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Estate of Steven Bland, et al v. Islamic Republic of Iran

December 21, 2011

ESTATE OF STEVEN BLAND, ET AL., PLAINTIFFS,
v.
ISLAMIC REPUBLIC OF IRAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge

MEMORANDUM OPINION

I. Liability

This civil action was filed under 28 U.S.C. § 1605(a)(7) and arises out of the bombing of the United States Marine barracks in Beirut, Lebanon on October 23, 1983. See Bland v. Islamic Republic of Iran, No. 05-CV-2124-RCL (D.D.C. 2005) Dkt. # 2 (Complaint). There are nearly 100 plaintiffs in this action, which includes numerous estates of those service members killed in the terrorist attack and dozens of family members of those who were killed or injured during the terrorist incident. On December 6, 2006, this Court took judicial notice of the findings of fact and conclusions of law in Peterson v. Islamic Republic of Iran, which also concerns the Marine barracks bombing, see 264 F. Supp. 2d 47 (D.D.C. 2003), and entered judgment in favor of the plaintiffs and against Iran with respect to all issues of liability. Bland, Dkt. # 15. This Court then referred this action to a special master for consideration of plaintiffs' claims for damages See id. Dkt. ## 15--16.

On March 10, 2008, and while this action was still pending with the special master under § 1605(a)(7), plaintiffs timely filed a motion seeking to proceed under the new state sponsored terrorism exception of the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605A. See id. Dkt. # 17. This Court granted plaintiffs' motion, holding that plaintiffs followed the proper procedures to qualify for retroactive treatment under the National Defense Authorization Act of 2008, Pub. L. No. 110-181 § 1083(c)(2). Bland, Dkt. # 19. This enabled plaintiffs to take advantage of the new state sponsored terrorism exception in their claims before the special master. See id. Since the issue of liability has been previously settled, this Court now turns to examine the damages recommended by the special master.

II. Damages

Damages available under the FSIA-created cause of action "include economic damages, solatium, pain and suffering, and punitive damages." 28 U.S.C. § 1605A(c). Accordingly, those who survived the attack may recover damages for their pain and suffering, as well as any other economic losses caused by their injuries; estates of those who did not survive can recover economic losses stemming from wrongful death of the decedent; family members can recover solatium for their emotional injury; and all plaintiffs can recover punitive damages. Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 82--83 (2010).

"To obtain damages against defendants in an FSIA action, the plaintiff 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 the damages by a reasonable estimate consistent with this [Circuit's] application of the American rule on damages.'" Salazar v. Islamic Republic of Iran, 370 F. Supp. 2d 105, 115--16 (quoting Hill v. Republic of Iraq, 328 F.3d 680, 681 (D.C. Cir. 2003) (internal quotations omitted)). As discussed in Peterson II, plaintiffs have proven that the defendants' commission of acts of extra-judicial killing and provision of material support and resources for such killing was reasonably certain to-and indeed intended to-cause injury to plaintiffs. Peterson v. Islamic Republic of Iran (Peterson II), 515 F. Supp. 2d 25, 37 (2007)

The Court hereby ADOPTS, just as it did in Peterson and Valore, all facts found by and recommendations made by the special master relating to the damages suffered by all plaintiffs in this case. Id. at 52--53; Valore, 700 F. Supp. at 84--87. However, where the special master has deviated from the damages framework that this Court has applied in previous cases, "those amounts shall be altered so as to conform with the respective award amounts set forth" in the framework. Peterson II, 515 F. Supp. 2d at 52--53. The final damages awarded to each plaintiff are contained in the table located within the separate Order and Judgment issued this date, and this Court discusses below any alterations it makes to the special master recommendations.

A. Pain and Suffering of Survivors

Assessing appropriate damages for physical injury or mental disability can depend upon a myriad of factors, such as "the severity of the pain immediately following the injury, the length of hospitalization, and the extent of the impairment that will remain with the victim for the rest of his or her life." Peterson II, 515 F. Supp. 2d 25, n.26 (D.D.C. 2007) (citing Blais v. Islamic Republic of Iran, 459 F. Supp. 2d 40, 59 (D.D.C. 2006)). In Peterson, this Court adopted a general procedure for the calculation of damages that begins with the baseline assumption that persons suffering substantial injuries in terrorist attacks are entitled to $5 million in compensatory damages. Id. at 54. In applying this general approach, this Court has explained that it will "depart upward from this baseline to $7--$12 million in more severe instances of physical and psychological pain, such as where victims suffered relatively more numerous and severe injuries, were rendered quadripeligic, partially lost vision and hearing, or were mistaken for dead," Valore, 700 F. Supp. 2d at 84, and will "depart downward to $2--$3 million where victims suffered only minor shrapnel injuries or minor injury from small-arms fire," id. However, "i[f] death was instantaneous there can be no recovery . . . ." Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97, 112 (D.C. 2000) (citation omitted). On the other hand, victims who survived a few minutes to a few hours after the bombing typically receive an award of $1 million. Id.

Again, this Court ADOPTS all of special master awards for pain and suffering unless otherwise discussed below. This Court also discusses below each situation where the special master departed upward or downward from the previously established damages framework.

1. Upward Departures.

The special master recommended an upward departure for two individuals. John Gibson suffered from singed lungs, "second degree burns on his face, upper body, torso, back buttocks and back of his legs; a left frontal fracture of his skull; an intracranial hematoma; a perforated eardrum; and a retinal occlusion" as a result of the explosion at the BLT. Special Master Rpt. Dkt # 65. Over a long period of time he underwent a number of painful procedures to treat his injuries, but he remains "essentially cross-eyed, has never regained sight in [one] eye, and suffers from double-vision and trouble with depth perception." He also lost a portion of his skull that was replaced with plastic. He presently has a Veterans Administration disability rating of 90% and still suffers from nightmares, intense headaches, double-vision, short-term memory loss, and ringing in his ears. In light of his disability rating and the exceptional severity of Mr. Gibson's injuries, the Court agrees with the special master and will depart upward from $5,000,000 to $8,000,000.

Emmanuel Simmons suffered from "a collapsed lung, second and third-degree burns on his face, chest, arms and thigh, burst ear drums and ...


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