by Brigadier General Ahmed Sharifi, a senior official of the IRGC. Id. Brigadier General Sharifi planned the operation, and recruited the individual members of Saudi Hezbollah at the Iranian Embassy in Damascus, Syria. Id. He was also responsible for providing the funds, passports, and paperwork for the individuals who carried out the attack. Id. In addition to acknowledging General Sharifi's involvement in the attack, this Court found that the attack was approved by the Ayatollah Khameini, Iran's Supreme Leader at the time, and was approved and supported by Ali Fallahian, the head of MOIS at the time. Id.*fn17
This Court heard testimony from and accepted documentary evidence considered by Dr. Bruce Tefft.*fn18 Dr. Tefft expressed his opinion "that defendants the Islamic Republic of Iran and the Iranian Revolutionary Guards Corp were responsible for planning and supporting the attack on the Khobar Towers, including providing operational and financial support." Blais, 2006 WL 2827372, at *4. Dr. Tefft's testimony and the evidence accompanying his testimony are consistent with the testimony and evidence from Blais, including testimony made by Mr. Freeh. In fact, Dr. Tefft not only relied upon the conclusions put forth by Messrs. Freeh and Watson in forming his own opinion in this matter, but Dr. Tefft stated that he agreed with their conclusions regarding the connection between Iran and Saudi Hezbollah in bringing about the bombing on the Khobar Towers. When asked as to the defendants' involvement in the attack, Dr. Tefft stated that there was "'no question about it. It wouldn't have happened without Iranian support..'" Id.
Finally, this Court considered written testimony from both former FBI Director Louis Freeh and former Deputy Counterterrorism Chief Dale Watson. In his written statement, Director Freeh stated that, based upon his involvement in the FBI's five year investigation into the attack on the Khobar Towers, Iran was responsible for supporting and funding the attack. Id. Mr. Watson likewise stated unequivocally that, based upon information uncovered in the investigation into the attack,*fn19 there was Iranian, MOIS, and IRGC involvement in the bombing. Id. As here, the Court found the conclusions of Messrs. Freeh and Watson in Blais to be amply reliable and probative as to the question of the defendants' involvement in the Khobar Towers bombing.
Upon de novo review of the evidence, the Court is convinced that the evidence is sufficiently satisfactory to establish liability. First, contrary to the magistrate judge's recommendation, the testimony by Freeh and Watson is not conclusory because the asserted statements made by Freeh and Watson do not lack supporting evidence. Director Freeh and Mr. Watson based their testimony upon their four year direct involvement in the investigation into the bombing, and their extensive years of experience in the counterintelligence and counterterrorism fields. Throughout this time, Messrs. Freeh and Watson, and the FBI agents they directly supervised, uncovered and synthesized a great deal of information about the attack on Khobar Towers and its perpetrators. The facts unearthed by this investigation led them to the six captured participants in the bombing, each of whom implicated the defendants as having organized, funded, and supported the attack. Accordingly, the Court finds that the facts testified to by Freeh and Watson were supported by more than a sufficient basis for the witnesses' conclusions that Iran, MOIS, and IRGC were responsible for the Khobar Towers bombing carried out by Saudi Hezbollah.
The Court also fails to see the rationale behind Magistrate Judge Robinson's conclusion that the testimony offered by Freeh and Watson was somehow less credible because it was made in their individual capacities, and not on behalf of the FBI for whom they were no longer employed. The reliability of a witness' testimony should not and indeed does not hinge solely upon that person's employment with a particular organization. Rather, the reliability and credibility of a witness' testimony is determined by considering a myriad of factors including, inter alia, the witness' demeanor, the ability of the witness to observe the information about which he is testifying, whether the testimony is corroborated by other facts introduced into evidence, as well as the witness' prior experience.
Applying these factors to the testimony of Messrs. Freeh and Watson, this Court finds their testimony to be undeniably credible and reliable. Each was directly involved in the investigation into the Khobar Towers bombing, and was personally familiar with the results from that investigation. This is bolstered by the fact that Freeh and Watson occupied leadership positions in overseeing the entirety of the investigation into the bombing. Such positions would undoubtedly place Freeh and Watson in the best possible position to assess all the information about the attack and make a logical conclusion as to the cause and perpetrators of the attack. In addition, their testimony was consistent with each other, with the testimony by Dr. Clawson, and with information available in the public record. Moreover, this Court has previously relied upon Freeh and Watson's conclusions as to the involvement of Iran, IRGC, and MOIS in the Khobar Towers attack, and sees no reason to discount the credence of their testimony as conclusive on the grounds that they are not currently employed by the FBI. See Blais v. Islamic Republic of Iran, 2006 WL 2827372, at *3-4 (D.D.C. Sept. 29, 2006) (Lamberth, J.) (finding as fact both Mr. Freeh and Mr. Watson's conclusion as to the involvement of Iran, IRGC, and MOIS in the Khobar Towers bombing).
The fact that neither testified about the attack as agents of the FBI does not nullify the credibility of their statements. Messrs. Freeh and Watson's intricate involvement with the investigation into the Khobar Towers bombing while they were with the FBI provides more than an adequate basis for their testimony and the conclusions each drew therein as to the perpetrators of the attack.
The Court also disagrees with the magistrate judge's recommendation that Dr. Clawson's testimony, whether evaluated alone or in conjunction with the testimony by Freeh and Watson, was unsatisfactory to establish liability. To the contrary--Dr. Clawson is a renowned scholar of Middle Eastern politics, who has studied and written about Iran for years. In over 20 cases, Dr. Clawson has repeatedly provided this Court with reliable and credible testimony regarding the involvement of Iran, MOIS, and IRGC in sponsoring and organizing acts of terrorism carried out against citizens of the United States.*fn20 The Court sees no reason to deviate from the judges in prior cases who found Dr. Clawson's testimony to be satisfactorily reliable.
Accordingly, having considered the evidence and testimony admitted at trial in the present case, this Court finds that plaintiffs have met their burden under the state-sponsored terrorism exception of the FSIA by establishing their right to relief "by evidence that is satisfactory to the Court[.]" The totality of the evidence at trial, combined with the findings and conclusions entered by this Court in Blais, firmly establishes that "the Khobar Towers bombing was planned, funded, and sponsored by senior leadership in the government of the Islamic Republic of Iran; the IRGC had the responsibility and worked with Saudi Hizbollah to execute the plan, and the MOIS participated in the planning and funding of the attack." Proposed Findings and Conclusions at 9, ¶ 28.
A. Proper Causes of Action Under the FSIA
Once a foreign state's immunity has been lifted under Section 1605 and jurisdiction is found to be proper, Section 1606 provides that "the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 1606. Section 1606 acts as a "pass-through" to substantive causes of action against private individuals that may exist in federal, state or international law. Dammarell v. Islamic Republic of Iran, Civ. A. No. 01-2224, 2005 WL 756090, at *8-10, 2005 U.S. Dist. LEXIS 5343, at *27-32 (D.D.C. Mar. 29, 2005) (Bates, J.) [hereinafter Dammarell II].
In this case, state law provides a basis for liability. First, the law of the United States applies rather than the law of the place of the tort or any other foreign law because the United States has a "unique interest" in having its domestic law apply in cases involving terrorist attacks on United States citizens. See Dammarell II, 2005 WL 756090, at *20, 2005 U.S. Dist. LEXIS 5343, at *63.
B. Applicable State Law Governing Causes of Action
Having established that the laws of the United States apply in this action, the Court must determine the applicable state law to govern the action. As the forum state, District of Columbia choice of law rules apply to determine which state's law shall apply. Under District of Columbia choice of law rules, courts employ a modified government interest analysis under which they "evaluate the governmental policies underlying the applicable laws and determine which jurisdiction's policy would be most advanced by having its law applied to the facts of the case under review." Hercules & Co. V. Shama Rest. Corp., 566 A.2d 31, 41 (D.C. 1989) (citations and internal quotations omitted). Generally, application of this governmental interest test points to the law of each plaintiff's domicile at the time of the attack as having the greatest interest in providing redress to its citizens. See Dammarell II, 2005 WL 756090, at *20-21, 2005 U.S. Dist. LEXIS 5343, at *66-67 (citing RESTATEMENT (THIRD) FOREIGN RELATIONS LAW§ 402(3) (1987)).
