Fain v. Islamic Republic of Iran

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) EVAN FAIN III, et al., ) ) Plaintiffs, ) ) v. ) 10-cv-628 (RCL) ) ISLAMIC REPUBLIC OF IRAN, et al., ) ) Defendants. ) )

MEMORANDUM OPINION

I. Introduction

This action arises out of the devastating 1983 bombing of the U.S. Marine barracks in

Beirut, Lebanon. 1 The attack decimated the facility, killed 241 U.S. servicemen and left

countless others wounded, and caused injuries to serviceman Evan Fain III who is a part of this

action. Mr. Fain and his family now bring suit against defendant Islamic Republic of Iran

(“Iran”) and the Iranian Ministry of Information and Security (“MOIS”). Their action is brought

pursuant to the state-sponsored terrorism exception to 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 (“NDAA”). 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

1 See Peterson v. Islamic Republic of Iran, 264 F. Supp. 2d 46 (D.D.C. 2003) (Lamberth, J.); Valore v. Islamic Republic of Iran, 478 F. Supp. 2d 101 (D.D.C. 2007) (Lamberth, J.); In re Islamic Republic of Iran Terrorism Litigation, 659 F. Supp. 2d 31 (D.D.C. 2010) (Lamberth, C.J.); Anderson v. Islamic Republic of Iran, 753 F. Supp. 2d 68 (D.D.C. 2010) (Lamberth, C.J.); Bland v. Islamic Republic of Iran, 831 F. Supp. 2d 150 (D.D.C. 2011) (Lamberth, C.J.); O’Brien v. Islamic Republic of Iran, 2012 WL 1021471 (D.D.C. 2012) (Lamberth, C.J.); Davis v. Islamic Republic of Iran, 2012 WL 1059700 (D.D.C. 2012) (Lamberth, C.J.); Estate of Brown v. Islamic Republic of Iran, 2012 WL 2562368 (D.D.C. 2012) (Lamberth, C.J.). action against foreign states” that sponsor terrorist acts. Haim v. Islamic Republic of Iran, 784 F.

Supp. 2d 1, 4 (D.D.C. 2011) (quoting reference omitted).

II. Liability

On April 20, 2012, 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, and entered judgment in favor of the plaintiffs and against Iran and MOIS with respect

to all issues of liability. Fain v. Islamic Republic of Iran, No. 10-cv-628 (D.D.C. Apr. 20, 2012),

2012 WL 1377595, at *3–4 (citing Peterson, 264 F. Supp. 2d 46 (D.D.C. 2003) (Peterson I)).

This Court then referred this action to a special master for consideration of plaintiffs’ claims for

damages. Id. at *13. Since the issue of liability has been previously settled, this Court now

turns to examine the damages awards recommended by the special master.

III. 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 (D.D.C. 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,

2 370 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 II, plaintiffs have

proven that the defendants’ 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).

The Court hereby ADOPTS, just as it did in Peterson II, Valore, Bland, Anderson,

O’Brien, Davis, and Brown 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; Bland v. Islamic Republic of Iran, 831 F. Supp. 2d 150, 154 (D.D.C. 2011); see also

Anderson v. Islamic Republic of Iran, No. 08-cv-535 (D.D.C. Mar. 20, 2012), 2012 WL 928256;

O’Brien v. Islamic Republic of Iran, No. 06-cv-690 (D.D.C. Mar. 28, 2012), 2012 WL 1021471;

Davis v. Islamic Republic of Iran, No. 07-cv-1302 (D.D.C. Mar. 30, 2012), 2012 WL 1059700;

Estate of Brown v. Islamic Republic of Iran, No. 08-cv-531 (D.D.C. July 3, 2012), 2012 WL

2562368. 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. Id. 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

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

3 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 at 25 n.26 (citing Blais v. Islamic Republic of

Iran, 459 F. Supp. 2d 40, 59 (D.D.C. 2006)). In Peterson II, 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. When a victim

suffers severe emotional injury without physical injury, this Court has typically awarded the

victim $1.5 million. Id. at 84–85.

