MEMORANDUM OPINION AND ORDER
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
The
Court has received Plaintiffs' [61] Motion to Admit
Certain Exhibits as Evidence Before Trial, to Admit Expert
Reports Before Trial, and to Take Judicial Notice of Certain
Findings in Fritz v. Islamic Republic of Iran
(“Pls.' Mot.”). The Court issued a separate
Order regarding the first part of Plaintiffs' [61]
Motion, which concerns pre-admission of certain exhibits. The
Court now turns to the remainder of the motion, regarding
pre-admission of expert reports and judicial notice of
certain findings.
Expert
Reports
Plaintiffs'
authority for urging admission of expert reports is that
other courts have done so in prior Foreign Sovereign
Immunities Act (“FSIA”) cases. See
Pls.' Mot. at 12-13 (collecting cases). While this Court
may agree that the reports should be admitted, the Court is
not persuaded that such authority supports admission before
trial. Accordingly, the Court DENIES that
portion of Plaintiffs' [61] Motion seeking pre-admission
of expert reports.
The
author of each of the proffered expert reports is scheduled
to testify at trial. Accordingly, Plaintiffs may ask the
respective experts at the beginning of their trial testimony
whether they adopt the facts and conclusions in their
reports. If Plaintiffs lay that additional foundation, then
the Court will be persuaded to admit the reports.
Judicial
Notice
Plaintiffs
request judicial notice of three specific paragraphs of Judge
Randolph Moss's opinion in Fritz v. Islamic Republic
of Iran, 320 F.Supp.3d 48 (D.D.C. 2018):[1]
• “On January 20, 2007, the U.S. forces at the
Karbala PJCC included the 1st Platoon, A Battery,
2d Battalion, 377th Parachute Field Artillery Regiment. At
that time, the platoon's mission was to help the
provincial government plan security for an upcoming religious
event that was expected to draw more than ten million
pilgrims. The 1st Platoon was led by First
Lieutenant Jacob Fritz and included, among others, Specialist
Johnathan Bryan Chism and Private First Class Shawn Falter.
As platoon leader, Fritz was responsible for interacting with
elected and religious officials who ‘would come to the
PJCC to speak with the governing body of the PJCC.' He
lived and worked out of a small, courtyard-facing room at the
front of the main building along with Captain Brian Freeman.
Chism and Falter, meanwhile, worked rotating guard shifts,
helping the Iraqi police secure the PJCC.” Id.
at 65 (internal citations and footnote
omitted).[2]
• “The Court, accordingly, finds that Fritz,
Chism, and Falter were each shot, beaten, and subsequently
executed. Although it is possible that many of the contusions
on the victim's [sic] bodies were received in the course
of the abduction, the evidence that both Fritz and Chism were
kicked in the face, along with the extensive nature of the
injuries all three sustained, supports a finding that the
victims were severely beaten while in captivity.”
Id. at 70 (internal citation omitted).
• “AAH repeatedly claimed responsibility for the
Karbala attack. First, the group produced and published a
video titled ‘The General's Downfall,' which
contains footage of the PJCC, displays the photographs of the
U.S. soldiers who were killed, and ‘claims [the attack]
as one of [its] successes.' This video was admitted into
evidence based on testimony from Dr. Gartenstein-Ross,
describing internal and external indicia that it was produced
by AAH. As Dr. Gartenstein-Ross explained, the video served
multiple purposes; it helped ‘rally[ ] popular support
with AAH portraying itself as being at the forefront of the
resistance,' and it ‘show[ed] value to their
sponsors[, ] like Iran, that they[ ] [were] carrying out
these attacks.'” Id. at 71 (internal
citations omitted; alterations in original).
Evidently
Plaintiffs seek such notice because their trial presentation
of the attack at issue in Fritz will be limited,
consisting mostly, if not exclusively, of “independent
evidence to establish Iran's legal responsibility for the
attack.” Pls.' Mot. at 14.
Under
Federal Rule of Evidence 201, the Court “may judicially
notice a fact that is not subject to reasonable dispute
because it: (1) is generally known within the trial
court's territorial jurisdiction; or (2) can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Fed.R.Evid. 201(b).
“This ability to take notice of adjudicative facts
extends to judicial notice of court records in related
proceedings.” Rimkus v. Islamic Republic of
Iran, 750 F.Supp.2d 163, 171 (D.D.C. 2010) (citing,
e.g., Booth v. Fletcher, 101 F.2d 676, 679 n.2 (D.C.
Cir. 1938)); see also Han Kim v. Democratic People's
Republic of Korea, 774 F.3d 1044, 1049 (D.C.
Cir. 2014) (FSIA decision citing approvingly district
court's judicial notice of foreign court judgment
pursuant to Rule 201); Owens v. Republic of Sudan,
864 F.3d 751, 789 (D.C. Cir. 2017) (recognizing judicial
notice in Kim). “Because of the multiplicity
of FSIA-related litigation in this jurisdiction, Courts in
this District have thus frequently taken judicial notice of
earlier, related proceedings.” Id. Specific to
the request here, “when a court has found facts
relevant to a FSIA case involving material support to
terrorist groups, courts in subsequent, related cases may
‘rely upon the evidence presented in earlier litigation
. . . without necessitating the formality of having that
evidence reproduced.'” Harrison v. Republic of
Sudan, 882 F.Supp.2d 23, 31 (D.D.C. 2012) (quoting
Taylor v. Islamic Republic of Iran, 811 F.Supp.2d 1,
7 (D.D.C. 2011)). Moreover, courts have taken notice of facts
found in earlier proceedings in this District even when those
proceedings have taken place in front of a different judge.
See Brewer v. Islamic Republic of Iran, 664
F.Supp.2d 43, 54 (D.D.C. 2009) (“[r]elying on the
pleadings and the . . . findings of other judges in this
jurisdiction”).
“At
the same time, taking notice of another court's
finding of fact does not necessarily denote adoption
or finding of that fact.” Harrison,
882 F.Supp.2d at 31. Instead, “courts in subsequent
related cases [may] rely upon the evidence presented in
earlier litigation, ” but must still “reach their
own, independent findings of fact in the cases before
them.” Rimkus, 750 F.Supp.2d at 172; see
also Murphy v. Islamic Republic of Iran, 740 F.Supp.2d
51, 59 (D.D.C. 2010) (“The taking of judicial notice of
the Peterson opinion, therefore, does not
conclusively establish the facts found in Peterson
for, or the liability of the defendants in, this case. . . .
In rendering default judgment against defendants, the Court
was . . . required to, and did, find facts and make legal
conclusions anew.”).[3]
The
Court determines that the specified Fritz findings
are relevant to this FSIA case and, crucially, reliance upon
them will not supplant the Court's obligation to make
independent findings in this case. The Karbala attack at
issue in Fritz is among those going to trial in this
case, but the plaintiffs are unique. This case involves
different soldiers who were killed or injured in the same
attack, together with their family members. Of the three
paragraphs that Plaintiffs seek to judicially notice, the
first two expressly focus only on the plaintiffs in
Fritz, with one exception. The first paragraph
briefly refers to the late Captain Brian Freeman, whose
estate is a Plaintiff in this case. The third paragraph is
not explicitly limited to the Fritz plaintiffs, nor
does it refer by name to Plaintiffs in this case.
Notwithstanding the differences in plaintiffs, however, all
three paragraphs help to depict the basic story of the
Karbala attack. Rather than require “the formality of
having that evidence reproduced, ” the Court ...