Plaintiffs' claims involve consideration of the law of thirteen different states. The estates and surviving family members of persons killed in the bombing have asserted wrongful death claims and intentional infliction of emotional distress claims. In order to avoid repetition, the discussion will be organized by state, with an initial overview of each state's law followed by a discussion of each plaintiff's asserted claims under those laws.
The basis of defendants' liability is that they provided material support and resources to Saudi Hezbollah, which personally completed the attack. One may be liable for the acts of another under theories of vicarious liability, such as conspiracy, aiding and abetting and inducement. This Court finds that civil conspiracy provides a basis of liability for Iran, MOIS, and IRGC, and accordingly declines to reach the issue of whether they might also be liable on the basis of aiding and abetting and/or inducement.
The doctrine of civil conspiracy is recognized under the laws of each of the states each claimant has brought an action.*fn21 Though each state has its own particular means of describing civil conspiracy, upon inspection of each state's laws the elements of civil conspiracy are met in each state if it can be demonstrated that: (1) there is an agreement between two or more persons or entities; (2) to do an unlawful act, or an otherwise lawful act by unlawful means; (3) there was an overt act committed in furtherance of this unlawful agreement; and (4) damages were incurred by the plaintiff as a proximate result of the actions taken pursuant to the conspiracy.*fn22
In this case, the elements of civil conspiracy between Iran, MOIS, the IRGC and Saudi Hezbollah have been satisfied. As this Court has previously held, "sponsorship of terrorist activities inherently involves a conspiracy to commit terrorist attacks." Flatow, 999 F. Supp. At 27. It is undisputed that Saudi Hezbollah committed the attack on the Khobar Towers. It has been established by evidence satisfactory to this Court that Saudi Hezbollah and defendants Iran, MOIS and the IRGC conspired to commit the terrorist attack on the Khobar Towers.*fn23 The evidence elicited from the FBI's investigation and interview of the six detained members of Saudi Hezbollah shows that senior Iranian, MOIS and IRGC officials participated in the planning of, and provided material support and resources to Saudi Hezbollah for the attack on the Khobar Towers. The evidence also shows that the defendants also provided money, training and travel documents to Saudi Hezbollah members in order to facilitate the attacks. Moreover, the sheer gravity and nature of the attack demonstrate the defendants' unlawful intent to inflict severe emotional distress upon the American servicemen as well as their close relatives. The defendants' acts of financing, training and providing travel documents ably satisfy the overt act requirement for civil conspiracy. Finally, as will be discussed below, the plaintiffs in this action incurred damages resulting from the deaths caused by the conspiracy. Accordingly, the elements of civil conspiracy are established between Saudi Hezbollah and the defendants Iran, MOIS and the IRGC.
Thomas R. Parsons, M.D., an associate medical examiner, was received by the Court as an expert in the field of forensic pathology. (Feb. 9, 2004 A.M. Tr. at 82-83; Ex. 232.) On June 25, 1996, Dr. Parsons was on active duty as a major in the United States Air Force. He was a medical examiner with the Armed Forces Institute of Pathology ("AFIP"). Dr. Parsons first learned of the June 25, 1996 bombing at Khobar Towers in Dharan, Saudi Arabia on June 26, 1996. Dr. Parsons and three other medical examiners performed the autopsies of the 19 officers and airman killed in the Khobar Towers bombing at Dover AFB on June 27 and 28, 1996. Id. at 83-84.
Based on his performance of several of the autopsies in June of 1996, his review of the complete autopsy files and photographs from the AFIP, and his training and experience as a forensic pathologist, Dr. Parsons testified that the cause of death of each of the 17 decedents represented in the present litigation "was the explosion that occurred near their barracks [in Dharan, Saudi Arabia]." Id. at 105-106. This conclusion, Dr. Parsons noted, was corroborated by the types of severe blast injuries sustained by each of the deceased plaintiffs. Dr. Parsons testified that the injuries of these 17 decedents were "very severe. As a matter of fact. This is about as bad as you can get until you get to body fragmentation." Id. at 110.
Based on his performance of several of the autopsies in June of 1996, his review of the complete autopsy files and photographs from the AFIP, and his training and experience as a forensic pathologist, Dr. Parsons testified as to his opinion to a reasonable degree of certainty that 16 of the 17 individuals were rendered immediately unconscious and died immediately or shortly after the explosion. Id. at 110-111. According to Dr. Parsons, Airman Christopher Lester, the single plaintiff who did not die immediately after the explosion, died after a significant post-injury survival period. Id. at 111.
Before assessing the merits of the individual claims, this Court must briefly discuss damages in actions against foreign states arising under the FSIA. To obtain damages against defendants under the FSIA, the plaintiffs must prove that the consequences of the defendants' conduct were "'reasonably certain' (i.e., more likely than not) to occur, and must prove the amount of damages by a 'reasonable estimate' consistent with this [Circuit's] application of the American rule on damages." Salazar, 370 F. Supp. 2d at 115-16 (quoting Hill v. Republic of Iraq, 328 F.3d 680, 681 (D.C. Cir. 2003) (internal quotations omitted).
As a result of the wrongful conduct of defendants Iran, MOIS, and the IRGC, plaintiffs have suffered and will continue to suffer pain and mental anguish. Under the FSIA, if a foreign state may be held liable, it "shall be liable in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 1606. Accordingly, plaintiffs are entitled to the typical bases of damages that may be awarded against tortfeasors under the laws under which each claim is brought.
In determining the appropriate amount of compensatory damages, the Court may look to prior decisions awarding damages for pain and suffering, and to those awarding damages for solatium. Prevatt, 421 F. Supp. 2d at 160. "While intervening changes in law have ruled many cases' reliance on federal common law improper, such findings need not disturb the accuracy of the analogy between solatium and intentional infliction of emotional distress." Haim, 425 F. Supp. 2d at 71.
In determining the amount of compensatory damages awards to family members of a surviving victim, this Court has held that these awards are determined by the "nature of the relationship" between the family member and victim, and "the severity of the pain suffered by the family member." Haim, 425 F. Supp. 2d at 75. Spouses typically receive greater damage awards than parents, who, in turn, receive greater awards than siblings. Compare, e.g., Anderson v. Islamic Republic of Iran,90 F. Supp. 2d 107, 113 (D.D.C. 2000) (Jackson, J.) (awarding $10 million to the wife of a hostage and torture victim); Cicippio, 18 F. Supp. 2d at 70 (same), with Eisenfeld, 172 F. Supp. 2d at 8 (awarding $5 million each to the parents and $2.5 million each to the siblings of victims of a suicide bombing on a passenger bus); see also Flatow, 999 F. Supp. at 31 (awarding parents each $5 million and siblings each $2.5 million of victim who was killed in the same passenger bus bombing in which Seth was injured). Moreover, "families of victims who have died are typically awarded greater damages than families of victims who remain alive." Id. While the loss suffered by the plaintiffs in these cases is undeniably difficult to quantify, courts typically award between $8 million and $12 million for pain and suffering resulting from the death of a spouse,*fn24 approximately $5 million to a parent whose child was killed,*fn25 and approximately $2.5 million to a plaintiff whose sibling was killed.*fn26
2. Pain and Suffering Damages
Dr. Dana Cable testified as an expert for the plaintiffs concerning the grief process and the factors which cause it to be more extensive and intensive. (Feb. 10, 2004 Tr. at 9-28; Ex. 267.) Dr. Cable testified concerning the impact of each decedent's death on his particular family. (Feb. 10, 2004 Tr. at 28-214.) Dr. Cable is a licensed psychologist, a certified death educator, and a certified grief therapist. (Id. at 5; Ex. 267.)
Dr. Cable described the grief process and the seven stages of grief: (1) shock; (2) disorganization; (3) volatile emotions; (4) guilt; (5) loss & loneliness (usually lasting 1-2 years); (6) relief (can go on with life, but experience some guilt for going on); and (7) reestablishment. (Feb. 10, 2004 Tr. at 9-11.) Dr. Cable stated that each of the surviving family members were still in the "loss and loneliness" stage of the grief process. Id. at 11. Dr. Cable described this stage of the grief process as "the most intense part of the grief process." Id. at 10.
