INTERNATIONAL COURT OF JUSTICE
CERTAIN IRANIAN ASSETS
(ISLAMIC REPUBLIC OF IRAN v. UNITED STATES OF AMERICA)
COUNTER-MEMORIAL
SUBMITTED BY
THE UNITED STATES OF AMERICA
October 14, 2019
ANNEXES
VOLUME II
Annexes 33 through 55
ANNEX 33
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NEWS
Press Releases
Statements & Remarks
Readouts
Testimonies
Featured Stories
Press Contacts
PRESS RELEASES
Treasury Sanctions Iran’s Central Bank and National
Development Fund
September 20, 2019
Action targets major sources of funding for the regime’s proxies and terrorist arms, including the
IRGC, the Qods Force, Hizballah and the Houthis
WASHINGTON- Today, the U.S. Department of the Treasury’s Oice of Foreign Assets Control
(OFAC) took action against the Central Bank of Iran (CBI), the National Development Fund of
Iran (NDF), and Etemad Tejarate Pars Co. under its counterterrorism authority, Executive Order
(E.O.) 13224. Iran’s Central Bank has provided billions of dollars to the Islamic Revolutionary
Annex 33
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Guards Corps (IRGC), its Qods Force (IRGC-QF) and its terrorist proxy, Hizballah. Iran’s NDF,
which is Iran’s sovereign wealth fund and whose board of trustees include Iran’s president, oil
minister, and the governor of the Central Bank, has been a major source of foreign currency and
funding for the IRGC-QF and Iran’s Ministry of Defense and Armed Forces Logistics (MODAFL).
Etemad Tejarate Pars, also designated today, is an Iran-based company that is used to conceal
financial transfers for MODAFL’s military purchases, including funds originating from the NDF.
“Iran’s brazen attack against Saudi Arabia is unacceptable. Treasury’s action targets a crucial
funding mechanism that the Iranian regime uses to support its terrorist network, including the
Qods Force, Hizballah, and other militants that spread terror and destabilize the region. The
United States will continue its maximum pressure campaign against Iran’s repressive regime,
which attempts to achieve its revolutionary agenda through regional aggression while
squandering the country’s oil proceeds,” said Treasury Secretary Steven T. Mnuchin. “Iran’s
Central Bank and the National Development Fund were ostensibly intended to safeguard the
welfare of the Iranian people, but have been used instead by this corrupt regime to move Iran’s
foreign currency reserves for terrorist proxies.”
“We are putting governments on notice that they are risking the integrity of their financial
systems by continuing to work with the Iranian regime’s arm of terror finance, its Central Bank,”
said Sigal Mandelker, Under Secretary for Terrorism and Financial Intelligence. “We will
vigorously enforce our sanctions to cut o the Iranian regime’s funding of global terrorism and
its domestic oppression of the Iranian people, who are the regime’s longest suering victims.”
CENTRAL BANK OF IRAN FUNDS THE IRGC, ITS QODS
FORCE AND HIZBALLAH
Today’s action targets the CBI for its financial support to the IRGC-QF and Hizballah. In May
2018, OFAC designated the CBI’s then-Governor Valiollah Seif, and the Assistant Director of the
International Department Ali Tarzali, for facilitating financial transfers for the IRGC-QF and
Hizballah. Also, in November 2018 and as part of Treasury’s disruption of an international oilfor-
terror network, OFAC designated the CBI’s International Department Director Rasul Sajjad,
and the CBI’s International Department Director, Hossein Yaghoobi, for conducting financial
transactions for the IRGC-QF.
Since at least 2016, the IRGC-QF has received the vast majority of its foreign currency from the
CBI and senior CBI oicials have worked directly with the IRGC-QF to facilitate CBI’s financial
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support to the IRGC-QF. In 2017, the IRGC-QF oversaw the transfer of tens of millions of euros to
Iraq from the CBI. Then-Governor of the CBI Valiollah Seif directed the transfer.
During 2018 and early 2019, the CBI facilitated the transfer of several billion of U.S. dollars and
euros to the IRGC-QF and hundreds of millions to MODAFL from the NDF. Additionally, millions
were to be transferred to the Houthis. CBI has also coordinated with the IRGC-QF to transfer
funds to Hizballah.
OFAC is designating the CBI today for having materially assisted, sponsored, or provided
financial, material, or technological support for, or goods or services to, the IRGC-QF and
Hizballah.
The IRGC-QF, which was designated pursuant to E.O. 13224 on October 25, 2007, is a branch of
the IRGC responsible for external operations and has provided material support to numerous
terrorist groups, including the Taliban, Hizballah, HAMAS, and the Palestinian Islamic Jihad,
making it a key component of Iran’s destabilizing regional activities. The IRGC, including its
external arm, the IRGC-QF, was designated as a Foreign Terrorist Organization on April 8, 2019.
Hizballah was designated by the Department of State as a Foreign Terrorist Organization in
October 1997 pursuant to E.O. 13224 in October 2001. It was also designated in August 2012
pursuant to E.O. 13582, which targets the Government of Syria and its supporters.
NATIONAL DEVELOPMENT FUND: A SLUSH FUND FOR THE
IRGC-QF AND MODAFL
According to Article 84 of the Fih Development Plan of the Islamic Republic of Iran, the NDF
was established to serve the welfare of the Iranian people by allocating revenues that
originated from selling oil, gas, gas condensate, and oil products to durable wealth and
productive economic investments. However, the NDF has been used as a slush fund for the
IRGC-QF, which has, for years, received hundreds of millions of dollars in cash disbursements
from the NDF.
The NDF, in coordination with the CBI, provided the IRGC-QF with half a billion U.S. dollars in
2017 and hundreds of millions of dollars in 2018. Also, despite an increase in the IRGC’s overall
budget for 2019, the Rouhani administration withdrew some $4.8 billion from the NDF in
January 2019 to amend the budget allocated to the IRGC and the Islamic Republic of Iran
Broadcasting (IRIB).
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The IRIB was designated pursuant to E.O. 13628 in February 2013 for assisting or denying the
free flow of information to or from the Iranian people. IRIB was implicated in censoring multiple
media outlets and airing forced confessions from detainees.
During 2018 and early 2019, the CBI facilitated the transfer of hundreds of millions to both the
Atomic Energy Organization and MODAFL from the NDF. Some of the funds to be transferred via
Iran-based Etemad Tejarate Pars Co. were intended to be used for military purchases.
As of early 2019, Etemad Tejarate Pars Co. planned to send tens of millions in various currencies,
including euros, to Wilmington General Trading LLC in Dubai, UAE, the Embassy of the Islamic
Republic of Iran in Moscow, Russia, and to companies on behalf of MODAFL.
OFAC is designating NDF for having materially assisted, sponsored, or provided financial,
material, or technological support for, or goods or services to, the IRGC-QF and MODAFL.
OFAC is designating Etemad Tejarate Pars Co. for having materially assisted, sponsored, or
provided financial, material, or technological support for, or goods or services to, MODAFL.
On March 26, 2019, OFAC designated MODAFL pursuant to E.O. 13224 for its role in assisting the
IRGC-QF. Wilmington General Trading LLC was also designated on March 26, 2019 for being
owned or controlled by Asadollah Seifi who obfuscated millions of dollars’ worth of
transactions benefiting the Iranian regime and the purchase of foreign currency for the IRGC.
SANCTIONS IMPLICATIONS
As a result of today’s action, all property and interests in property of these entities that are in
the United States or in the possession or control of U.S. persons must be blocked and reported
to OFAC. OFAC’s regulations generally prohibit all dealings by U.S. persons or within (or
transiting) the United States that involve any property or interests in property of blocked or
designated persons.
In addition, persons that engage in certain transactions with the entities designated today may
themselves be exposed to designation. Furthermore, any foreign financial institution that
knowingly facilitates a significant financial transaction or provides significant financial services
for entities designated in connection with Iran’s support for international terrorism or any
Iranian person on OFAC’s List of Specially Designated Nationals and Blocked Persons could be
subject to U.S. correspondent account or payable-through account sanctions.
The United States has a long standing policy of allowing for the sale of agricultural
commodities, food, medicine and medical devices, and OFAC will continue to consider requests
Annex 33
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related to humanitarian trade with Iran as appropriate.
Identifying information on the entities designated today.
####
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Treasury Sanctions Iran’s Central Bank and National Development Fund
BUREAUS
Alcohol and Tobacco Tax and Trade (TTB)
Bureau of Engraving and Printing (BEP)
Bureau of the Fiscal Service (BFS)
Financial Crimes Enforcement Network (FinCEN)
Internal Revenue Service (IRS)
Oice of the Comptroller of the Currency (OCC)
U.S. Mint
Annex 33
ANNEX 34
9/23/2019 Documents - Financial Action Task Force (FATF)
https://www.fatf-gafi.org/publications/high-risk-and-other-monitored-ju… 1/2
Public Statement - June 2019
Send Print Tweet
Orlando, FL, United States, 21 June 2019 - The Financial Acon Task Force (FATF) is the global standard-seng body for an-money laundering and combang the financing of
terrorism (AML/CFT). In order to protect the internaonal financial system from money laundering and financing of terrorism (ML/FT) risks and to encourage greater compliance
with the AML/CFT standards, the FATF idenfies jurisdicons that have strategic deficiencies and works with them to address those deficiencies that pose a risk to the
internaonal financial system.
Jurisdicon subject to a FATF call on its members and other jurisdicons to apply counter-measures to protect the internaonal
financial system from the ongoing and substanal money laundering and financing of terrorism (ML/FT) risks.
Democrac People's Republic of Korea (DPRK)
The FATF remains concerned by the DPRK’s failure to address the significant deficiencies in its an-money laundering and combang the financing of terrorism (AML/CFT) regime
and the serious threats they pose to the integrity of the internaonal financial system. The FATF urges the DPRK to immediately and meaningfully address its AML/CFT
deficiencies. Further, the FATF has serious concerns with the threat posed by the DPRK’s illicit acvies related to the proliferaon of weapons of mass destrucon (WMDs) and
its financing
The FATF reaffirms its 25 February 2011 call on its members and urges all jurisdicons to advise their financial instuons to give special aenon to business relaonships and
transacons with the DPRK, including DPRK companies, financial instuons, and those acng on their behalf. In addion to enhanced scruny, the FATF further calls on its
members and urges all jurisdicons to apply effecve counter-measures, and targeted financial sancons in accordance with applicable United Naons Security Council
Resoluons, to protect their financial sectors from money laundering, financing of terrorism and WMD proliferaon financing (ML/FT/PF) risks emanang from the DPRK.
Jurisdicons should take necessary measures to close exisng branches, subsidiaries and representave offices of DPRK banks within their territories and terminate
correspondent relaonships with DPRK banks, where required by relevant UNSC resoluons.
Jurisdicon subject to a FATF call on its members and other jurisdicons to apply enhanced due diligence measures proporonate to
the risks arising from the jurisdicon.
Iran
In June 2016, the FATF welcomed Iran’s high-level polical commitment to address its strategic AML/CFT deficiencies, and its decision to seek technical assistance in the
implementaon of the Acon Plan. Given that Iran provided that polical commitment and the relevant steps it has taken, the FATF decided in February 2019 to connue the
suspension of counter-measures.
In November 2017, Iran established a cash declaraon regime. In August 2018, Iran has enacted amendments to its Counter-Terrorist Financing Act and in January 2019, Iran has
also enacted amendments to its An-Money Laundering Act. The FATF recognises the progress of these legislave efforts. The bills to rafy the Palermo and Terrorist Financing
Convenons have passed Parliament, but are not yet in force. As with any country, the FATF can only consider fully enacted legislaon. Once the remaining legislaon comes fully
into force, the FATF will review this alongside the enacted legislaon to determine whether the measures contained therein address Iran’s Acon Plan, in line with the FATF
standards.
Iran’s acon plan expired in January 2018. In June 2019, the FATF noted that there are sll items not completed and Iran should fully address: (1) adequately criminalizing terrorist
financing, including by removing the exempon for designated groups “aempng to end foreign occupaon, colonialism and racism”; (2) idenfying and freezing terrorist assets
in line with the relevant United Naons Security Council resoluons; (3) ensuring an adequate and enforceable customer due diligence regime; (4) clarifying that the submission of
STRs for aempted TF-related transacons are covered under Iran’s legal framework; (5) demonstrang how authories are idenfying and sanconing unlicensed money/value
transfer service providers; (6) rafying and implemenng the Palermo and TF Convenons and clarifying the capability to provide mutual legal assistance; and (7) ensuring that
financial instuons verify that wire transfers contain complete originator and beneficiary informaon.
The FATF decided at its meeng this week to connue the suspension of counter-measures, with the excepon of the FATF calling upon members and urging all jurisdicons to
require increased supervisory examinaon for branches and subsidiaries of financial instuons based in Iran, in line with the February 2019 Public Statement.
While acknowledging the progress that Iran made including with the passage of the An-Money Laundering Act, the FATF expresses its disappointment that the Acon Plan
remains outstanding. The FATF expects Iran to proceed swily in the reform path to ensure that it addresses all of the remaining items by compleng and implemenng the
necessary AML/CFT reforms.
If by October 2019, Iran does not enact the Palermo and Terrorist Financing Convenons in line with the FATF Standards, then the FATF will require introducing enhanced relevant
reporng mechanisms or systemac reporng of financial transacons; and increased external audit requirements for financial groups with respect to any of their branches and
subsidiaries located in Iran. The FATF also expects Iran to connue to progress with enabling regulaons and other amendments.
Iran will remain on the FATF Public Statement unl the full Acon Plan has been completed. Unl Iran implements the measures required to address the deficiencies idenfied
with respect to countering terrorism-financing in the Acon Plan, the FATF will remain concerned with the terrorist financing risk emanang from Iran and the threat this poses to
the internaonal financial system. The FATF, therefore, calls on its members and urges all jurisdicons to connue to advise their financial instuons to apply enhanced due
diligence with respect to business relaonships and transacons with natural and legal persons from Iran, consistent with FATF Recommendaon 19, including: (1) obtaining
informaon on the reasons for intended transacons; and (2) conducng enhanced monitoring of business relaonships, by increasing the number and ming of controls applied,
and selecng paerns of transacons that need further examinaon.
More on:
Annex 34
9/23/2019 Documents - Financial Action Task Force (FATF)
https://www.fatf-gafi.org/publications/high-risk-and-other-monitored-ju… 2/2
Improving Global AML/CFT Compliance: On-going Process, 21 June 2019
Outcomes FATF Plenary, Paris, 21 June 2019
High-risk and other monitored jurisdicons
Annex 34
ANNEX 35
9/6/2019 UPDATE 1-SWIFT says suspending some Iranian banks' access to messaging system - Reuters
https://www.reuters.com/article/usa-iran-sanctions-swift/update-1-swift…… 1/9
MARKET NEWS
NOVEMBER 5, 2018 / 9:11 AM / 10 MONTHS AGO
UPDATE 1-SWIFT says suspending some Iranian banks' access
to messaging system
(Adds quote from statement, background)
WASHINGTON, Nov 5 (Reuters) - The Belgium-based SWIFT financial messaging service said
on Monday it is suspending some unspecified Iranian banks’ access to its messaging system in
the interest of the stability and integrity of the global financial system.
In a brief statement, SWIFT made no mention of U.S. sanctions coming back into effect on
some Iranian financial institutions on Monday as part of U.S. President Donald Trump’s effort
to force Iran to curtail its nuclear, missile and regional activities.
The SWIFT statement said suspending the Iranian banks access to the messaging system was a
“regrettable” step but was “taken in the interest of the stability and integrity of the wider
global financial system.”
Having abandoned the 2015 Iran nuclear deal, Trump is trying to cripple Iran’s oil-dependent
economy and force Tehran to quash not only its nuclear ambitions and its ballistic missile
program but its support for militant proxies in Syria, Yemen, Lebanon and other parts of the
Middle East.
Annex 35
9/6/2019 UPDATE 1-SWIFT says suspending some Iranian banks' access to messaging system - Reuters
https://www.reuters.com/article/usa-iran-sanctions-swift/update-1-swift…… 2/9
SWIFT’s decision not to mention the resumption of U.S. sanctions likely reflects the fact that
it is caught between two contrary regulatory demands.
The U.S. government has told SWIFT that it is expected to comply with U.S. sanctions and it
could face U.S. sanctions if it fails to do so. On the other hand, SWIFT is barred from doing so
under the European Union’s so-called blocking statute, which could subject it to European
penalties for complying with U.S. law. (Reporting by Arshad Mohammed Editing by Bill Trott)
Our Standards: The Thomson Reuters Trust Principles.
Annex 35
ANNEX 36
Peterson v. Islamic Republic of Iran, 264 F.Supp.2d 46 (2003)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 1
264 F.Supp.2d 46
United States District Court,
District of Columbia.
Deborah D. PETERSON, Personal Representative
of the Estate of James C. Knipple, et al., Plaintiffs,
v.
The ISLAMIC REPUBLIC OF IRAN, et al.,
Defendants.
Joseph and Marie Boulos, Personal
Representatives of the Estate of Jeffrey Joseph
Boulos, et al., Plaintiffs,
v.
The Islamic Republic of Iran, et al., Defendants.
Nos. CIV.A. 01–2094(RCL), CIV.A.
01–2684(RCL).
|
May 30, 2003.
Synopsis
In actions under Foreign Sovereign Immunities Act
(FSIA), arising out of bombing of a U.S. Marine barracks
in Beirut, Lebanon, in 1983, family members of deceased
servicemen and injured survivors alleged that the Islamic
Republic of Iran, through the Iranian Ministry of
Information and Security (MOIS) and the terrorist
organization Hezbollah, engaged in state-sponsored
terrorism resulting in wrongful death, battery, assault, and
intentional infliction of emotional distress. After entry of
default judgment against Iran, The District Court,
Lamberth, J., held that: (1) court had subject matter
jurisdiction; (2) court had personal jurisdiction over Iran
and MOIS; (3) statute of limitations did not bar action; (4)
military service members at issue qualified for recovery;
and (5) evidence established liability of Iran and MOIS.
Judgment for plaintiffs.
Attorneys and Law Firms
*47 Robert Peter Feeney, Gaithersburg, MD, Thomas
Fortune Fay, Washington, DC, Joseph Peter Drennan,
Alexandria, VA, Anthony J. LaSpada, Tampa, FL, Karen
Maureen Clarke, Washington, DC, Allen Louis
Rothenberg, Philadelphia, PA, Jane Carol Norman, Ferris
Ridgely Bond, Bond & Norman, PLLC, Steven R. Perles,
Washington, DC, for Plaintiffs.
Robert Peter Feeney, Gaithersburg, MD, Joseph Peter
Drennan, Alexandria, VA, Anthony J. LaSpada, Tampa,
FL, Kay Maureen Clarke, Washington, DC, Allen Louis
Rothenberg, Philadelphia, PA, Jane Carol Norman, Ferris
Ridgely Bond, Bond & Norman, PLLC, Washington, DC,
for Defendants.
MEMORANDUM OPINION
LAMBERTH, District Judge.
These actions arise from the most deadly state-sponsored
terrorist attack made *48 against American citizens prior
to September 11, 2001: the Marine barracks bombing in
Beirut, Lebanon on October 23, 1983. In the early
morning hours of that day, 241 American servicemen
were murdered in their sleep by a suicide bomber. On that
day, an unspeakable horror invaded the lives of those who
survived the attack and the family members whose loved
ones had been stolen from them. The memory of that
horror continues to this day.
On March 17–18, 2003, this Court conducted a bench trial
to determine the liability of the defendants for this
inhuman act. Having reviewed the extensive evidence
presented during that trial by both lay and expert
witnesses, the Court has determined that the plaintiffs
have established their right to obtain judicial relief against
the defendants. The Court’s findings of fact and
conclusions of law are set forth below.
I. PROCEDURAL BACKGROUND
The plaintiffs in these two actions are family members of
the 241 deceased servicemen (hereafter, “the
servicemen”) and the injured survivors of the attack.
Plaintiffs have brought these actions in their own right, as
administrators of the estates of the servicemen, and on
behalf of the servicemen’s heirs-at-law. All decedents and
injured survivors of the attack were serving in the U.S.
armed forces at the time of their injuries or death. All
plaintiffs are nationals of the United States.1
Annex 36
Peterson v. Islamic Republic of Iran, 264 F.Supp.2d 46 (2003)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 2
On October 3 and December 28, 2001, plaintiffs filed
separate complaints with this Court. The complaints
included statutory claims for wrongful death and
common-law claims for battery, assault, and intentional
infliction of emotional distress, all resulting from an act of
state-sponsored terrorism. Plaintiffs sought relief in the
form of compensatory and punitive damages. Although
defendants were served with the two complaints on May 6
and July 17, 2002, defendants failed to file any response
to either complaint, and on December 18, 2002, this Court
entered defaults against defendants in both cases.
However, despite the entries of default, this Court is
required to make a further inquiry prior to entering any
judgment against defendants. FSIA mandates that a
default judgment against a foreign state be entered only
after a plaintiff “establishes his claim or right to relief by
evidence that is satisfactory to the Court.” 28 U.S.C. §
1608(e); see also Flatow v. The Islamic Republic of Iran,
999 F.Supp. 1, 6 (D.D.C.1998). As in Flatow, the Court
will require plaintiffs to establish their right to relief by
clear and convincing evidence. The “clear and
convincing” standard of proof is the standard required in
the District of Columbia to support a claim for punitive
damages, and is sufficient to establish a prima facie case
in a contested proceeding.
II. FINDINGS OF FACT
As stated above, this Court received testimony from
plaintiffs on March 17 and 18, *49 2003, defendants
having failed to enter an appearance. The Court now
enters its findings of fact, based upon the sworn testimony
and documentary evidence presented during the March
trial, and received in accordance with the Federal Rules of
Evidence. This Court finds these facts to be established by
clear and convincing evidence.
A. Historical Background2
The Republic of Lebanon is a mountainous country of
approximately 3,800,000 people bordered by Israel, Syria,
and the eastern shore of the Mediterranean Sea. Although
it contains some of the oldest human settlements in the
world, including the Phoenician port cities of Tyre and
Sidon, it did not become an independent nation until
1944.
Lebanon did not participate militarily in the 1967 and
1973 Arab–Israeli wars. However, by 1973,
approximately one out of every ten person living in
Lebanon was a Palestinian refugee, many of whom
supported the efforts of the Palestine Liberation
Organization (PLO) against Israel. Some of these refugees
engaged in guerilla warfare and terrorist activity against
Israel from bases established in southern Lebanon.
Beginning in 1968, Israel engaged in reprisals against
these Palestinian strongholds in southern Lebanon. In
1975, civil war broke out in Lebanon between its Muslim
inhabitants and Palestinian refugees, who supported the
PLO, and its Christian inhabitants, who opposed the
PLO’s actions. The war would not come to a complete
end for another fifteen years, during which approximately
twenty thousand Lebanese were killed, and approximately
the same number of Lebanese were wounded.
B. The Arrival of the 24th Marine Amphibious Unit
In late 1982, with the concurrence of the United Nations,
a multinational peacekeeping coalition consisting of
American, British, French, and Italian soldiers arrived in
the Lebanese capital of Beirut. In May of 1983, the 24th
Marine Amphibious Unit of the U.S. Marines (“the 24th
MAU”) joined this coalition.3 The rules of engagement
issued to the servicemen of the 24th MAU made clear that
the servicemen possessed neither combatant nor police
powers. In fact, under the rules, the servicemen were
ordered not to carry weapons with live rounds in their
chambers, and were not authorized to chamber the rounds
in their weapons unless (1) they were directly ordered to
do so by a commissioned officer or (2) they found
themselves in a situation requiring the immediate use of
deadly force in self-defense.4 As pointed out during *50
trial, the members of the 24th MAU were more restricted
in their use of force than an ordinary U.S. citizen walking
down a street in Washington, D.C.
The restrictive rules of engagement are consistent with the
testimony of Col. Timothy Geraghty, the commander of
the 24th MAU, about the mission of the multinational
peacekeeping force:
[E]ssentially what it was, it was primarily a
peacekeeping mission and it was to show [our]
presence, and when I say ours, and this is throughout
all the forces, is that we were out showing a presence,
[primarily] to provide stability to the area. And I might
add that there’s no doubt in just about anyone involved
at the time, we saved a lot of lives by our presence
there for awhile. And that was part of, I might add, in
Annex 36
Peterson v. Islamic Republic of Iran, 264 F.Supp.2d 46 (2003)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 3
my judgment, the success of that, our presence mission
there, and [that] it was working is the primary reason
why we were targeted....
