Wamai v. Republic of Sudan , 60 F. Supp. 3d 84 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WINFRED WAIRIMU WAMAI, et al.,
Plaintiffs,
v. Civil Action No. 08-1349 (JDB)
REPUBLIC OF SUDAN, et al.,
Defendants.
MEMORANDUM OPINION
Over fifteen years ago, on August 7, 1998, the United States embassies in Nairobi, Kenya
and Dar es Salaam, Tanzania were devastated by simultaneous suicide bombings that killed
hundreds of people and injured over a thousand. This Court has entered final judgment on
liability under the Foreign Sovereign Immunities Act (“FSIA”) in this civil action and several
related cases—brought by victims of the bombings and their families—against the Republic of
Sudan, the Ministry of the Interior of the Republic of Sudan, the Islamic Republic of Iran, the
Iranian Revolutionary Guards Corps, and the Iranian Ministry of Information and Security
(collectively “defendants”) for their roles in supporting, funding, and otherwise carrying out
these unconscionable acts. The next step in the case is to assess and award damages to each
individual plaintiff, and in this task the Court has been aided by several special masters.
The 196 plaintiffs in this case are Kenyan and Tanzanian citizens injured and killed in the
bombings and their immediate1 family members.2 Service of process was completed upon each
1
A few plaintiffs are not immediate family members, but as explained below, the Court will not award
damages to those plaintiffs.
2
A large number of plaintiffs are listed as plaintiffs both in this case and in the related case before this
Court, Amduso v. Republic of Sudan, No. 08-1361 (D.D.C. July 25, 2014). Initially, plaintiffs in these two cases
1
defendant, but defendants failed to respond, and a default was entered against each of them. The
Court has held that it has jurisdiction over defendants and that the foreign national plaintiffs who
worked for the U.S. government are entitled to compensation for personal injury and wrongful
death under 28 U.S.C. § 1605A(c)(3). See Owens v. Republic of Sudan, 826 F. Supp. 2d 128,
148-51 (D.D.C. 2011). The Court has also held that, although those plaintiffs who are foreign
national family members of victims lack a federal cause of action, they may nonetheless pursue
claims under the laws of the District of Columbia. Id. at 153-57. A final judgment on liability
was entered in favor of plaintiffs. Nov. 28, 2011 Order [ECF No. 54] at 2. The deposition
testimony and other evidence presented established that defendants were responsible for
supporting, funding, and otherwise carrying out the bombings in Nairobi and Dar es Salaam. See
Owens, 826 F. Supp. 2d at 135-47.
The Court then referred plaintiffs’ claims to several special masters3 to prepare proposed
findings and recommendations for a determination of damages. Feb. 27, 2012 Order Appointing
Special Masters [ECF No. 57] at 2. The special masters have now filed completed reports on
each plaintiff. See Special Master Reports [ECF Nos. 63-241]. In completing those reports and in
finding facts, the special masters relied on sworn testimony, expert reports, medical records, and
other evidence. The reports extensively describe the key facts relevant to each of the plaintiffs
were represented by two different sets of attorneys. Some plaintiffs signed retainer agreements with both sets of
attorneys, and so appeared as plaintiffs in both cases. Following mediation with Magistrate Judge Facciola, the
attorneys settled the issue of which plaintiffs were represented by whom by signing a cooperation agreement and
entering into joint representation of plaintiffs in both cases. See Amduso, No. 08-1361 [ECF Nos. 54-57]. Of course,
plaintiffs are entitled to only one award. As this case is the earlier-filed case, and because the joint representation
vitiates any conflict between counsel, the Court will award damages in this case to plaintiffs appearing in both cases,
and will deny those same plaintiffs awards in Amduso.
Similarly, a small number of plaintiffs are listed in this case and in two other cases pending before this
Court: the Onsongo case (No. 08-1380), and the Opati case (No. 12-1224). Those plaintiffs will be awarded
damages in this case, but will not be awarded damages in those cases.
3
Those special masters (collectively, “the special masters”) are Kenneth L. Adams, John D. Aldock, Oliver
Diaz, Jr., Deborah E. Greenspan, Brad Pigott, Stephen A. Saltzburg, and C. Jackson Williams.
2
and carefully analyze their claims under the framework established in mass tort terrorism cases.
The Court commends each of the special masters for their excellent work and thorough analysis.
The Court hereby adopts all facts found by the special masters relating to all plaintiffs in
this case, including findings regarding the plaintiffs’ employment status or their familial
relationship necessary to support standing under section 1605A(a)(2)(A)(ii). See Owens, 826 F.
Supp. 2d at 149. The Court also adopts all damages recommendations in the reports, with the few
adjustments described below. “Where recommendations deviate from the Court’s damages
framework, ‘those amounts shall be altered so as to conform with the respective award amounts
set forth’ in the framework, unless otherwise noted.” Valore v. Islamic Republic of Iran, 700 F.