Though a person who loses someone to death is only in the "loss and loneliness" stage for a year or two, Dr. Cable explained that a number of issues present in this case complicate the grieving process and cause the "loss and loneliness" stage to last much longer for family members of terrorism victims. Id. at 11-12; 19-23. According to Dr. Cable, the grief process is made worse for the family members because none of them were present at the time the terrorist act took place at Khobar Towers. Id. at 26.
The Court's review of the testimony and the demeanor of the plaintiffs, as well as the testimony accepted via affidavit, leads the Court to agree with Dr. Cable's opinion that all of the plaintiffs are still in the "loss and loneliness" stage of the grief process, even seven and one-half years after the death of their loved ones.
In addition to seeking compensatory damages against the defendants, plaintiffs have also sought punitive damages against the defendants. Punitive damages, however, are not available against foreign states. 28 U.S.C. § 1606; Blais, 2006 WL 2827372, at *15. Accordingly, plaintiffs' claim for punitive damages against defendant Islamic Republic of Iran cannot be maintained, and is denied.
Moreover, "punitive damages are not recognized against divisions of a foreign state that are considered to be the state itself, instead of an agent or instrumentality thereof."*fn27 In order to determine whether the entity is sufficiently linked to the foreign state for punitive damages purposes, the court must assess the core functions of the entity. See Roeder, 333 F.3d at 234. Entities that are governmental are considered a part of the foreign state itself, while commercial entities are deemed agencies or instrumentalities of the foreign state, and thereby subject to punitive damages. Id. Plaintiff has an affirmative burden of producing evidence that the entity is commercial. Blais, 2006 WL 2827372, at *15.
Here, there is inadequate evidence for this Court to determine that either MOIS or IRGC is sufficiently commercial as to justify the imposition of punitive damages against them. Therefore, this Court lacks authority to grant plaintiffs' request for punitive damages against MOIS and IRGC because both MOIS and IRGC are governmental entities, and parts of the state of Iran itself. Accordingly, plaintiffs' claim for punitive damages as to the remaining two defendants is denied.
VI. Specific Findings and Conclusions, By State
Plaintiffs' claims in this action involve the consideration of the laws of eleven different states. The estates and family members of the seventeen servicemen killed in the attack on the Khobar Towers have asserted wrongful death claims and intentional infliction of emotional distress claims. The following discussion is organized by state, first providing an overview of the causes of action under that state's law, and then discussing each plaintiff's individual claims as applied under those laws.
Under Florida law, a right of action exists for wrongful death in favor of the personal representative of the decedent's estate for the benefit of certain designated beneficiaries. Fla. Stat. Ann. §§ 768.16-768.25 (2005). Under the Florida Wrongful Death Act,
When the death of a person is caused by the wrongful act . . . of any person [or entity] . . . and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person [or entity] . . . that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony.*fn28
Moreover, the Florida Wrongful Death Act allows the decedent's personal representative to bring an action for the benefit of the decedent's estate and the decedent's "survivors." Fla. Stat. Ann. § 768.20-768.21. Under the Act, "survivors" who may be entitled to recovery include the decedent's: (1) spouse, (2) children, (3) parents, and (4) blood relatives, provided these blood relatives can demonstrate they are partly or wholly dependent on the decedent for support. Fla. Stat. Ann. § 768.18.*fn29
If the decedent has a surviving spouse or lineal descendants or the decedent is an adult with a surviving parent but no dependents, then the decedent's personal representative may recover the present value of the "loss of the prospective net accumulations" of the decedent that might reasonably have been expected but for the wrongful death. Fla. Stat. Ann. § 768.21(6).*fn30
A personal representative may recover on behalf of minor children the value of lost support and services, the loss of parental companionship, instruction and guidance, and for mental pain and suffering from the date of injury. Fla. Stat. Ann. §§ 768.21(1), (3). A decedent's surviving spouse and children may recover for mental pain and suffering from the date of the injury. Fla. Stat. Ann. 768.21(2), (3).*fn31 A decedent's surviving parents may also recover for mental pain and suffering if the decedent is under 25 years old. Fla. Stat. Ann. § 768.21(4). If the decedent is 25 years old or older, then the decedent's surviving parents may only recover for mental pain and suffering if there are no other survivors. Fla Stat. Ann. § 768.21(4).
b. Intentional Infliction of Emotional Distress
Florida courts have adopted Section 46 of the RESTATEMENT (SECOND) OF TORTS (1965) as the definition of the tort of intentional infliction of emotional distress. Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79 (Fla. 1985). Specifically, under Florida law, a defendant is liable for intentional infliction of emotional distress if the defendant's "extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another . . . ." Id. (quoting RESTATEMENT (SECOND) OF TORTS § 46(1) (1965)).
In evaluating the degree of severity of the defendant's conduct, Florida courts have held that liability for intentional infliction of emotional distress is found "only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." McCarson, 467 So.2d at 576 (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965)). A defendant's conduct is deemed intentional where the defendant "knows that such distress is certain, or substantially certain, to result from his conduct . . . ." McCarson, 467 So.2d at 576 (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. i (1965)). Plaintiffs who are the spouse, child, sibling, or parent of a decedent have standing to recover for intentional infliction of emotional distress even though plaintiffs were not present at the scene. Williams v. City of Minneola, 575 So.2d 683, 690 (Fla. App. 1991).
a. Estate and Surviving Family Members of Brent Marthaler*fn32
i. Estate of Brent Marthaler
Airman First-Class Brent Marthaler was born in 1976, and was raised in Minnesota. He is survived by his wife, plaintiff Katie Lee Marthaler, his parents plaintiffs Herman C. Marthaler III and Sharon Marthaler, as well as his brothers, plaintiffs Kirk and Matthew Marthaler.
Brent graduated from high school in June of 1994 and joined the U.S. Air Force. Brent graduated from boot camp in September 1994, and Katie drove to Texas with Brent's parents to attend his graduation. (Dec. 2, 2003 Tr. at 62-63.) Brent went to technical school in Texas after his graduation from basic training. After graduation, Brent was then assigned to Shepherd AFB for his advanced technical training. (Dec. 3, 2003 Tr. at 21.) After advanced training, Brent was permanently assigned to Eglin AFB in Florida. (Dec. 2, 2003 Tr. at 62-63.)
Brent was scheduled to be deployed to Saudi Arabia in April 1996. Two days prior to his deployment, however, Brent and Katie Lee Marthaler, his high school sweetheart of five years, were married to each other. According to Katie, Brent "just felt better going to Saudi Arabia and knowing that we were married and that we were taking on the world together then." Id. at 73-74.
While he was away, Brent stayed in regular contact with Katie and his family, talking with Katie on the phone once a week, and writing letters to her four or five times a week. Brent clearly had high hopes for his life ahead with Katie. In one letter to Katie, Brent told her that "I think of you and all the fun that we have had and all the fun that will come in the next 50 years or so. I can truly say that you are the person that keeps a smile on my face 24-7 and for that I can never repay you, but I'm going to try my hardest." Id. at 78-79. Brent was scheduled to return home from Saudi Arabia on June 27, 1996, a mere two days after the attack on the Khobar Towers.
Brent Marthaler's estate is represented by his wife, Katie Lee Marthaler. Brent's estate has asserted claims under Florida's wrongful death statute because he was last domiciled in Florida. As the personal representative of Brent's estate, Katie Lee Marthaler is the proper plaintiff to bring a wrongful death action under Florida law. See Fla. Stat. Ann. § 768.20-768.21. Because Brent had no children, and no evidence was put forth at trial that his siblings were dependent upon him, any recovery under this wrongful death action is for the benefit of Brent's wife Katie, and his parents, Herman C. Marthaler and Sharon Marthaler. See Fla. Stat. Ann. § 768.18.