The rules—these were geared primarily again with the
peacekeeping mission [in mind] and the sensitivities of
killing or maiming someone accidentally. That could be
a tinderbox. That could start a whole chain of events.
Col. Geraghty further testified that the location and
security of the 24th MAU’s position was not tactical in
nature, and was only acceptable to the commanding
officer in the context of the unit’s mission to “provide a
presence.”
Based on the testimony of Col. Geraghty and other
witnesses, the Court finds that on October 23, 1983, the
members of the 24th MAU, and the service members
supporting the unit, were clearly non-combatants
operating under peacetime rules of engagement.5
C. The Iranian Government and the October 23 Attack6
Following the 1979 revolution spearheaded by the
Ayatollah Ruhollah Khomeini, the nation of Iran was
transformed into an Islamic theocracy. The new
government promptly drafted a constitution, which is still
in effect today. The preamble to the 1979 constitution sets
forth the mission of the post-revolutionary Iranian state:
The mission of the Constitution is to realize the
ideological objectives of the movement and to create
conditions conducive to the development of man in *51
accordance with the noble and universal values of
Islam.
With due attention to the Islamic content of the Iranian
Revolution, the Constitution provides the necessary
basis for ensuring the continuation of the Revolution at
home and abroad. In particular, in the development of
international relations, the Constitution will strive with
other Islamic and popular movements to prepare the
way for the formation of a single world community ...
to assure the continuation of the struggle for the
liberation of all deprived and oppressed peoples in the
world.
The post-revolutionary government in Iran thus declared
its commitment to spread the goals of the 1979 revolution
to other nations. Towards that end, between 1983 and
1988, the government of Iran spent approximately $50 to
$150 million financing terrorist organizations in the Near
East.7 One of the nations to which the Iranian government
directed its attention was the war-torn republic of
Lebanon.
“Hezbollah” is an Arabic word meaning “the party of
God.” It is also the name of a group of Shi‘ite Muslims in
Lebanon that was formed under the auspices of the
government of Iran. Hezbollah began its existence as a
faction within a group of moderate Lebanese Shi‘ites
known as Amal. Following the 1982 Israeli invasion of
Lebanon, the Iranian government sought to radicalize the
Lebanese Shi‘ite community, and encouraged Hezbollah
to split from Amal. Having established the existence of
Hezbollah as a separate entity, the government of Iran
framed the primary objective of Hezbollah: to engage in
terrorist activities in furtherance of the transformation of
Lebanon into an Islamic theocracy modeled after Iran.
During the March trial in these cases, Dr. Patrick
Clawson, a widely-renowned expert on Iranian affairs
over the past 25 years, testified that in 1983, Hezbollah
was a creature of the Iranian government:
Both from the accounts of Hezbollah members and
from the accounts of the Iranians and of every
academic study that I’m aware of, certainly at this time,
Hezbollah is largely under Iranian orders. It’s almost
entirely acting at the—under the order of the Iranians
and being financed almost entirely by the Iranians. It
comes to be an organization with Lebanese roots and
Lebanese activities and more independence from Iran,
but that’s years past this time frame.
* * * * * *
THE COURT: In the ‘83 time frame, it was
essentially a tool of Iran.
THE WITNESS: Correct, sir. Indeed, both Iranian
and Lebanese observers have described it as being
established at Iran’s orders and as being a creature of
Iran when it began. Hezbollah leaders today will
sometimes describe that as the roots of their party
and say that it has evolved away from being that.
Q: Was there any other major means of support for
Hezbollah other than the Islamic Republic of Iran?
A: Not at this time, no, sir.8
*52 Dr. Clawson’s testimony was corroborated by Dr.
Reuven Paz,9 who has researched Islamist terrorist groups
for the last 25 years:
Q: Now, as of the time of this attack, in October
1983, to what extent was Hezbollah, at that precise
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moment, dependent upon the support of Iran, and
particularly the Iranian Revolutionary Guards, who
had been brought in in order to carry out any type of
major [military] operation?
A: Well, I would say that they were, at that
time, totally relied upon, the Iranian support.
We are talking about composing a new group,
of Hezbollah, out of people who had very little
military experience. They were members,
before ‘82, in groups that actually did not deal
with military issues or terrorism. And most of
the members during this process of unification
that created Hezbollah started to be trained in
training camps in the Bekaa Valley, where the
main Iranian forces were located.
* * * * * *
Q: Do you have an opinion, within a reasonable
degree of certainty, as an expert on Islamist
terrorism, whether this attack was carried out by
Hezbollah, in response to the order which was the
subject of the communications intercept in late
September 1983?
A: Yes, especially at that time—even today, but
especially at that time, when Hezbollah was not yet
formed as a strong group, it was totally controlled by
Iran and actually served mainly the Iranian interest in
Lebanon and [against] Israel.
Q: Do you have an opinion, again within a
reasonable degree of certainty, as an expert in
Islamist terrorist groups, as to whether Hezbollah, at
that time, the fall of 1983, would have had the
capacity to carry out an attack of the dimension of
the attack around the Marine barracks, in the absence
of Iranian scientific, financial, and material
assistance?
A: No, I don’t think they could have carried out such
an attack without Iranian training, without
Iranian—Iranian supply of the explosives even, and
without directions from the Iranian forces in
Lebanon itself.10
Q: Dr. Paz, can you describe the—the source of—of
this technique of suicide bombing, which was used
in the attack on the Marine barracks and since,
unfortunately, many other incidents?
A: Yes, this—this modus operandi actually was
initiated in Iran and it was—it was not, at that
time, used in anywhere in—in the Sunni
Muslim world. It was at that time a Shi‘ite
ideology of self-sacrifice by suicide bombing. It
started during the Iran–Iraq war in the ‘80s, and
then under Iranian training and influence and
instructions, it started as a modus operandi *53
of terrorist groups—first in Lebanon, by
Hezbollah, and then later on it moved to the
Palestinian arena, mainly during the ‘90s.
It is clear that the formation and emergence of Hezbollah
as a major terrorist organization is due to the government
of Iran. Hezbollah presently receives extensive financial
and military technical support from Iran, which funds and
supports terrorist activities. The primary agency through
which the Iranian government both established and
exercised operational control over Hezbollah was the
Iranian Ministry of Information and Security (“MOIS”).
MOIS had formerly served as the secret police of the
Shah of Iran prior to his overthrow in 1979. Despite the
revolutionary government’s complete break with the old
regime, it did not disband MOIS, but instead allowed it to
continue its operations as the intelligence organization of
the new government. Based on the evidence presented at
trial, the Court finds that MOIS acted as a conduit for the
Islamic Republic of Iran’s provision of funds to
Hezbollah, provided explosives to Hezbollah and, at all
times relevant to these proceedings, exercised operational
control over Hezbollah.
It is clear that MOIS was no rogue agency acting outside
of the control and authority of the Iranian government.
Indeed, as Dr. Clawson testified at trial, the October 23
attack would have been impossible without the express
approval of Iranian government leaders at the highest
level:
Q: In the fall of 1983, was there anything of a
significant nature, and especially a terrorist attack the
dimensions of the attack on the Marine barracks of
October 23rd, 1983, which would or could have been
undertaken by Hezbollah without material support
from Iran?
A: Iran’s material support would have been
absolutely essential for any activities at that time,
and furthermore, the politics of the organization [was
such] that no one in the organization would have
thought about carrying out an activity without
Iranian approval and almost certainly Iranian orders.
Q: Is that opinion within a reasonable degree of
certainty as an expert on Iran?
A: Oh, absolutely, sir.
Q: Would any operation such as the October 23rd,
1983 attack require the approval within Iran of the
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Ministry of Information and Security?
A: Yes, sir.
Q: What about Mr. Rafsanjani?
A: Yes, sir . . . There would have been a discussion
in the National Security Council which would
involve the prime minister, and it would also have
required the approval of Iran’s supreme religious
leader, Ayatollah Khomeini. We have many detailed
accounts about the approval process from other
attacks at this time, and, indeed, from a number of
Iranians who became disillusioned within this
process and later left.
Q: Doctor, your opinion within a reasonable degree
of certainty as an expert on Iran, what was the
foreign policy objective of the October 23rd, 1983,
attack and other like attacks by Iran during this
period?
A: Both to end the Western, especially the American
presence in Lebanon, and to establish Iran’s image as
the leader of the world’s radical, anti-Western,
anti-American Muslim movement.
The two officials named by Dr. Clawson, the ayatollah
(“supreme leader”) and the *54 prime minister of Iran,
were high government officials in the Iranian
government.11 The approval of the ayatollah and the prime
minister was absolutely necessary to carry out the
continuing economic commitment of Iran to Hezbollah,
and to execute the October 23 attack. Given their
positions of authority, any act of these two officials must
be deemed an act of the government of Iran.
The complicity of Iran in the 1983 attack was established
conclusively at trial by the testimony of Admiral James A.
Lyons, Deputy Chief of Naval Operations for Plans,
Policy and Operation from 1983–85. As deputy chief,
Admiral Lyons routinely received intelligence
information about American military forces. On October
25, 1983, the chief of naval intelligence notified Admiral
Lyons of an intercept of a message between Tehran and
Damascus that had been made on or about September 26,
1983. The message had been sent from MOIS to the
Iranian ambassador to Syria, Ali Akbar Mohtashemi, who
presently serves as an adviser to the president of Iran,
Mohammad Khatami.12 The message directed the Iranian
ambassador to contact Hussein Musawi, the leader of the
terrorist group Islamic Amal, and to instruct him to have
his group instigate attacks against the multinational
coalition in Lebanon, and “to take a spectacular action
against the United States Marines.” Admiral Lyons
testified that he has absolutely no doubt of the
authenticity or reliability of the message, which he took
immediately to the secretary of the navy and chief of
naval operations, who viewed it, as he did, as a “24–karat
gold document.”13
Although it is not presently known whether Ambassador
Mohtashemi contacted Musawi, evidence was presented
at trial that Mohtashemi did proceed to contact a member
of the Iranian Revolutionary Guard (“IRG”), and
instructed him to instigate the Marine barracks bombing.14
The Court heard the videotaped deposition testimony of a
Hezbollah member known by the pseudonym
“Mahmoud,” who was a member of the group that carried
out the October 23 attack.15 Mahmoud, a Lebanese *55
Shi‘ite Muslim, testified that Ambassador Mohtashemi
contacted a man named Kanani, the leader of the
Lebanese headquarters of the IRG. Mohtashemi instructed
Kanani to go forward with attacks that had been planned
against the 24th MAU and the French paratroopers.16
Mahmoud testified that a meeting was later held in
Baalbek, Lebanon, which was attended by Kanani and
Sheik Sobhi Tufaili, Sheik Abbas Musawi, and Sheik
Hassan Nasrallah. Nasrallah is the present leader of
Hezbollah.17 Musawi, Nasrallah’s immediate predecessor
as the leader of Hezbollah, was killed in a February 16,
1992 Israeli attack.18 Tufaili is a former secretary general
of Hezbollah.19
During this meeting, Kanani and the Hezbollah members
formed a plan to carry out simultaneous attacks against
the American and French barracks in Lebanon.20
Mahmoud described the meeting and its aftermath:
*56 They got the order. They met and adopted the
operation against the Marines and the French barracks
in the same time. The Marines operation was done.
They moved—they moved with one Iranian and one
Shiite from the—Southern Lebanon over the mountain
road to Hartareq Biralabin [phonetic spelling]. They
stayed two days there.
The—the cars were built, equipped, in Biralabin in a
warehouse near a—gas station ... underground. They
built the cars. They equipped the cars there. That’s
their center.
One Dodge, one red Dodge, that was painted exactly
like the other—the real Dodge that was providing
water and other stuff to the Marines, and they moved
it to the airport road where they put the hold
on—ambush and hold the real car when she arrived.
They stopped the real car and they moved with the
fake one that was built with explosives toward the
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Marine barracks.
D. The Attack
As testified by Mahmoud, after the meeting in Baalbek, a
19–ton truck was disguised so that it would resemble a
water delivery truck that routinely arrived at the Beirut
International Airport, which was located near the U.S.
Marine barracks in Beirut, and modified the truck so that
it could transport an explosive device. On the morning of
October 23, 1983, members of Hezbollah ambushed the
real water delivery truck before it arrived at the barracks.
An observer was placed on a hill near the barracks to
monitor the operation. The fake water delivery truck then
set out for the barracks, driven by Ismalal Ascari, an
Iranian.
At approximately 6:25 a.m. Beirut time, the truck drove
past the Marine barracks. As the truck circled in the large
parking lot behind the barracks, it increased its speed. The
truck crashed through a concertina wire barrier and a wall
of sandbags, and entered the barracks.21 When the truck
reached the center of the barracks, the bomb in the truck
detonated.
The resulting explosion was the largest non-nuclear
explosion that had ever been detonated on the face of the
Earth. The force of its impact ripped locked doors from
their doorjambs at the nearest building, which was 256
feet away. Trees located 370 feet away were shredded and
completely exfoliated. At the traffic control tower of the
Beirut International Airport, over half a mile away, all of
the windows shattered. The support columns of the
Marine barracks, which were made of reinforced
concrete, were stretched, as an expert witness described,
“like rubber bands.” The explosion created a crater in the
earth over eight feet deep. The four-story Marine barracks
was reduced to fifteen feet of rubble.
The force of the explosion was equal to between 15,000
to 21,000 pounds of TNT. FBI and ATF explosives
experts both concluded that the explosive material was
“bulk form” pentaerythritol tetranitrate, or PETN. Danny
A. Defenbaugh, the on-scene FBI forensic explosive
investigator, testified as to his findings:
[W]e were able to, through the forensic residue
analysis, identify the explosive *57 material, and it was
unconsumed particles of PETN ....
PETN is a primary explosive that is manufactured
commercially and primarily for U.S. military purposes.
It is a primary explosive that is used in detonating cord.
Detonating cord is nothing more than a plastic and
fiber-wrapped cord that has the PETN, which looks like
a white powder ... that is then extruded inside of that
cord ....
In this case, it was not [consumed]; we found
unconsumed particles of PETN. That was just like we
had found also in the American Embassy bombing.
What that means is that it had to have been from a bulk
explosive, it had to have been from a manufacturer.
Defenbaugh explained that when the
commercially-manufactured form of PETN is detonated,
it is completely consumed in the ensuing explosion. The
presence of unconsumed particles of PETN at the Marine
barracks blast site, therefore, indicated that the PETN
used in the bomb had not been the standard
commercially-available form of the explosive. Instead, it
had been the raw “bulk form” of PETN, which is not
generally sold commercially. In the Middle East, the bulk
form of PETN is produced by state-sponsored
manufacturers for military purposes. In 1983, bulk form
PETN was not manufactured in the nation of Lebanon.
However, at that time, bulk form PETN was
manufactured within the borders of Iran.
Warren Parker, who served as an explosives expert with
the Army and the ATF for forty years, testified that the
effectiveness of the attack demonstrated that it had been
the result of careful planning.22 Parker also concluded,
based on the degree of planning and sophistication that
went into the attack, that a group of individuals without
specialized training in explosives could not have carried it
out:
Q: Mr. Parker, in your opinion, within a reasonable
degree of certainty as an expert in explosives, could
this bombing have been successfully carried out by a
group of individuals with limited education,
possessing minimal literacy and no specialized
training in explosives?
A: No, sir.
Q: And what do you base that opinion on?
A: The degree of planning, the degree of
sophistication of this bombing.... The fact that it
was a significant amount of a military-type
explosive. These are not things that you just go
down to the drugstore and buy a *58 pound of,
these are not things [for which] you buy
innocuous materials and manufacture in your
backyard. PETN is manufactured in factories
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that have specialized tools and equipment and
knowledge.
I think that I will concur with Mr.
Defenbaugh’s conclusion that it is a state- or
military-run factory that produces this type of
material, and I think the fact that it was
carried out so successfully and not bungled
really enhances the fact that somebody had
practiced this before....
[D]uring the, say, late ‘60s, early ‘70s, clear
up into the ‘80s, there were state-sponsored
training camps involving the use of
explosives for political gain, and these
training camps used as part of their training,
and I have seen materials seized from those
that included pages from military manuals,
U.S. military as well as English and French
military manuals, as part of their training in
calculating the explosive charges.
Q: I believe this Court in [Eisenfeld v. Islamic
Republic of Iran ] received testimony with
regard to a training camp with regard to
handling explosives just outside Tehran, Iran,
run by the Iranian government. Would this be
the kind of thing you’re talking about, an
intensive course over three or four months?
A: Yes, sir, those are exactly the kinds. There
were several of those. The one in Iran was just
one of several but typical of that.
Based on the evidence presented by the expert witnesses
at trial, the Court finds that it is beyond question that
Hezbollah and its agents received massive material and
technical support from the Iranian government. The
sophistication demonstrated in the placement of an
explosive charge in the center of the Marine barracks
building and the devastating effect of the detonation of
the charge indicates that it is highly unlikely that this
attack could have resulted in such loss of life without the
assistance of regular military forces, such as those of Iran.
As a result of the Marine barracks explosion, 241
servicemen were killed, and many others suffered severe
injuries. Steve Russell, the sergeant of the guard at the
time of the explosion, testified that he had observed
several victims of the bombing who were in severe pain
before their deaths. Sgt. Russell stated that death was not
instantaneous for many of the victims, and that many of
the victims of the explosion endured extreme pain and
suffering.
During the trial, family members of the victims testified
about the anguish they endured when they learned of the
attack. Deborah Peterson described what happened when
she received word of the attack on the Marine barracks,
where her brother, Corporal James Knipple, was
stationed:
It was Sunday morning and I was sleeping and I got a
phone call from my father. He had a frantic sound to
his voice that I had never heard before and he said—he
just screamed, “Debbie, our worst nightmare has been
realized.” And I turned on the television and saw what
was happening....
It seemed like an awful long time [before word of his
death was received]. We waited and waited and waited.
We watched every television, we were—I mean, the
house was filled with people. We watched the
television, we got every newspaper, photograph,
magazine we could. We looked for his face among the
survivors. We even thought we saw him a couple of
times. All of his friends gathered, neighbors, and we
held out *59 hope even though the count was rising....
I think around November 7th or 8th, we got a phone
call ... They wanted dental information and identifying
marks, anything we could give them, and my father
told them about a scar on his forearm. The next day,
they told us that he was identified.
We brought him home on the 9th, on his 21st birthday,
and we buried him on the 10th, the Marine Corps
birthday. I remember the casualty officer, he was all by
himself, he came to the house. We were all gathered
around, and he told us that Jim was among the dead. It
was official.
I remember the casualty officer sitting next to my
father and they both seemed really quiet while
everybody else was screaming and yelling and crying,
and my dad just sat there really quiet. And then when
everybody left, he went downstairs and started to
scream Jim’s name over and over and over again at the
top of his lungs.
III. CONCLUSIONS OF LAW
Having made the above-listed findings of fact, the Court
now enters the following conclusions of law:
1. An action brought against a foreign state, its
intelligence service acting as its agent, and its officials,
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acting in their official capacity, must be brought under
the Foreign Sovereign Immunities Act of 1976, 28
U.S.C. §§ 1602–1611 et seq. The FSIA must be applied
in every action involving a foreign state defendant.
Verlinden B.V. v. Central Bank of Nigeria, 461 U.S.
480, 489, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983) 28
U.S.C. § 1330. The sole bases for subject matter
jurisdiction in an action against a foreign state
defendant are the FSIA’s enumerated exceptions to
immunity. Argentine Republic v. Amerada Hess
Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102
L.Ed.2d 818 (1989). This Court lacks subject matter
jurisdiction over the present actions unless they fall
within one of the FSIA’s enumerated exceptions to
foreign sovereign immunity. See Saudi Arabia v.
Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123
L.Ed.2d 47 (1993). The FSIA has been construed to
apply to individuals for acts performed in their official
capacity on behalf of either a foreign state or its agency
or instrumentality. El–Fadl v. Central Bank of Jordan,
75 F.3d 668, 671 (D.C.Cir.1996) (citing Chuidian v.
Philippine Nat’l Bank, 912 F.2d 1095, 1101–1103 (9th
Cir.1990)).
2. When it passed the Antiterrorism and Effective
Death Penalty Act of 1996, Congress lifted the
immunity of foreign states for certain sovereign acts
that are repugnant to the United States and the
international community, and created a right of civil
action based upon the commission of terrorist acts.
Pub.L. 104–132, Title II, § 221(a), (April 24, 1996),
110 Stat. 1214, codified at 28 U.S.C.A. § 1605 (West
1997 Supp.). That Act created an exception to the
immunity of those foreign states officially designated
by the State Department as state sponsors of terrorism,
if the foreign state so designated commits a terrorist
act, or provides material support and resources to an
individual or entity which commits a terrorist act,
which results in the death or personal injury of a United
States citizen. See 28 U.S.C. § 1605(a)(7); see also
H.R. REP. No. 104–383, at 137–38 (1995).
3. Iran has continuously been designated a state
sponsor of terrorism by the *60 U.S. Department of
State since January 19, 1984.
4. Applying the above-mentioned law, as a
consequence of the actions of the defendants, this Court
concludes that it possesses subject matter jurisdiction
over the defendants in these actions, the Islamic
Republic of Iran and the Iranian Ministry of
Information and Security.
5. 28 U.S.C. § 1605(a)(7) provides for personal
jurisdiction over foreign state sponsors of terrorism. As
this Court has noted in a previous case involving the
government of Iran, “[because] international terrorism
is subject to universal jurisdiction, Defendants had
adequate notice that their actions were wrongful and
susceptible to adjudication in the United States.”
Flatow, 999 F.Supp. at 14 (citing Eric S. Kobrick, The
Ex Post Facto Prohibition and the Exercise of
Universal Jurisdiction over International Crimes, 87
COLUM. L. REV. 1515, 1528–30 (1987)); see also
Price v. Socialist People’s Libyan Arab Jamahiriya,
294 F.3d 82, 88–89 (D.C.Cir.2002) ( “In enacting [28
U.S.C. § 1605(a)(7) ], Congress sought to create a
judicial forum for compensating the victims of
terrorism, and in so doing to punish foreign states who
have committed or sponsored such acts and deter them
from doing so in the future.”)
6. Applying the above-mentioned law, this Court
concludes that it possesses personal jurisdiction over
the defendants in these actions, the Islamic Republic of
Iran and the Iranian Ministry of Information and
Security.
7. 28 U.S.C. § 1605(f) provides for a statute of
limitations of “10 years after the date on which the
cause of action arose,” and provides for equitable
tolling during the “period during which the foreign
state was immune from suit.”
8. The state of Iran was immune from suit until passage
of Pub.L. 104–132, which was made effective on April
24, 1996. Accordingly, the Court concludes that the
statute of limitations contained in 28 U.S.C. § 1605(f)
does not bar these actions.
9. In a memorandum opinion issued December 18,
2002, this Court stated that if the plaintiffs in these
actions proved that the U.S. military service members
at issue in these cases were part of a peacekeeping
mission and that they operated under peacetime rules of
engagement, they would qualify for recovery. As set
forth in the above findings of fact, the plaintiffs have
demonstrated that the U.S. military service members at
issue were part of a peacekeeping mission, and that
they were operating under peacetime rules of
engagement. Therefore, the Court concludes that the
military service members at issue in these cases qualify
for recovery.
10. A foreign state is liable for money damages under
the FSIA “for personal injury or death that was caused
by an act of ... extrajudicial killing, or the provision of
material support or resources ... for such an act if such
act or provision of material support is engaged in by an
official, employee, or agent of such foreign state while
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acting within the scope of his or her office,
employment, or agency.” 28 U.S.C. § 1605(a)(7). The
foreign state must be designated as a state sponsor of
terrorism under either section 6(j) of the Export
Administration Act of 1979, 50 U.S.C. app. 2405(j) or
section 620A of the Foreign Assistance Act of 1961, 22
U.S.C. 2371, at the time that the act occurred, *61
unless the foreign state is thus designated later as a
result of that act. Id. Either the victim or the plaintiff
must have been a United States national at the time of
the act. Id. Additionally, the act must be such that it
would be actionable if the United States, its agents,
officials or employees within the United States engaged
in similar conduct. The Court concludes, based on the
above findings of fact, that plaintiffs in these actions
have established all of these elements by clear and
convincing evidence.