Supp. 2d 52, 82-83 (D.D.C. 2010) (quoting Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d
25, 53 (D.D.C. 2007) (“Peterson II”), abrogation on other grounds recognized in Mohammadi v.
Islamic Republic of Iran, 947 F. Supp. 2d 48, 65 (D.D.C. 2013)). As a result, the Court will
award plaintiffs a total judgment of over $3.5 billion.
I. CONCLUSIONS OF LAW
On November 28, 2011, the Court granted summary judgment on liability against
defendants in this case. Nov. 28, 2011 Order [ECF No. 54] at 2. The foreign-national U.S.-
government-employee victims have a federal cause of action, while their foreign-national family
members have a cause of action under D.C. law.
a. The Government-Employee Plaintiffs Are Entitled To Damages On Their
Federal Law Claims Under 28 U.S.C. § 1605A
“To obtain damages in a Foreign Sovereign Immunities Act (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 application of the American rule on damages.” Valore, 700 F. Supp. 2d at 83.
3
Plaintiffs here have proven that the consequences of defendants’ conduct were reasonably certain
to—and indeed intended to—cause injury to plaintiffs. See Owens, 826 F. Supp. 2d at 135-46.
As discussed by this Court previously, because the FSIA-created cause of action “does not spell
out the elements of these claims that the Court should apply,” the Court “is forced . . . to apply
general principles of tort law” to determine plaintiffs’ entitlement to damages on their federal
claims. Id. at 157 n.3.
Survivors are entitled to recover for the pain and suffering caused by the bombings: acts
of terrorism “by their very definition” amount to extreme and outrageous conduct and are thus
compensable by analogy under the tort of “intentional infliction of emotional distress.” Valore,
700 F. Supp. 2d at 77 (citing Restatement (Second) of Torts § 46(1) (1965)); see also Baker v.
Socialist People’s Libyan Arab Jamahriya, 775 F. Supp. 2d 48, 74 (D.D.C. 2011) (permitting
plaintiffs injured in state-sponsored terrorist bombings to recover for personal injuries, including
pain and suffering, under tort of “intentional infliction of emotional distress”); Estate of Bland v.
Islamic Republic of Iran, 831 F. Supp. 2d 150, 153 (D.D.C. 2011) (same). Hence, “those who
survived the attack may recover damages for their pain and suffering, . . . [and for] economic
losses caused by their injuries. . . .” Oveissi v. Islamic Republic of Iran, 879 F. Supp. 2d 44, 55
(D.D.C. 2012) (“Oveissi II”) (citing Valore, 700 F. Supp. 2d at 82-83); see 28 U.S.C.
§ 1605A(c). Accordingly, all plaintiffs who were injured in the 1998 bombings can recover for
their pain and suffering as well as their economic losses. Bland, 831 F. Supp. 2d at 153. In
addition, the estates of those who were killed in the attack are entitled to recover compensatory
damages for wrongful death. See, e.g., Valore, 700 F. Supp. at 82 (permitting estates to recover
economic damages caused to deceased victims’ estates).
4
b. Family Members Who Lack A Federal Cause Of Action Are Entitled To
Damages Under D.C. Law
This Court has previously held that it will apply District of Columbia law to the claims of
any plaintiffs for whom jurisdiction is proper, but who lack a federal cause of action under the
FSIA. Owens, 826 F. Supp. 2d at 153-57. This category includes only the foreign-national family
members of the injured victims from the 1998 bombings. Individuals in this category seek to
recover solatium damages under D.C. law based on claims of intentional infliction of emotional
distress. To establish a prima facie case of intentional infliction of emotional distress under D.C.
law, a plaintiff must show: (1) extreme and outrageous conduct on the part of the defendant
which, (2) either intentionally or recklessly, (3) causes the plaintiff severe emotional distress.
Larijani v. Georgetown Univ., 791 A.2d 41, 44 (D.C. 2002). Acts of terrorism “by their very
definition” amount to extreme and outrageous conduct, Valore, 700 F. Supp. 2d at 77; the
defendants in this case acted intentionally and recklessly; and their actions caused each plaintiff
severe emotional distress, see Owens, 826 F. Supp. 2d at 136-45; Murphy v. Islamic Republic of
Iran, 740 F. Supp. 2d 51, 74-75 (D.D.C. 2010). Likewise, D.C. law allows spouses and next of
kin to recover solatium damages. D.C. Code § 16-2701. Based on the evidence submitted to the
special masters, the Court concludes that the foreign national family members of the victims of
the 1998 bombings have each made out claims for intentional infliction of emotional distress and
are entitled to solatium damages (with the few exceptions detailed below).
II. DAMAGES
Having established that plaintiffs are entitled to damages, the Court now turns to the
question of the amount of damages, which involves resolving common questions related to
plaintiffs with similar injuries. The damages awarded to each plaintiff are laid out in the tables in
the separate Order and Judgment issued on this date.