Based upon the pleadings and evidence presented to the Court, the estate of Brent Marthaler has made out a valid claim for wrongful death under Florida law, and the beneficiaries of this estate are entitled to recover the present value of any "loss of the prospective net accumulations" of the decedent that might reasonably have been expected but for the wrongful death. Fla. Stat. Ann. § 768.21(6). Additionally, as Brent's widow, Katie Lee Marthaler is entitled to recover personally for the loss of Brent's companionship and protection, as well as for her mental pain and suffering she sustained as a result of her husband's death. Fla. Stat. Ann. § 768.21(2). Moreover, Brent's parents are entitled to recover for their own mental pain and suffering due to the fact that Brent was under 25 years of age. See Fla. Stat. Ann. § 768.21(4).
Dr. Herman Miller, an economic consultant testified as an expert that, were it not for Brent's untimely death, he experienced a net economic loss of $1,598,688.00. The Court should therefore award the Estate of Brent Marthaler, by Katie Lee Marthaler as personal representative, $1,598,688.00 in economic damages for the benefit of Katie Lee Marthaler, Herman C. Marthaler, and Sharon Marthaler, to be distributed in a manner consistent with the statute governing intestate distribution of property under Florida law. As for the intangible economic damages of the wrongful death recovery, the Court will address those awards below, in an individualized discussion of the claims of Katie Lee Marthaler, and Herman and Sharon Marthaler.
Plaintiff Katie Lee Marthaler is the widow of Brent Marthaler. Katie is participating in this lawsuit both as the personal representative to her husband's estate, and on her own behalf.
Ms. Marthaler is a United States citizen. She is 25 years old and was born on March 15, 1978 in Robbinsdale, Minnesota. (Dec. 2, 2003 Tr. at 52.) Her parents are Dennis and Jennifer Barthel who have been married for 30 years. She has one sister, Sarah, who is 22 years old. Katie grew up in Rogers, Minnesota. When Katie was 17, her family moved to nearby St. Michael, Minnesota. She attended elementary school in Rogers and junior and senior high school in Oak River, Minnesota. Id. at 53-54.
Katie met Brent Marthaler in 1991 when she was in the eighth grade and had just turned 14. Brent had just turned 16, and was in the tenth grade. Brent lived in Cambridge, Minnesota. Soon after Katie and Brent met each other, they began dating. Katie dated no one other than Brent from the time she met him when she was 14 years old until his death at Khobar Towers in June 1996. Id. at 55-56. Katie described Brent as a thoughtful and caring person. Brent was also close to Katie's parents. Katie's family treated Brent as if he were part of their family for many years. Id. at 56-57.
Brent graduated from high school in June of 1994 and joined the U.S. Air Force. Katie kept in touch with him, but it was not easy to keep in touch during boot camp because the young airmen do not have much time to write or call. Once he was out of boot camp, they kept in regular touch. Even during boot camp Brent would write letters once or twice a week and would call Katie when he would get his "morale call." Brent graduated from boot camp in September 1994, and Katie drove to Texas with Brent's parents to attend his graduation. Id. at 62-63.
Upon graduation, Brent was permanently assigned to Eglin AFB in Florida. Brent and Katie spoke almost every night; some nights it was for a half hour, and other nights it was for hours. Brent came home for Katie's junior prom in May 1995. Brent came home to Minnesota in October of 1995 and asked Katie to marry him. Katie was only a junior in high school so they had much to do to convince their parents. Brent had prepared a strategic plan which he had written down. Katie remembers that her mother was crying and her father did not say a whole lot. Brent had brought home a registration form for Katie to go to college. Katie's father requested that they visit Father McLaughlin at St. Michael's Church. After they met with him, Father McLaughlin announced that Brent and Katie were the perfect couple and he did not see any reason why they should not get married, no matter what their ages were. As a result, by the end of the weekend, everyone was excited. As Katie explained, Brent's "plan worked, so he had it all figured out." Id. at 71-72.
Katie visited Brent in Florida during her Spring vacation, which was in the first week of April 1996. Brent was scheduled to deploy with his squadron to Saudi Arabia two days after the end of Katie's vacation. Katie had just turned 18. Two days before Katie was scheduled to leave, Brent explained that he was worried about going to Saudi Arabia. He knew that it was an unfriendly place and he wanted to make sure that they had gotten married before he went there. Katie explained that Brent "just felt better going to Saudi Arabia and knowing that we were married and that we were taking on the world together then." Id. at 73-74.
So Brent and Katie went to the Courthouse and got married. They agreed not to tell anybody because they knew their parents would be upset. Invitations, a wedding dress, and a wedding cake for a September 1996 wedding had already been ordered. They agreed not to tell anybody until after Brent returned from Saudi Arabia. Brent did not want Katie to have to tell everyone by herself. Id. at 74-75.
In the weeks after Brent was killed, Katie was very angry. She did not want to eat. Her mother would make her eat by placing a plate of food in front of her and refusing to allow her to leave the table until she ate. Katie could not sleep but she still wanted to be in bed all the time. Her family would have to drag her out of bed. Id. at 90-91.
In the years since Brent's death, Katie has had many bad days. After September 11, 2001, Katie relived her experience and was very angry. She could not go to work for a couple of days because she felt so badly for the families. She was scared that terrorism was occurring in our country. Id. at 91. Katie has a recurring dream about Brent. She dreams that she is sleeping with him, and she knows that he is behind her. She wakes up and rolls over and puts her arm around him, and he is laying in bed like he was in the coffin with his head wrapped in gauze and a plastic device in place of his chin. Id. at 91.
Katie still keeps mementos of Brent in her home. She displays her wedding picture and also a picture of Brent in his jet with a big smile and his arms stretched out. She has a hope chest with the gifts that Brent had given her, her wedding dress, and all the letters that he sent her. Id. at 91-92.
As Dr. Cable testified, Katie "is in loss and loneliness. . . . She has tried to rebuild her life. She has tried to go on . . . . She still thinks about Brent all the time, and that will never change . . . ." When someone so close to you dies at 18, your new husband . you worry about everybody else close to you. What if something happened to them, too? . She has had to grow up very fast, and that's been difficult . . . . And there will always be those questions of: the life we should have had together; all the plans we had and all the promise. That will never fade. That will always stay present." (Feb. 10, 2004 Tr. at 69-71.)
Based on the evidence presented to the Court, it is clear that Katie Lee Marthaler has experienced and continues to experience extreme mental anguish and suffering resulting from the loss of her husband. Accordingly, the Court shall award the Estate of Brent Marthaler, by Katie Lee Marthaler as Personal Representative, $8 million for the benefit of his surviving wife, Katie Lee Marthaler, to compensate her for the loss of Brent's companionship and protection, as well as for her mental pain and suffering she sustained as a result of her husband's death.
iii. Herman C. Marthaler & Sharon Marthaler
Sharon A. Marthaler, Brent Marthaler's mother and a United States citizen, was born in Ortona, Minnesota on January 11, 1946. She was raised on a dairy farm where she lived with her mother, father and two brothers. After graduating from high school, Sharon took a one year course at the University of Minnesota to train as a medical technician. She then began working as a medical technician at Riverview Memorial Hospital in West St. Paul. On February 26, 1971, she married Herm Marthaler. (Dec. 3, 2003 Tr. at 2-5.)
Herman Charles Marthaler III, Brent Marthaler's father and a United States citizen, was born in St. Paul, Minnesota on January 12, 1947. He was raised on the Marthaler homestead in West St. Paul, Minnesota. Herm's parents were Donna Ann Merit and Herman Charles Marthaler, Jr. Herm's father served in the United States Air Corps as a navigator on a B-29 during World War II, flew 22 combat missions out of Guam and "was in the air with 400 planes when they dropped the atom bomb." After his discharge from the military, Herm's father owned Marthaler Calf and Cattle where he bought and sold feeder cattle. After graduating from high school in 1965, Herm went to the University of Minnesota for one year and then he enlisted in the Air Force in the Fall of 1966. Herm served in five campaigns in Vietnam. On February 26, 1971, he married Sharon Marthaler. (Dec. 3, 2003 Tr. at 41-44.)
