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Spencer v. Islamic Republic of Iran

United States District Court, D. Columbia.

October 14, 2014

KENNETH S. SPENCER, JR., et al., Plaintiffs,
v.
ISLAMIC REPUBLIC OF IRAN, Defendant

Page 24

For Alan Lee Balaran, Special Master: Alan Lee Balaran , LEAD ATTORNEY, LAW OFFICE OF ALAN L. BALARAN, PLLC, Washington, DC USA.

For Kenneth S. Spencer, Jr., individually, and qua Personal Representative of the Estate of Kenneth S. Spencer, Sr. (Deceased), Frances A. Spencer, Amy L. Morrow, Karen K. Brown, Kris A. Boerger, Samuel P. Rice, Jr., Samuel P. Rice, Sr., Belinda Rice, Todd Rice, Amy Cogswell, David Rice, Daniel Rice, Lisa Schultz, Valerie Trail, Carmella Wood, Patsy Mcentire, individually, and qua Personal Representive of the Estate of David Warren Brown, (Deceased), and of the Estate of Therisa Edwards (Deceased), Lewis Young Brown, Ronny Lewis Brown, Lisa Rene Maybin, Cynthia Ann Burt, Steven Joseph Diaz, Steven James Diaz, Jane Astrid Diaz, Magdelina Mary Diaz, individually, and qua Personal Representive of the Estate of Daniel Paul Diaz, (Deceased), Robert Rios Diaz, Teresa Belmares Diaz, Raul Patrick Diaz, Edward Albert Diaz, Estate of Nerida Tull Baez, (Deceased), by Yolanda Alvarado Tull, qua Personal Representative thereof, Estate of Andres Alvarado Mirbal, (Deceased), by Yolanda AlvaradoTull, qua Personal Representative thereof, Estate of Margaret O'Brian, (Deceased), by Stephen O'Brien, qua Personal Representative thereof, Mitchell Scott Anderson, All Plaintiffs, Kevin Mark Sibille, Steven Mariua Sibille, Donna Elaine Black, William Eugene Carlson, Beulah Mae Sword, Pamela Ann Schultz, Gary Alan Carlson, Ronald Anthony Howell, Mary Jane Howell, Kimberly Ann Carlson, Personal Representative of the Estate of Jesse James Ellison (Deceased), and qua Personal Representative of the Estate of Virginia Mae Ellison (Deseased), Victor Hugo Sibille, III, Donald Anthony Howell, Valerie Louise Unkel, individually, and qua Personal Representative for the Estate of Victor Hugo Sibille, Junior (Deceased), and qua Personal Representative for the Estate of Verion Louise Sibille (Deceased), Stephanie Diane Hardy, Jerry Sword, Daniel Richard Carlson, Kenneth Douglas Ellison, Bill Sword, Caroline Boardwine, Willard Daniel Howell, John Sword, Robert Sword, Penny Lee Nelson, Plaintiffs: David Hilton Wise, LEAD ATTORNEY, Wise & Donahue PLC, Fairfax, VA USA; Joseph Peter Drennan, LEAD ATTORNEY, JOSEPH PETER DRENNAN, ATTORNEY-AT-LAW, Alexandria, VA USA; Patrick M. Donahue, LEAD ATTORNEY, Wise & Donahue PLC, Annapolis, MD USA; David Joseph Kiyonaga, PRO HAC VICE, DAVID J. KIYONAGA, Alexandria, VA USA.

Page 25

MEMORANDUM OPINION

Royce C. Lamberth, United States District Judge.

This action arises out of the devastating 1983 bombing of the U.S. Marine barracks in Beirut, Lebanon. The attack decimated the facility, killed 241 U.S. servicemen and wounded many others, leaving scars both physical and psychological on the survivors. Some of these servicemen or their estates, joined by various family members, now bring suit against defendant Islamic Republic of Iran. Their action is brought pursuant to the state-sponsored terrorism exception to sovereign immunity under the Foreign Sovereign Immunities Act (" FSIA" ), 28 U.S.C. § § 1330, 1602 et seq., which was enacted as part of the National Defense Authorization Act for Fiscal Year 2008. Pub. L. No. 110-181, § 1083, 122 Stat. 3, 338-44 (2008). That provision, codified at 28 U.S.C. § 1605A, provides " a federal right of action against foreign states" that sponsor terrorist acts. Haim v. Islamic Republic of Iran, 784 F.Supp.2d 1, 4 (D.D.C. 2011) (internal citation and quotation marks omitted).