11. The FISA utilizes the same definition of
“extrajudicial killing” as the Torture Victim Protection
Act of 1991, which defines an “extrajudicial killing” as
“a deliberated killing not authorized by a previous
judgment pronounced by a regularly constituted court
affording all judicial guarantees which are recognized
as indispensable by civilized peoples....” Pub.L.
102–256, 106 Stat. 73 (1992). The Court concludes that
the act undertaken by agents of Hezbollah—the
development and detonation of an explosive charge in
the barracks of the 24th MAU on October 23, 1983,
which resulted in the deaths of over 241 peacekeeping
American servicemen—satisfies the FISA’s definition
of an “extrajudicial killing.”
12. The Court finds that MOIS, acting as an agent of
the Islamic Republic of Iran, performed acts on or
about October 23, 1983, within the scope of its agency
(within the meaning of 28 U.S.C. § 1605(a)(7) and 28
U.S.C.A. § 1605 note), which acts caused the deaths of
over 241 peacekeeping servicemen at the Marine
barracks in Beirut, Lebanon. Specifically, the deaths of
these servicemen were the direct result of an explosion
of material that was transported into the headquarters of
the 24th MAU and intentionally detonated at
approximately 6:25 a.m., Beirut time by an Iranian
MOIS operative. The Court therefore concludes that
MOIS actively participated in the attack on October 23,
1983, which was carried out by MOIS agents with the
assistance of Hezbollah.
13. The Court concludes that the deaths of over 241
peacekeeping servicemen at the Marine barracks in
Beirut, Lebanon were caused by a willful and
deliberate act of extrajudicial killing.
14. As the result of the deaths of the 241 American
servicemen in Beirut, Lebanon, their parents, surviving
siblings, children, and spouses have suffered and will
continue to suffer severe mental anguish and loss of
society.
15. It is beyond dispute that if officials of the United
States, acting in their official capacities, provided
material support to a terrorist group to carry out an
attack of this type, they would be civilly liable and
would have no defense of immunity. See 42 U.S.C. §
1983; Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct.
1999, 29 L.Ed.2d 619 (1971).
16. The Court concludes that the defendants, the
Islamic Republic of Iran and the Iranian Ministry of
Information and Security, are jointly and severally
liable to the plaintiffs for compensatory and punitive
damages.
17. As to each claim of each Complaint, the Court will
make a determination of the proper amount of
compensatory damages after its receipt of reports from
the special masters appointed by the Court. The Court
will *62 also make a determination as to punitive
damages at that time.
IV. CONCLUSION
The Court is mindful that some may question the utility of
the present suit. During the March trial, the Court heard
testimony from a number of witnesses as to the reasons
why this suit was brought, and as to its potential efficacy.
Dr. Patrick Clawson, deputy director of the Washington
Institute for Near East Policy, described the manner in
which civil judgments for acts of state-sponsored
terrorism have had a noticeable impact upon the present
regime in Iran:
Q: To what extent since its creation in 1979 has the
Islamic Republic of Iran been susceptible to
influence because of economic sanctions? By
sanctions, I don’t mean something that was stated,
but simply having to pay out bucks, whether it’s in
damages in personal injury cases or damages
awarded by a tribunal, punitive damages, anything of
that sort?
A: To begin with, the release of those held hostage at
the American Embassy in Tehran, most Iranian
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observers think that the American freezing of
billions of dollars of Iranian assets and the eventual
negotiations which really hinged around how much
money Iran was going to get back is a good example
from the very beginning of this process of Iran’s
susceptibility to economic pressure, and there have
been a number of situations since in which Iran has
been deflected from its main course by economic
pressures. For instance, the Europeans [were]
successful at doing that in the early 1990s, deflecting
Iran from terrorist activities in European soil.
* * * * * *
Q: Given the enormity of the offense committed on
October 23rd, 1983, in the attack of the Marine
barracks, how much of that sum in the pockets of
Iran would have to be subtracted before—in order to
give some indication that they would start to change
policy?
A: Well, sir, I would—the larger the sum, the more
of an impact this is going to have on the Iranians,
and if this court case results in a large judgment, be it
for compensatory or punitive damages, that is very
likely to receive the attention of a fair number of
policymakers in Iran, and I have great confidence
that the Iranian leaders will consider that in deciding
which way to proceed.
* * * * * *
I think, sir, that the Iranians have been extraordinarily
sensitive to court actions, whether it was in Germany or
in Argentina or in the United States, which make any
references to the top leadership of the country being
involved in these cases. That has been a matter of
greatest sensitivity in Iran, and there have been several
cases in which the Iranians reacted extremely strongly,
particularly to suggestions that the supreme religious
leader was involved in any way in these activities.... I
have to say that I think that they pay quite detailed
attention to these judgments ....
* * * * * *
I would say that based on the past precedent about the
way that these court cases have been viewed, what will
be looked at very closely is two things. One is the size
of the dollars involved, and the other is whether or not
there is *63 any change in the way that the court views
the matter. So this case, if it involves a much larger
judgment in dollar terms than previous cases, will be
regarded as a toughening of the American stance.
On the other hand, there will be close examination of
whether or not this case in its legal reasoning or in the
application or non-application of punitive damages
involves any change in the way in which a court rules.
So, for instance, a lack of punitive damages would be
regarded as an indication that the United States
Government is making a gesture towards Iran.
Q: A softening of our position.
A: Correct, sir....
Q: So as I read you correctly, less in punitive
damages than has been awarded in cases before
would be to the Iranians a softening of the American
resolve; more would be a hardening of the American
resolve?
A: Correct, sir.
The Court also heard the testimony of Dr. Michael
Ledeen23 as to the likely effect of an award of damages in
the present actions:
THE COURT: From your experience dealing all
these years now with Iran, have you seen, from the
court cases where punitive damages have been
entered by the courts, what impact, if any, that has
had in Iran and on the government, and what do you
think of that?
A: Well, it hurts the government because it
stings them, and the people see—what the
Iranian people need to reach the point where
they are willing to risk their lives to bring down
this regime is that the civilized world
understands what kind of regime it is and
therefore would welcome that kind of event;
and consequently, in my opinion, every time
that regime is condemned and punished in a
Western court, that hastens the moment of the
downfall of that regime.24
The Court also heard testimony from the men and women
who have brought the present actions about their reasons
for so doing. During the trial, Lt. Col. Howard Gerlach,
who was paralyzed in the October 23 attack, was asked
about what he hoped to achieve by participating in these
actions:
Well, I guess there’s three words: accountability,
deterrence and justice. And they are interrelated. The
accountability, and I swear it was on Sunday, I was
listening to a rerun of one of the TV—I don’t know,
Meet the Press or whatever, but Vice President Cheney
was talking and he was saying that they, the terrorists
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feel that they can do things with impunity, and he said
ever *64 since the Marines in ‘83. Yes, there hasn’t
been any accountability.
Deterrence effect is, in some way, and this is also what
he was talking about, was one thing we have to go
after—and I think I’m stating this correctly; this is what
I heard, is the funding. It’s the funding. Even on the
radio coming over here, we heard some talk about
funding for terrorist organizations.
Then the third thing is the justice, and this refers to the
people, a good portion of [whom] are in this room....
They lost a large chunk of their lives, young Marines,
sons, husbands, fathers, brothers. They were attempting
to do a noble thing. They went as peacekeepers in the
tradition of this country... [W]e weren’t trying to
conquer land, we weren’t trying to get anything for
ourselves; we were really trying in a humanitarian way
to help those people in Lebanon. I think this is ... the
day in court, literally and figuratively speaking, for
recognition of just how great these guys were.
The Court also heard the testimony of Lynn Smith
Derbyshire, whose brother, Capt. Vincent Smith, was
killed in the October 23 attack:
I’m not sure it’s true that time heals wounds, but even
so, a wound which has healed over time is not the same
thing as not having a wound. Even a healing wound
gets reopened from time to time.
* * * * * *
[A]s I have talked to so many of the Beirut families, I
believe that many of them would concur with me when
I say that the pain does not stop when you bury the
dead; it is only the very beginning. We feel this loss
over and over and over again. It does not go away and
it does not lessen with time; that is a myth. It is more
like teaching someone who has a chronic pain disorder
how to manage and embrace their pain than it is a
lessening of pain.
* * * * * *
I have spoken to quite a number of the family member
and I think we’re all—I think they would all agree with
me when I tell you that what Vince would have wanted
was justice.
Vince was a fair-minded man. Vince was a man of
integrity, as I know so many of the men who were lost
that day were. It’s the kind of men Marines are. That’s
what the Marine Corps produces. And Vince would
have wanted us to fight.
Vince would have said ... we must hold these men
accountable. Vince would have said that it is time for
justice, that it is time for compensation, that it is time to
make it—to make them pay enough to make them stop,
because Vince was a man who believed in what was
right, and if he had lived, he would be sitting here in
my place and he would be saying, “Come on, sis, let’s
go get them.”
But he can’t be here, and in his name, and in his honor,
and with the permission of some of the other family
members here ... in their names and in their honor, I
salute them, and we stand together to do what they
cannot do for themselves.
There is little that the Court can add to the eloquent words
of these witnesses. No order from this Court will restore
any of the 241 lives that were stolen on October 23, 1983.
Nor is this Court able to heal the pain that has become a
permanent part of the lives of their mothers and fathers,
their spouses and siblings, and their sons and daughters.
But the Court can take steps that will punish the men who
carried out this unspeakable attack, and in so doing, try to
achieve some small measure of justice for its survivors,
and for the family *65 members of the 241 Americans
who never came home.
A separate order accompanies this opinion.
ORDER
In accordance with the memorandum opinion issued this
date, it is hereby
ORDERED that judgment be, and hereby is entered on
behalf of the plaintiffs, Deborah D. Peterson, et al., and
Joseph and Marie Boulos, et al., as to all issues of liability
against the defendants, the Islamic Republic of Iran and
the Iranian Ministry of Information and Security. It is
further
ORDERED that all claims for damages in these actions be
submitted to Special Masters to be appointed by this
Court. It is further
ORDERED that, following receipt by this Court of
reports from the Special Masters, and in consideration of
the findings and evidence presented in those proceedings,
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the Court will enter judgment as to each claim for
compensatory damages. It is further
ORDERED that the Court will take under advisement the
issue of imposing an amount in punitive damages against
the defendants, pending the entry of judgment as to the
amounts of compensatory damages.
SO ORDERED.
All Citations
264 F.Supp.2d 46
Footnotes
1 In an action under the Foreign Sovereign Immunities Act (“FSIA”) for claims based on personal injury or death resulting
from an act of state-sponsored terrorism, either the claimant or the victim must be an American national. See 28 U.S.C.
§ 1605(a)(7)(B)(ii). Although during the bench trial, the Court only received testimony that identified one of the
decedents, James R. Knipple, as an American national, plaintiffs’ counsel has represented that each and every service
member injured or killed on October 23, 1983, or a beneficiary of that service member, is a national of the United
States. The Court’s findings are therefore subject to proof of American nationality during the damages phase of these
proceedings. This may be accomplished either though direct testimony of any competent witness, or through the
submission of relevant documentation.
2 The Court has taken judicial notice of the facts contained in the following subsection, pursuant to Rule 201 of the
Federal Rules of Civil Procedure.
3 A Marine Amphibious Unit (now “Marine Expeditionary Unit”) is a combined air / ground force unit of approximately two
thousand U.S. Marines. See Marine Expeditionary Units, at http:// www.usmc.mil/marinelink/ind.nsf/meus.
4 In the present context, “rules of engagement” are directions issued by a competent military authority that set out the
limitations and circumstances under which the forces under its command may initiate and prosecute combat
engagement with other forces that they encounter. Following are the rules of engagement that were issued to the
members of the 24th MAU:
1. When on post, mobile or foot patrol, keep loaded magazine in weapon, bolt closed, weapon on safe, no round
in the chamber.
2. Do not chamber a round unless told to do so by a commissioned officer unless you must act in immediate
self-defense where deadly force is authorized.
3. Keep ammo for crew-served weapons readily available, but not loaded. Weapon is on safe.
4. Call local forces [LAF] to assist in self-defense effort. Notify headquarters.
5. Use only minimum degree of force to accomplish any mission.
6. Stop the use of force when it is no longer needed to accomplish the mission.
7. If you receive effective hostile fire, direct your fire at the source. If possible, use friendly snipers.
8. Respect civilian property; do not attack it unless absolutely necessary to protect friendly forces.
9. Protect innocent civilians from harm.
10. Respect and protect recognized medical agencies such as Red Cross, Red Crescent, etc.
These ten rules were printed on cards distributed to every service member of the 24th MAU and were discussed at
length with every member.
5 It should also be noted that the death certificates issued for the victims of the October 23, 1983 attack did not represent
that the victims were killed in action. Instead, the cause of death was listed as “terrorist attack.”
6 The facts contained in the following subsection are based on the trial testimony of Dr. Reuven Paz, director of the
Project for the Research of Islamist Movements in Herzliya, Israel, and Dr. Patrick Clawson, deputy director of the
Washington Institute for Near East Policy.
7 Since January 19, 1984, Iran has been designated as a state sponsor of terrorism pursuant to section 6(j) of the Export
Administration Act of 1979, 50 U.S.C. app. § 2405(j). This designation arose in part as a result of the October 23, 1983
attack.
8 Dr. Michael Ledeen, a consultant to the Department of Defense at the time of the Marine barracks bombing and an
expert on U.S. foreign relations, testified at trial that “Iran invented, created, funded, trained, and runs to this day
Hezbollah, which is arguably the world’s most dangerous terrorist organization.”
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9 Dr. Paz is the director of the Project for the Research of Islamist Movements and a senior research fellow at The
International Policy Institute for Counterterrorism, both of which are based in Herzliya, Israel.
10 Robert Baer, a case officer in the Directorate of Operations of the CIA from 1976–97, testified at trial that “Hezbollah
wasn’t ‘formally’ created until 1985. What happened was before it was a bunch of agents of Iran. But none of these
agents, based on our intelligence, which was ... outstanding, were operating on their own. One time there was a case
where a Hezbollah member went out and kidnapped some children. But that was done independently, and the moment
he was caught, he was executed by Hezbollah because he wasn’t operating with authority from Iran.”
* * * * * *
11 Under the 1979 constitution, the Supreme Leader is the highest government official of Iran, followed by the President.
The powers of the Supreme Leader include the authority to delineate the general policies of Iran and supervise their
execution, assume the supreme command of the armed forces, declare war, mobilize the armed forces, appoint and
dismiss key government officials, and issue decrees for national referenda. Arts. 110, 113, Constitution of Iran, 1979.
12 Mohtashemi’s last name is sometimes given as “Mohtashemi–Pur.”
13 Dr. Michael Ledeen testified at trial that the message intercept was “one of the most impressive works of intelligence
analysis that I saw [about the Marine barracks bombing], and it was absolutely convincing.” Dr. Reuven Paz testified
that he had read and analyzed the message intercept, which he described as “an order to attack the foreign powers on
Lebanese soil, meaning the United States, the French paramilitary power, and of course, the Israeli military forces in
south Lebanon.”
14 The Iranian Revolutionary Guard, also known as the Pasdaran, has been described as an “elite security and military
force that was formed to protect the ideological purity of the Ayatullah Khomeini’s Islamic Revolution and [that] has
since developed considerable expertise in covert actions overseas.” See Paul Quinn–Judge, Stalking Satan: As Their
Leader Offers Friendship, Iran’s Revolutionary Guards Keep a Menacing Watch over Their Backyard, TIME, March 30,
1998, available at http:// www.time.com/time/mag azine/1998/int/980330/terrorism.stalking_ satan15.html.
15 The reliability of Mahmoud’s testimony was established by an individual who has worked for the United States
government in an intelligence capacity for thirty years, and who is known by the pseudonym “Joseph Salam.” The
Court admitted Salam as an expert on Islamic terrorist groups, based upon the quality and quantity of knowledge
contained in his curriculum vita, which was filed under seal to protect Salam’s identity. According to Salam, Mahmoud
has provided information to him in the past, and, after later comparison with known objective facts, his information has
always been determined to be accurate.
16 Mahmoud’s testimony about Ambassador Mohtashemi is confirmed by Joseph Salam, who testified that although
Mohtashemi held the title of Iranian ambassador to Syria, he performed no actual diplomatic function and was “highly
placed in the supervision and origination of covert terrorist operations by Iran.” It is also independently confirmed by Dr.
Michael Ledeen, who testified at trial that “Mr. Mohtashemi–Pur, his nickname in Iran is the Father of Hezbollah. He’s
the person who created Hezbollah. So of course he had a major involvement in [the Marine barracks bombing] since
those were the people who did it.” Dr. Ledeen also testified that “there was information of every imaginable type that
enabled [the intelligence community] to reconstruct a picture which showed very clearly the Iranian involvement [in the
Marine barracks bombing]. I don’t know anyone who looked at that information who came to any other conclusion.”
17 See Talks with France Bridge the Diplomatic Gap, TIMES (London), May 26, 2003, at 13, available at 2003 WL
3134823 (“[Israeli Foreign Minister Sylvan Shalom’s] warning came as the leader of Hezbollah, Sheikh Hassan
Nasrallah, urged all anti-Israeli groups in Lebanon to take up arms in preparation for a possible Israeli attack.”).
18 See Kenneth R. Timmerman, Likely Mastermind Of Tower Attacks, INSIGHT, Dec. 31, 2001, at 18, available at 2001
WL 29585000 (“On March 17, 1992, a Hezbollah strike team leveled the Israeli Embassy in Buenos Aires, killing 29
persons and wounding 242. Hezbollah said the attack was intended to avenge the killing of Lebanese Hezbollah leader
Sheik Abbas Musawi, whose convoy was obliterated by Israeli helicopter gunships in South Lebanon one month
earlier.”); Gareth Smyth, Sheikh Hassan Nasrallah’s Holy War, FIN. TIMES, Aug. 30, 2001, available at 2001 WL
26065111 (“On February 16, 1992, Israeli helicopter gunships flew into south Lebanon and ambushed a convoy of
cars, killing Abbas Musawi, the general secretary of Hizbollah.... [I]t brought to Hizbollah’s top position Israel’s most
effective adversary of the next decade. With his beard, turban and black-rimmed glasses, Sheikh Hassan Nasrallah is
recognised well beyond Lebanon’s borders.”).
19 See Hikmat Chreif, Hezbollah Dissidents Demonstrate Against Normalization with Israel, AGENCE
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FRANCE–PRESSE, Jan. 7, 2000, available at 2000 WL 2708811 (“About 3,000 supporters of Lebanese Hezbollah
dissident Sobhi Tufaili demonstrated in Baalbek Friday against any normalization with Israel and visits by Israeli
tourists to Lebanon.... Tufaili, who used to be secretary general of Hezbollah, criticized the group’s leadership for
neglecting the needs of the ‘underprivileged,’ especially in the Baalbek–Hermel area, which had been a major
drug-growing area until a crackdown in 1992.”).
20 Approximately eight minutes after the attack on the Marine barracks, a similar attack was attempted against the French
barracks. Although the driver of the vehicle carrying the explosive device was shot and killed before the vehicle could
enter the barracks, the device was detonated by remote control, killing 56 French soldiers.
21 Concertina wire is a length of barbed wire that is extended into a spiral for use as a barrier, as on a fence. It is
employed by the U.S. armed forces to prevent entry into restricted areas by unauthorized persons.
22 Parker testified at trial:
In the Marine barracks [attack], we have considerable planning that had to occur. They had to know what the interior
of the building looked like, and, in my background and experience, I believe that the placement of that in the center
of the building with the atrium opening up to the top was probably key in causing most of the deaths.
So it took someone getting in there, doing a lot of pre-scouting, making sure that they could, in fact, penetrate the
barriers, the barbed-wire barriers, negotiate the pipes that were placed in the way to deter traffic. They had to use a
site that had a direct line because they couldn’t afford to take a long time. The Marines were all armed. While they
didn’t have ammunition ready, and that was probably known, they would have likely not made it inside. So if they had
tried to come through some sort of a circuitous route rather than a direct attack down through those barrier pipes
right over [the] top of what I believe to be the only place that you could have gotten a truck of that size into the
building without it being impinged or stopped by some part of the building itself—so they knew that that was a good
entrance. They knew that the truck could negotiate those pipes and that the weak part for entrance was there at the
sandbag guard barricade and that the interior of the building was the vulnerable spot of that building.
23 As noted above, Dr. Ledeen served as a consultant to the U.S. Defense Department at the time of the October 23,
1983 bombing, and is one of the premier experts in the nation on the subject of U.S. foreign relations. He is presently a
resident scholar at the American Enterprise Institute.
24 Regarding the tension between the Iranian government and the populace, Dr. Ledeen testified that
the people of Iran hate the regime. Even the public opinion polls taken by the regime itself show that 70–plus percent
of the Iranian people don’t like the regime, would like a national referendum, deplore the foreign policy of the regime
and want better relations with the United States, and you would have to figure that if 70 percent of Iranians will tell
people that they know are coming from the Ministry of Information that they hate the regime, that the real number
must be something higher than that.
End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.
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ANNEX 39
9/3/2019 Fact Sheet: Designation of Iranian Entities and Individuals for Proliferation Activities and Support for Terrorism
https://www.treasury.gov/press-center/press-releases/Pages/hp644.aspx 1/3
U.S. DEPARTMENT OF THE TREASURY
Press Center
Fact Sheet: Designation of Iranian Entities and Individuals for Proliferation Activities
and Support for Terrorism
10/25/2007
To view or print the PDF content on this page, download the free Adobe® Acrobat® Reader®.
hp-644
The U.S. Government is taking several major actions today to counter Iran's bid for nuclear capabilities and support for terrorism by
exposing Iranian banks, companies and individuals that have been involved in these dangerous activities and by cutting them off from the
U.S. financial system.
Today, the Department of State designated under Executive Order 13382 two key Iranian entities of proliferation concern: the Islamic
Revolutionary Guard Corps (IRGC; aka Iranian Revolutionary Guard Corps) and the Ministry of Defense and Armed Forces Logistics
(MODAFL). Additionally, the Department of the Treasury designated for proliferation activities under E.O. 13382 nine IRGC-affiliated
entities and five IRGC-affiliated individuals as derivatives of the IRGC, Iran's state-owned Banks Melli and Mellat, and three individuals
affiliated with Iran's Aerospace Industries Organization (AIO).
The Treasury Department also designated the IRGC-Qods Force (IRGC-QF) under E.O. 13224 for providing material support to the
Taliban and other terrorist organizations, and Iran's state-owned Bank Saderat as a terrorist financier.
Elements of the IRGC and MODAFL were listed in the Annexes to UN Security Council Resolutions 1737 and 1747. All UN Member
States are required to freeze the assets of entities and individuals listed in the Annexes of those resolutions, as well as assets of entities
owned or controlled by them, and to prevent funds or economic resources from being made available to them.
The Financial Action Task Force, the world's premier standard-setting body for countering terrorist financing and money laundering,
recently highlighted the threat posed by Iran to the international financial system. FATF called on its members to advise institutions dealing
with Iran to seriously weigh the risks resulting from Iran's failure to comply with international standards. Last week, the Treasury
Department issued a warning to U.S. banks setting forth the risks posed by Iran. (For the text of the Treasury Department statement see:
http://www.fincen.gov/guidance_fi_increasing_mlt_iranian.pdf.) Today's actions are consistent with this warning, and provide additional
information to help financial institutions protect themselves from deceptive financial practices by Iranian entities and individuals engaged in
or supporting proliferation and terrorism.
Effect of Today's Actions
As a result of our actions today, all transactions involving any of the designees and any U.S. person will be prohibited and any assets the
designees may have under U.S. jurisdiction will be frozen. Noting the UN Security Council's grave concern over Iran's nuclear and ballistic
missile program activities, the United States also encourages all jurisdictions to take similar actions to ensure full and effective
implementation of UN Security Council Resolutions 1737 and 1747.
Today's designations also notify the international private sector of the dangers of doing business with three of Iran's largest banks, as well
as the many IRGC- affiliated companies that pervade several basic Iranian industries.