Sharon and Herman Marthaler initially lived in West St. Paul and then moved to Emery Grove, Minnesota where they had three sons within 30 months. The oldest, Kirk, was born in 1974. Matt was born in 1975 and Brent was born 1976. After Brent was born, the Marthaler family moved to Cambridge, Minnesota. Id. at 5-7.
In the first years after Brent's death, it was extremely difficult for Sharon to go to work and get through each day. She testified that as time goes on, it gets a little easier, "but it is always still there. You finally come to realize things will never be the same." Every once in a while, Sharon has dreams about Brent, and he tells her that "things aren't as bad as you think." Id. at 36-37.
Sharon has visited Eglin AFB twice since Brent's death. The first time was for a bricklaying ceremony in September of 1996. She went with Katie and Katie's mother. The second time was January of 1998. She and Herm went there to take pictures of a memorial that had been erected to honor the victims of the Khobar Towers bombing and to meet some of Brent's friends again. By that time, however, most of the young airmen that Brent had served with had left Eglin AFB. Sharon recalled "[t]here weren't a lot of the old crew there anymore." Id. at 37. Sharon and Herm visit Brent's grave two or three times a year. They usually go on Memorial Day, Columbus Day and Veteran's Day. They leave a wreath by his grave on Veteran's Day because in Minnesota, the cemetery will leave the wreath in place until March when they do their Spring cleanup. Herman and Sharon also have a flag garden and a flag in their yard where they plant flowers. Id. at 37.
Sharon and Herman keep numerous mementos of Brent around their house. They have two tall cabinets in his old bedroom full of notes and cards that Brent wrote to them. They have also kept his baseball and football cards. Sharon also had a flag flown over the United States Capitol for Brent and the other 18 airmen killed at the Khobar Towers. Id. at 38. The Marthalers put a poster on their mailbox every June 25th with a picture of Brent taken just before he left for Saudi Arabia and the words "Remember the 19." Sharon contributes money in Brent's name to an organization called The Little Farm which is a nursery for disadvantaged children. Sharon makes the contribution in Brent's name periodically because it makes her feel good to write his name. Id. at 40-41.
Herman testified about the impact of Brent's death on his wife, Sharon, "[s]he'll never be the same. Absolutely never." Herm thinks of Brent "every second of every day." He testified "[w]hen I don't perform well enough is the day I wear [Brent's] T-shirt. When I am not going fast enough [Brent]'s right here and he says, you can do this, pop, just bend with the knees and lift harder. So it's every second of every day. . This is why Sharon and I sit down every day for two and a half hours from the moment she gets home." The holidays are difficult for the Marthaler family. Herman testified "Christmas is tough because we know [Brent] really loved Christmas. Veteran's Day . is the one that we get to put the wreath down and they'll leave . it until Spring." Herman believes that "the holidays that [Brent] liked the best is when it hurts us the most." Id. at 77-80.
According to Dr. Cable, Herman "is still in loss and loneliness. Brent was a very important part of his life. . . . His grief will continue in the future . . . [and] there will be for him a very strong void that will never be filled [t]hat will continue to cause pain and just is never going to go away." (Feb. 10, 2004 Tr. at 72-73.) Similarly, Dr. Cable testified that Sharon "is still in loss and loneliness. She thinks of [Brent] all the time, so very much a part of her life. . She, too, has grief that will continue in the future. I see her as one who slowly will recover, but who will experience what we sometimes refer to as waves of grief; that is, where it comes back and sort of hits us again and when we perhaps are least prepared and least expect it. . . . [S]he is going to be contending with that in the years ahead." Id. at 75.
Based upon the evidence presented at trial, both Herman and Sharon Marthaler have experienced severe mental anguish and suffering as a result of their son's untimely death. Therefore, this Court shall award to the estate of Brent Marthaler, by Katie Lee Marthaler as Personal Representative, $5 million for the benefit of his father Herman Marthaler, and $5 million for the benefit of his mother Sharon Marthaler to compensate both for the mental pain and suffering both have sustained as a result of their son's death.
b. Estate and Surviving Family Member of Justin Wood*fn33
Airman First-Class Justin R. Wood was killed in the Khobar Towers bombing on June 25, 1996. Pl. Ex. 2. Justin was born on July 16, 1975 and was 20 years old when he died. (Dec. 4, 2003 P.M. Tr. at 11.) Justin is survived by his father Richard Wood, his mother Kathleen Wood, and his older brother Shawn Wood.
From a very young age, Justin was always interested in sports. He particularly loved soccer and basketball. But as Justin got older, he played less soccer and devoted more and more time to basketball. "Basketball was his love." Justin was also a trivia whiz when it came to basketball and could recite the names and statistics of college basketball players, particularly players from his favorite teams. (Id. at 107-108; Dec. 4, 2003 P.M. Tr. at 15.) In addition to playing basketball and soccer, Justin also took karate and participated in karate tournaments. (Dec. 4, 2003 A.M. Tr. at 107-108.)
Soon after graduating from high school, Justin joined the Air Force. Rich and Kathy were surprised by this decision. Growing up, Justin always said he would not join the military because "when you go in the service you die." Rich and Kathy do not know where Justin got this idea from, but he never wanted to join the service. Then one day, after Justin graduated from high school, he came home and told his parents that he had enlisted in the Air Force along with his friend Travis Hudson. (Id. at 113-114; Dec. 4, 2003 P.M. Tr. at 19.)
One of the reasons Justin joined the service was because he wanted to attend college. Justin knew that Rich and Kathy could not afford to send him to college and he knew that he could get that college money by joining the Air Force. He told Kathy that in the Air Force, "'I can build up a college fund, save money for college, and I can take college classes while I'm there.'" (Dec. 4, 2003 A.M. Tr. at 113; Dec. 4, 2003 P.M. Tr. at 20.)
After joining the Air Force, Justin attended basic training at Lackland AFB, then went to Albuquerque, New Mexico for specialized training. He ultimately became a loadmaster with a search and rescue squad that was based at Patrick AFB in Florida. Justin was the first airman to go straight from boot camp to a loadmaster position with search and rescue. (Dec. 4, 2003 A.M. Tr. at 114.) Justin loved his job, particularly the crew of guys he was working with in the search and rescue squad. Id. at 117.
Justin Wood's estate is represented by his father, plaintiff Richard Wood. Justin's estate has asserted claims under Florida's wrongful death statute because he was last domiciled in Florida. As the personal representative of Justin's estate, Richard Wood is the proper plaintiff to bring a wrongful death action under Florida law. See Fla. Stat. Ann. § 768.20-768.21. In light of the fact that Justin had no spouse, or children, and that no evidence was submitted demonstrating that his brother Shawn was financially dependent upon Justin, any recovery under this wrongful death action is for the benefit of Justin's parents, Richard and Kathleen Wood. See Fla. Stat. Ann. § 768.18.
Based upon the pleadings and evidence presented to the Court, the estate of Justin Wood has made out a valid claim for wrongful death under Florida law. The beneficiaries of this estate, however, are not entitled to recover the present value of any "loss of the prospective net accumulations" of the decedent that might reasonably have been expected but for the wrongful death because Justin was under 25 years old when he died, and did not have either a surviving spouse or any surviving lineal descendants. Fla. Stat. Ann. § 768.21(6)(a)(1). Still, Justin's parents are entitled to recover for their own mental pain and suffering arising out of this wrongful death action due to the fact that Justin was under 25 years of age when he died. See Fla. Stat. Ann. § 768.21(4). A discussion of these intangible economic damages of the wrongful death recovery will be addressed below in an individualized discussion of the claims of Richard and Kathleen Wood.
ii. Richard Wood & Kathleen Wood
Richard ("Rich") Wood is the father of Justin Wood. He was born in Hillsboro, Wisconsin on November 12, 1945. He is an American citizen. (Dec. 4, 2003 A.M. Tr. at 99.) Kathy Wood is the mother of Justin Wood. She was born in Los Banos, California on October 7, 1949. She is an American citizen. (Dec. 4, 2003 P.M. Tr. at 2.)
