Bova v. Islamic Republic of Iran

STEPHEN P. BOVA, et al. Plaintiffs, v. THE ISLAMIC REPUBLIC OF IRAN, Defendant.

Case No. 15-cv-1074 (RCL)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

May 31, 2020

MEMORANDUM OPINION

I. INTRODUCTION

This action is brought pursuant to the state-sponsored exception to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1330, 1602 et seq., which 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). (citation omitted). It arises out of the October 23, 1983 terrorist bombing of the U.S. Marine barracks in Beirut, Lebanon. That building, nicknamed the BLT, housed nearly 400 members of Battalion Landing Team 1/8 and other attached Marines, sailors, and soldiers. The attack represented the deadliest single-day death toll for the United States Marine Corps since the Battle of Iwo Jima and the deadliest single-day death toll for the United States military since January 21, 1968-the first day of the Tet Offensive during the Vietnam War. The detonation tore the four-story building from its foundation, leveling the barracks in seconds and leaving a crater 30 feet deep and 40 feet wide. The attack claimed the lives of 241 servicemen and injured 81 others. Those directly impacted by the blast and their immediate members now bring suit seeking redress against defendants Islamic Republic of Iran ("Iran") and the Iranian Ministry of Information and Security ("MOIS").

II. LIABILITY

On February 28, 2018, this Court took judicial notice of the findings of fact and conclusions of law in Peterson v. Islamic Republic of Iran ("Peterson I"), 264 F. Supp. 2d 46 (D.D.C. 2003) and in Worley v. Islamic Republic of Iran, 75 F. Supp. 3d 311 (D.D.C. 2014), and entered judgment for the plaintiffs and against Iran and MOIS regarding all issues of liability. Bova v. Islamic Republic of Iran, 1:15-cv-01074 (RCL) (D.D.C. Feb. 28, 2018). ECF No. 32. This Court simultaneously referred this action to a special master for consideration of plaintiffs' claims for damages. Id. On April 28, 2020, the special master filed his reports and recommendations with the Court. ECF Nos. 39-108. The parties have filed no objections to the reports and recommendations within the statutorily allotted time. See Fed. R. Civ. P. 53(f)(2) (allowing a party to "file objections to—or a motion to adopt or modify—the master's order, report, or recommendations no later than 21 days after a copy is served").

Having established liability, this Court examines the special master's recommended awards.

III. DAMAGES

A. Standard of Proof

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). Those who survived the attack on the Marine barracks in Beirut may recover damages for their pain and suffering as well as any economic losses caused by their injuries. By extension, the estates of those who perished may recover economic losses stemming from the wrongful death of the decedent, while immediate family members may recover solatium for their emotional injuries. Finally, all plaintiffs may recover punitive damages. Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 82-83 (D.D.C. 2010).

To successfully press a claim for damages under the FSIA, "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 (D.D.C. 2005) (quoting Hill v. Republic of Iraq, 328 F.3d 680, 681 (D.C. Cir. 2003) (internal quotations omitted)). As discussed in Peterson v. Islamic Republic of Iran (Peterson II), 515 F. Supp. 2d 25, 37 (D.D.C. 2007), plaintiffs have demonstrated that the defendants' extrajudicial killing and provision of material support and resources for such killing was reasonably certain to, and indeed intended to, cause injury.

As default winners under the FSIA, plaintiffs "must prove damages 'in the same manner and to the same extent as any other default winner.'" Botvin v. Islamic Republic of Iran, 873 F. Supp. 2d 232 (D.D.C. 2012) (quoting Wachsman v. Islamic Republic of Iran, 603 F. Supp. 2d 148, 160 (D.D.C. 2009)). When assessing these claims, courts carve a "'clear distinction' in the standard of proof necessary to establish a plaintiff's entitlement to damages and to assess the amount of those damages." Rhodes v. United States, 967 F. Supp. 2d 246, 313 (D.D.C. 2013) (emphases in original) (quoting Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 562 (1931)). For future damages, a plaintiff must demonstrate entitlement to a "reasonable certainty" or by a preponderance of the evidence, and prove damages by a "reasonable estimate." Hill, 328 F.3d at 684. For past losses, a plaintiff must "prove the fact of injury with reasonable certainty," Samaritan Inns, Inc. v. District of Columbia, 114 F.3d 1227, 1235 (D.C. Cir. 1997) (emphasis added), yet need only "reasonably prove" the amount of damages. Hill, 328 F.3d at 684.