Proliferation Finance – Executive Order 13382 Designations
E.O. 13382, signed by the President on June 29, 2005, is an authority aimed at freezing the assets of proliferators of weapons of mass
destruction and their supporters, and at isolating them from the U.S. financial and commercial systems. Designations under the Order
prohibit all transactions between the designees and any U.S. person, and freeze any assets the designees may have under U.S.
jurisdiction.
The Islamic Revolutionary Guard Corps (IRGC): Considered the military vanguard of Iran, the Islamic Revolutionary Guard Corps (IRGC;
aka Iranian Revolutionary Guard Corps) is composed of five branches (Ground Forces, Air Force, Navy, Basij militia, and Qods Force
special operations) in addition to a counterintelligence directorate and representatives of the Supreme Leader. It runs prisons, and has
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numerous economic interests involving defense production, construction, and the oil industry. Several of the IRGC's leaders have been
sanctioned under UN Security Council Resolution 1747.
The IRGC has been outspoken about its willingness to proliferate ballistic missiles capable of carrying WMD. The IRGC's ballistic missile
inventory includes missiles, which could be modified to deliver WMD. The IRGC is one of the primary regime organizations tied to
developing and testing the Shahab-3. The IRGC attempted, as recently as 2006, to procure sophisticated and costly equipment that could
be used to support Iran's ballistic missile and nuclear programs.
Ministry of Defense and Armed Forces Logistics (MODAFL): The Ministry of Defense and Armed Forces Logistics (MODAFL) controls the
Defense Industries Organization, an Iranian entity identified in the Annex to UN Security Council Resolution 1737 and designated by the
United States under E.O. 13382 on March 30, 2007. MODAFL also was sanctioned, pursuant to the Arms Export Control Act and the
Export Administration Act, in November 2000 for its involvement in missile technology proliferation activities.
MODAFL has ultimate authority over Iran's Aerospace Industries Organization (AIO), which was designated under E.O. 13382 on June 28,
2005. The AIO is the Iranian organization responsible for ballistic missile research, development and production activities and
organizations, including the Shahid Hemmat Industries Group (SHIG) and the Shahid Bakeri Industries Group (SBIG), which were both
listed under UN Security Council Resolution 1737 and designated under E.O. 13382. The head of MODAFL has publicly indicated Iran's
willingness to continue to work on ballistic missiles. Defense Minister Brigadier General Mostafa Mohammad Najjar said that one of
MODAFL's major projects is the manufacturing of Shahab-3 missiles and that it will not be halted. MODAFL representatives have acted as
facilitators for Iranian assistance to an E.O. 13382- designated entity and, over the past two years, have brokered a number of
transactions involving materials and technologies with ballistic missile applications.
Bank Melli, its branches, and subsidiaries: Bank Melli is Iran's largest bank. Bank Melli provides banking services to entities involved in
Iran's nuclear and ballistic missile programs, including entities listed by the U.N. for their involvement in those programs. This includes
handling transactions in recent months for Bank Sepah, Defense Industries Organization, and Shahid Hemmat Industrial Group. Following
the designation of Bank Sepah under UNSCR 1747, Bank Melli took precautions not to identify Sepah in transactions. Through its role as
a financial conduit, Bank Melli has facilitated numerous purchases of sensitive materials for Iran's nuclear and missile programs. In doing
so, Bank Melli has provided a range of financial services on behalf of Iran's nuclear and missile industries, including opening letters of
credit and maintaining accounts.
Bank Melli also provides banking services to the IRGC and the Qods Force. Entities owned or controlled by the IRGC or the Qods Force
use Bank Melli for a variety of financial services. From 2002 to 2006, Bank Melli was used to send at least $100 million to the Qods Force.
When handling financial transactions on behalf of the IRGC, Bank Melli has employed deceptive banking practices to obscure its
involvement from the international banking system. For example, Bank Melli has requested that its name be removed from financial
transactions.
Bank Mellat, its branches, and subsidiaries: Bank Mellat provides banking services in support of Iran's nuclear entities, namely the Atomic
Energy Organization of Iran (AEOI) and Novin Energy Company. Both AEOI and Novin Energy have been designated by the United States
under E.O. 13382 and by the UN Security Council under UNSCRs 1737 and 1747. Bank Mellat services and maintains AEOI accounts,
mainly through AEOI's financial conduit, Novin Energy. Bank Mellat has facilitated the movement of millions of dollars for Iran's nuclear
program since at least 2003. Transfers from Bank Mellat to Iranian nuclear-related companies have occurred as recently as this year.
IRGC-owned or -controlled companies: Treasury is designating the companies listed below under E.O. 13382 on the basis of their
relationship to the IRGC. These entities are owned or controlled by the IRGC and its leaders. The IRGC has significant political and
economic power in Iran, with ties to companies controlling billions of dollars in business and construction and a growing presence in Iran's
financial and commercial sectors. Through its companies, the IRGC is involved in a diverse array of activities, including petroleum
production and major construction projects across the country. In 2006, Khatam al-Anbiya secured deals worth at least $7 billion in the oil,
gas, and transportation sectors, among others.
Khatam al-Anbya Construction Headquarters
Oriental Oil Kish
Ghorb Nooh
Sahel Consultant Engineering
Ghorb-e Karbala
Sepasad Engineering Co
Omran Sahel
Hara Company
Gharargahe Sazandegi Ghaem
IRGC Individuals: Treasury is designating the individuals below under E.O 13382 on the basis of their relationship to the IRGC. One of the
five is listed on the Annex of UNSCR 1737 and the other four are listed on the Annex of UNSCR 1747 as key IRGC individuals.
General Hosein Salimi, Commander of the Air Force, IRGC
Brigadier General Morteza Rezaie, Deputy Commander of the IRGC
Vice Admiral Ali Akhbar Ahmadian, Most recently former Chief of the IRGC Joint Staff
Brigadier Gen. Mohammad Hejazi, Most recently former Commander of Bassij resistance force
Brigadier General Qasem Soleimani, Commander of the Qods Force
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Other Individuals involved in Iran's ballistic missile programs: E.O. 13382 derivative proliferation designation by Treasury of each of the
individuals listed below for their relationship to the Aerospace Industries Organization, an entity previously designated under E.O. 13382.
Each individual is listed on the Annex of UNSCR 1737 for being involved in Iran's ballistic missile program.
Ahmad Vahid Dastjerdi, Head of the Aerospace Industry Organization (AIO)
Reza-Gholi Esmaeli, Head of Trade & International Affairs Dept., AIO
Bahmanyar Morteza Bahmanyar, Head of Finance & Budget Department, AIO
Support for Terrorism -- Executive Order 13224 Designations
E.O. 13224 is an authority aimed at freezing the assets of terrorists and their supporters, and at isolating them from the U.S. financial and
commercial systems. Designations under the E.O. prohibit all transactions between the designees and any U.S. person, and freeze any
assets the designees may have under U.S. jurisdiction.
IRGC-Qods Force (IRGC-QF): The Qods Force, a branch of the Islamic Revolutionary Guard Corps (IRGC; aka Iranian Revolutionary
Guard Corps), provides material support to the Taliban, Lebanese Hizballah, Hamas, Palestinian Islamic Jihad, and the Popular Front for
the Liberation of Palestine-General Command (PFLP-GC).
The Qods Force is the Iranian regime's primary instrument for providing lethal support to the Taliban. The Qods Force provides weapons
and financial support to the Taliban to support anti-U.S. and anti-Coalition activity in Afghanistan. Since at least 2006, Iran has arranged
frequent shipments of small arms and associated ammunition, rocket propelled grenades, mortar rounds, 107mm rockets, plastic
explosives, and probably man-portable defense systems to the Taliban. This support contravenes Chapter VII UN Security Council
obligations. UN Security Council resolution 1267 established sanctions against the Taliban and UN Security Council resolutions 1333 and
1735 imposed arms embargoes against the Taliban. Through Qods Force material support to the Taliban, we believe Iran is seeking to
inflict casualties on U.S. and NATO forces.
The Qods Force has had a long history of supporting Hizballah's military, paramilitary, and terrorist activities, providing it with guidance,
funding, weapons, intelligence, and logistical support. The Qods Force operates training camps for Hizballah in Lebanon's Bekaa Valley
and has reportedly trained more than 3,000 Hizballah fighters at IRGC training facilities in Iran. The Qods Force provides roughly $100 to
$200 million in funding a year to Hizballah and has assisted Hizballah in rearming in violation of UN Security Council Resolution 1701.
In addition, the Qods Force provides lethal support in the form of weapons, training, funding, and guidance to select groups of Iraqi Shi'a
militants who target and kill Coalition and Iraqi forces and innocent Iraqi civilians.
Bank Saderat, its branches, and subsidiaries: Bank Saderat, which has approximately 3200 branch offices, has been used by the
Government of Iran to channel funds to terrorist organizations, including Hizballah and EU-designated terrorist groups Hamas, PFLP-GC,
and Palestinian Islamic Jihad. For example, from 2001 to 2006, Bank Saderat transferred $50 million from the Central Bank of Iran
through its subsidiary in London to its branch in Beirut for the benefit of Hizballah fronts in Lebanon that support acts of violence. Hizballah
has used Bank Saderat to send money to other terrorist organizations, including millions of dollars on occasion, to support the activities of
Hamas. As of early 2005, Hamas had substantial assets deposited in Bank Saderat, and, in the past year, Bank Saderat has transferred
several million dollars to Hamas.
REPORTS
Treasury and State Department Iran Designations Identifier
Annex 39
ANNEX 40
Blais v. Islamic Republic of Iran, 459 F.Supp.2d 40 (2006)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 1
459 F.Supp.2d 40
United States District Court,
District of Columbia.
Paul Alexander BLAIS, et al., Plaintiffs,
v.
ISLAMIC REPUBLIC OF IRAN, et al., Defendants.
Civil Action No. 02–285(RCL).
|
Sept. 29, 2006.
Synopsis
Background: American serviceman injured in terrorist
bombing on a U.S. military base in Saudi Arabia, and his
parents, brought action under Foreign Sovereign
Immunities Act (FSIA) against the Islamic Republic of
Iran (Iran), its Ministry of Intelligence and Security
(MOIS), and the Islamic Revolutionary Guard Corps
(IRGC), alleging that they provided material support and
assistance to the organization that carried out the
bombing.
Holdings: Upon motion for default judgment, the District
Court, Lamberth, J., held that:
Iran, MOIS, and IRGC came within FSIA’s
state-sponsored terrorism exception to immunity from
liability for their role in bombing;
Florida law applied to serviceman’s claims;
Virginia law applied to claims of serviceman’s parents;
under Florida law, serviceman was entitled, under theory
of vicarious liability, to recovery for battery;
serviceman’s parents were entitled to recover for
intentional infliction of emotional distress under Virginia
law;
under Florida law, serviceman was entitled to recover
damages in amount of $21,801,792 for lost wages and
pain and mental anguish; and
under Virginia law, appropriate damages awards for
mental anguish and suffering of serviceman’s parents
were $3.5 million each.
Judgment entered.
Attorneys and Law Firms
*45 Joshua M. Ambush, Law Offices Joshua M. Ambush,
Baltimore, MD, Paul Gaston, Law Offices of Paul G.
Gaston, Washington, DC, for Plaintiffs.
MEMORANDUM OPINION
LAMBERTH, District Judge.
BACKGROUND
These actions arise from the June 25, 1996 bombing at
Khobar Towers, a residence on a United States military
base in Dhahran, Saudi Arabia. Plaintiffs allege that the
Islamic Republic of Iran (“Iran”), the Iranian Minister of
Intelligence and Security (“MOIS”), and the Iranian
Islamic Revolutionary Guard Corp (“IRGC” or “the
Pasdaran”) are liable for damages from the attack because
they provided material support and assistance to
Hezbollah, the terrorist organization that orchestrated and
carried out the bombing.1 Plaintiffs have relied upon
causes of action founded upon provisions of the Foreign
Sovereign Immunities Act (“FSIA”), inter alia, 28 U.S.C.
§ 1605(a)(7).
PROCEDURAL HISTORY
On February 13, 2002, plaintiffs filed their original
complaint seeking redress for their losses under FSIA. On
October 1, 2002, Plaintiffs filed an amended complaint
adding plaintiffs Curtis A. Taylor and Maria Taylor, and
Thaddeus Fenning.2 On January 29, 2003, return of
service of summons *46 and complaint on defendants
Annex 40
Blais v. Islamic Republic of Iran, 459 F.Supp.2d 40 (2006)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 2
Iran, MOIS and the IRGC was executed on January 13,
2003. Later in the year, on July 22, 2003, plaintiffs filed a
second amended complaint, which was served on
defendants via diplomatic channels on February 2, 2004,
with an Answer due February 23, 2004. After defendants
failed to respond, default was entered against them on
July 29, 2004.
On January 12, 2005, in light of recent decisions by the
Court of Appeals for this Circuit, this Court subsequently
denied Entry of Default against defendants. After an
Order of this Court directing plaintiffs to show cause why
the complaint should not be dismissed as to those named
defendants who had not yet been served at that time, this
Court entered an Order dismissing the complaint without
prejudice as to defendants Hizballah, Ayatollah Ali
Hoseini Khamenei, Ali Akbar Mohtashemi, Osama Bin
Laden, and Ali Akbar Hashemi–Rafsanjani.
Plaintiffs subsequently filed their third amended
complaint against the remaining three defendants: Iran,
MOIS, and the IRGC.3 As compared to the initial
complaint, the third amended complaint served to put the
remaining defendants on notice that the claims sought by
plaintiffs were grounded in state substantive law as well
as in the federal statutory scheme. It also sought redress
from only those three defendants who had been served.
Even were these changes characterized as substantive
Iran, the MOIS and the IRGC had fair notice of the
allegations and relief sought, because the changes to the
third amended complaint were not substantial. See
Dammarell v. Islamic Republic of Iran, 370 F.Supp.2d
218, 225 (D.D.C.2005) (Bates, J.) (noting that only
“additions to a complaint [which are] substantial” might
warrant the service of an amended complaint).
Accordingly, this Court will not require plaintiff to serve
the amended complaint. Based on all of the evidence
presented, the Court makes the following findings of fact
and conclusions of law and will, consistent with them,
enter default judgment in favor of plaintiffs and against
defendants Iran, MOIS, and the IRGC.
FINDINGS OF FACT
1. Plaintiff Paul Blais was born on June 24, 1970, and
had just celebrated his 26th birthday the day before the
attack on the Khobar Towers. He was and is a United
States citizen, and resides today in Hampton, Virginia,
in the same house as his parents, Curtis and Maria
Taylor. Tr. 101–02; 110.4
2. Mr. Blais had served about four and a half years in
the United States Air Force after enlisting in October
1991. Tr. 104. He was stationed at Patrick Air Force
Base in Cocoa Beach Florida when he was sent to
perform a ninety day rotation of duty in Saudi Arabia.
Tr. 107–08. He was trained and served as an airborne
search and rescue coordinator who had the
responsibility to coordinate and direct the recovery
efforts for any downed air crew members. Tr. 106.
3. He was assigned as a permanent member of an
aircrew that included four other airmen, all with
specialized and well-defined duties. Tr. 108–09.
*47 4. The United States military presence in Saudi
Arabia was with the consent of that host country. Ex.
14 at 3. It was part of a coalition of forces, primarily
from the United States, Great Britain, and France,
that was charged with monitoring Iraq’s compliance
with United Nations Security Council resolutions
enforcing the cease-fire that had brought an end to
the 1991 “Desert Storm” ejection of Iraqi occupying
forces from Kuwait. Id. at 3–4; Tr. at 40–41.
5. The deployment of U.S. troops to the region was
considered a peacetime deployment within a friendly
host country. Tr. at 42–43. Blais’s unit engaged in
routine peace time operations, such as practice runs
and transfer of personnel. Tr. at 111.
6. Blais held a pilot’s license and had amassed
sufficient flying time to qualify for certification as a
commercial pilot. Tr. 104, Ex. 20. He was ready to
take the commercial flying certification
examinations. Tr. 104, 99.
7. From his earliest days that he could remember,
Blais had always wanted to be an airline pilot. Tr.
104; 98–99. He loved flying and joined the Air Force
because of his love of flying. Tr. 104.
8. As a young man, he had been active, athletic, and
popular, with many friends and an active social life.
Tr. 139, 118. He was an accomplished skier and
snowboarder, and enjoyed many other active and
demanding sports as well. Tr. 103, 98.
9. He had worked as a radio announcer throughout
his late teens and prior to enlisting with the Air
Force. He had a “radio-quality” voice. Tr. 98.
10. Defendant Iran “is a foreign state and has been
designated a state sponsor of terrorism pursuant to
section 69(j) of the Export Administration Act of
1979 (50 U.S.C.A. § 2405(j)) continuously since
January 19, 1984.” Flatow v. Islamic Republic of
Annex 40
Blais v. Islamic Republic of Iran, 459 F.Supp.2d 40 (2006)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 3
Iran, 999 F.Supp. 1, 11, (D.D.C.1998) (Lamberth,
J.).
11. Defendant the IRGC is a non-traditional
instrumentality of Iran. It is the military arm of a
kind of shadow government answering directly to the
Ayatollah and the mullahs who hold power in Iran. It
is similar to the Nazi party’s SA organization prior to
World War II. The IRGC actively supports terrorism
as a means of protecting the Islamic revolution that
brought the Ayatollah to power in Iran in 1979. It
has its own separate funding sources, derived from
confiscation of the assets of the former Shah of Iran
in 1979, when the Shah was deposed. Tr. 15–17; Ex.
11.
12. The Khobar Towers was a residential complex in
Dhahran, Saudi Arabia, which housed the coalition
forces charged with monitoring compliance with
U.N. security council resolutions. Tr. 41.
The Attack on the Khobar Towers
13. At approximately 10 minutes before 10 pm on June
25, 1996, a large gasoline tanker truck pulled up
alongside the perimeter wall of the Khobar Towers
complex. The driver jumped out, ran into a waiting car
that had pulled up near the truck, and sped off. Tr.
9–10.
14. Although security guards near the top of
Building 131 started to give warnings about the
unusual vehicle location, the truck exploded with
great force within about 15 minutes. The
investigation determined that the force of the
explosion was the equivalent *48 of 20,000 pounds
of TNT. The Defense Department said that it was the
largest non-nuclear explosion ever up to that time.
Tr. 10.
15. The explosion sheared off the face of Building
131, where Paul Blais and his crewmates were
housed, and reduced most of it to rubble. Nineteen
United States Air Force personnel were killed in the
explosion, and hundreds of others were injured. Tr.
11; Ex. 2.
Iranian Support and Sponsorship of the Attack
16. The attack was carried out by individuals recruited
principally by a senior official of the IRGC, Brigadier
General Ahmed Sharifi. Sharifi, who was the
operational commander, planned the operation and
recruited individuals for the operation at the Iranian
embassy in Damascus, Syria. He provided the
passports, the paperwork, and the funds for the
individuals who carried out the attack. Tr. 12–13; Ex.
13.
17. The truck bomb was assembled at a terrorist base
in the Bekaa Valley which was jointly operated by
the IRGC and by the terrorist organization known as
Hezbollah. Tr. 13. The individuals recruited to carry
out the bombing referred to themselves as “Saudi
Hezbollah,” and they drove the truck bomb from its
assembly point in the Bekaa Valley to Dhahran,
Saudi Arabia. Id.
18. The terrorist attack on the Khobar Towers was
approved by Ayatollah Khameini, the Supreme
leader of Iran at the time. Tr. 13–14. It was also
approved and supported by the Iranian Minister of
Intelligence and Security (“MOIS”) at the time, Ali
Fallahian, who was involved in providing
intelligence security support for the operation. Tr.
14. Fallahian’s representative in Damascus, a man
named Nurani, also provided support for the
operation. Id.
19. Under Louis Freeh, the FBI conducted a massive
and thorough investigation of the attack, using over
250 agents. Ex. 4 at 37.
20. Based on that investigation, an Alexandria,
Virginia, grand jury returned an indictment on June
21, 2001, against 13 identified members of the
pro-Iran Saudi Hezballah organization. The
indictment’s description of the plot to bomb the
Khobar Towers complex frequently refers to
direction and assistance from Iranian government
officials. Tr. 25–26; Exs. 7, 7A.
21. Louis Freeh has publicly and unequivocally
stated his firm conclusion, based on evidence
gathered by the FBI during their five-year
investigation, that Iran was responsible for planning
and supporting the Khobar Towers attack. Ex. 3 at
16; Exs. 5,6; Tr. at 19–20, 23.
22. Dale Watson was formerly the deputy
counterterrorism chief of the FBI in 1996, and
subsequently became the section chief for all
international terrorism in 1997. Mr. Watson was
responsible for day to day oversight of the FBI
investigation of the Khobar Towers attack. Mr.
Annex 40
Blais v. Islamic Republic of Iran, 459 F.Supp.2d 40 (2006)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 4
Watson has given sworn testimony that information
uncovered in the investigation, “clearly pointed to
the fact that there was Iran MOIS and IRGC
involvement in the bombing.” Ex. 4, at 42; see also
id. at 48–49.
23. Dr. Bruce Tefft was one of the founding
members of the CIA’s counterterrorism bureau in
1985. Tr. 6. He served in the CIA until 1995, and has
*49 continued to work as a consultant on terrorism
since that time, including work as an unofficial
adviser to the New York Police Department’s
counterterrorism and intelligence divisions. Id. He
retains a top-secret security clearance in connection
with his work. Id. He has been qualified as an expert
witness in numerous other cases involving Iranian
sponsorship of terrorism. Ex. 1 at 3. He was qualified
as an expert witness on terrorism in this case. Tr. 8.
24. Dr. Tefft expressed the opinion that defendants
the Islamic Republic of Iran and the Iranian
Revolutionary Guards Corp were responsible for
planning and supporting the attack on the Khobar
Towers, including providing operational and
financial support. He stated that there was “no
question about it. It wouldn’t have happened without
Iranian support.” Tr. 43.
25. Dr. Tefft based his conclusion on publicly
available sources that were not inconsistent with
classified information known to him from his time at
the CIA and from his security clearances since that
time. He relied on the public sources described
above, as well as several others, which he described
as authoritative and reliable, including congressional
testimony by Matthew Levitt, senior fellow and
director of the Washington Institute’s Terrorism
Studies Program, and articles published by the
Federation of American Scientists as well as the Free
Muslims Coalition. Exs. 8, 11, 12; Tr. 28–29, 31–33.
Injuries Sustained by Paul Blais
26. Blais had gone to bed early on the night of the
attack because he had planned to get up at 4:00 am to
get ready for an early morning flight mission. He woke
just before 10:05 pm to use the bathroom, where he
was when the explosion occurred. Tr. 112.
27. Blais’ aircrew consisted of four other men: Pilot
and Command Captain Chris Evans; Flight Engineer
Kevin Johnson; Navigator Leland Hahn; Loadmaster
Justin Wood; and Loadmaster Mike Heiser. All died
as a result of injuries received in the explosion. Tr.
108–09.
28. The whole front of Blais’ apartment building was
shorn off. Ex. 2. After the explosion, rescue
personnel found him in the rubble, barely alive and
unconscious.
29. After Blais was found, he was removed from the
rubble and taken to the nearest Saudi hospital. He
was admitted and treated there for three or four days
before he was even identified. Tr. 46. On admission,
his pulse was barely palpable, and he was
experiencing respiratory distress. Tr. 48; Ex. 16 at 1.
Hospital personnel noted an extensive scalp
laceration and numerous other lacerations to his
lower extremities. Ex. 16 at 2. He was given a
Glasgow coma scale of eight, a figure that typically
reflects only a fifty percent chance of survival for
patients in that state of impaired consciousness and
injury to the brain. Tr. 47–48; Ex. 16 at 2. A
tracheotomy was performed to safeguard his airway
and to allow ventilatory assistance for his breathing.
Ex. 16 at 2.
30. Hospital records showed that he had suffered
severe brain trauma, and he had also suffered from
deprivation of oxygen. His brain trauma extended to
areas of the brain that controlled basic bodily
functions. Tr. 49.
*50 31. After he was identified, Blais was airlifted
and transferred to Landstuhl Medical Center in
Germany, a United States military hospital. Tr.
46–47. There he received intensive supportive care.
Ex. 16 at 2. He was treated at Landstuhl for ten days,
and his parents were allowed to visit him there. Tr.