When Rich moved to Modesto to work at the Gallo's warehouse, he met his wife, Kathy Wood. Rich worked at Ernest and Julio Gallo's winery in Modesto, California for 34 years before retiring. (Dec. 4, 2003 A.M. Tr. at 103, 135.) After Rich and Kathy married, they had two children: Shawn, who was born in March of 1971, and Justin, who was born in July of 1975. (Dec. 4, 2003 P.M. Tr. at 11.)
Rich does not remember what he and Kathy did after they learned about their son's death, other than hold each other and cry. He felt numb. (Dec. 4, 2003 A.M. Tr. at 122-24.) Kathy was in shock. "All I could do is just sit and pray for it not to be true." (Dec. 4, 2003 P.M. Tr. at 31.)
The day Kathy learned of Justin's death, her doctor prescribed Xanax to help her deal with everything. She did not want the drug, but she did take it and it helped her sleep. Days after Justin's death, Rich, Kathy, and Shawn attended a memorial service at Patrick AFB. Upon arriving at Patrick AFB, they were met by Justin's flight squad, who whisked them away and took care of them for the next few days. "They did not want us to be anxious about anything. They went overboard to make sure that we were comfortable and well taken care of." The squad took Rich and Kathy to the hotel, to the base, to their squad room, and to a squad member's home, where they had a huge gathering and met the squad members' families. (Id. at 36; Dec. 4, 2003 A.M. Tr. at 125-26.)
Since the Modesto ceremony and the burial service, Rich and Kathy have attended numerous Khobar Towers memorials and dedications. They attended the opening of the Khobar Towers display at Heritage Hall, which is the museum for enlisted men in Montgomery, Alabama. (Dec. 4, 2003 A.M. Tr. at 118-19, 130.) They attended the dedication ceremony for the monument to the victims of Khobar Towers at Patrick AFB. They also attended the FBI briefing held in Quantico, Virginia, where certain family members were briefed about the status of the Khobar Towers criminal investigation. Id. at 130.
After Justin's death, Rich "just shut down." He shut himself up in a room in his house and spent time on the computer and away from everyone else. "I couldn't talk to my wife because if I talked to my wife, she'd cry or if she talked to me I'd cry. I just had a real difficult time." Rich became reclusive and did not want to have anything to do with anyone. Id. at 130-31. Rich even began showing physical manifestations of his problems and began breaking out in welts. (Dec. 4, 2003 P.M. Tr. at 41.)
Rich began seeing a psychiatrist two to three times a week after Justin died and continued seeing her throughout the year following Justin's death. (Dec. 4, 2003 A.M. Tr. at 130, 132.) The psychiatrist prescribed Rich a medication that helped with his emotional suffering. Rich stayed on this medication for three to four years. After Rich started taking the drug, he began to feel better and thought he could stop taking the drug. But shortly after he went off the medication, Rich "went bananas" and shut down again. The psychiatrist was so concerned that she placed him in a medical facility called Crossroads, where he stayed for a week. Id. at 132-33.
It has been difficult for Rich to get rid of any of Justin's possessions since he died and Rich's home is now full of them. He has Justin's Persian rug, aquarium, lamps, furniture, and all of his military uniforms. Moreover, Rich has encountered a hard time coping with life since Justin died. Rich finds it difficult to make decisions, he gets confused, and gets lost. He also cries at the drop of a hat. It is difficult for him to watch the news and see soldiers being killed because he knows what the parents are going through. September 11, 2001 was particularly difficult. Rich's relationship with his family has also been dramatically altered since Justin was killed. Today, Rich cannot talk about things with his family the way he used to. Id. at 140. Holidays are no longer enjoyable for Rich. Id. at 138.
Rich and Kathy have created a number of lasting memorials in Justin's honor. "I have his flag box on his coffee table. I have eagles all over the place. I put up a flag pole out in the front [of the house]. Together with the PTA at Rose Avenue School where he went to grade school, we put in a rose garden . . . . And then we have a plaque and planted a tree at the high school he attended." Id. at 141.
Today, Rich still has moments where he just falls apart. Id. at 131-132. The biggest problem is that the hurt never goes away. Id. at 136. "I think about Justin every single day. There's no particular thing that sets it off. It's just always there." Id. at 139.
According to Dr. Cable, Rich is in extreme loss and loneliness. He is also having volatile emotions. I think the real difficulty for him, in terms of his loss and loneliness, he doesn't want to get better . . . . He is very lonely. He is very bitter. He is withdrawn from all of those people who could support him, all of those people who love him . . . . [His prognosis is] really very poor . . . . His grief will last a lifetime. He doesn't want to forget. He doesn't want to let go of the pain, and I fear will permanently damage any family relationships.*fn34
After Justin's death, Kathy was coping with her own profound grief but also was dealing with her husband, who "was very angry, very upset, very distraught." Rich's reaction to Justin's death caused a great deal of friction between Kathy and Rich, resulting in nearly constant arguments between Kathy and Rich. Id. at 39-40. To help Kathy forced herself to go back to work and this was helpful, because there was a support system in place for her there. "If someone's having problems, we do what we can to make them feel good and strengthen them up as well, and I needed my friends." Going back to work prevented Kathy from going into a deeper depression. Id. at 41-42. But Kathy felt bad about going back to work because Rich could not bring himself to do the same thing and because she began shutting him out more, in the hope that doing so would prevent further anxiety for him. Id. at 41.
As a result of the rift between Kathy and Rich, Kathy began doing more things by herself. She regularly attends church-related events and has girls' night out with her friends. She still does not go out with Rich like she used to before Justin died. Id. at 45. To this day, Kathy and Rich's relationship has not returned to normal. Id. at 40. Kathy and Rich's physical relationship has also not returned to normal.
Kathy still thinks about Justin all of the time and likes to keeps things around that remind her of him. She put together a scrapbook of pictures from Justin's childhood that she carries with her often.
As to her emotional state, Dr. Cable testified that Kathy is in loss and loneliness. She has tried to move on and I think really wants to, but there is a lot of personal grief still present. Then, of course, it's complicated by how her husband has dealt with all of this and then the anger and intense grief he has got. . [H]er grief will continue for a long period of time. I believe her marriage will suffer . may full break down." (Feb. 10, 2004 Tr. at 207.)
Based upon the evidence presented at trial, both Richard and Kathleen Wood have experienced severe mental anguish and suffering as a result of their son's untimely death. Therefore, this Court shall award to the estate of Justin Wood, by Richard Wood as Personal Representative, $5 million for the benefit of his father Richard Wood, and $5 million for the benefit of his mother Kathleen Wood to compensate both for the mental pain and suffering both have sustained as a result of their son's death.
c. Estate and Surviving Family Members of Michael Heiser
i. Estate of Michael Heiser
Michael ("Mike") Heiser was killed in the Khobar Towers bombing on June 25, 1996. (Dec. 5, 2003 A.M. Tr. at 29; Ex. 2.) Mike was born on September 20, 1960 and was 35 years old when he died. (Id. at 5, Ex. 67.) Mike was unmarried and had no siblings. Mike is survived by his parents, Francis ("Fran") and Gary Heiser. Though Gary is not Mike's biological father, he legally adopted Mike. Id. at 8, 53-54. Mike had a special and rewarding childhood in Germany. On weekends and holidays, he would travel with Fran and Gary to see the German countryside and became involved in collecting antiques and other items. Mike was a natural businessman and even at a young age, helped Fran and Gary purchase antiques, refurbish them, and sell them for a profit. Id. at 7.
As a child, Mike was smart, funny, and considerate. He also had a passion for learning. Reading many books and participating in school activities. Through his travels, he had many friends all over the world. Mike was also a hard worker, both during his years as a student and after he joined the military. Id. at 8-11.
Mike enlisted in the Air Force on June 25, 1979. Because Gary had served in the Army for 22 years, Mike initially talked to a recruiter about joining the Army. Gary testified that he knew the benefits of being in the Air Force and persuaded Mike look at the Air Force. Mike ultimately decided that the Air Force was a better career choice, so he enlisted soon after graduating from high school. Id. at 14, 55.