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a. Compensatory Damages
1. Economic damages
Under the FSIA, injured victims and the estates of deceased victims may recover
economic damages, which typically include lost wages, benefits and retirement pay, and other
out-of-pocket expenses. 28 U.S.C. § 1605A(c). The special masters recommended that twenty-
four deceased plaintiffs and four injured victims be awarded economic damages. To determine
each plaintiff’s economic losses resulting from the bombings, the special masters relied on
economic reports submitted by the Center for Forensic Economic Studies (“CFES”), which
estimated lost earnings, fringe benefits, retirement income, and the value of household services
lost as a result of the injuries sustained from the bombing. In turn, CFES relied on information
from the survivors as well as other documentation, including country-specific economic data and
employment records. See, e.g., Report of Special Master Kenneth Adams Concerning Maurice
Okatch Ogolla, Ex. 5 [ECF No. 70] at 45-47 (further explaining methodology employed in
creating the economic loss reports). The Court adopts the findings and recommendations of the
special masters as to economic losses to be awarded to injured victims and the estates of
deceased victims.
2. Awards for pain and suffering due to injury
Courts determine pain-and-suffering awards for survivors based on factors including “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.” O’Brien v.
Islamic Republic of Iran, 853 F. Supp. 2d 44, 46 (D.D.C. 2012) (internal quotation marks
omitted). When calculating damages amounts, “the Court must take pains to ensure that
individuals with similar injuries receive similar awards.” Peterson II, 515 F. Supp. 2d at 54.
6
Recognizing this need for uniformity, courts in this district have developed a general framework
for assessing pain-and-suffering damages for victims of terrorist attacks, awarding a baseline of
$5 million to individuals who suffer severe physical injuries, such as compound fractures,
serious flesh wounds, and scars from shrapnel, as well as lasting and severe psychological pain.
See Valore, 700 F. Supp. 2d at 84. Where physical and psychological pain is more severe—such
as where victims suffered relatively more numerous and severe injuries, were rendered
quadriplegic, partially lost vision and hearing, or were mistaken for dead—courts have departed
upward from this baseline to $7 million and above. See O’Brien, 853 F. Supp. 2d at 47.
Similarly, downward departures to a range of $1.5 to $3 million are warranted where the victim
suffers severe emotional injury accompanied by relatively minor physical injuries. See Valore,
700 F. Supp. 2d at 84-85.
Damages for extreme pain and suffering are warranted for those individuals who initially
survive the attack but then succumb to their injuries. “When the victim endured extreme pain and
suffering for a period of several hours or less, courts in these [terrorism] cases have rather
uniformly awarded $1 million.” Haim v. Islamic Republic of Iran, 425 F. Supp. 2d 56, 71
(D.D.C. 2006); see Peterson II, 515 F. Supp. 2d at 53-55. When the period of the victim’s pain is
longer, the award increases. Haim, 425 F. Supp. 2d at 72. And when the period is particularly
brief, courts award less. For instance, where an individual “survived a terrorist attack for 15
minutes, and was in conscious pain for 10 minutes,” a court in this district awarded $500,000.
See Peterson II, 515 F. Supp. 2d at 53. To the estates of those who are killed instantly, courts
award no pain-and-suffering damages.
According to the special masters, the evidence showed that four plaintiffs who died in the
bombings did not die instantly, and that they suffered before they ultimately perished. The Court
7
accepts the special masters’ recommendations as to two of those plaintiffs. The Court adjusts the
recommended award, consistent with Haim, to two plaintiffs whose pre-death suffering lasted for
several hours: the Court will adjust Kimeu Nzioka Nganga’s award from $2 million to $1 million
and Bakari Nyumbu’s from $3 million to $1 million. 425 F. Supp. 2d at 71 (noting that courts
uniformly award $1 million to victims who suffered for several hours before dying in this
context). The Court adopts the special masters’ recommendations not to award pain-and-
suffering damages to the estates of those plaintiffs who were killed instantly.4
The need to maintain uniformity with awards to plaintiffs in prior cases and between
plaintiffs in this case is particularly evident. A great number of plaintiffs were injured in the
bombings. Those injuries, and evidence of those injuries, span a broad range. Although the
special masters ostensibly applied the same guidelines, their interpretations of those guidelines
understandably brought about recommendations of different awards even for plaintiffs who
suffered very similar injuries—particularly those plaintiffs who did not suffer severe physical
injuries. For those plaintiffs, the Valore court explained that downward departures to a range of
$1.5 million to $3 million are appropriate, and the Court will apply that guideline as follows. 700
F. Supp. 2d at 84-85.
Many plaintiffs suffered little physical injury—or none at all—but have claims based on
severe emotional injuries because they were at the scene during the bombings or because they
were involved in the extensive recovery efforts immediately thereafter. Those plaintiffs will be
awarded $1.5 million. See id. Typical of this category is Edward Mwae Muthama, who was
working at the offsite warehouse for the United States Embassy in Kenya when the bombings
4
For similar reasons, the Court accepts the special masters’ recommendation that Teresia Wairimu Kamau,
daughter of deceased victim Joseph Kamau Kiongo, receive no solatium award because she herself was killed in the
same blast that killed her father. See Report of Special Master John Aldock Concerning Joseph Kamau Kiongo
[ECF No. 79] at 9.