48, 86. He was then airlifted and transferred to the
Walter Reed Army Medical Center in the District of
Columbia. Tr. 47.
32. The examining physician at Walter Reed
diagnosed Blais as having severe axonal brain injury,
anoxic brain injury, and organic encephalopathy. The
examining physician reported that Blais was in a
persistent vegetative state, and that he required a
tracheotomy for respiratory function and a feeding
tube for nourishment. Blais showed no signs of
communication, spontaneous or otherwise, and
needed constant supervision and total assistance with
any activities of daily living. Ex. 16 at 2.
33. After about three more weeks of treatment at
Walter Reed, Blais was transferred to the James A.
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Haley Veterans’ Hospital in Tampa, Florida. Id. He
began to come out of his vegetative state there, about
five weeks after his initial injury. Id. He was not
discharged from James A. Haley until October 22,
1996, and even then had to return daily for outpatient
care. Tr. 47; Ex. 16 at 2.
34. Blais’ medical record contains descriptions of
significant depression, several suicide attempts in the
early years after his injury, post-traumatic stress
disorder, and survivor’s guilt, which he still feels
today. Ex. 16 at 2. He has continuing nightmares and
flashbacks, despite treatment. Id.
35. In summary, Mr. Blais was hospitalized for
approximately four months, from June 26 through
October 22, 1996. He was in a coma, then, a
vegetative state for approximately five weeks. He
received intensive rehabilitation care for another six
months after his discharge from full time
hospitalization. He has continued to receive medical
treatment and rehabilitation and other therapies
through the Veterans’ Administration hospital
system to this day. Ex. 16 at 2.
36. Dr. Erik Kobylarz, an Assistant Professor of
Neurology at the Weill Medical College of Cornell
University, was qualified as an expert witness in
neurology and brain injury. Tr. 46. He testified about
his neurological examination of Paul Blais and his
review of Blais’ medical records.
37. Dr. Kobylarz’s neurological examination of Blais
just prior to trial showed that even now, nearly 10
years after his injuries, Mr. Blais continued to have
profoundly impaired and unstable ambulation, lack
of coordination, and moderate right leg weakness.
Mr. Blais’ short term memory exhibited continued
impairment, and his writing and reading were very
labored and slow. His optic nerves showed signs of
significant atrophy. Ex. 16 at 3; Tr. 52.
38. Dr. Kobylarz expressed the opinion that Paul
Blais suffered severe and extensive brain injury as a
result of the bomb blast at the Khobar Towers
complex on June 25, 1996. Tr. 51, 58–59; Ex. 16 at
3. The brain injury adversely affected nearly all
elements of his life and ability to function. Although
Blais has made remarkable progress in the ten years
since the injury, his ability to manage the functions
*51 of daily living remains limited. Ex. 16 at 3. He
has continuing problems with speech, balance,
coordination and tolerance for frustration and
impulse control. He has moderate cognitive
impairment. Id.; Tr. 57–58.
39. Dr. Kobylarz testified that Blais prognosis
remains guarded, and that patients with brain injuries
such as his often are afflicted with other neurologic
problems, including seizures and psychiatric
illnesses, many years after the original injury. Ex. 16
at 3.
40. Dr. Kobylarz expressed the opinion that, given
Blais’ continuing problems and deficits, it was
unlikely that he could live a fully independent life
again, or that he would be able to hold meaningful
gainful employment for any extended period. Ex. 16
at 4; Tr. 60.
41. Dr. Kobylarz stated that the degree of progress
that Blais has made can in large part be attributed to
the care and concern he received from, and
interaction he enjoyed with, his parents, who were
physically with him throughout his rehabilitation and
stimulated him to improve his functioning from the
first weeks after his injury to this day. Tr. 57–58; Ex.
16 at 3.
42. Blais was given an honorable medical discharge
from the Air Force in October 1996. He had served 4
years and 10 months at that time.
43. Blais has been receiving Social Security
Disability benefits continuously since December
1996. He has been rated as 100 percent disabled
throughout that time. Ex. 18; Tr. 121, 95.
44. Blais has also been receiving disability payments
from the Veterans’ Administration, which has also
rated him as 100 percent disabled. Ex. 17; Tr. 96–97.
45. The Court heard expert testimony from forensic
economist Dr. Jerome Paige on estimated lost
earnings suffered by Blais as a result of his brain
injury. Tr. 65–79. Dr. Paige testified that, had Blais
been able to conclude his military career as he
planned and become a commercial pilot upon
leaving the military, and remained as a commercial
pilot (but not an airline pilot) throughout his full
expected worklife, he would have earned
$3,455,750, or $1,801,792, discounted to present
value. Tr. at 74; Ex. 24 at 1. Dr. Paige also testified
that, had Blais left the military and immediately
secured a job as a much higher paid airline pilot, his
total expected earnings would have been $8,755,070
or $4,455,277 discounted to present value. Tr. at 75,
Ex. 24 at 1.
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Curtis and Maria Taylor
46. Curtis Taylor was Paul Blais’s stepfather from the
time he married Maria Taylor when Paul was only six.
Tr. at 79. He was close to Paul and thought of him as
his son, and Paul came to love him as his “real” father.
Tr. 80, 129.
47. Both Curtis and Maria Taylor suffered intense,
immediate, and continuing emotional distress when
they learned that their son Paul had been a victim of
the terrorist attack at the Khobar Towers. Tr. 132,
82, 84.
48. Their distress was heightened by the fact that, for
three days after they first heard of the attack, they
could obtain no information from the military
authorities other than that Paul was “unaccounted
for.” This was because he was unidentified at a Saudi
*52 hospital for those three days. Tr. 84–85.
49. In the absence of any information, Mr. and Mrs.
Taylor came to believe that Paul had been killed.
This was because other missing servicemen who had
been initially listed as “unaccounted for” came off
that list as their bodies were identified upon return to
Dover Air Force base. Mr. and Mrs. Taylor logically
concluded that Paul Blais would also be reported as
killed once his remains were identified at Dover. Tr.
84–85; 132.
50. As the days passed, Mr. and Mrs. Taylor became
convinced that Paul would be identified among the
dead, and they made preparations for purchasing a
cemetery plot for him and for buying clothes for his
funeral. Indeed, one local newspaper reported him as
dead. Tr. 85; 132–33.
51. It was only on the fourth day that they got word
that Paul had been identified and was still alive at a
Saudi hospital. Tr. 85.
52. Their relief and happiness soon turned into
anxiety and distress again when they realized how
seriously injured he was. They flew to be at his side
in Landstuhl, Germany, and were deeply emotionally
affected again when they saw his condition, with
numerous tubes and hospital apparatus attached to
him, keeping him alive. Tr. 86–88; 134–35.
53. Mr. Taylor left a good job with attractive benefits
in Hampton, Virginia so that he and Mrs. Taylor
could be at Paul’s side throughout the long
rehabilitation process in Tampa, Florida, and later in
Tarboro, North Carolina. Tr. 89, 100. When they
rented Paul a separate apartment in Tarboro next to
theirs, they took turns sleeping on the floor in his
apartment because Paul’s insistent nightmares often
caused him to scream in the middle of the night and
wake up neighbors, who complained. Tr. 92.
54. Throughout the ten years since Paul’s injury,
Mrs. Taylor has hardly left his side. She has been
Paul’s primary caretaker and constant nurse. Tr. 124,
135. She is still grieving for the loss of the vibrant,
active young man with so much promise that Paul
had been before his brain injury. Tr. 139.
55. Both Mr. and Mrs. Taylor suffered profound
emotional distress as a result of the injuries sustained
by their son Paul. Tr. 100; 124–25; 143–44; 145.
This was an intended consequence of the terrorist
attack. Tr. 38–40. The terrorists’ purpose is to inflict
pain and suffering on the victims of their attack, and
on the family members of those victims, so that those
victims and family member swill exert pressure on
the United States government to change its policies
in ways beneficial to the terrorists’ cause (in this
case, to cause the United States to withdraw its
military presence from Saudi Arabia). Tr. 38–40.
56. Although Paul survived the attack, he was never
the same vibrant and promising young man he had
been before. Tr. 139. Both Mr. and Mrs. Taylor
therefore also suffered the deprivation of the
company, society, and support that a healthy son
normally confers on close and well loved parents.
CONCLUSIONS OF LAW
I. Legal Standard for FSIA Default Judgment
Under the Foreign Sovereign Immunities Act, “[n]o
judgement by default *53 shall be entered by a court of
the United States or of a state against a foreign state ...
unless the claimant establishes his claim or right to relief
by evidence satisfactory to the court.” 28 U.S.C. §
1608(e); Roeder v. Islamic Republic of Iran, 333 F.3d
228, 232–33 (D.C.Cir.2003), cert. denied, 542 U.S. 915,
124 S.Ct. 2836, 159 L.Ed.2d 287 (2004). In default
judgment cases, plaintiffs may present evidence in the
form of affidavits. Bodoff v. Islamic Republic of Iran, 424
F.Supp.2d 74, 82 (D.D.C. Mar.29, 2006) (quoting
Campuzano v. Islamic Republic of Iran, 281 F.Supp.2d
258, 268 (D.D.C.2003) (Urbina, J.)). Upon evaluation, the
court may accept plaintiffs’ uncontroverted evidence as
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true. Campuzano, 281 F.Supp.2d at 268.
II. Jurisdiction
In the United States, the Foreign Sovereign Immunities
Act provides the sole basis for asserting jurisdiction over
foreign sovereigns. Argentine Republic v. Amerada Hess
Shipping Corp., 488 U.S. 428, 434–34, 109 S.Ct. 683, 102
L.Ed.2d 818 (1989). Normally, a party may not bring an
action for money damages in U.S. courts against a foreign
state. 28 U.S.C. § 1604. The “state-sponsored terrorism”
exception, however, removes a foreign state’s immunity
to suits for money damages brought in U.S. courts where
plaintiffs are seeking damages against the foreign state for
personal injury or death caused by “an act of torture,
extrajudicial killing, aircraft sabotage, hostage taking, or
the provision of material support or resources (as defined
in section 2339A of title 18) for such an act if such act or
provision of material support is engaged by an official,
employee, or agent of such foreign state while acting
within the scope of his or her office, employment or
agency.” 28 U.S.C. § 1605(a)(7).
In order to subject a foreign sovereign to suit under
section 1605(a)(7), plaintiffs must show that: (1) the
foreign sovereign was designated by the State Department
as a “state sponsor of terrorism”; (2) the victim or plaintiff
was a U.S. national at the time the acts took place; and (3)
the foreign sovereign engaged in conduct that falls within
the ambit of the statute. Prevatt v. Islamic Republic of
Iran, 421 F.Supp.2d 152, 158 (D.D.C. Mar. 27, 2006)
(Lamberth, J.).
Each of the requirements are met in this case. First,
Defendant Iran has been designated a state sponsor of
terrorism continuously since January 19, 1984, and was so
designated at the time of the attack. See 31 C.F.R. §
596.201 (2001); Flatow, 999 F.Supp. at 11, ¶ 19. Second,
the victim, Paul Blais, was a United States national at the
time of the attack. Finally, defendant Iran’s support of an
entity that committed an extrajudicial killing squarely
falls within the ambit of the statute. Defendants MOIS
and the IRGC are considered to be a division of state of
Iran, and thus the same determinations apply to its
conduct. Roeder, 333 F.3d at 234; see also Salazar v.
Islamic Republic of Iran, 370 F.Supp.2d 105, 116
(D.D.C.2005) (Bates, J.) (analogizing the IRGC to the
MOIS for purposes of liability, and concluding that both
must be treated as the state of Iran itself).5
Personal jurisdiction over a non-immune sovereign exists
so long as service of process has been made under section
1608 of the FSIA. See Stern v. Islamic Republic of Iran,
271 F.Supp.2d 286, 298 (D.D.C.2003) (Lamberth, J.). In
this case, *54 such service has been made. Accordingly,
this Court has in personam jurisdiction over defendants
Iran, MOIS, and IRGC.
III. Liability
A. Proper Causes of Action Under the FSIA
Once a foreign state’s immunity has been lifted under
Section 1605 and jurisdiction is proper, Section 1606
provides that “the foreign state shall be liable in the same
manner and to the same extent as a private individual
under like circumstances.” 28 U.S.C. § 1606. Section
1606 acts as a “pass-through” to substantive causes of
action against private individuals that may exist in
federal, state or international law. Dammarell v. Islamic
Republic of Iran, Civ. A. No. 01–2224, 2005 WL 756090,
at *8–10, 2005 U.S. Dist. LEXIS 5343, at *27–32
(D.D.C. Mar. 29, 2005) (Bates, J.) [hereinafter
Dammarell I ].
In this case, state law provides a basis for liability. First,
the law of the United States applies rather than the law of
the place of the tort or any other foreign law because the
United States has a “unique interest” in having its
domestic law apply in cases involving terrorist attacks on
United States citizens. See Dammarell I, 2005 WL
756090, at *20, 2005 U.S. Dist. LEXIS 5343, at *63.
Second, having established that the laws of the United
States apply in this action, the Court must determine the
applicable state law to govern the action. Here, the laws
of Florida govern the claims brought by plaintiff Paul A.
Blais, while the laws of the Commonwealth of Virginia
govern the claims brought by plaintiffs Curtis and Maria
Taylor. As the forum state, District of Columbia choice of
law rules apply to determine which state’s law shall
apply. Under District of Columbia choice of law rules,
courts employ a modified government interest analysis
under which they “evaluate the governmental policies
underlying the applicable laws and determine which
jurisdiction’s policy would be most advanced by having
its law applied to the facts of the case under review.”
Hercules & Co. v. Shama Rest. Corp., 566 A.2d 31, 41
(D.C.1989) (citations and internal quotations omitted).
Generally, application of this governmental interest test
points to the law of plaintiff’s domicile as having the
greatest interest in providing redress to its citizens. See
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Dammarell I, 2005 WL 756090, at *20–21, 2005 U.S.
Dist. LEXIS 5343, at *66–67 (citing RESTATEMENT
(THIRD) FOREIGN RELATIONS LAW § 402(3)
(1987)). Accordingly, the claims of plaintiff Paul A. Blais
shall be governed by his domicile at the time of the attack,
Florida.6 The claims of plaintiffs Curtis A. Taylor and
Maria Taylor shall be governed be their domicile at the
time of attack, Virginia.
Third, as required by 28 U.S.C. § 1606, Florida and
Virginia provide a cause of action against private
individuals for the kind of acts that defendants allegedly
committed. Plaintiffs seek damages for battery and
intentional infliction of emotional *55 distress, both torts
for which private individuals may face liability. The
Court’s next task is to determine whether plaintiffs have
demonstrated defendants’ liability and their right to
damages under the laws of Florida and Virginia.
B. Vicarious Liability
The purported basis of defendants’ liability is that they
provided material support and resources to Hizbollah, the
organization that personally completed the attack. A party
may be liable for the acts of another under theories of
vicarious liability, such as conspiracy, aiding and
abetting, and inducement. This Court finds that civil
conspiracy provides a basis of liability for defendants
Iran, MOIS, and IRGC.
1. Florida
A civil conspiracy exists under Florida law where there
is “(a) a conspiracy between two or more parties, (b) to do
an unlawful act or to do a lawful act by unlawful means,
(c) the doing of some overt act in pursuance of the
conspiracy, and (d) damage to plaintiff as a result of the
acts performed pursuant to the conspiracy.” Walters v.
Blankenship, 931 So.2d 137 (Fla.Dist.Ct.App.2006). “The
gist of a civil action for conspiracy is not the conspiracy
itself, but the civil wrong which is done pursuant to the
conspiracy and which results in damage to the plaintiff.”
Liappas v. Augoustis, 47 So.2d 582 (Fla.1950). “The
existence of a conspiracy can be inferred from the
conduct of the participants or from circumstantial
evidence.” Robinson v. State, 610 So.2d 1288, 1289–90
(Fla.1992).
As this Court has previously held, “sponsorship of
terrorist activities inherently involves a conspiracy to
commit terrorist attacks.” Flatow, 999 F.Supp. at 27. It is
undisputed that Saudi Hezbollah committed the attack on
the Khobar Towers.
In addition, it has been established by evidence
satisfactory to this Court that Saudi Hezbollah and
defendants Iran, MOIS and the IRGC conspired to
commit the terrorist attack on the Khobar Towers. The
evidence shows that senior Iranian, MOIS and IRGC
officials participated in the planning of, and provided
material support and resources to Saudi Hezbollah for the
attack on the Khobar Towers, including providing
financing, training and travel documents to facilitate the
attacks. The evidence also shows that Saudi Hezbollah,
Iran, MOIS and the IRGC reached an understanding to do
an unlawful act, namely the murder and maiming of
American servicemen. Moreover, the sheer gravity and
nature of the attack demonstrate that the defendants also
intended to inflict severe emotional distress upon the
American servicemen as well as their close relatives. The
financing, training and providing of travel documents ably
satisfy the overt act requirement for civil conspiracy
under Florida law. Finally, plaintiff Paul A. Blais has
clearly suffered damage as a result of the conspiracy.
Accordingly, the elements of civil conspiracy are
established between Saudi Hezbollah and the defendants
Iran, MOIS and the IRGC.
2. Virginia
Civil conspiracy under Virginia law “is a combination of
two or more persons, by some concerted action, to
accomplish some criminal or unlawful purpose....”
Hechler Chevrolet, Inc. v. General Motors Corp., 230 Va.
396, 337 S.E.2d 744, 748 (1985). Similar to Florida law
of civil conspiracy, in Virginia the basis for an action of
civil conspiracy “is the wrong which is done under the
conspiracy and which results in damage to *56 the
plaintiff.” Gallop v. Sharp, 179 Va. 335, 19 S.E.2d 84, 86
(1942). Accordingly, the elements of civil conspiracy
under Virginia law are subsumed within the elements of
the same doctrine under Florida law.
In this case, the elements of civil conspiracy between
Iran, MOIS, the IRGC and Saudi Hezbollah have been
satisfied under Florida law. Therefore, for the reasons
noted above, the elements of civil conspiracy under
Virginia law have also been established.
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C. Plaintiff Paul A. Blais’ Claims
1. Battery
Plaintiff Paul A. Blais first brings a claim for battery.
Under Florida law, the tort of battery is “the infliction of a
harmful or offensive contact upon another with the intent
to cause such contact or the apprehension that such
contact is imminent.” Quilling v. Price, 894 So.2d 1061,
1063 (Fla.Dist.Ct.App.2005). The contact with the
plaintiff is tortious if it is offensive to the plaintiff,
notwithstanding the severity of the contact. Paul v.
Holbrook, 696 So.2d 1311 (Fla.Dist.Ct.App.1997)
(quoting PROSSER AND KEETON ON TORTS § 9 (5th
ed.1984)). Moreover, this Court has previously held that
an explosion caused by a suicide bomber on a bus was a
battery. Haim v. Islamic Republic of Iran, 425 F.Supp.2d
56, 69–70 (D.D.C.2006) (Lamberth, J.).
Here, Mr. Blais unquestionably experienced harmful and
offensive contact in the forms of the shockwaves of the
explosion created by defendants’ co-conspirators, and the
physical contact of the rubble from the Khobar Towers
building that fell upon him as a result of the explosion.
Accordingly, defendants Iran, MOIS, and the IRGC are
liable for battery under the theory of vicarious liability.
2. Intentional Infliction of Emotional Distress
Mr. Blais next brings a claim for intentional infliction of
emotional distress. Florida courts have adopted Section
46, RESTATEMENT (SECOND) OF TORTS (1965) as
the definition of the tort of intentional infliction of
emotional distress. Metropolitan Life Ins. Co. v.
McCarson, 467 So.2d 277, 278–79 (Fla.1985).
Specifically, under Florida law, a defendant is liable for
intentional infliction of emotional distress if the
defendant’s “extreme and outrageous conduct
intentionally or recklessly causes severe emotional
distress to another....” Id. (quoting RESTATEMENT
(SECOND) OF TORTS § 46(1) (1965)).
In evaluating the degree of severity of the defendant’s
conduct, Florida courts have held that liability for
intentional infliction of emotional distress is found “only
where the conduct has been so outrageous in character,
and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.” McCarson,
467 So.2d at 278–79 (quoting RESTATEMENT
(SECOND) OF TORTS § 46 cmt. d (1965)). A
defendant’s conduct is deemed intentional where the
defendant “knows that such distress is certain, or
substantially certain, to result from his conduct....”
McCarson, 467 So.2d at 278–79 (quoting
RESTATEMENT (SECOND) OF TORTS § 46 cmt. i
(1965)).
The elements are ably satisfied in this case. First,
defendants Iran, MOIS, and the IRGC provided material
support to Saudi Hezbollah with the intent that Saudi
Hezbollah would carry out attacks that would cause
severe emotional distress. Second, the tragic bombing of
the Khobar Towers by means of material support and civil
conspiracy is an act that *57 is nothing short of extreme,
outrageous, and beyond all bounds of civil decency. As is
the nature of terrorism, terrorists seek to perform acts that
are deliberately outrageous and bring about extreme
suffering in order to achieve political ends. Third,
defendants’ actions in facilitating and supporting the
Khobar Towers bombing proximately caused Mr. Blais’
emotional distress because the material support and
direction given to Saudi Hezbollah ensured the event
would occur. Finally, the evidence shows that Mr. Blais
suffered emotional distress, and that his emotional distress
was severe.
D. Plaintiffs Curtis and Maria Taylor’s Claims
1. Intentional Infliction of Emotional Distress
Plaintiffs Curtis and Maria Taylor, Mr. Blais’ stepfather
and mother respectively, bring a claim for intentional
infliction of emotional distress. The Commonwealth of
Virginia recognizes the tort of intentional infliction of
emotional distress. Harris v. Kreutzer, 271 Va. 188, 624
S.E.2d 24, 33 (2006). Similar to Florida law, intentional
infliction of emotional distress is met in Virginia if: “(1)
the wrongdoer’s conduct was intentional or reckless; (2)
the conduct was outrageous and intolerable; (3) there was
a causal connection between the wrongdoer’s conduct and
emotional distress; and (4) the emotional distress was
severe.” Id. Virginia also recognizes this tort even if the
plaintiff suffers no actual physical injury, provided the
four elements of the tort are satisfied. Womack v.
Eldridge, 215 Va. 338, 210 S.E.2d 145, 147–48 (1974).7
In addition, a parent may recover for severe emotional
distress resulting from defendant’s outrageous and
offensive conduct toward a child, even if the parent was
not present during the outrageous conduct. Morgan v.
Foretich, 846 F.2d 941, 950–51 (4th Cir.1988) (applying
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Virginia state law, and holding that Womack does not
require a parent to be present during defendant’s
outrageous conduct in order to recover for intentional
infliction of emotional distress).
Here, the elements of plaintiffs’ intentional infliction of
emotional distress claim are met. As previously noted,
defendants Iran, MOIS and the IRGC’s conduct in
providing material support and facilitation to bring about
the Khobar Towers bombing was both intentional, as well
as extreme and outrageous. The horrific act precipitated
by the defendants’ planning and assistance brought
immediate emotional distress to the plaintiffs because, for
a period of three days, they did not know whether their
son had survived the attack. The evidence shows that
plaintiffs have continued to experience emotional distress
since that time *58 because they have had to care for Paul
Blais, and live with the harsh reality that this attack has
dashed his hopes of ever leading a normal life.
IV. Damages
To obtain damages against defendants under the FSIA,
the plaintiffs 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
damages by a reasonable estimate consistent with this
[Circuit’s] application of the American rule on damages.”
Salazar, 370 F.Supp.2d at 115–16 (quoting Hill v.
Republic of Iraq, 328 F.3d 680, 681 (D.C.Cir.2003))
(internal quotations omitted).
A. Compensatory Damages
As a result of the wrongful conduct of defendants Iran,
MOIS, and the IRGC, plaintiffs have suffered and will
continue to suffer pain and mental anguish. Under the
FSIA, if a foreign state may be held liable, it “shall be
liable in the same manner and to the same extent as a
private individual under like circumstances.” 28 U.S.C. §
1606. Accordingly, plaintiffs are entitled to the typical
bases of damages that may be awarded against tortfeasors
under the laws of Florida and Virginia.8
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. Prevatt, 421 F.Supp.2d at 160.