After attending boot camp and advanced training, Mike developed a specialty in the communications field and was sent to Mildenhall AFB in England. After spending three years at Mildenhall, Mike was promoted and reassigned to Ramstein AFB in Germany, where he was responsible for communications operations on the Air Force's fleet of Gulfstream planes. During Mike's three years at Ramstein, he took part in several exciting missions. For example, he was assigned to the first airplane escorted into the new, free Russia; he was assigned to General Schwarzkopf's personal plane during the Gulf War; and he was assigned to coordinate communications when President Clinton visited Ramstein. Mike loved working and flying on the Gulfstreams. After spending three years in England and three years in Germany, Mike transferred back to the United States and was assigned to Patrick AFB in Florida, and was later assigned to Saudi Arabia.
Michael Heiser's estate is represented by his parents, Fran and Gary Heiser. Michael's estate has asserted claims under Florida's wrongful death statute because he was last domiciled in Florida. As the personal representatives of Michael's estate, Fran and Gary Heiser are the proper plaintiffs to bring a wrongful death action under Florida law. See Fla. Stat. Ann. § 768.20-768.21. In light of the fact that Michael had no spouse or dependents, any recovery under this wrongful death action is for the benefit of Michael's parents, Fran and Gary Heiser. See Fla. Stat. Ann. § 768.18.
Based upon the pleadings and evidence presented to the Court, the estate of Michael Heiser has made out a valid claim for wrongful death under Florida law. Accordingly, the beneficiaries of this estate are entitled to recover the present value of any "loss of the prospective net accumulations" of the decedent that might reasonably have been expected but for the wrongful death. See Fla. Stat. Ann. § 768.21(6). Additionally, though Michael was over 25 years of age at the time of his death, Michael's parents are nonetheless entitled to recover for their own mental pain and suffering arising out of this wrongful death action due to the fact that Michael died without any other survivors. See Fla. Stat. Ann. § 768.21(4).
Dr. Herman Miller, an economic consultant testified as an expert that, due to Michael's untimely death, he experienced a net economic loss of $3,720,019.00. The Court should therefore award the Estate of Michael Heiser, by Fran and Gary Heiser as personal representatives, $3,720,019.00 in economic damages for the benefit of Michael's parents, Fran and Gary Heiser. As for the intangible economic damages of the wrongful death recovery, the Court will address those awards below, in an individualized discussion of the claims of Fran and Gary Heiser.
ii. Francis and Gary Heiser
Francis ("Fran") and Gary Heiser were Mike's parents. Fran was born in New Jersey on December 23, 1941 and was 54 years old when Mike was killed. (Dec. 5, 2003 A.M. Tr. at 4.) Gary was born in Pennsylvania on March 22, 1937 and was 59 years old when Mike was killed. Id. at 52. Gary was Mike's adoptive father. Id. at 53-54.
Shortly after graduating from high school, Fran married and gave birth to Mike who was her only child. After six years of marriage, Fran and her husband divorced. Fran's ex-husband, who was Mike's biological father, did not play a a role in Mike's life after the divorce. In Fran's words, her ex-husband "divorced both of us." Id. at 5-6, 8. Later, Fran met Gary, and they were eventually married on February 14, 1970. Id. at 6, 53.
When Fran and Gary married, Mike was only nine years old. Id. at 6, 53. Gary could see that Mike needed a male influence in his life, and Gary filled that role. In addition to raising Mike as his own son, Gary formally adopted Mike. Id. at 8, 53-54, Ex. 67.
Since burying Mike, Fran and Gary have dedicated themselves to attending numerous memorials all around the country. "[W]e've been to any that we know about." Fran and Gary have also kept scrapbooks memorializing these events and have created a book called "The Story of a Lifetime," to preserve Mike's memory. By posting it on a website, they have shared this book with other victims of terrorism, including the other families of the victims of the Khobar Towers bombing. Id. at 33, 43, 68.
Fran has been deeply affected by the loss of her only child. After Mike's death, she did not want to see or speak with anyone. Id. at 34. It has been particularly difficult for her to see other people's children and grandchildren without becoming emotional. Mike's death dramatically impacted Fran's family life. She is upset how her already small family broke-down even further when Mike was killed. Id. at 36, 38. Fran does not even like holidays anymore.
Fran has experienced severe sleep problems ever since Mike died. This still occurs today. After Mike's death, Fran and Gary decided to sell the family business. There was no longer a reason to keep the business. The business had been growing fast, Gary was considering retiring, and with Mike gone, there was nobody to take over the business. So after Fran and Gary received an offer, they sold the company. Id. at 37.
Fran attended counseling for a short period of time after Mike died, but did not find it helpful. She then attended a support group meeting for the Tragedy Assistance Program for Survivors ("TAPS") in Washington, D.C., which was a support group for family members of deceased servicemen. Fran found several of the TAPS support groups helpful, and has made TAPS a beneficiary of her will. Fran also involved herself with an organization called Alive Alone, an organization for parents whose children have died at a young age. Id. at 34-35.
Since Mike's death, Fran has dedicated much of her life to being an advocate for victims of terrorism. She has contacted congressmen about terrorism issues, has attempted to change the laws to protect United States servicemembers, and has tried to place terrorism on the agendas of politicians. She has also spent a great deal of time reading and educating herself about terrorism. Some people think Fran is obsessed with it. Id. at 39-40.
To this day, much of Fran and Gary's home is decorated with mementos from Mike's life. Fran and Gary have also set up the Michael G. Heiser Foundation, in remembrance of all victims of terrorism. Money donated to the Foundation is used for ROTC scholarships and to assist victims of terrorism, through TAPS, Alive Alone, and another support organization called No Greater Love. Id. at 41-42.
As Dr. Cable stated, Fran is very much in loss and loneliness, and that's complicated or enhanced by the lack of family for her future. So it's not just present loneliness, but it's future loneliness as well; the family that can never be there. . . . She will continue in grief the rest of her life, because there is nothing besides her husband to put herself into. There is no one to love. There is an emptiness there that's not going to go away for her. There will never be grandchildren. So that real emptiness is long term.
(Feb. 10, 2004 Tr. at 139.)
Gary's entire life has been affected by the death of his son. He and Fran always had a small family, but now they are left without their only child, and their lives have been shattered. "[O]ur future goes only to the point when I go and my wife goes. That's it. The family ceases to exist." This has caused great emotional pain for Gary. It forced Gary and Fran to sell their family business, which they had planned on passing down to their son. (Dec. 5, 2003 A.M. Tr. at 69-71.)
Like Fran, Gary does not celebrate holidays anymore. Until Mike died, Gary enjoyed Christmas. But he cannot enjoy the holiday anymore. Additionally, birthdays and other holidays are equally tough for Gary to handle. As Dr. Cable testified, Gary is in loss and loneliness. As with his wife, there is no future. There was a very strong relationship because of the adoptive choice that was made between [Gary and Mike]. . . . His grief will continue for a great deal of time. Again, the future is gone. He will move on with his life, but the grief will always be there. Part of that will always be also seeing the pain his wife is going through. (Feb. 10, 2004 Tr. at 141-42.)
Based upon the evidence presented at trial, both Fran and Gary Heiser have experienced severe mental anguish and suffering as a result of their son's untimely death. Therefore, this Court shall award to the estate of Michael Heiser, by Fran and Gary Heiser as Personal Representatives, $5 million for the benefit of his mother Fran Heiser, and $5 million for the benefit of his father Gary Heiser to compensate both for the mental pain and suffering both have sustained as a result of their son's death.
d. Estate and Surviving Family Members of Earl Cartrette, Jr.*fn35
i. Estate of Earl Cartrette, Jr.
Senior Airman Earl Cartrette, Jr. ("J.R.") was born March 2, 1974, and was the eldest of three sons; J.R.'s two younger brothers are Lewis, born on November 1, 1976; and Anthony ("Tony"), born on March 15, 1978. He was killed on June 25, 1996 while stationed at Khobar Towers. (Dec. 5, 2003 P.M. Tr. at 2-3; Ex. 9.) J.R. attended grade and middle school at St. Anthony's Catholic School in Sellersburg, Indiana, where his grandmother worked. His grandmother was in charge of the school cafeteria. After St. Anthony's, J.R. attended Providence High School, a catholic high school in Clarksville, Indiana. J.R. played football from the third grade through his junior year in high school. He also ran track all through grade school, middle school and his junior year of high school. When he was younger he played soccer and basketball and wrestled. Id. at 7-8.