8
occurred. Report of Special Master John Aldock Concerning Edward Muthama [ECF No. 93] at
4. Shortly after the attack, Muthama headed to the blast site and spent days assisting with the
gruesome recovery efforts; to this day he suffers from emotional distress resulting from his time
administering aid to survivors and handling the dead bodies (and body parts) of his murdered
colleagues. Id.
Other plaintiffs suffered minor5 injuries (such as lacerations and contusions caused by
shrapnel), accompanied by severe emotional injuries. They will be awarded $2 million. Typical
is Emily Minayo, who was on the first floor of the United States Embassy in Nairobi at the time
of the bombing. Report of Special Master Brad Pigott Concerning Emily Minayo [ECF No. 162]
at 4. She was thrown to the floor by the force of the blast, but she was lucky enough to escape
with only lacerations that were later sewn up during a brief hospital stay. Id. She continues,
however, to suffer from severe emotional damage resulting from her experience. Id.
To those who suffered more serious physical injuries, such as broken bones, head trauma,
some hearing or vision impairment, or impotence, the Court will award $2.5 million. Typical is
Francis Maina Ndibui, who was in the United States Embassy in Nairobi during the bombing.
Report of Special Master Brad Pigott Concerning Francis Maina Ndibui [ECF No. 152] at 4.
Ndibui became temporarily trapped under debris that fell from the ceiling, and he suffered minor
lacerations similar to Minayo’s. Id. Also as a result of the bombing, he continues to suffer from
partial vision impairment, which has persisted even through reparative surgery. Id. He also
suffers from severe emotional damage resulting from his experience. Id.
Plaintiffs with even more serious injuries—including spinal injuries not resulting in
paralysis, more serious shrapnel injuries, head trauma, or serious hearing impairment—will be
awarded $3 million. Typical is Victor Mpoto, who was at the United States Embassy in Dar es
5
Their injuries were “minor” only relative to the injuries suffered by others in this case.
9
Salaam on the day of the bombing. Report of Special Master Jackson Williams Concerning
Victor Mpoto [ECF No. 136] at 3. The blast knocked him to the ground and covered him in
debris, causing minor physical injuries. Id. Because he was only about fifteen meters away from
the blast, he suffered severe hearing loss in both ears that continues to this day and for which he
continues to receive treatment. Id. He also suffers from severe emotional damage resulting from
his experience. Id. at 4.
Those who suffered from injuries similar to those plaintiffs who are generally awarded
the “baseline” award of $5 million (involving some mix of serious hearing or vision impairment,
many broken bones, severe shrapnel wounds or burns, lengthy hospital stays, serious spinal or
head trauma, and permanent injuries) will also be awarded that baseline. See Valore, 700 F.
Supp. 2d at 84. Typical is Pauline Abdallah, who was injured in the bombing of the United States
Embassy in Nairobi. Report of Special Master Stephen Saltzburg Concerning Pauline Abdallah
[ECF No. 117] at 3. She was knocked unconscious by the blast, and later spent about a month in
the hospital. Id. She suffered severe shrapnel wounds requiring skin grafts, third-degree burns,
and two of her fingers were amputated. Id. Shrapnel still erupts from her skin. Id. She also
suffered severe hearing loss. Id. Like other plaintiffs who were injured in the bombing, she
suffers from severe emotional damage. Id. at 3-4.
And for a few plaintiffs, who suffered even more grievous wounds such as lost eyes,
extreme burns, severe skull fractures, brain damage, ruptured lungs, or endured months of
recovery in hospitals, upward departures to $7.5 million are in order.
Livingstone Busera Madahana was injured in the blast at the United States Embassy in
Nairobi. Report of Special Master Kenneth Adams Concerning Livingstone Busera Madahana
[ECF No. 175] at 4. Shrapnel from the blast completely destroyed his right eye and permanently
10
damaged his left. Id. He suffered a skull fracture and spent months in a coma; his head trauma
caused problems with his memory and cognition. Id. “He endured multiple surgeries, skin grafts,
physical therapy, vocational rehabilitation, speech and cognitive therapy, and psychotherapy for
depression.” Id.
Gideon Maritim was injured in the blast at the United States Embassy in Nairobi. Report
of Special Master Jackson Williams Concerning Gideon Maritim [ECF No. 222] at 3. The
second explosion knocked him unconscious for several hours. Id. at 4 The blast ruptured his
eardrums, knocked out several teeth, and embedded metal fragments into his eyes. Id. He also
suffered deep shrapnel wounds to his legs and stomach, and his lungs were ruptured. Id. His
hearing is permanently impaired, as is his lung function. Id. at 5. And he suffers from chronic
back and shoulder pain. Id.
Charles Mwaka Mulwa was injured in the blast at the United States Embassy in Nairobi.