Finally, as state sponsors of terrorism have "made all but certain that evidence does not exist," Han Kim v. Democratic People's Republic of Korea, 774 F.3d 1044, 1049 (D.C. Cir.2014), proof may be established by affidavit or declaration and, upon evaluation, the finder of fact "may accept Plaintiffs' uncontroverted evidence as true." Lanny J. Davis & Associates LLC v. Republic of Equatorial Guinea, 962 F. Supp. 2d 152, 161 (D.D.C. 2013); see also Belkin v. Islamic Republic of Iran, 667 F. Supp. 2d 8, 20 (D.D.C. 2009) ("In default judgment cases, Plaintiffs may present such evidence in the form of affidavits or declarations rather than through live witnesses testifying in open court"); Rimkus v. Islamic Republic of Iran, 750 F. Supp. 2d 163, 171 (D.D.C. 2010) ("Courts may rely on uncontroverted factual allegations that are supported by affidavits.").

B. Pain and Suffering of Survivors

Assessing damages for physical injury or mental disability implicates a number of factors. Where "death was instantaneous, there can be no recovery." Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97, 112 (D.D.C. 2000) (citation omitted); see also Thuneibat v. Syrian Arab Republic, 167 F. Supp. 3d 22, 39 n.4 (D.D.C. 2016) (where plaintiffs "submit[ ] no evidence . . . showing that either of the [v]ictims suffered any pain and suffering prior to their deaths in the suicide bombings," damages must be denied). Victims surviving a few minutes to a few hours after the bombing typically receive an award of $1 million. See, e.g., Eisenfeld, et al. v. Islamic Republic of Iran, 172 F. Supp. 2d 1, 5 (D.D.C. 2000) (where the Court awarded compensatory damages of $1,000,000 each for "several minutes" of pain and suffering of two decedents who died at the scene of the same bombing); Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 8 (D.D.C. 1998) (where $1,000,000 was awarded for three to five hours of pain and suffering); Elahi, 124 F. Supp. 2d at 113 (where the Court awarded $1,000,000 for three or four minutes of pain and suffering).

For victims surviving longer periods of time, courts consider "the severity of the pain immediately following the injury, the length of hospitalization, and the extent of the impairmentthat will remain with the victim for the rest of his or her life." Peterson II, 515 F. Supp. 2d at 52 n. 26 (D.D.C. 2007) (citing Blais v. Islamic Republic of Iran, 459 F. Supp. 2d 40, 59 (D.D.C. 2006)). For those injured servicemen, this Court has embraced "the baseline assumption that persons suffering injuries in terrorist attacks are entitled to $5 million in damages." Davis v. Islamic Republic of Iran, 882 F. Supp. 2d 7, 12 (D.D.C. 2012) (citing Peterson II, 515 F. Supp. 2d at 52 n. 26). In Peterson II, this Court found a $5 million award for pain and suffering to be appropriate where the evidence revealed a compound fracture on one leg, injuries to the toes on one foot, wounds and scars; where a serviceman suffered a broken jaw, severe flesh wounds and sustained scars on his arms, legs, and face and loss of teeth; or where shrapnel caused soft tissue damage to the chest and sternum area, flash burns, resulting in lingering back problems, internal maladies, and physical scarring. 515 F. Supp. 2d at 54.

Upward deviations from this baseline have been held to be appropriate "in more severe instances of physical and psychological pain, such as where victims suffered relatively more numerous and severe injuries, were rendered quadriplegic, partially lost vision and hearing, or were mistaken for dead." Relvas v. Islamic Republic of Iran, No. 1:14-cv-01752 (RCL), 2018 WL 1092445, at * 2 (D.D.C. February 28, 2018) (citing Valore, 700 F. Supp. 2d at 84). In Peterson II, for example, the Court awarded $7.5 million to a serviceman who lost both his sight and hearing; $9 million to a Marine who sustained a skull fracture, shattered cheekbone, eyebrow, and right eye orbit, crushed arms, a broken left leg, bruised right leg, two collapsed lungs, burns on arms and back, and internal bleeding; $7.5 million based on evidence of subdural hematoma, perforated right eardrum, crushed left ankle, collapsed left lung, and other shrapnel wounds that became infected; and $12 million to a serviceman who sustained a broken neck resulting in permanent quadriplegia. 515 F. Supp. 2d at 61.

When confronted with situations involving injuries less severe, the Court has founddownward departures warranted. In Bland v. Islamic Republic of Iran, 831 F. Supp. 2d 150 (D.D.C. 2011), for example, this Court awarded $2 million both to a former Marine who suffered lacerations to his thigh and rib cage and later received a 70% disability rating due to PTSD, id. at 156, and to another serviceman...