“While intervening changes in law have ruled many
cases’ reliance on federal common law improper, such
findings need not disturb the accuracy of the analogy
between solatium and intentional infliction of emotional
distress.” Haim, 425 F.Supp.2d at 71.
1. Plaintiff Paul A. Blais’ Compensatory Damages
a. Battery9
Under Florida law, upon a finding that defendant has
committed tortious battery, a court may award damages
for injuries as well as pain, humiliation, embarrassment
and mental suffering when “they are a sequel to physical
punishment.” Glickstein v. Setzer, 78 So.2d 374, 375
(Fla.1955); see also Smith v. Bagwell, 19 Fla. 117
(Fla.1882) (holding in a tortious battery case that a jury
instruction was proper that instructed the jury to consider
expenses, time and bodily pain and suffering arising from
the injury).
With respect to natural damages resulting from the
attack, this Court finds that Mr. Blais is entitled to recover
damages for past and future wages lost as a result of being
unable to continue to perform his job as a pilot. Based on
the evidence presented to the Court, Mr. Blais is entitled
to recover compensatory damages from defendants for
both direct injuries and pain and suffering resulting from
the defendants’ tortious misconduct. With respect to lost
wages, Mr. Blais has demonstrated via an economic
expert that, as a result of the bombing, Mr. Blais suffered
$1,801,792 in economic losses, specifically in lost wages
and benefits.
*59 With respect to pain and mental anguish damages, the
Court admits that assessing the amount of compensatory
damages for pain and suffering due an injured plaintiff is
undeniably difficult. This Court has, however, established
a general framework for making such a determination. In
cases that involve an attack where the victim survives,
and where no captivity occurred, courts typically award a
lump sum award based in large part on an assessment of
the following factors: “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
73.
In one such case, Mousa v. Islamic Republic of Iran, 238
F.Supp.2d 1 (D.D.C.2001) (Bryant, J.), a survivor of a
passenger bus bombing was awarded $12 million for past
and future pain and suffering. The Court arrived at this
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figure in light of the fact that the victim was injured to
make a political statement, and because she spent four
weeks in the hospital, nine additional days in a
rehabilitation center and three months receiving continued
treatment after her release. Id. at 5–6. Further, the victim
suffered several severe permanent maladies, including,
inter alia, complete deafness, blindness in one eye, and
disfigurement. Id. at 12–13. Similarly, in Campuzano this
Court, following Mousa, granted a surviving victim with
similar injuries a $17 million award on the grounds that
the plaintiff remained in the hospital for two weeks longer
than Ms. Mousa, and the plaintiff’s injuries were “slightly
more serious” than hers. Id. at 274. Comparing the factors
to the injuries in Haim, this Court awarded an injury
victim of a suicide bombing $11 million on the grounds
that the victim was hospitalized for less than four weeks
and because the victim’s injuries were less severe than
those of either Ms. Mousa or Ms. Campuzano. Haim, 425
F.Supp.2d at 73–75.
Applying the considerations set forth in the Haim,
Mousa, and Campuzano cases, the Court finds that Mr.
Blais was severely injured by the tragic attack on the
Khobar Towers. Mr. Blais was in a coma as a result of the
attack, and then a vegetative state for approximately five
weeks. Tr. 47–48; Ex. 16 at 2. Mr. Blais suffered severe
brain trauma and deprivation of oxygen, and had to be
given a tracheotomy in order to enable him to breathe. Ex.
16 at 2; Tr. 49. As a result of the trauma to his brain, Mr.
Blais suffered diminished motor skills, short term
memory impairment, and has had trouble writing and
reading. Ex. 16 at 3; Tr. 52. In total, Mr. Blais was
hospitalized for a period of nearly four months, and has
continued to receive medical treatment and rehabilitation
since that time. Ex. 16 at 2. Even now, despite his best
efforts at rehabilitating his injuries, Mr. Blais’ daily
functions remain woefully impaired; he continues to have
trouble with his speech, balance, and coordination. Ex. 16
at 3.
Taking all of these factors into account, this Court finds
that Paul A. Blais is entitled to an award of $21,801,792
for his lost wages, and for the pain and mental anguish
Mr. Blais felt and continues to feel as a result of the
battery brought about by the defendants.
2. Plaintiffs Curtis and Maria Taylor’s Compensatory
Damages
a. Intentional Infliction of Emotional Distress
In determining the amount of compensatory damages
awards to family members of a surviving victim, this
Court has held that these awards are determined by the
“nature of the relationship” between the family member
and victim, and *60 “the severity of the pain suffered by
the family member.” Haim, 425 F.Supp.2d at 75. Parents
of victims typically receive smaller awards than spouses,
but receive larger awards than siblings. Id. Moreover,
“families of victims who have died are typically awarded
greater damages than families of victims who remain
alive.” Id.
Applying the approach adopted in Haim, this Court finds
that Mr. and Mrs. Taylor suffered in many of the same
ways the farther in Haim suffered as a result of his son’s
debilitating injuries. As in Haim, the Taylors experienced
anguish when they first heard about the attack and in the
three days thereafter when they did not know whether
their son was dead or alive. Tr. 84–85. Similarly, as in
Haim, the Taylors relationship with Mr. Blais has
changed drastically. Mr. Taylor gave up his job so that he
and Mrs. Taylor could move in with Mr. Blais to be at his
side throughout his rehabilitation process. Tr. 89, 100.
Since that time, the Taylors have tirelessly devoted
themselves to their son’s rehabilitation, with Mrs. Taylor
acting as Mr. Blais’ full-time caretaker and nurse. Tr. 124,
135. Throughout this process, both Mr. and Mrs. Taylor
have experienced a great deal of emotional distress as a
result of seeing their son in such a state. Tr. 100, 124–25,
143–44, 145.
In light of the similarities between the Taylors’ suffering
and anguish and that of the father in Haim, it stands to
reason that the amount of damages the Taylors may
recover should parallel those in Haim. In Haim, the
victim’s father received $3.5 million for his mental
anguish and suffering. Haim, 425 F.Supp.2d at 75.
Likewise, here Mr. and Mrs. Taylor should each receive
$3.5 million for the mental anguish and suffering they felt
and continue to feel since the day of the attack in 1996.
B. Punitive Damages
Punitive damages are not available against foreign states.
28 U.S.C. § 1606. Additionally, punitive damages are not
recognized against divisions of a foreign state that are
considered to be the state itself, instead of an agent or
instrumentality thereof.10 For punitive damages purposes,
the court must consider the core functions of the entity.
Roeder, 333 F.3d at 234. Entities that are governmental
are considered a part of the foreign state itself, while
Annex 40
Blais v. Islamic Republic of Iran, 459 F.Supp.2d 40 (2006)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 12
commercial entities are deemed agencies or
instrumentalities of the foreign state, and thereby subject
to punitive damages. Id.
Plaintiffs concede that punitive damages are not available
against defendant Iran, but argue they should be available
against the IRGC as an agent or instrumentality of Iran.
Plaintiffs allege that the evidence in the case supports the
finding that the IRGC has no legitimate governmental
functions. They point to evidence that the IRGC is the
military arm of the Ayatollah and mullahs who control
Iran, that it receives separate funding from the former
Shah’s confiscated assets, and that it can best be
analogized to a group of thugs considered the muscle of
those in power in Iran. Notwithstanding these facts,
plaintiffs concede that this evidence does not
affirmatively demonstrate that the IRGC has any
commercial functions under the Roeder standard, but they
argue that the IRGC should nonetheless be held liable for
punitive damages.
This Court is not convinced. In previous cases, this Court
has repeatedly *61 held that the IRGC is governmental
and not commercial, and therefore not subject to punitive
damages.11 In each of these cases, plaintiffs’ attempts to
obtain punitive damages against the IRGC failed because
plaintiffs in those cases did not provide sufficient
affirmative evidence that the IRGC was commercial. The
present case is no different. Plaintiffs cannot establish the
IRGC as commercial based upon such an unfounded
negative implication. Therefore, this Court lacks authority
to grant plaintiffs’ request for punitive damages against
the IRGC because it is a governmental entity, and a part
of the state of Iran itself. Accordingly, plaintiffs’ claim
for punitive damages is denied.
CONCLUSION
This Court takes note of plaintiffs’ courage and
steadfastness in pursuing this litigation and their efforts to
take action to deter more tragic suffering of innocent
Americans at the hands of terrorists. Their efforts are to
be commended.
A judgment consistent with these findings shall issue this
date.
SO ORDERED.
JUDGMENT
In accord with the Findings of Fact and Conclusions of
Law issued this date, it is hereby
ORDERED that Default Judgment be entered in favor of
plaintiffs and against defendants, jointly and severally, in
the amount of $28,801,792.00, of which $21,801,792.00
shall be allocated to Paul Blais; $3,500,000.00 shall be
allocated to Mr. and Mrs. Taylor, each. It is further
ORDERED that plaintiffs, at their own cost and
consistent with the requirements of 28 U.S.C. § 1608(e),
send a copy of this Judgment and the Findings of Fact and
Conclusions of Law issued this date to defendants. It is
further
ORDERED that this case be terminated from the dockets
of this Court.
SO ORDERED.
All Citations
459 F.Supp.2d 40
Footnotes
1 At other points during the case, plaintiffs sought redress for their losses from various other defendants who have since
been dismissed from the case.
2 Mr. Fenning was subsequently dismissed without prejudice as a party on May 5, 2003.
3 The Third Amended Complaint was officially entered onto the docket on May 26, 2006.
4 References to the transcript of the hearing held on May 26, 2006, will be abbreviated throughout as “Tr.—.” References
to exhibits admitted into evidence at the hearing will be abbreviated “Ex.—.”
Annex 40
Blais v. Islamic Republic of Iran, 459 F.Supp.2d 40 (2006)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 13
5 Like the IRGC, the MOIS has been deemed “as the state of Iran itself,” thereby subjecting the MOIS to the same
determinations of liability as the state of Iran. Roeder, 333 F.3d at 234.
6 Plaintiffs have posited that Virginia law should govern the matter for each plaintiff because each is a domiciliary of
Virginia at the time of the cause of action. See Plaintiff’s Proposed Findings of Fact and Conclusions of Law, at 15–16.
The authority in this jurisdiction, however, holds to the contrary. In choice of law issues, the proper governing law is the
law of the state where the plaintiff was domiciled at the time of the injury, not the law of domicile at the time the action
was filed. See Dammarell I, 2005 WL 756090, at *22, 2005 U.S. Dist. LEXIS 5343, at *70–71 (noting that the state of
domicile for plaintiffs who have moved at least once since an embassy attack “should be assessed as of the date that
the embassy bombing occurred”).
7 Central to this holding appears to be the notion that the defendant’s tortious conduct was conducted with the intent to
bring about severe emotional distress in the plaintiff. As this Court has previously held, terrorist attacks such as the
attack on the Khobar Towers are aimed at creating emotional distress in the victims’ families as well as in the victims
themselves. Dammarell v. Islamic Republic of Iran, 404 F.Supp.2d 261, 283 (D.D.C.2005) (Bates, J.) (citing Salazar v.
Islamic Republic of Iran, 370 F.Supp.2d 105, 115 n. 12 (D.D.C.2005)) (Bates, J.). In fact, this Court noted in Dammarell
that, under Virginia law, emotional distress resulting from a “non-tactile tort” may be compensated if the plaintiff
alleges, and proves by clear and convincing evidence, that the elements of intentional infliction of emotional distress
have been met. Dammarell, 404 F.Supp.2d at 296 (quoting Russo v. White, 241 Va. 23, 400 S.E.2d 160, 162 (1991)).
Accordingly, it stands to reason that plaintiffs Curtis and Maria Taylor are not precluded from bringing a claim for
intentional infliction of emotional distress notwithstanding the fact that they did not suffer an actual physical injury.
8 Plaintiff Paul A. Blais’ compensatory damages will be determined under Florida law because he was domiciled in
Florida at the time of the attack, while Plaintiffs Curtis and Maria Taylor’s compensatory damages will be determined
under Virginia law.
9 Because Mr. Blais can recover for his mental anguish under his battery claim, the Court need not consider his
intentional infliction of emotional distress claim, which would result in an impermissible double recovery.
10 Prevatt v. Islamic Republic of Iran, 421 F.Supp.2d 152, 161 (D.D.C.2006) (Lamberth, J.) (citing Roeder v. Islamic
Republic of Iran, 333 F.3d 228, 234 (D.C.Cir.2003)).
11 Prevatt, 421 F.Supp.2d at 162; Holland, et al. v. Islamic Republic of Iran, Civ. A. No. 01–1924(CKK), 2005 WL
3439062, 2005 U.S. Dist. LEXIS 40254(D.D.C.2005) (Kollar–Kotelly, J.); Salazar, 370 F.Supp.2d at 116; Welch v.
Islamic Republic of Iran, 2004 WL 2216534, 2004 U.S. Dist. LEXIS 19512 (D.D.C.2004) (Kay, J.)
End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.
Annex 40
ANNEX 41
Estate of Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229 (2006)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 1
466 F.Supp.2d 229
United States District Court,
District of Columbia.
ESTATE of Michael HEISER, et al., Plaintiffs,
v.
ISLAMIC REPUBLIC OF IRAN, et al., Defendants.
Estate of Millard D. Campbell, et al., Plaintiffs,
v.
Islamic Republic of Iran, et al., Defendants.
Civil Action Nos. 00–2329 (RCL), 01–2104(RCL).
|
Dec. 22, 2006.
Synopsis
Background: Family members and estates of 17 United
States servicemen killed in bomb attack in Saudi Arabia
brought two actions against Islamic Republic of Iran,
Iranian Ministry of Information and Security (MOIS), and
Iranian Islamic Revolutionary Guard Corp (IRGC),
alleging that such defendants had provided material
support and assistance to Hezbollah, which had carried
out bombing. Actions were consolidated. The District
Court, Robinson, United States Magistrate Judge, 2006
WL 1530243, issued Report and Recommendation
recommending that default judgments not be entered.
Holdings: The District Court, Lamberth, J., rejecting
Report and Recommendation, held that:
family members could subject Iran to suit under
state-sponsored terrorism exception to Foreign Sovereign
Immunities Act (FSIA);
appointment of Magistrate Judge did not violate family
members’ constitutional rights;
servicemen were non-combatants, as required for
recovery under FSIA;
no conflict of interest arose on part of law firm
representing families;
evidence was sufficient to support conclusion that Iran
was liable for wrongful deaths of servicemen; and
appropriate amount of damages to be awarded to widow
for loss of companionship and protection, as well as
mental pain and suffering, was $8 million.
Default judgment entered.
Attorneys and Law Firms
*248 Shale D. Stiller, Elizabeth Renee Dewey, DLA
Peper Rudnick Gray Cary U.S. LLP, Washington, DC,
Melissa Lea Mackiewicz, DLA Piper Rudnick Gray Cary
U.S. LLP, Baltimore, MD, for Plaintiffs.
MEMORANDUM OPINION
LAMBERTH, District Judge.
BACKGROUND
These actions arise from the June 25, 1996 bombing at
Khobar Towers, a residence on a United States military
base in Dhahran, Saudi Arabia. The plaintiffs in this
consolidated action are the family members and estates of
17 of the 19 servicemen killed in the attack. Plaintiffs
allege that the Islamic Republic of Iran (“Iran”), the
Iranian Ministry of Information and Security (“MOIS”),
the Iranian Islamic Revolutionary Guard Corp (“IRGC”
or “the Pasdaran”), and “John Does 1–99” are liable for
damages from the attack because they provided material
support and assistance to Hezbollah,1 the terrorist
organization that orchestrated and carried out the
bombing.2 Plaintiffs have relied upon causes of action
founded upon provisions of the Foreign Sovereign
Immunities Act (“FSIA”), inter alia, 28 U.S.C. §
1605(a)(7).
PROCEDURAL HISTORY
Annex 41
Estate of Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229 (2006)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 2
In their second amended complaints, plaintiffs named as
defendants (1) the Islamic Republic of Iran; (2) the
Iranian Ministry of Information and Security (“MOIS”);
(3) the Iranian Islamic Revolutionary Guard Corps
(“IRGC” or “the Pasdaran”); (4) and “John Does 1–99[.]”
Second Amended Complaints, ¶ 1; see also id., ¶¶ 24, 25,
27, 29. Plaintiffs sought damages for wrongful death
(Count I); *249 survival action (Count II); “economic
damages” (Count III); intentional infliction of emotional
distress (Count IV); for plaintiffs Ibis S. Haun, Marie R.
Campbell, Shyrl L. Johnson, Katie L. Marthaler and
Dawn Woody, loss of consortium (Count V); solatium
(Count VI); and “punitive damages” (Count VII).
Plaintiffs requested judgment in their favor against all of
the defendants. In addition, the plaintiffs in Civil Action
No. 00–2329 sought compensatory damages against all
defendants in the amount of $890,000,000, “plus
economic damages in an amount to be determined at trial
for each of Decedents’ Estates”; punitive damages against
defendants MOIS, the IRGC and John Does 1–99 in the
amount of $500,000,000; and reasonable costs, expenses
and attorneys’ fees. The plaintiffs in Civil Action No.
01–2104 sought compensatory damages against all
defendants in the amount of $3,660,000,000 “plus
economic damages in an amount to be determined at trial
for each of Decedents’ Estates”; punitive damages against
defendants MOIS, the IRGC and John Does 1–99 in the
amount of $500,000,000; and reasonable costs, expenses
and attorneys’ fees.
On February 1, 2002, the court (Jackson, J.) consolidated
the two civil actions, and in Civil Action No. 00–2329,
granted the plaintiffs’ motion for entry of default as to
defendants Islamic Republic of Iran, MOIS and the IRGC.
February 1, 2002 Order (Docket No. 9, Civil Action No.
00–2329) at 1. On February 6, 2002, the Clerk entered a
default in Civil Action No. 00–2329 against defendants
Islamic Republic of Iran, MOIS and the IRGC. Default
(Docket No. 10, Civil Action No. 00–2329). On July 30,
2002, both actions were referred to Magistrate Judge
Robinson for all purposes. (July 30, 2002 Order (Docket
No. 11) at 1.) On October 4, 2002, Magistrate Judge
Robinson granted plaintiffs’ motion in Civil Action No.
01–2104 for entry of default as to defendants Islamic
Republic of Iran, MOIS and the IRGC. (October 4, 2002
Order (Docket No. 11, Civil Action No. 01–2104) at 1.)
On October 8, 2002, the Clerk entered a default in Civil
Action No. 01–2104 against defendants Islamic Republic
of Iran, MOIS and the IRGC. Default (Docket No. 12,
Civil Action No. 01–2104) at 1. On March 14, 2003,
plaintiffs moved for a continuance of the hearing on
liability and damages. Plaintiffs’ counsel represented that
counsel “has learned that certain immediate family
members of the soldiers killed in the Khobar Towers
terrorist attack—family members who have cognizable
claims under the Foreign Sovereign Immunities Act
(‘FSIA’)—are not currently named as parties in these
consolidated actions.” (Motion for Continuance of Trial
Date and Request for Scheduling Conference (Docket No.
16) at 2.) Counsel further represented that the firm “is in
the process of identifying all such family members and
anticipates filing amended complaints within the next
several weeks.” Id. Magistrate Judge Robinson granted
plaintiffs’ motion, and, in accordance with the request of
plaintiffs’ counsel, “tentatively” scheduled the hearing for
“the period of December 1, 2003 to December 18,
2003[.]” (March 17, 2003 Order (Docket No. 17) at 1.)
Plaintiffs filed their second amended complaints on May
6, 2003.
Upon consideration of plaintiffs’ motions to vacate their
consent to proceed before a magistrate judge for all
purposes and to clarify the purpose of the referral to a
magistrate judge, the court re-referred the consolidated
civil actions to Magistrate Judge Robinson “to hear and
determine pretrial matters as permitted thereby, and
pursuant to 28 U.S.C. § 636(b)(1)(B), to conduct
hearings, and to submit proposed findings and
recommendations for the disposition *250 by the Court of
any motion for judgment by default upon the evidence
submitted in accordance with 28 U.S.C. § 1608(e).”
(Docket No. [20] at 1–2.) The Court denied plaintiffs’
motion for clarification of the referral. (August 22, 2003
Order (Docket No. 25) at 1.) On September 3, 2003,
Magistrate Judge Robinson scheduled the hearing on
liability and damages for December 1 through December
18, 2003. (September 3, 2003 Order (Docket No. 26) at
1.)
Plaintiffs filed their pretrial statement on October 31,
2003 ((Docket No. 30).) In accordance with Magistrate
Judge Robinson’s Final Pretrial Order (Docket No. 32),
plaintiffs filed a memorandum regarding issues relevant
to liability. See Supplemental Bench Memorandum on
Liability Issues (“Memorandum on Liability”) (Docket
No. 33). In the memorandum, plaintiffs stated that they
“do not expect to identify [Defendants] John Does 1–99
before the commencement of the trial[,]” and that
“[a]ccordingly, Plaintiffs will not seek a finding of
liability against the co-conspirators John Does 1–99, who
were named as defendants when the complaints in this
consolidated action were filed.” (Memorandum on
Liability at 9.) On November 19, 2003, plaintiffs moved
for entry of default against the Islamic Republic of Iran,
MOIS and the IRGC. (Plaintiffs’ Motion for Entry of
Default (Docket No. 38) at 1.) The Court granted the
motion. November 26, 2003 Order. (Docket No. 39, Civil
Annex 41
Estate of Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229 (2006)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 3
Action No. 00–2329; Docket No. 32, Civil Action No.
01–2104.)
Plaintiffs examined witnesses and offered other evidence
with respect to liability and damages on December 1, 2, 3,
4, 5, 8, 9, 10, 11, 12, 16, 18 and 19, 2003. On December
19, 2003, plaintiffs moved to voluntarily dismiss
Defendants “John Does 1–99,” and Magistrate Judge
Robinson granted the motion. (December 19, 2003 Tr.
(Docket No. 128) at 69–70.) The magistrate judge
recessed the hearing until February 5, 2004, the earliest
date that plaintiffs’ counsel, plaintiffs’ witnesses and the
court were be available to continue. Magistrate Judge
Robinson received further evidence on February 5, 6, 9
and 10, 2004.
During the recess in the evidentiary hearing a panel of the
District of Columbia Circuit decided Cicippio–Puleo v.
Islamic Republic of Iran, 353 F.3d 1024 (D.C.Cir.2004).
Plaintiffs asked that the hearing resume on February 5,
2004 as scheduled. On February 6, 2004, when the
schedule for the conclusion of the evidentiary hearing and
for closing argument was addressed by Magistrate Judge
Robinson, counsel for plaintiffs asked that counsel’s
closing argument be deferred until counsel filed
Plaintiffs’ proposed findings of fact and conclusions of
law. Magistrate Judge Robinson ordered that plaintiffs file
their proposed findings and conclusions on April 1, 2004,
the date proposed by plaintiffs’ counsel. Magistrate Judge
Robinson scheduled plaintiffs’ closing argument for April
15, 2004, the date proposed by Plaintiffs’ counsel. On
April 9, 2004, Magistrate Judge Robinson postponed the
April 15 closing argument, intending to order
supplemental briefing of issues relevant to the liability of
the remaining defendants.
In light of the D.C. Circuit’s opinions in Cicippio–Puleo
and Acree v. Republic of Iraq,3 plaintiffs moved to modify
the magistrate judge’s Final Pretrial Order, or in the
alternative to file third amended complaints so as to
incorporate claims based in state law. On August 4, 2004,
Magistrate Judge Robinson denied plaintiffs’ Motion for
Reconsideration; granted plaintiffs’ motion for leave to
file third amended *251 complaints; and ordered that
plaintiffs file the third amended complaints by August 9,
2004. (Aug. 4, 2004 Order (Docket No. 103) at 2–3.)
Plaintiffs filed the third amended complaints on August 4,
2004. Plaintiffs named as defendants in the third amended
complaints the Islamic Republic of Iran, the “Iranian
Ministry of Information and Security[,]” and the “Iranian
Islamic Revolutionary Guard Corps[.]” Plaintiffs again
alleged that “[t]he Hizbollah terrorist organization is a
creation and agent of the Islamic Republic of Iran”; that
“[i]n 1995, Hizbollah began plotting a terrorist attack
against United States interests in Saudi Arabia”; and that
“[Hizbollah] ultimately detonated a bomb outside Khobar
Towers.” (Third Amended Complaints at 2.) Plaintiffs
allege that “[u]nder United States law, the Islamic
Republic of Iran—which funds, trains, and directs
Hizbollah through the Iranian Ministry of Information and
Security and the Iranian Revolutionary Guard Corps—is
responsible for this terrorist attack and for the murder of
[Plaintiffs’ decedents].” Id.