Report of Special Master Jackson Williams Concerning Charles Mwaka Mulwa [ECF No. 132]
at 3. The bomb blast permanently disfigured his skull, ruptured both his eardrums, and embedded
glass in his eyes. Id. He continues to suffer from nearly total hearing loss, and his eyesight is
permanently diminished. Id. And he suffered from other shrapnel injuries to his head, arms, and
legs. Id.
Tobias Oyanda Otieno was injured in the blast at the United States Embassy in Nairobi.
Report of Special Master Brad Pigott Concerning Tobias Oyanda Otieno [ECF No. 181] at 4.
The blast caused permanent blindness in his left eye, and substantial blindness in his right. Id. He
suffered severe shrapnel injuries all over his body, including a particularly severe injury to his
hand, which resulted in permanent impairment. Id. His lower back was also permanently
11
damaged, causing continuous pain to this day. Id. He spent nearly a year recovering in hospitals.
Id.
Moses Kinyua was injured in the blast at the United States Embassy in Nairobi. Report of
Special Master Deborah Greenspan Concerning Moses Kinyua [ECF No. 202] at 4. The blast
knocked him into a coma for three weeks. Id. His skull was crushed, his jaw was fractured in
four places, and he lost his left eye. Id. The head trauma resulted in brain damage. Id. In addition,
he suffered from a ruptured eardrum, a detached retina in his right eye, a dislocated shoulder,
broken fingers, and serious shrapnel injuries. Id. He was ultimately hospitalized for over six
months. Id.
Joash Okindo was injured in the blast at the United States Embassy in Nairobi. Report of
Special Master Brad Pigott Concerning Joash Okindo [ECF No. 163] at 4. He spent about eight
months in hospitals, and was in a coma for the first month because he suffered a skull fracture.
Id. at 4-5. He suffered from severe shrapnel injuries to his head, back, legs, and hands, and the
blast fractured bones in both of his legs. Id. at 4.
Each of these plaintiffs also suffered severe emotional injuries. The injuries suffered by
these plaintiffs are comparable to those suffered by plaintiffs who were awarded $7–$8 million
in Peterson II. See 515 F. Supp. 2d at 55-57 (e.g., Michael Toma, who suffered “various cuts
from shrapnel, internal bleeding in his urinary system, a deflated left lung, and a permanently
damaged right ear drum”). Hence, the Court will award each of these plaintiffs $7.5 million for
pain and suffering. The Court adopts the recommendations by special masters of awards
consistent with the adjusted guidelines described above, and will adjust inconsistent awards
accordingly.
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3. Solatium
“In determining the appropriate amount of compensatory damages, the Court may look to
prior decisions awarding damages for pain and suffering, and to those awarding damages for
solatium.” Acosta v. Islamic Republic of Iran, 574 F. Supp. 2d 15, 29 (D.D.C. 2008). Only
immediate family members—parents, siblings, spouses,6 and children—are entitled to solatium
awards.7 See Valore, 700 F. Supp. 2d at 79. The commonly accepted framework for solatium
damages in this district is that used in Peterson II, 515 F. Supp. 2d at 52. See Valore, 700 F.
Supp. 2d at 85; Belkin, 667 F. Supp. 2d at 23. According to Peterson II, the appropriate amount
of damages for family members of deceased victims is as follows: $8 million to spouses of
deceased victims, $5 million to parents of deceased victims, and $2.5 million to siblings of
deceased victims. 515 F. Supp. 2d at 52. The appropriate amount of damages for family
members of injured victims is as follows: $4 million to spouses of injured victims, $2.5 million
to parents of injured victims, and $1.25 million to siblings of injured victims. Id. Courts in this
district have differed somewhat on the proper amount awarded to children of victims. Compare
Peterson II, 515 F. Supp. 2d at 51 ($2.5 million to child of injured victim), with Davis v. Islamic
Republic of Iran, 882 F. Supp. 2d 7, 14 (D.D.C. 2012) ($1.5 million to child of injured victim).
The Court finds the Peterson II approach to be more appropriate: to the extent such suffering can
be quantified, children who lose parents are likely to suffer as much as parents who lose children.
Children of injured victims will thus be awarded $2.5 million and, consistent with the Peterson II
6
The Court adopts Special Master Jackson Williams’s recommendation that the common-law wife of Peter
Macharia, Grace Gicho, be awarded solatium damages, for the reasons discussed in the thorough special master
report. See Report of Special Master Jackson Williams Concerning Peter Macharia [ECF No. 242] at 5-8.
7
Many of the family members of injured or deceased victims in this case are plaintiffs not here but in the
related Amduso, Onsongo, and Opati cases before this Court. See Compl., Amduso, No. 08-1361 [ECF No. 5] at 18-
38; Compl., Onsongo v. Republic of Sudan, No. 08-1380 [ECF No. 3] at 19-26; 2nd Amend. Compl., Opati v.
Republic of Sudan, No. 12-1224 (D.D.C. Oct. 22, 2013) [ECF No. 24] at 26-83. As explained in this Court’s July
25, 2014 opinion in Amduso, those family members’ solatium awards—granted in that case—are properly based on
the awards to injured or deceased victims in this case.