After reviewing the special master reports, the Court finds that the special master

correctly applied the damages framework outlined in Peterson II and Valore, and ADOPTS the

award for plaintiff Evan Fain. Mr. Fain was paralyzed below the waist for around thirty days

following the bombing. Report of Special Master, June 1, 2012, ECF No. 34, at 6. He also

suffered a concussion, injured his lower back, and had a “hole in his arm.” Id. After the

bombing, he developed problems with both short- and long-term memory, as well as PTSD. Id.

at 7. Mr. Fain has received an 80% disability rating from the Veterans’ Administration. Id. at 6.

The special master correctly recommended that Mr. Fain receive a $5 million award for the

substantial injuries he incurred in the bombing. Id. at 17.

B. Economic Loss

4 In addition to pain and suffering, Mr. Fain has proven to the satisfaction of the special

master, and thus to the satisfaction of the Court, lost wages resulting from permanent and

debilitating injuries suffered in the attack. See Valore, 700 F. Supp. 2d at 85. The Court

therefore ADOPTS without modification the $1,768,703 in damages awarded for economic loss

recommended by the special master. Report of Special Master, June 1, 2012, ECF No. 34, at 16.

C. Solatium

This Court developed a standardized approach for FSIA intentional infliction of

emotional distress, or solatium, claims in Estate of Heiser v. Islamic Republic of Iran, where it

surveyed past awards in the context of deceased victims of terrorism to determine that, based on

averages, “[s]pouses typically receive greater damage awards than parents [or children], who, in

turn, typically receive greater awards than siblings.” 466 F. Supp. 2d 229, 269 (D.D.C. 2006).

Relying upon the average awards, the Heiser Court articulated a framework in which spouses of

deceased victims were awarded approximately $8 million, while parents received $5 million and

siblings received $2.5 million. Id.; see also Valore, 700 F. Supp. 2d at 85 (observing that courts

have “adopted the framework set forth in Heiser as ‘an appropriate measure of damages for the

family members of victims’”) (quoting Peterson II, 515 F. Supp. 2d at 51). In the context of

distress resulting from injury to loved ones—rather than death—courts have applied a framework

where “awards are ‘valued at half of the awards to family members of the deceased’—$4

million, $2.5 million and $1.25 million to spouses, parents, and siblings, respectively.” Oveissi

v. Islamic Republic of Iran, 768 F. Supp. 2d 16, 26 n.10 (D.D.C. 2011) (quoting Valore, 700 F.

Supp. 2d at 85); see also Bland, 831 F. Supp. 2d at 157. Children of a deceased victim typically

receive an award of $3 million, while children of a surviving victim receive $1.5 million. Stern

5 v. Islamic Republic of Iran, 271 F. Supp. 2d 286, 301 (D.D.C. 2003); Bland, 831 F. Supp. 2d at

157; Anderson, 2012 WL 928256, at *2.

This Court has recently expounded further on the Heiser framework. In Bland and

O'Brien this Court held that—absent special circumstances—it is inappropriate for the solatium

awards of family members to exceed the pain and suffering awards of the surviving servicemen.

Bland, 831 F. Supp. 2d at 157–58; O'Brien, 2012 WL 1021471, at *3. In those cases, the

servicemen received $1.5 million pain and suffering awards for their emotional pain and

suffering, but did not receive an award for physical pain and suffering. Id. The Court reduced

the awards of the family members in rough proportion to the Heiser framework to: $1 million for

spouses, $850,000 for parents, $750,000 for children, and $500,000 for siblings. Id.; accord

Davis, 2012 WL 1059700, at *6.

In applying this framework, however, courts must be wary that “[t]hese numbers . . . are

not set in stone,” Murphy v. Islamic Republic of Iran, 740 F. Supp. 2d 51, 79 (D.D.C. 2010), and

that deviations may be warranted when, inter alia, “evidence establish[es] an especially close

relationship between the plaintiff and decedent, particularly in comparison to the normal

interactions to be expected given the familial relationship; medical proof of severe pain, grief or

suffering on behalf of the claimant [is presented]; and circumstances surrounding the terrorist

attack [rendered] the suffering particularly more acute or agonizing.” Oveissi, 768 F. Supp. 2d at

26–27.