J.R. decided to join the U. S. Air Force after high school. J.R. underwent basic training at Lackland AFB and advanced technical school at Shepherd AFB, both in Texas. He was then assigned to Eglin AFB in Florida. Id. at 20-21. He was deployed with the 58th Fighter Squadron to Saudi Arabia in March 1996, and was scheduled to return on June 27, 1996, two days after the bombing.
J.R.'s estate is represented by his mother, Denise Eichstaedt. J.R.'s estate has asserted claims under Florida's wrongful death statute because he was last domiciled in Florida. As the personal representative of J.R.'s estate, Denise Eichstaedt is the proper plaintiff to bring a wrongful death action under Florida law. See Fla. Stat. Ann. § 768.20-768.21. In light of the fact that J.R. had no spouse or lineal descendants, and because no evidence was presented as to his siblings' financial dependence upon J.R., any recovery under this wrongful death action is for the benefit of J.R.'s mother, Denise Eichstaedt. See Fla. Stat. Ann. § 768.18.
Based upon the pleadings and evidence presented to the Court, the estate of Earl Cartrette, Jr. has made out a valid claim for wrongful death under Florida law. The beneficiaries of this estate, however, are not entitled to recover the present value of any "loss of the prospective net accumulations" of the decedent that might reasonably have been expected but for the wrongful death because J.R. was under 25 years old when he died, and did not have either a surviving spouse or any surviving lineal descendants. Fla. Stat. Ann. § 768.21(6)(a)(1). Still, J.R.'s mother is entitled to recover for her own mental pain and suffering arising out of this wrongful death action due to the fact that J.R. left no other survivors. See Fla. Stat. Ann. § 768.21(4).*fn36 A discussion of these intangible economic damages of the wrongful death recovery, will be addressed below in an individualized discussion of the claim of Denise Eichstaedt.
Denise Eichstaedt, a United States citizen, was Senior Airman Earl Cartrette, Jr.'s mother. Denise was born on March 8, 1953 in Jeffersonville, Indiana. She had three brothers and a sister and grew up in the Jeffersonville area. Denise is married to James Eichstaedt. She is a nurse. Her first husband was Earl Cartrette, Sr. who died on February 18, 1992, the year that J.R. graduated from high school. Denise had three sons with Earl Cartrette, Sr.: J.R. who was born March 2, 1974; Lewis who was born on November 1, 1976; and Anthony ("Tony") who was born on March 15, 1978. Denise raised the three boys in Sellersburg, Indiana, a small town approximately 6 miles north of Jeffersonville where Denise's parents still live. Id. at 4-5.
Denise did not attempt to return to work for two and one-half months after J.R. was killed. When she did return to work, she was unable to perform her duties because she worked on a floor with terminally ill patients, where it was difficult to work without crying. As a result, the hospital gave her more time off, and she stayed home for six months. At that point, however, she decided that it was in everyone's best interest for her to resign because she felt as though she could not do that type of work anymore. In mid-February 1997, she went to work in a pediatrician's office. In the days and weeks following J.R.'s death, Denise did not want to sleep. That period of time is essentially "a blur" for her. Id. at 36-37.
Denise has attempted to obtain professional counseling over the years. She went to see a civilian psychiatrist and did not continue because he wanted to put her on medication for depression. Denise explained that she did not want to take drugs. Denise believes that she is better off sitting at home contemplating in her own mind, talking to herself, rather than taking medication. Denise also attempted to go to a couple of meetings of an organization called Compassionate Friends which includes the parents of children who have been killed. She concluded, however, that she did not fit in because they did not understand what happens to a parent when her child is killed by a terrorist. Id. at 36-38. When Denise looks at a picture of J.R., she begins to cry. Sometimes she cries for a short period of time and sometimes she cries off and on for a couple of days.
As Dr. Cable testified, Denise
is still certainly in the loss and loneliness [stage]. She is still having a very difficult time. The things that keep her going are her work and her faith. . [S]he has still got a room almost as a museum [which] shows that she is frozen in time at a point back where this happened. . . . Her pain will continue for quite a period of time. She is trying to do better. She works at it. She makes her own effort, but she is still have a difficult time and will.
(Feb. 10, 2004 Tr. at 121-22.)
Based upon the evidence presented at trial, Denise Eichstaedt has experienced severe mental anguish and suffering as a result of her son's untimely death. Therefore, this Court shall award to the estate of Earl Cartrette, Jr., by Denise Eichstaedt as Personal Representative, $5 million for the benefit of his mother Denise Eichstaedt to compensate her for the mental pain and suffering she sustained as a result of her son's death.
Anthony W. Cartrette ("Tony") is a United States citizen, and is one of the two brothers of Earl Cartrette, Jr. Ex. 280 ¶¶ 1-3. J.R. and Tony lived together in the same home for 14 years while both were growing up, and still in school. J.R. was a very supportive big brother to Tony, and always took care of him. Tony was always able to confide in J.R. and ask for his guidance. "J.R. was the glue that held everyone together." Ex. 280, ¶ 6.
After the memorial services, Tony had a "melt down." He was unable to sleep for days and did not eat very much. Tony was only 17 years old when J.R. died. It is very difficult for Tony to accept that J.R. is gone. Tony has not been able to talk to anyone else about J.R.'s death. Ex. 280, ¶ 13.
Tony misses J.R. the most when he goes home to visit their family and realizes that J.R. will not be joining them. Birthdays and holidays are also difficult for Tony. There are still times when Tony is alone that he wants to pick up the phone and call J.R. and realizes that Tony can't. J.R. is on Tony's mind every second of every day and Tony misses him more each day. J.R.'s death was a shock. There is no closure because Tony didn't get to say good-bye. Ex. 280, ¶¶ 14-16.
According to Dr. Cable, Tony is
in loss and loneliness certainly. . . . [H]e also has some unresolved issues with his brother, kind of unfinished business issues that probably evoke some earlier stages of grief as well. It's very intense grief and problems. . . . He will have continuing difficulties for quite a period of time. . . . He need to be able to talk about all of his feeling, including guilt feelings, unfinished business, and all. So it's a long road ahead for him.
(Feb. 10, 2004 Tr. at 125-26.)
As the brother of Earl Cartrette, Jr., Anthony Cartrette has brought an intentional infliction of emotional distress claim against the defendants for pain and suffering caused by the death of his brother. Based on the evidence presented to the Court, Anthony Cartrette has satisfied the elements to establish a valid claim for intentional infliction of emotional distress under Florida law. First, defendants Iran, MOIS, and the IRGC provided material support to Saudi Hezbollah with the intent that Saudi Hezbollah would carry out attacks that would cause severe emotional distress. Second, the tragic bombing of the Khobar Towers by means of material support and civil conspiracy is an act that is nothing short of extreme, outrageous, and beyond all bounds of civil decency. As is the nature of terrorism, terrorists seek to perform acts that are deliberately outrageous and bring about extreme suffering in order to achieve political ends. Third, defendants' actions in facilitating and supporting the Khobar Towers bombing proximately caused Tony's emotional distress because the material support and direction given to Saudi Hezbollah ensured the event would occur. Finally, the evidence shows that Tony suffered emotional distress, and that his emotional distress was severe. Accordingly, the Court finds that Anthony Cartrette is entitled to recover from defendants $2.5 million in compensatory damages for the mental anguish and suffering associated with the loss of his brother.
e. Estate and Surviving Family Members of Patrick Fennig*fn37
i. Estate of Patrick Fennig
Patrick Fennig ("Pat") is a United States citizen, who was born on April 17, 1962 in Wisconsin. Pat had two older brothers, Mark who was born on March 24, 1959, and Paul who was born on January 17, 1961. As a child, Pat loved airlines and reading. Cassie testified that Pat "liked being a little boy. He was a fun child, always busy." Pat had a very good relationship with his two brothers. They played together and like ...