13
approach of doubling solatium awards for relatives of deceased victims, children of deceased
victims will be awarded $5 million.
Although these amounts are guidelines, not rules, see Valore, 700 F. Supp. 2d at 86, the
Court finds the distinctions made by the Valore court to be responsible and reasonable, and
hence it will adopt the same guidelines for determining solatium damages here. In the interests of
fairness and to account for the difficulty in assessing the relative severity of each family
member’s suffering, in this case and in related cases, the Court will depart from those guidelines
only for a few plaintiffs for whom the special master’s report is particularly convincing.8
One deceased Kenyan victim, Joseph Kamau Kiongo, had three wives at the time of his
death. Report of Special Master John Aldock Concerning Joseph Kamau Kiongo [ECF No. 79] at
5. Four more, Geoffrey Mulu Kalio, Dominic Musyoka Kithuva, Frederick Maloba, and Vincent
Kamau Nyoike, each had two wives when they were killed. Report of Special Master Deborah
Greenspan Concerning Geoffrey Mulu Kalio [ECF No. 211] at 3; Report of Special Master
Oliver Diaz Concerning Dominic Musyoka Kithuva [ECF No. 217] at 3; Report of Special
Master Jackson Williams Concerning Frederick Maloba [ECF No. 229] at 3; Report of Special
Master Jackson Williams Concerning Vincent Kamau Nyoike [ECF No. 239] at 3. Courts in
Kenya generally recognize that more than one wife of a decedent may be entitled to an
inheritance, and so this Court will consider each of these wives (Lucy Kiongo, Alice Kiongo,
Jane Kamau, Jane Kathuka, Bernice Ndeti, Kamali Musyoka Kithuva, Beatrice Martha Kithuva,
Elizabeth Maloba, Margaret Maloba, and Josinda Katumba Kamau) to be immediate family
8
The special master’s report on two of the plaintiffs, Titus Wamai and Diana Williams, shows clearly that
reduced awards are appropriate based on extended periods of pre-bombing separation and substantially attenuated
relationships with their father, who was killed in the Nairobi bombings. See Report of Special Master Deborah
Greenspan Concerning Adam Titus Wamai [ECF No. 92] at 4-5. Hence, those plaintiffs will be awarded half the
normal amount awarded to children of deceased victims, or $2.5 million.
14
members entitled to solatium awards. See Charity Gacheri Kaburu v. Mary Gacheri M’ritaa,
Succession Cause No. 251 of 2000 (High Court of Kenya 2014)9 (appointing both widows as
joint administrators). Under the circumstances, the Court will exercise its discretion, adopt the
special masters’ recommendations, and award the normal solatium amount for a deceased spouse
to each of the deceased’s widows. A different approach might involve pro rata awards of the
normal solatium amount—and that may be appropriate in cases involving larger numbers of
spouses—but just as multiple children do not receive pro rata shares, for similar reasons, the
Court will award the full amount to each spouse.
In some instances, special masters recommended that spouses of deceased victims receive
$10 million. See, e.g., Report of Special Master Kenneth L. Adams Concerning Lawrence
Ambrose Gitau [ECF No. 69] at 5. Because the Court adopts the Peterson II guidelines, each of
these recommendations will be adjusted and those plaintiffs will be awarded $8 million. 515 F.
Supp. 2d at 52. Similarly, in some instances, special masters recommended that parents of
deceased victims receive $3.5 million. See, e.g., Report of Special Master Brad Pigott
Concerning Eric Abur Onyango [ECF No. 127] at 9-11. The Court will increase those awards to
$5 million. Peterson II, 515 F. Supp. 2d at 52.
The special masters also recommended against awarding solatium damages to some
injured victims’ children who were born after the bombings occurred. Although the Court
acknowledges that the bombings’ terrible impact on the victims and their families continues to
this day, in similar cases courts have found that children born following terrorist attacks are not
entitled to damages under the FSIA. See Davis, 882 F. Supp. 2d at 15; Wultz v. Islamic Republic
of Iran, 864 F. Supp. 2d 24, 36 (D.D.C. 2012). In holding that a plaintiff must have been alive at
the time of an attack to recover solatium damages, the Davis court recognized the need to draw
9
Available at http://kenyalaw.org/caselaw/cases/view/99160.
15
lines in order to avoid creating “an expansive and indefinite scope of liability” under the FSIA—
for example, liability to children born fifteen years after an attack (a real possibility in this
drawn-out litigation). 882 F. Supp. 2d at 15. The Court agrees with the special masters and with
the Davis court’s interpretation of the FSIA, and holds that those plaintiffs not alive at the time
of the bombings cannot recover solatium damages. Hence, the Court dismisses the claims of
Rachel Wambui Watoro (born one month after the bombings). See Report of Special Master
John Aldock Concerning Francis Watoro Maina [ECF No. 119] at 6.