FINDINGS OF FACT 4
1. In June 1996, Master Sergeant Michael Heiser, Captain
Leland Timothy Haun, Airman First–Class Justin R.
Wood, Senior Airman Earl F. Cartrette, Jr., Airman
First–Class Brian McVeigh, Sergeant Millard D.
Campbell, Staff–Sergeant Kevin J. Johnson, Airman
First–Class Joseph E. Rimkus, Airman First–Class Brent
E. Marthaler, Technical Sergeant Tranh (“Gus”) Nguyen,
Airman First–Class Joshua E. Woody, Airman First–Class
Peter J. Morgera, Master Sergeant Kendall Kitson, Jr.,
Captain Christopher Adams, Airman First–Class
Christopher Lester, Senior Airman Jeremy A. Taylor, and
Technical Sergeant Patrick P. Fennig were citizens of the
United States and members of the United States Air
Force. They were stationed in Dhahran, Saudi Arabia, and
resided in the Khobar Towers.
2. The United States military presence in Saudi Arabia
was with the consent of that host country. Blais v. Islamic
Republic of Iran, 2006 WL 2827372, *2 (D.D.C. Sept.29,
2006) (Lamberth, J.). It was part of a coalition of forces,
primarily from the United States, Great Britain, and
France, that was charged with monitoring Iraq’s
compliance with United Nations Security Council
resolutions enforcing the cease-fire that had brought an
end to the 1991 “Desert Storm” ejection of Iraqi
occupying forces from Kuwait. Id.
3. The deployment of U.S. troops to the region was
considered a peacetime deployment within a friendly host
country. Id.
4. The seventeen decedents represented in this action
were engaged in routine peace time operations while
stationed in Saudi Arabia, and were charged with
enforcing the “no fly zone” in southern Iraq.
5. Defendant Iran “is a foreign state and has been
designated a state sponsor of terrorism pursuant to section
69(j) of the Export Administration Act of 1979 (50
U.S.C.A. § 2405(j)) continuously since January 19,
Annex 41
Estate of Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229 (2006)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 4
1984.” Flatow v. Islamic Republic of Iran, 999 F.Supp. 1,
11, (D.D.C.1998) (Lamberth, J.).
6. Defendant the IRGC is a non-traditional instrumentality
of Iran. It is the military arm of a kind of shadow
government answering directly to the Ayatollah *252 and
the mullahs who hold power in Iran. It is similar to the
Nazi party’s SA organization prior to World War II. The
IRGC actively supports terrorism as a means of protecting
the Islamic revolution that brought the Ayatollah to power
in Iran in 1979. It has its own separate funding sources,
derived from confiscation of the assets of the former Shah
of Iran in 1979, when the Shah was deposed. Blais, 459
F.Supp.2d at 46–47.
7. The Khobar Towers was a residential complex in
Dhahran, Saudi Arabia, which housed the coalition forces
charged with monitoring compliance with U.N. security
council resolutions. Id. at 47–48.
The Attack on the Khobar Towers
8. At approximately 10 minutes before 10 pm on June 25,
1996, a large gasoline tanker truck pulled up alongside the
perimeter wall of the Khobar Towers complex. The driver
jumped out, ran into a waiting car that had pulled up near
the truck, and sped off. Id.
9. Although security guards near the top of Building 131
started to give warnings about the unusual vehicle
location, the truck exploded with great force within about
15 minutes. The investigation determined that the force of
the explosion was the equivalent of 20,000 pounds of
TNT. The Defense Department said that it was the largest
non-nuclear explosion ever up to that time. Id.
10. The explosion sheared off the face of Building 131,
where Paul Blais and his crewmates were housed, and
reduced most of it to rubble. Nineteen United States Air
Force personnel were killed in the explosion, and
hundreds of others were injured. Id.
Iranian Support and Sponsorship of the Attack
11. The attack was carried out by individuals recruited
principally by a senior official of the IRGC, Brigadier
General Ahmed Sharifi. Sharifi, who was the operational
commander, planned the operation and recruited
individuals for the operation at the Iranian embassy in
Damascus, Syria. He provided the passports, the
paperwork, and the funds for the individuals who carried
out the attack. Id.
12. The truck bomb was assembled at a terrorist base in
the Bekaa Valley which was jointly operated by the IRGC
and by the terrorist organization known as Hezbollah. The
individuals recruited to carry out the bombing referred to
themselves as “Saudi Hezbollah,” and they drove the
truck bomb from its assembly point in the Bekaa Valley
to Dhahran, Saudi Arabia. Id.
13. The terrorist attack on the Khobar Towers was
approved by Ayatollah Khameini, the Supreme leader of
Iran at the time. It was also approved and supported by
the Iranian Minister of Intelligence and Security
(“MOIS”) at the time, Ali Fallahian, who was involved in
providing intelligence security support for the operation.
Fallahian’s representative in Damascus, a man named
Nurani, also provided support for the operation. Id.
14. Under Louis Freeh, the FBI conducted a massive and
thorough investigation of the attack, using over 250
agents. Id.
15. Based on that investigation, an Alexandria, Virginia,
grand jury returned an indictment on June 21, 2001,
against 13 identified members of the pro-Iran Saudi
Hezballah organization. The indictment’s description of
the plot to bomb the Khobar Towers complex frequently
refers to direction and assistance from Iranian government
officials. Id.
16. In addition, as a result of this investigation, the FBI
also obtained a great deal of information linking the
defendants *253 to the bombing from interviews with six
admitted members of the Saudi Hezbollah organization,
who were arrested by the Saudis shortly after the
bombing. Id. at 11–30. These six individuals admitted to
the FBI their complicity in the attack on the Khobar
Towers, and admitted that senior officials in the Iranian
government provided them with funding, planning,
training, sponsorship, and travel necessary to carry out the
attack on the Khobar Towers. (Exh. 7 at 11, 13–14, 27;
see also Dec. 18, 2003 Tr. at 24–30.) The six individuals
also indicated that the selection of the target and the
authorization to proceed was done collectively by Iran,
MOIS, and IRGC, though the actual preparation and
carrying out of the attack was done by the IRGC. (Dec.
18, 2003 Tr. at 25.)
17. According to Director Freeh. the FBI obtained
specific information from the six about how each was
recruited and trained by the Iranian government in Iran
Annex 41
Estate of Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229 (2006)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 5
and Lebanon, and how weapons were smuggled into
Saudi Arabia from Iran through Syria and Jordan. One
individual described in detail a meeting about the attack at
which senior Iranian officials, including members of the
MOIS and IRGC, were present. (Dec. 18, 2003 Tr. at 23.)
Several stated that IRGC directed, assisted, and oversaw
the surveillance of the Khobar Towers site, and that these
surveillance reports were sent to IRGC officials for their
review. Another told the FBI that IRGC gave the six
individuals a large amount of money for the specific
purpose of planning and executing the Khobar Towers
bombing.
18. Louis Freeh has publicly and unequivocally stated his
firm conclusion, based on evidence gathered by the FBI
during their five-year investigation, that Iran was
responsible for planning and supporting the Khobar
Towers attack. Blais at 48–49.
19. Dale Watson was formerly the deputy
counterterrorism chief of the FBI in 1996, and
subsequently became the section chief for all international
terrorism in 1997. Mr. Watson was responsible for day to
day oversight of the FBI investigation of the Khobar
Towers attack. Mr. Watson has given sworn testimony
that information uncovered in the investigation, “clearly
pointed to the fact that there was Iran MOIS and IRGC
involvement in the bombing.” Id.
20. Dr. Patrick Clawson testified as an expert in three
areas: (1) the government of Iran; (2) Iran’s sponsorship
of terrorism; and (3) the Iranian economy. Dr. Clawson’s
expert opinion regarding the perpetrators of the Khobar
Towers bombing is based on his involvement on a
Commission investigating the bombing, his top-secret
security clearance, his discussions with Saudi officials, as
well as his academic research on the subject. Exh. 9 at
62–63.
21. Dr. Clawson testified that the government of Iran
formed the Saudi Hezbollah organization. Id. at 56. He
testified that the IRGC was responsible for providing
military training to Hezbollah terrorists as to how to carry
out a terrorist attack. Id. at 28. He also testified as to the
defendants’ state-sponsorship of terrorism, noting that at
the time of the Khobar Towers bombing, Iran spent an
estimated amount of between $50 million and $150
million on terrorist activities. Exh. 10 at 46.
22. In light of all these facts, Dr. Clawson stated
conclusively his opinion that the government of Iran,
MOIS, and IRGC were responsible for the Khobar
Towers bombing, and that Saudi Hezbollah carried out
the attack under their direction. Exh. 9 at 67–68.
23. Dr. Clawson’s expert opinion is supported by Dr.
Bruce Tefft, whose expert *254 opinion this Court
adopted in Blais. Dr. Tefft was one of the founding
members of the CIA’s counterterrorism bureau in 1985.
He served in the CIA until 1995, and has continued to
work as a consultant on terrorism since that time,
including work as an unofficial adviser to the New York
Police Department’s counterterrorism and intelligence
divisions. He retains a top-secret security clearance in
connection with his work. He has been qualified as an
expert witness in numerous other cases involving Iranian
sponsorship of terrorism. He was qualified as an expert
witness on terrorism in this case. Id.
24. Dr. Tefft expressed the opinion that defendants the
Islamic Republic of Iran and the Iranian Revolutionary
Guards Corp were responsible for planning and
supporting the attack on the Khobar Towers, including
providing operational and financial support. He stated that
there was “no question about it. It wouldn’t have
happened without Iranian support.” Id.
25. Dr. Tefft based his conclusion on publicly available
sources that were not inconsistent with classified
information known to him from his time at the CIA and
from his security clearances since that time. He relied on
the public sources described above, as well as several
others, which he described as authoritative and reliable,
including congressional testimony by Matthew Levitt,
senior fellow and director of the Washington Institute’s
Terrorism Studies Program, and articles published by the
Federation of American Scientists as well as the Free
Muslims Coalition. Id.
CONCLUSIONS OF LAW
I. Jurisdiction
In the United States, the Foreign Sovereign Immunities
Act provides the sole basis for asserting jurisdiction over
foreign sovereigns. Argentine Republic v. Amerada Hess
Shipping Corp., 488 U.S. 428, 434–34, 109 S.Ct. 683, 102
L.Ed.2d 818 (1989). Normally, a party may not bring an
action for money damages in U.S. courts against a foreign
state. 28 U.S.C. § 1604. The “state-sponsored terrorism”
exception, however, removes a foreign state’s immunity
to suits for money damages brought in U.S. courts where
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plaintiffs are seeking damages against the foreign state for
personal injury or death caused by “an act of torture,
extrajudicial killing, aircraft sabotage, hostage taking, or
the provision of material support or resources (as defined
in section 2339A of title 18) for such an act if such act or
provision of material support is engaged by an official,
employee, or agent of such foreign state while acting
within the scope of his or her office, employment or
agency.” 28 U.S.C. § 1605(a)(7).
In order to subject a foreign sovereign to suit under
section 1605(a)(7), plaintiffs must show that: (1) the
foreign sovereign was designated by the State Department
as a “state sponsor of terrorism”; (2) the victim or plaintiff
was a U.S. national at the time the acts took place; and (3)
the foreign sovereign engaged in conduct that falls within
the ambit of the statute. Prevatt v. Islamic Republic of
Iran, 421 F.Supp.2d 152, 158 (D.D.C. Mar.28, 2006).
Each of the requirements is met in this case. First,
defendant Iran has been designated a state sponsor of
terrorism continuously since January 19, 1984, and was so
designated at the time of the attack. See 31 C.F.R. §
596.201 (2001); Flatow, 999 F.Supp. at 11, ¶ 19. Second,
the plaintiffs have described themselves as “the Estates
and family members” of 17 of the 19 servicemen who
were killed on June 25, 1996, after “Hizbollah terrorists
detonated *255 a 5,000 pound truck bomb outside of
Khobar Towers, a United States military complex in
Dhahran, Saudi Arabia.” Second Amended Complaint, at
3. Both the plaintiffs and the victims to which they are
related were United States nationals at the time the
bombing occurred. Finally, defendant Iran’s support of an
entity that committed an extrajudicial killing squarely
falls within the ambit of the statute. Defendants MOIS
and the IRGC are considered to be a division of state of
Iran, and thus the same determinations apply to their
conduct. Roeder, 333 F.3d at 234; see also Salazar v.
Islamic Republic of Iran, 370 F.Supp.2d 105, 116
(D.D.C.2005) (Bates, J.) (analogizing the IRGC to the
MOIS for purposes of liability, and concluding that both
must be treated as the state of Iran itself).
Personal jurisdiction exists over a non-immune sovereign
so long as service of process has been made under section
1608 of the FSIA. See Stern v. Islamic Republic of Iran,
271 F.Supp.2d 286, 298 (D.D.C.2003) (Lamberth, J.). In
this case, service of process has been made. Accordingly,
this Court has in personam jurisdiction over defendants
Iran, MOIS, and IRGC.
II. Legal Standard for FSIA Default Judgment
Under the Foreign Sovereign Immunities Act, “[n]o
judgement by default shall be entered by a court of the
United States or of a state against a foreign state ... unless
the claimant establishes his claim or right to relief by
evidence satisfactory to the court.” 28 U.S.C. § 1608(e);
Roeder v. Islamic Republic of Iran, 333 F.3d 228, 232–33
(D.C.Cir.2003), cert. denied, 542 U.S. 915, 124 S.Ct.
2836, 159 L.Ed.2d 287 (2004). In default judgment cases,
plaintiffs may present evidence in the form of affidavits.
Bodoff v. Islamic Republic of Iran, 424 F.Supp.2d 74, 82
(D.D.C. Mar.29, 2006) (quoting Campuzano v. Islamic
Republic of Iran, 281 F.Supp.2d 258, 268 (D.D.C.2003)).
Upon evaluation, the court may accept plaintiffs’
uncontroverted evidence as true. Campuzano, 281
F.Supp.2d at 268. This Court accepts the uncontested
evidence and testimony submitted by plaintiffs as true in
light of the fact that the defendants in this action have not
objected to it or even appeared in this action to contest it.
III. Magistrate Judge’s Report and Recommendation of
Proposed Findings of Fact and Conclusions of Law
A. Standard of Review of a Magistrate Judge’s
Proposed Findings and Recommendation
Under the Federal Magistrate’s Act, “a judge may ...
designate a magistrate judge to conduct hearings,
including evidentiary hearings, and to submit to a judge of
the court proposed findings of fact and recommendations
for the disposition.” 28 U.S.C. § 636(b)(1)(B). Once the
magistrate judge’s proposed findings and
recommendation are submitted to the court and copies
have been served on the parties, the parties may serve and
file within ten days from receipt of service written
objections to any proposed finding or recommendations
made within the magistrate judge’s report and
recommendation. 28 U.S.C. § 636(b). In reviewing the
objections made to the magistrate judge’s report and
recommendation, the district court judge shall make a de
novo review of the portions of the report and
recommendation objected to by the parties. Id. Upon
review, “[a] judge of the court may accept, reject, or
modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id.; see
also Roell v. Withrow, 538 U.S. 580, 585, 123 S.Ct. 1696,
155 L.Ed.2d 775 (2003) (noting that a district *256 court
is “free to do as it sees fit with [a] magistrate judge’s
recommendations” made under authority of 28 U.S.C. §
636(b)(1)).5 The district court “must not be a rubber
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stamp” of the magistrate judge’s recommendations. Reese
v. Meritor Automotive, Inc., 113 F.Supp.2d 822, 824
(W.D.N.C.2000) (quoting 12 CHARLES ALAN
WRIGHT, ARTHUR R. MILLER & RICHARD L.
MARCUS, FEDERAL PRACTICE AND PROCEDURE
§ 3070.2 (2006)).
B. Magistrate Judge Robinson’s Proposed Findings of
Fact and Recommendation
In her Report and Recommendation, Magistrate Judge
Robinson recommended that plaintiffs’ motion for default
judgment be denied on the basis that plaintiffs had not
presented evidence satisfactory to the Court of
defendants’ liability. (Rep. and Reco. [129] 30.) The
magistrate judge proposed that “Plaintiffs failed to
establish a nexus between the June 25, 1996 bombing and
any action or decision of any of the Defendants in these
consolidated actions.” Id. As a result, Magistrate Judge
Robinson recommended that this Court find that plaintiffs
failed to “[establish] [their] claim or right to relief by
evidence that is satisfactory to the Court[.]” Id. (quoting
Haim v. Islamic Republic of Iran, 425 F.Supp.2d 56, 60
(D.D.C.2006)) (internal citation omitted). The magistrate
judge also discussed generally, but made no specific
findings or recommendations concerning, two additional
issues, namely: (1) whether plaintiffs, as members of the
United States Air Force operating under peacetime rules
of engagement, may qualify for recovery under the FSIA;
and (2) whether an apparent conflict of interest existed
with respect to plaintiffs’ representation by DLA Piper
Rudnick Gray Cary U.S. LLP.6 (Rep. and Reco. [129]
15–17, 25–26.)
Plaintiffs objected to the magistrate judge’s finding as to
the insufficiency of the evidence,7 as well as to other
portions of the report and recommendation. (See Pl.’s
Obj. to Report and Recommendation [130] 4–5.) In
addition to the objection as to the sufficiency of their
evidence, plaintiffs objected to: (1) whether Magistrate
Judge Robinson had jurisdiction to preside *257 over an
evidentiary hearing or to make a report and
recommendation regarding default judgment; (2) the
magistrate judge’s discussion of whether plaintiffs, as
members of the United States Air Force, could recover as
noncombatants under peacetime rules of engagement at
the time of their deaths; and (3) her discussion of an
apparent conflict of interest with respect to plaintiffs’
counsel. (Pl.’s Obj. to Report and Recommendation [130]
5.)
Having reviewed de novo the objected-to portions of
Magistrate Judge Robinson’s report and recommendation
to this Court, and for the reasons set forth in this opinion,
this Court makes the following determinations. First, the
Court finds that Magistrate Judge Robinson had proper
jurisdiction to hear evidence and render a report and
recommendation in this matter. Second, the Court finds
that plaintiffs may properly recover under the FSIA as
noncombatants under peacetime rules of engagement.
Third, this Court finds that no conflict of interest
presently exists arising out of plaintiffs’ representation by
DLA Piper Rudnick Gray Cary U.S. LLP. Finally, the
Court finds that plaintiffs have provided evidence
satisfactory to this Court to establish their claim or right
to relief. In light of the foregoing findings, judgment shall
be entered in favor of the plaintiffs and against the
defendants.
IV. Analysis and Review of Objections to Magistrate
Judge Robinson’s Report and Recommendation
A. Plaintiff’s Objection that Magistrate Judge
Robinson Lacked Jurisdiction to Hear Evidence and
Render an Opinion in this Matter
Plaintiffs objected to the magistrate judge’s report and
recommendation in its entirety on the grounds that she
lacked jurisdiction to conduct an evidentiary hearing or
issue a recommendation on plaintiffs’ motion for default
judgment against the defendants. At the heart of their
objections is the notion that appointment of a magistrate
judge in lieu of an Article III Judge is unauthorized by the
Magistrates Act and might run afoul of the parties’ due
process and Article III rights under the U.S. Constitution.8
Plaintiffs’ objection is unfounded. As noted above,9 such
an appointment is clearly authorized by the Magistrates
Act. The plain language of 28 U.S.C. § 636(b)(1)(B)
clearly states that a district court “may ... designate a
magistrate judge to conduct hearings, including
evidentiary hearings, and to submit to a judge of the court
proposed findings of fact and recommendations for the
disposition.” 28 U.S.C. § 636(b)(1)(B). Additionally, the
Supreme Court held that this statute “strikes the proper
balance between the demands of due process and the
constraints of Article III.” Raddatz, 447 U.S. at 683–84,
100 S.Ct. 2406. Delegation under this provision does not
run afoul of Article III “so long as the ultimate decision is
made by the district court.” Raddatz, 447 U.S. at 683, 100
S.Ct. 2406. Moreover, the parties’ due process rights are
protected by the fact that “the district court judge alone
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acts as the ultimate decisionmaker, [and] the statute grants
the judge the broad discretion to accept, reject, or modify
the magistrate’s proposed findings.” Id. at 680, 100 S.Ct.
2406. Here, Magistrate Judge Robinson heard evidence
from the parties, and rendered a report and
recommendation to this Court, pursuant to 28 U.S.C. §
636(b), and this *258 Court alone is responsible for
rendering the ultimate decision as to the merits of this
case. Accordingly, this Court finds that neither of the
parties’ due process or Article III rights were violated by
appointing Magistrate Judge Robinson to conduct an
evidentiary hearing. This Court finds that Magistrate
Judge Robinson had proper jurisdiction under 28 U.S.C. §
636(b) to conduct an evidentiary hearing and submit a
report and recommendation thereon.
B. Plaintiffs’ Ability to Recover Under State–Sponsored
Terrorism Exception to the FSIA
Magistrate Judge Robinson raised in her report and
recommendation the issue of whether plaintiffs, as
relatives of active servicemen on duty at the time of their
deaths, were able to recover for damages arising from
those servicemen’s deaths. Plaintiffs argued that they are
not excluded under the state-sponsored terrorism
exception to the FSIA from recovering.
Previously, this Court has awarded damages to United
States service members who were injured or killed as a
result of state-sponsored terrorist attacks and their
families.10 In Peterson, this Court held that a service
member and his or her family may recover under the
state-sponsored terrorism exception to the FSIA only if
the service member was a non-combatant not engaged in
military hostilities. There, the Court established a
two-prong test to determine whether a military service
member was a non-combatant. Under this test, a service
member is deemed a non-combatant if he or she was: (1)
engaged in a peacekeeping mission; and (2) operating
under peacetime rules of engagement. Peterson, 264
F.Supp.2d at 60.
Here, plaintiffs have conclusively demonstrated that the
servicemen who died at the Khobar Towers satisfy the
two-prong test under Peterson. Colonel Douglas Cochran
testified on December 2, 2003, that the service members
who died at the Khobar Towers were deployed as a part
of a peacekeeping mission sanctioned by United Nations
Resolutions. (Dec. 12, 2003 Tr. at 12.) He also stated that
the decedents were operating under standing rules of
engagement,11 under which the decedents did not have the
right to participate directly in hostilities. Id. at 10–12, 15.
The decedents were not allowed to attack unless attacked
or in peril of immediate attack resulting in death or
serious bodily harm. Id. at 15. Moreover, as noted by the
Reports of Casualty and personnel records for each of the
decedents in this case, the cause of the service members’
deaths was indisputably the result of a terrorist bombing,
and not a result of combat hostilities. (Dec. 1, 2003 Tr. at
29; see also Dec. 2, 2003 Tr. at 35–38.) In light of the
above-mentioned evidence, this Court finds that plaintiffs
have satisfied the two-prong test under Peterson.
Therefore, this Court finds that plaintiffs are not excluded
from recovering under the state-sponsored terrorism
exception to the FSIA.
C. Apparent Conflict of Interest
Next, in her discussion of the procedural history of the
case, the magistrate *259 judge discussed an apparent
conflict of interest resulting from plaintiffs’ representation
in this matter by DLA Piper Rudnick Gray Cary U.S. LLP
(the “Firm”), and the Firm’s representation of the
Government of Sudan (“Sudan”), the defendant in the
separate matter of Owens v. Republic of Sudan (Civ.
Action No. 01–2244(JDB)).12 The magistrate judge was
concerned that the Firm’s representation in the Owens
matter created a conflict of interest because defendants
Iran, IRGC, and MOIS were co-defendants with Sudan in
Owens, and because the Firm’s representation of Sudan
would cause the Firm to make an argument in Owens that
was directly contrary to the arguments it made on behalf
of plaintiffs in this matter. Plaintiffs raise an objection and
allege that no conflict of interest (apparent or otherwise)
exists in this matter.
Under District of Columbia Rules of Professional
Conduct 1.7, unless a lawyer obtains informed consent
from both clients, a lawyer shall not represent one client
in a matter if the position taken by that client is adverse to
the position taken by another client. D.C. Rule of Prof.