The special master correctly recommended a baseline $4 million Heiser award to Maria

Elena Fain, the wife of serviceman Evan Fain III. Report of Special Master, June 1, 2012, ECF

No. 34, at 17. For each of the Fain children—Maria Elena Amosa, Evain Fain IV, and Joseph

Edward Fain—the special master recommended an award of $2.5 million. However, following

6 the Heiser framework, children of a surviving victim should receive a baseline award of $1.5

million unless special circumstances warrant a higher award. Stern v. Islamic Republic of Iran,

271 F. Supp. 2d 286, 301 (D.D.C. 2003); Bland, 831 F. Supp. 2d at 157; Anderson, 2012 WL

928256, at *2; Brown, 2012 WL 2562368, at *3. The special master found that no special

circumstances warranted an upward departure, and this Court agrees. Therefore, the Court will

correct the solatium awards of the three children and reduce them to $1.5 million each.

D. Punitive Damages

In assessing punitive damages, this Court has observed that any award must balance the

concern that “[r]ecurrent awards in case after case arising out of the same facts can financially

cripple a defendant, over-punishing the same conduct through repeated awards with little

deterrent effect . . . .,” Murphy, 740 F. Supp. 2d at 81, against the need to continue to deter “the

brutal actions of defendants in planning, supporting and aiding the execution of [terrorist

attacks],” Rimkus v. Islamic Republic of Iran, 750 F. Supp. 2d 163, 184 (D.D.C. 2010). To

accomplish this goal, this Court—relying on the Supreme Court’s opinion in Philip Morris USA

v. Williams, 549 U.S. 346 (2007)—held that the calculation of punitive damages in subsequent

related actions should be directly tied to the ratio of punitive to compensatory damages set forth

in earlier cases. Murphy, 740 F. Supp. 2d at 81–82. Thus, in Murphy this Court applied the ratio

of $3.44 established in Valore—an earlier FSIA case arising out of the Beirut bombing. Id. at

82-83 (citing Valore, 700 F. Supp. 2d at 52); accord Bland, 831 F. Supp. 2d at 158; Davis, 2012

WL 1059700, at *7; Brown, 2012 WL 2562368, at *5. Here, the Court will again apply this

same $3.44 ratio, which has been established as the standard ratio applicable to cases arising out

of the Beirut bombing. Application of this ratio results in a total punitive damages award of

$52,524,338.

7 IV. Conclusion

Iran’s bill for sponsoring terrorism grows larger each day. After this opinion, this Court

will have issued almost $8.9 billion in judgments against Iran as a result of the 1983 Beirut

bombing. 2 A number of other Beirut bombing cases remain pending, and their completion will

surely increase this amount. Regardless, no award—however many billions it contained—could

accurately reflect the countless lives that have been changed by Iran’s dastardly acts.

In closing, the Court applauds the Fain family’s persistent efforts to hold Iran accountable

for its cowardly support of terrorism. The Court concludes that defendant Iran must be punished

to the fullest extent legally possible for the bombing in Beirut on October 23, 1983. This horrific

act impacted countless individuals and their families, a number of whom receive awards in this

lawsuit. This Court hopes that the victims and their families may find some measure of solace

from this Court’s final judgment. For the reasons set forth above, the Court finds that defendants

are responsible for plaintiffs’ injuries and thus liable under the FSIA’s state-sponsored terrorism

exception for $15,268,703 in compensatory damages and $52,524,338 in punitive damages, for a

total award of $67,793,041.

A separate Order and Judgment consistent with these findings shall be entered this date.

SO ORDERED.

Signed by Chief Judge Royce C. Lamberth on July 31, 2012.

2 See Peterson II, 515 F. Supp. 2d at 60 (awarding victims $2,656,944,977 in compensatory damages); Valore, 700 F. Supp. 2d at 90 (awarding victims $290,291,092 in compensatory damages and $1 billion in punitive damages); Murphy, 740 F. Supp. 2d at 83 (awarding victims $31,865,570 in compensatory damages and $61,302,571.60 in punitive damages); Bland, 831 F. Supp. 2d at 158 (awarding victims $277,805,908 in compensatory damages and $955,652,324 in punitive damages); Anderson, 2012 WL 928256 at *4 (awarding victims $7,500,000 in compensatory damages and $25,800,000 in punitive damages); O’Brien, 2012 WL 1021471 at *4 (awarding victims $10,050,000 in compensatory damages and $34,572,000 in punitive damages); Davis, 2012 WL 1059700 at *8 (awarding $486,918,005 in compensatory damages and $2,161,915,942 in punitive damages); Brown, 2012 WL 2562368 at *6–7 (awarding $183,281,294 in compensatory damages and $630,487,651 in punitive damages).