For one plaintiff, the special masters recommended that no solatium damages be awarded
because the record does not contain sufficient evidence to support her claims. See Peterson, 515
F. Supp. 2d at 46. The Court adopts that recommendation, and so Fatuma Omar will not be
awarded damages. See Report of Special Master Oliver Diaz Concerning Hindu Omari Idi [ECF
No. 197] at 6.
The Court finds that the special masters have appropriately applied the solatium damages
framework to most of the plaintiffs in this case, and will adopt their recommendations with a few
exceptions.10 Other courts in this district have held that it is inappropriate for the solatium awards
of family members to exceed the pain-and-suffering awards of surviving victims. See Davis, 882
F. Supp. 2d at 15; O’Brien, 853 F. Supp. 2d at 47; Bland, 831 F. Supp. 2d at 157. The Court will
follow that approach here. The special masters recommended solatium awards exceeding the
pain-and-suffering awards to the related victim in several cases, albeit sometimes inadvertently,
because of this Court’s adjustment of pain-and-suffering awards. Hence, the Court will reduce
those solatium awards to match corresponding pain-and-suffering awards where appropriate.
10
Some special master reports mistakenly refer to solatium awards as pain-and-suffering awards. See, e.g.,
Report of Special Master Jackson Williams Concerning Josiah Owuor [ECF No. 237] at 6-7. In those instances—
where recommendations are consistent with the guidelines discussed herein—the Court adopts the amount of
damages but rejects the special master’s recommendation that the plaintiffs be awarded pain-and-suffering damages.
16
b. Punitive Damages
Plaintiffs request punitive damages under section 1605A(c). Punitive damages “serve to
punish and deter the actions for which they are awarded.” Valore, 700 F. Supp. 2d at 87. Courts
calculate the proper amount of punitive damages by considering four factors: “(1) the character
of the defendants’ act, (2) the nature and extent of harm to the plaintiffs that the defendants
caused or intended to cause, (3) the need for deterrence, and (4) the wealth of the defendants.”
Oveissi II, 879 F. Supp. 2d at 56 (quoting Acosta, 574 F. Supp. 2d at 30). In this case, the first
three factors weigh heavily in favor of an award of punitive damages: the character of
defendants’ actions and the nature and extent of harm to plaintiffs can accurately be described as
horrific. Scores were murdered, hundreds of families were torn asunder, and thousands of lives
were irreparably damaged. The need for deterrence here is tremendous. And although specific
evidence in the record on defendants’ wealth is scant, they are foreign states with substantial
wealth.
Previous courts in this district, confronted with similar facts, have calculated punitive
damages in different ways. See, e.g., Baker, 775 F. Supp. 2d at 85 (surveying cases). One
attractive method often used in FSIA cases is to multiply defendants’ annual expenditures on
terrorist activities by a factor of three to five. See, e.g., Valore, 700 F. Supp. 2d at 88-90.
Unfortunately, there is not enough evidence in the record on defendants’ expenditures during the
relevant time period to adopt that approach here. Other courts have simply awarded families of
terrorism victims $150 million in punitive damages. See, e.g., Gates v. Syrian Arab Republic,
580 F. Supp. 2d 53, 75 (D.D.C. 2008), aff’d, 646 F.3d 1 (D.C. Cir. 2011). Using that approach
here would result in a colossal figure, given the number of families involved.
17
This case, when combined with the related cases involving the same bombings where
plaintiffs seek punitive damages,11 involves over 600 plaintiffs. Valore was a similar case,
involving another terrorist bombing sponsored by Iran: the bombing of the United States Marine
barracks in Beirut, Lebanon. Two hundred and forty-one military servicemen were murdered in
that bombing. A similar number of people, 224, died here, and hundreds more were injured. In
Valore, then-Chief Judge Lamberth used the expenditures-times-multiplier method. All told,
Judge Lamberth awarded approximately $4 billion in compensatory damages in cases involving
the Beirut bombing and about $5 billion in punitive damages. Estate of Brown v. Islamic
Republic of Iran, 872 F. Supp. 2d 37, 45 n.1 (D.D.C. 2012) (tallying awards). This case is quite
similar in magnitude to Valore: all told, including the judgments issued in Owens, Mwila, and
Khaliq, and the judgments to be issued in conjunction with this opinion and in Amduso,
Onsongo, and Opati, the Court will have issued just over $5 billion in compensatory damages.
Given that similarity, the inability of this Court to employ the expenditure-times-multiplier
method, and in light of the “societal interests in punishment and deterrence that warrant
imposition of punitive sanctions” in cases like this, the Court finds it appropriate to award
punitive damages in an amount equal to the total compensatory damages awarded in this case.
Beer v. Islamic Republic of Iran, 789 F. Supp. 2d 14, 17 (D.D.C. 2011) (citing Flatow v. Islamic
Republic of Iran, 999 F. Supp. 2d 1 (D.D.C. 1998)). Doing so will result in a punitive damage
award consistent with the punitive damage awards in analogous cases, particularly those
involving the Beirut bombing, and will hopefully deter defendants from continuing to sponsor
terrorist activities. The Court will apportion punitive damages among plaintiffs according to their
compensatory damages. See Valore, 700 F. Supp. 2d at 90.