I. LIABILITY

On June 27, 2013, 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 1983 Marine barracks bombing in Beirut. Memorandum & Order at 2, June 27, 2013, ECF No. 34. The judicially noticed evidence presented in Peterson along with uncontroverted affidavits presented by plaintiffs alleging that all plaintiffs were killed or injured by the attack--or were related to persons who were--was sufficient to establish liability under 28 U.S.C. § 1605A. See id. The Court entered judgment in favor of the plaintiffs and against Iran with respect to liability. Id. at 3. The Court then referred this action to a special master for consideration of plaintiffs' claims for damages. Id. at 4. Since the issue of liability has been previously settled, the 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, 83 (D.D.C. 2010). Section 1605A's private right of action is available to, among others, " a national of the United States." 28 U.S.C. § 1605A(c)(1). Uncontroverted affidavits submitted to the Court affirm that all plaintiffs in this suit are U.S. citizens and, therefore, eligible to recover under the FSIA.

" To obtain damages against a non-immune foreign state under the FSIA, a plaintiff must prove that the consequences of the foreign state's 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 v. Islamic Republic of Iran, 370 F.Supp.2d 105, 115-16

Page 26

(D.D.C. 2005) (quoting Hill v. Republic of Iraq, 328 F.3d 680, 681, 356 U.S.App.D.C. 142 (D.C. Cir. 2003)) (internal quotation marks omitted). As discussed in Peterson II, plaintiffs have proven that the defendant's commission of acts of extrajudicial 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 (D.D.C. 2007). In cases brought under section 1605A, a court may consider prior damage awards for pain and suffering and solatium as examples for determining an appropriate award for each plaintiff. Acosta v. Islamic Republic of Iran, 574 F.Supp.2d 15, 29 (D.D.C. 2008).

The Court hereby ADOPTS, just as it has in other cases arising from the Marine barracks bombing in Beirut, all facts found by and recommendations made by the special master relating to the damages suffered by all plaintiffs in this case. See, e.g., id. at 52-53; Valore, 700 F.Supp.2d at 82-83; Estate of Bland v. Islamic Republic of Iran, 831 F.Supp.2d 150, 154 (D.D.C. 2011). However, if 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 the Court discusses below any alterations it makes to the special master's recommendations.

A. Pain and Suffering

Assessing appropriate damages for pain and suffering 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." Id. at 52 n.26 (internal citation and quotation marks omitted). It is important that the Court provide similar damage awards to plaintiffs suffering similar injuries. Valore, 700 F.Supp.2d at 84. In previous FSIA cases arising from the Marine barracks bombing, the Court worked from a baseline pain and suffering award of $5 million to victims of the attack who suffered physical injuries like " compound fractures, severe flesh wounds, and wounds and scars from shrapnel." Id. at 54. In applying this general approach, the Court has explained that it will " depart upward from this baseline to $7.5-$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," and will " depart downward to $2-$3 million where victims suffered only minor shrapnel injuries or minor injury from small-arms fire." Id. When a victim suffers severe emotional injury without physical injury, the Court has previously deemed $1.5 million to be an appropriate award. Estate of Bland, 831 F.Supp.2d at 155. If a plaintiff's death was instantaneous, they cannot receive an award for pain and suffering. Elahi v. Islamic Republic of Iran, 124 F.Supp.2d 97, 112 (D.D.C. 2000). If evidence presented to the fact finder demonstrates that the plaintiff survived for a very brief period of time before death, i.e. a matter of minutes, a pain and suffering award of as much as $1 million has been deemed appropriate. Id. at 112-13.

After reviewing the special master reports, the Court finds that the special master correctly applied the damages framework outlined in Peterson and Valore, including with respect to appropriate

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downward and upward departures, and ADOPTS all of the special master awards ...


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