11
Plaintiffs in Owens, Mwila, and Khaliq, cases (involving the same bombings) in which this Court
previously awarded damages, did not seek punitive damages. See, e.g., Khaliq v. Republic of Sudan, No. 10-356,
2014 WL 1284973, at *3 (D.D.C. Mar. 28, 2014).
18
c. Prejudgment Interest
An award of prejudgment interest at the prime rate is appropriate in this case. See
Oldham v. Korean Air Lines Co., 127 F.3d 43, 54 (D.C. Cir. 1997); Forman v. Korean Air Lines
Co., 84 F.3d 446, 450-51 (D.C. Cir. 1996). Prejudgment interest is appropriate on the whole
award, including pain and suffering and solatium—although not including the punitive damage
award, as that is calculated here by reference to the entire compensatory award—with one
exception. See Reed v. Islamic Republic of Iran, 845 F. Supp. 2d 204, 214-15 (D.D.C. 2012)
(awarding prejudgment interest on the full award). But see Oveissi v. Islamic Republic of Iran,
768 F. Supp. 2d 16, 30 n.12 (D.D.C. 2011) (declining to award prejudgment interest on solatium
damages). Because some of the economic loss figures recommended by the special masters have
already been adjusted to reflect present discounted value, see District of Columbia v. Barritaeu,
399 A.2d 563, 568-69 (D.C. 1979), the Court will not apply the prejudgment interest multiplier
to the economic loss amounts except those calculated in 1998 dollars. See Doe, 943 F. Supp. 2d
at 186 (citing Oldham, 127 F.3d at 54); Report of Special Master Kenneth Adams Concerning
Maurice Okatch Ogolla, Ex. 5 [ECF No. 70] at 45-47 (explaining how to properly apply interest
here without double-counting). Awards for pain and suffering and solatium are calculated
without reference to the time elapsed since the attacks. Because plaintiffs were unable to bring
their claims immediately after the attacks, they lost use of the money to which they were entitled
upon incurring their injuries. Denying prejudgment interest on these damages would allow
defendants to profit from the use of the money over the last fifteen years. Awarding prejudgment
interest, on the other hand, reimburses plaintiffs for the time value of money, treating the awards
as if they were awarded promptly and invested by plaintiffs.
19
The Court will calculate the applicable interest using the prime rate for each year. The
D.C. Circuit has explained that the prime rate—the rate banks charge for short-term unsecured
loans to creditworthy customers—is the most appropriate measure of prejudgment interest, one
“more appropriate” than more conservative measures such as the Treasury Bill rate, which
represents the return on a risk-free loan. See Forman, 84 F.3d at 450. Although the prime rate,
applied over a period of several years, can be measured in different ways, the D.C. Circuit has
approved an award of prejudgment interest “at the prime rate for each year between the accident
and the entry of judgment.” See id. Using the prime rate for each year is more precise than, for
example, using the average rate over the entire period. See Doe, 943 F. Supp. 2d at 185 (noting
that this method is a “substantially more accurate ‘market-based estimate’” of the time value of
money (citing Forman, 84 F.3d at 451)). Moreover, calculating interest based on the prime rate
for each year is a simple matter.12 Using the prime rate for each year results in a multiplier of
2.26185 for damages incurred in 1998.13 Accordingly, the Court will use this multiplier to
calculate the total award.14
CONCLUSION
The 1998 embassy bombings shattered the lives of all plaintiffs in this case. Reviewing
their personal stories reveals that, even more than fifteen years later, they each still feel the
horrific effects of that awful day. Damages awards cannot fully compensate people whose lives
12
To calculate the multiplier, the Court multiplied $1.00 by the prime rate in 1999 (8%) and added that
amount to $1.00, yielding $1.08. Then, the Court took that amount and multiplied it by the prime rate in 2000
(9.23%) and added that amount to $1.08, yielding $1.17968. Continuing this iterative process through 2014 yields a
multiplier of 2.26185.
13
The Court calculated the multiplier using the Federal Reserve’s data for the average annual prime rate in
each year between 1998 and 2014. See Bd. of Governors of the Fed. Reserve Sys. Historical Data, available at
http://www.federalreserve.gov/releases/h15/data.htm (last visited July 25, 2014). As of the date of this opinion, the
Federal Reserve has not posted the annual prime rate for 2014, so the Court will conservatively estimate that rate to
be 3.25%, the rate for the previous six years.
14
The product of the multiplier and the base damages amount includes both the prejudgment interest and
the base damages amount; in other words, applying the multiplier calculates not the prejudgment interest but the
base damages amount plus the prejudgment interest, or the total compensatory damages award.
20
have been torn apart; instead, they offer only a helping hand. But that is the very least that these
plaintiffs are owed. Hence, it is what this Court will facilitate.
A separate Order consistent with these findings has issued on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: July 25, 2014
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