Conduct 1.7. As the District of Columbia Bar Legal
Ethics Committee has noted, “the lawyer may not,
without informed consent of all parties, accept
simultaneous representation of both clients where such
representation creates a substantial risk that representation
of one client will adversely effect the representation of the
other.” District of Columbia Bar Legal Ethics Committee
Formal Op. 265 (1996).
Upon a review of the pleadings and evidence in this
matter, the Court finds that no conflict of interest exists.
First, the Firm’s prior representation in another matter of
a codefendant to the defendants in this matter does not
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create a conflict of interest. Though the defendants in this
matter were co-defendants along with Sudan in the Owens
matter, the Firm has stated that it never represented Iran,
MOIS, or IRGC in the Owens matter or any other matter.
(Pl.’s Resp. to Apr. 16, 2004 Court Order 1.) Moreover,
the Firm has withdrawn completely from representing
Sudan in Owens as Rule 1.7 states it must in such
situations.
Next, the Court is satisfied that no apparent conflict exists
that would preclude the Firm from continuing to represent
plaintiffs’ interests in this matter. As the Firm’s pleadings
to the magistrate judge plainly show, upon discovering
that an apparent conflict had arisen, the Firm took
immediate steps to eliminate it. The Co–Chair of the
Firm’s Professional Responsibility function instructed the
partners representing the Government of Sudan that they
were not to continue to represent Sudan in light of the fact
that such representation would force the Firm to argue
conflicting positions in both matters. Unbeknownst to the
heads of the Firm, however, the specific attorneys
responsible for representing Sudan disregarded the
partners’ instruction, and continued to represent Sudan,
entering filings on their behalf. Still, when the Firm’s
management discovered the actions of events, it promptly
sought withdrawal as counsel for Sudan in the Owens
matter, notified the D.C. Bar Counsel and this Court’s
Committee on Grievances of the sequence of events, and
wrote off fees and expenses otherwise due from Sudan as
a former client. In addition, the attorneys who disregarded
the Firm’s instructions to cease representation *260 have
left the Firm.13
Finally, this Court is persuaded that no conflict of interest
exists by considering the manner in which the magistrate
judge ultimately dealt with the issue. After the Firm
issued its responses on the conflict issue to Magistrate
Judge Robinson’s Orders dated April 13 and April 16,
2004,14 the magistrate judge proceeded forth with the
remaining portions of the trial, and never issued a ruling
on whether a conflict existed as a result of the Firm’s
representation of plaintiffs in this matter, and their
representation of Sudan in Owens. Moreover, in her report
and recommendation to this Court, the magistrate judge
included the “apparent conflict of interest” issue solely
within her discussion of the case’s procedural history. She
neither issued nor recommended within her report and
recommendation any finding that a conflict existed.
Surely, were the magistrate judge of the opinion that a
conflict of interest did exist, she would have taken more
substantive steps to ensure that such a representation
would not continue.
In light of these facts, the Court finds that no conflict of
interest exists arising from the Firm’s representation of
plaintiffs in this matter and Sudan in the Owens case.
D. Sufficiency of Liability Evidence Provided by
Plaintiffs
Magistrate Judge Robinson recommended that plaintiffs’
motion for default judgment be denied on the grounds that
she found plaintiffs had not submitted evidence
satisfactory to the Court of defendants’ liability. She
found Director Freeh and Mr. Watson’s respective
testimony to be unsatisfactory on the grounds that each
witness’ testimony was largely conclusory, and that each
was testifying in his personal capacity and not as a
representative of the FBI. She also found that the
testimony given by Doctor Clawson was conclusory as to
defendants’ liability, and failed to provide evidence of the
link between Saudi Hezbollah, Hezbollah, and Iran.
Plaintiffs objected to these findings on three grounds.
They argued that the evidence submitted is legally
sufficient to sustain a finding of liability against
defendants. They also argue that the evidence presented is
consistent with, nearly identical to and—in some
instances—more direct than liability evidence found by
this Court to be sufficient as a matter of law in prior cases
arising under the state-sponsor of terrorism exception to
the FSIA. Finally, plaintiffs argue that the Court may take
judicial notice of the facts and findings in Blais v. Islamic
Republic of Iran 2006 WL 2827372 (D.D.C. Sept.29,
2006) (Lamberth, J.), a case arising out of the same attack
on the Khobar Towers. They argue that the facts from
Blais, combined with the evidence submitted by plaintiffs
in this matter, support a finding that defendants are liable
in this matter.
1. Testimony of Director Louis J. Freeh and Dale L.
Watson
To establish the defendant’s liability for the bombing,
plaintiffs offered the testimony of Louis J. Freeh, a former
Director at the FBI, and Dale L. Watson, an agent and
investigator at the FBI and CIA with over 20 years
experience in the counterterrorism *261 and
counterintelligence fields. Over the course of the
approximately four year investigation into the Khobar
Towers bombing, both Freeh and Watson “reviewed all
reports prepared by the FBI investigators, and spoke
directly with FBI agents and Saudi officials” all of which
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established a link between the defendants and the
bombing. All of the information conveyed to both Freeh
and Watson was communicated by FBI agents who were
on the scene.
Based on this knowledge of the investigation, Mr. Freeh
testified at the evidentiary hearing before the magistrate
judge as to the defendants’ involvement in the Khobar
Towers attack.15 In his testimony, Director Freeh testified
that, during the course of the investigation into the
explosion, it was concluded that the Khobar Towers
explosion was the cause of a fertilizer-based explosive
device. (Dec. 18, 2003 Tr. at 10.) It was also concluded,
Director Freeh testified, that the bombing was an act of
terrorism. Id.
According to Director Freeh, the FBI also obtained a great
deal of information linking the defendants to the bombing
from interviews with six individuals arrested by the
Saudis shortly after the bombing. Id. at 11–30. These six
individuals, who were members of the Saudi Hezbollah
organization, admitted to the FBI their complicity in the
attack on the Khobar Towers. Exh. 7 at 11, 13–14, 27.
The six individuals admitted that senior officials in the
Iranian government provided them with funding,
planning, training, sponsorship, and travel necessary to
carry out the attack on the Khobar Towers. (Id. at 13–14;
see also Dec. 18, 2003 Tr. at 24–30.) The six individuals
also indicated that the selection of the target and the
authorization to proceed was done collectively by Iran,
MOIS, and IRGC, though the actual preparation and
carrying out of the attack was done by the IRGC. (Dec.
18, 2003 Tr. at 25.)
More specifically, Mr. Freeh testified, the FBI obtained
specific information from the six about how each was
recruited and trained by the Iranian government in Iran
and Lebanon, and how weapons were smuggled into
Saudi Arabia from Iran through Syria and Jordan. One
individual described in detail a meeting about the attack at
which senior Iranian officials, including members of the
MOIS and IRGC, were present. (Dec. 18, 2003 Tr. at 23.)
Several stated that IRGC directed, assisted, and oversaw
the surveillance of the Khobar Towers site, and that these
surveillance reports were sent to IRGC officials for their
review. Another told the FBI that IRGC gave the six
individuals a large amount of money for the specific
purpose of planning and executing the Khobar Towers
bombing.
Adding credence to Mr. Freeh’s testimony is the
reliability of the information he relied on in linking the
defendants with the attack. First, Director Freeh testified
that the information obtained from the six individuals was
communicated to the FBI on more than one occasion.
Second, there was a great deal of cross-corroboration
among the individuals’ stories, even when each was
interviewed by the FBI separately. *262 Third, he
testified that the material portions of each of the
individuals’ accounts of the bombing did not contradict.
Fourth, and perhaps most importantly, in many instances
the FBI was able to corroborate independently the
statements made by the six individuals.
As a result of this information and his direct participation
in the four year investigation into the bombing, Director
Freeh testified that it was his ultimate opinion that the
bombing was the result of a terrorist attack by Saudi
Hezbollah, organized and sponsored by the defendants in
this case: Iran, MOIS, and IRGC.
Mr. Watson, who was also an active member in the
investigation into the Khobar Towers bombing, testified
similarly to Director Freeh. According to Mr. Watson, the
bases for his opinion were the direct conversations with
the six Saudi Hezbollah members, the corroborating facts
discovered from their confessions, his historical
knowledge and public record of the Hezbollah
organization and statements proffered in an indictment
filed in the Eastern District of Virginia. (Dec. 18, 2003 Tr.
at 52, 63.) All of this information was information Mr.
Watson gleaned as a result either of his own personal
research or his involvement in the Khobar Towers
bombing investigation. Most importantly, Mr. Watson
reached the same conclusion as Director Freeh that the
bombing was the result of a terrorist attack by Saudi
Hezbollah members, organized and sponsored by the
defendants.
2. Dr. Clawson’s Expert Testimony as to Involvement
by Iran, IRGC, and MOIS
Plaintiffs also relied upon the testimony of Dr. Patrick
Clawson to establish a more complete picture as to the
involvement of Iran, MOIS, and IRGC in helping carry
out the attack on the Khobar Towers. At trial, Dr.
Clawson testified as an expert in three areas: (1) the
government of Iran; (2) Iran’s sponsorship of terrorism;
and (3) the Iranian economy. Dr. Clawson’s expert
opinion regarding the perpetrators of the Khobar Towers
bombing is based on his involvement on a Commission
investigating the bombing, his top-secret security
clearance, his discussions with Saudi officials, as well as
his academic research on the subject. Exh. 9 at 62–63.
Dr. Clawson testified that the government of Iran formed
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the Saudi Hezbollah organization. Id. at 56. He testified
that the IRGC was responsible for providing military
training to Hezbollah terrorists as to how to carry out a
terrorist attack. Id. at 28. He also testified as to the
defendants’ state-sponsorship of terrorism, noting that at
the time of the Khobar Towers bombing, Iran spent an
estimated amount of between $50 million and $150
million on terrorist activities. Exh. 10 at 46. In light of all
these facts, Dr. Clawson stated conclusively his opinion
that the government of Iran, MOIS, and IRGC were
responsible for the Khobar Towers bombing, and that
Saudi Hezbollah carried out the attack under their
direction. Exh. 9 at 67–68.
3. Judicial Notice of Findings and Conclusions in Blais
v. Islamic Republic of Iran16
Plaintiffs argue that the Court should take judicial notice
of the facts and conclusions made by this Court in its
recent consideration of the matter of Blais v. Islamic
Republic of Iran, an action *263 brought against the same
defendants for damages resulting from the same 1996
attack on the Khobar Towers. As has recently been noted
in a FSIA case within this Circuit, “[a] court may take
judicial notice of related proceedings and records in cases
before the same court.” Salazar v. Islamic Republic of
Iran, 370 F.Supp.2d 105, 109 n. 6 (D.D.C.2005) (Bates,
J.). As Judge Bates noted in Salazar, under Federal Rules
of Evidence 201(e), a “party opposing judicial notice of a
given fact must be afforded an opportunity to be heard ...
and may certainly make recognized objections to the
admissibility of such judicially noticed facts as evidence
in the case....” Id. (internal citations omitted). Defendants
in this case have failed to make such objections, or even
make an appearance at all before this Court. Accordingly,
in addition to the unopposed trial submissions made by
plaintiffs in this matter, this Court will take judicial notice
of the findings made in Blais as to the defendants
involvement in and liability for the Khobar Towers
bombing.
In Blais, this Court found as fact that the Khobar Towers
attack was carried out by individuals who referred to
themselves as the group “Saudi Hezbollah.” Blais, 459
F.Supp.2d at 47–48. The Court found that these
individuals were recruited by Brigadier General Ahmed
Sharifi, a senior official of the IRGC. Id. Brigadier
General Sharifi planned the operation, and recruited the
individual members of Saudi Hezbollah at the Iranian
Embassy in Damascus, Syria. Id. He was also responsible
for providing the funds, passports, and paperwork for the
individuals who carried out the attack. Id. In addition to
acknowledging General Sharifi’s involvement in the
attack, this Court found that the attack was approved by
the Ayatollah Khameini, Iran’s Supreme Leader at the
time, and was approved and supported by Ali Fallahian,
the head of MOIS at the time. Id.17
This Court heard testimony from and accepted
documentary evidence considered by Dr. Bruce Tefft.18
Dr. Tefft expressed his opinion “that defendants the
Islamic Republic of Iran and the Iranian Revolutionary
Guards Corp were responsible for planning and
supporting the attack on the Khobar Towers, including
providing operational and financial support.” Blais, 459
F.Supp.2d at 48–49. Dr. Tefft’s testimony and the
evidence accompanying his testimony are consistent with
the testimony and evidence from Blais, including
testimony made by Mr. Freeh. In fact, Dr. Tefft not only
relied upon the conclusions put forth by Messrs. Freeh
and Watson in forming his own opinion in this matter, but
Dr. Tefft stated that he agreed with their conclusions
regarding the connection between Iran and Saudi
Hezbollah in bringing about the bombing on the Khobar
Towers. When asked as to the defendants’ involvement in
the attack, Dr. Tefft stated that there was “ ‘no question
about *264 it. It wouldn’t have happened without Iranian
support.’ ” Id.
Finally, this Court considered written testimony from both
former FBI Director Louis Freeh and former Deputy
Counterterrorism Chief Dale Watson. In his written
statement, Director Freeh stated that, based upon his
involvement in the FBI’s five year investigation into the
attack on the Khobar Towers, Iran was responsible for
supporting and funding the attack. Id. Mr. Watson
likewise stated unequivocally that, based upon
information uncovered in the investigation into the
attack,19 there was Iranian, MOIS, and IRGC involvement
in the bombing. Id. As here, the Court found the
conclusions of Messrs. Freeh and Watson in Blais to be
amply reliable and probative as to the question of the
defendants’ involvement in the Khobar Towers bombing.
4. Conclusion
Upon de novo review of the evidence, the Court is
convinced that the evidence is sufficiently satisfactory to
establish liability. First, contrary to the magistrate judge’s
recommendation, the testimony by Freeh and Watson is
not conclusory because the asserted statements made by
Freeh and Watson do not lack supporting evidence.
Director Freeh and Mr. Watson based their testimony
upon their four year direct involvement in the
investigation into the bombing, and their extensive years
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of experience in the counterintelligence and
counterterrorism fields. Throughout this time, Messrs.
Freeh and Watson, and the FBI agents they directly
supervised, uncovered and synthesized a great deal of
information about the attack on Khobar Towers and its
perpetrators. The facts unearthed by this investigation led
them to the six captured participants in the bombing, each
of whom implicated the defendants as having organized,
funded, and supported the attack. Accordingly, the Court
finds that the facts testified to by Freeh and Watson were
supported by more than a sufficient basis for the
witnesses’ conclusions that Iran, MOIS, and IRGC were
responsible for the Khobar Towers bombing carried out
by Saudi Hezbollah.
The Court also fails to see the rationale behind Magistrate
Judge Robinson’s conclusion that the testimony offered
by Freeh and Watson was somehow less credible because
it was made in their individual capacities, and not on
behalf of the FBI for whom they were no longer
employed. The reliability of a witness’ testimony should
not and indeed does not hinge solely upon that person’s
employment with a particular organization. Rather, the
reliability and credibility of a witness’ testimony is
determined by considering a myriad of factors including,
inter alia, the witness’ demeanor, the ability of the
witness to observe the information about which he is
testifying, whether the testimony is corroborated by other
facts introduced into evidence, as well as the witness’
prior experience.
Applying these factors to the testimony of Messrs. Freeh
and Watson, this Court finds their testimony to be
undeniably credible and reliable. Each was directly
involved in the investigation into the Khobar Towers
bombing, and was personally familiar with the results
from that investigation. This is bolstered by the fact that
Freeh and Watson occupied leadership positions in
overseeing the entirety of the investigation into the
bombing. Such positions would undoubtedly place Freeh
and Watson in the best possible position to assess all the
information about the attack and make a logical
conclusion as to the cause and perpetrators of the attack.
In *265 addition, their testimony was consistent with each
other, with the testimony by Dr. Clawson, and with
information available in the public record. Moreover, this
Court has previously relied upon Freeh and Watson’s
conclusions as to the involvement of Iran, IRGC, and
MOIS in the Khobar Towers attack, and sees no reason to
discount the credence of their testimony as conclusive on
the grounds that they are not currently employed by the
FBI. See Blais v. Islamic Republic of Iran, 459 F.Supp.2d
40, 47–49 (D.D.C.2006) (Lamberth, J.) (finding as fact
both Mr. Freeh and Mr. Watson’s conclusion as to the
involvement of Iran, IRGC, and MOIS in the Khobar
Towers bombing).
The fact that neither testified about the attack as agents of
the FBI does not nullify the credibility of their statements.
Messrs. Freeh and Watson’s intricate involvement with
the investigation into the Khobar Towers bombing while
they were with the FBI provides more than an adequate
basis for their testimony and the conclusions each drew
therein as to the perpetrators of the attack.
The Court also disagrees with the magistrate judge’s
recommendation that Dr. Clawson’s testimony, whether
evaluated alone or in conjunction with the testimony by
Freeh and Watson, was unsatisfactory to establish
liability. To the contrary—Dr. Clawson is a renowned
scholar of Middle Eastern politics, who has studied and
written about Iran for years. In over 20 cases, Dr.
Clawson has repeatedly provided this Court with reliable
and credible testimony regarding the involvement of Iran,
MOIS, and IRGC in sponsoring and organizing acts of
terrorism carried out against citizens of the United
States.20 The Court sees no reason to deviate from the
judges in prior cases who found Dr. Clawson’s testimony
to be satisfactorily reliable.
Accordingly, having considered the evidence and
testimony admitted at trial in the present case, this Court
finds that plaintiffs have met their burden under the
state-sponsored terrorism exception of the FSIA by
establishing their right to relief “by evidence that is
satisfactory to the Court[.]” The totality of the evidence at
trial, combined with the findings and conclusions entered
by this Court in Blais, firmly establishes that “the Khobar
Towers bombing was planned, funded, and sponsored by
senior leadership in the government of the Islamic
Republic of Iran; the IRGC had the responsibility and
worked with Saudi Hizbollah to execute the plan, and the
MOIS participated in the planning and funding of the
attack.” Proposed Findings and Conclusions at 9, ¶ 28.
V. Liability
A. Proper Causes of Action Under the FSIA
Once a foreign state’s immunity has been lifted under
Section 1605 and jurisdiction is found to be proper,
Section 1606 provides that “the foreign state shall be
liable in the same manner and to the same extent as a
private individual under like circumstances.” 28 U.S.C. §
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1606. Section 1606 acts as a “pass-through” to
substantive causes of action against private individuals
that may exist in federal, state or international law.
Dammarell v. Islamic *266 Republic of Iran, Civ. A. No.
01–2224, 2005 WL 756090, at *8–10, 2005 U.S. Dist.
LEXIS 5343, at *27–32 (D.D.C. Mar. 29, 2005) (Bates,
J.) [hereinafter Dammarell II].
In this case, state law provides a basis for liability. First,
the law of the United States applies rather than the law of
the place of the tort or any other foreign law because the
United States has a “unique interest” in having its
domestic law apply in cases involving terrorist attacks on
United States citizens. See Dammarell II, 2005 WL
756090, at *20, 2005 U.S. Dist. LEXIS 5343, at *63.
B. Applicable State Law Governing Causes of Action
Having established that the laws of the United States
apply in this action, the Court must determine the
applicable state law to govern the action. As the forum
state, District of Columbia choice of law rules apply to
determine which state’s law shall apply. Under District of
Columbia choice of law rules, courts employ a modified
government interest analysis under which they “evaluate
the governmental policies underlying the applicable laws
and determine which jurisdiction’s policy would be most
advanced by having its law applied to the facts of the case
under review.” Hercules & Co. v. Shama Rest. Corp., 566
A.2d 31, 41 (D.C.1989) (citations and internal quotations
omitted). Generally, application of this governmental
interest test points to the law of each plaintiff’s domicile
at the time of the attack as having the greatest interest in
providing redress to its citizens. See Dammarell II, 2005
WL 756090, at *20–21, 2005 U.S. Dist. LEXIS 5343, at
*66–67 (citing RESTATEMENT (THIRD) FOREIGN
RELATIONS LAW § 402(3) (1987)).
Plaintiffs’ claims involve consideration of the law of
thirteen different states. The estates and surviving family
members of persons killed in the bombing have asserted
wrongful death claims and intentional infliction of
emotional distress claims. In order to avoid repetition, the
discussion will be organized by state, with an initial
overview of each state’s law followed by a discussion of
each plaintiff’s asserted claims under those laws.
C. Vicarious Liability
The basis of defendants’ liability is that they provided
material support and resources to Saudi Hezbollah, which
personally completed the attack. One may be liable for the
acts of another under theories of vicarious liability, such
as conspiracy, aiding and abetting and inducement. This
Court finds that civil conspiracy provides a basis of
liability for Iran, MOIS, and IRGC, and accordingly
declines to reach the issue of whether they might also be
liable on the basis of aiding and abetting and/or
inducement.
The doctrine of civil conspiracy is recognized under the
laws of each of the states each claimant has brought an
action.21 Though each state has its own *267 particular
means of describing civil conspiracy, upon inspection of
each state’s laws the elements of civil conspiracy are met
in each state if it can be demonstrated that: (1) there is an
agreement between two or more persons or entities; (2) to
do an unlawful act, or an otherwise lawful act by unlawful
means; (3) there was an overt act committed in
furtherance of this unlawful agreement; and (4) damages
were incurred by the plaintiff as a proximate result of the
actions taken pursuant to the conspiracy.22
In this case, the elements of civil conspiracy between
Iran, MOIS, the IRGC and Saudi Hezbollah have been
satisfied. As this Court has previously held, “sponsorship
of terrorist activities inherently involves a conspiracy to
commit terrorist attacks.” Flatow, 999 F.Supp. at 27. It is
undisputed that Saudi Hezbollah committed the attack on
the Khobar Towers. It has been established by evidence
satisfactory to this Court that Saudi Hezbollah and
defendants Iran, MOIS and the IRGC conspired to
commit the terrorist attack on the Khobar Towers.23 The
evidence elicited from the FBI’s investigation and
interview of the six detained members of Saudi Hezbollah
shows that senior Iranian, MOIS and IRGC officials
participated in the planning of, and provided material
support and resources to Saudi Hezbollah for *268 the
attack on the Khobar Towers. The evidence also shows
that the defendants also provided money, training and
travel documents to Saudi Hezbollah members in order to
facilitate the attacks. Moreover, the sheer gravity and
nature of the attack demonstrate the defendants’ unlawful
intent to inflict severe emotional distress upon the
American servicemen as well as their close relatives. The
defendants’ acts of financing, training and providing
travel documents ably satisfy the overt act requirement for
civil conspiracy. Finally, as will be discussed below, the
plaintiffs in this action incurred damages resulting from
the deaths caused by the conspiracy. Accordingly, the
elements of civil conspiracy are established between
Saudi Hezbollah and the defendants Iran, MOIS and the
IRGC.
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D. Cause of Death
Thomas R. Parsons, M.D., an associate medical examiner,
was received by the Court as an expert in the field of
forensic pathology. (Feb. 9, 2004 A.M. Tr. at 82–83; Ex.
232.) On June 25, 1996, Dr. Parsons was on active duty as
a major in the United States Air Force. He was a medical
examiner with the Armed Forces Institute of Pathology
(“AFIP”). Dr. Parsons first learned of the June 25, 1996
bombing at Khobar Towers in Dharan, Saudi Arabia on
June 26, 1996. Dr. Parsons and three other medical
examiners performed the autopsies of the 19 officers and
airman killed in the Khobar Towers bombing at Dover
AFB on June 27 and 28, 1996. Id. at 83–84.
Based on his performance of several of the autopsies in
June of 1996, his review of the complete autopsy files and
photographs from the AFIP, and his training and
experience as a forensic pathologist, Dr. Parsons testified
that the cause of death of each of the 17 decedents
represented in the present litigation “was the explosion
that occurred near their barracks [in Dharan, Saudi
Arabia].” Id. at 105–106. This conclusion, Dr. Parsons
noted, was corroborated by the types of severe blast
injuries sustained by each of the deceased plaintiffs. Dr.
Parsons testified that the injuries of these 17 decedents
were “very severe. As a matter of fact. This is about as
bad as you can get until you get to body fragmentation.”
Id. at 110.
Based on his performance of several of the autopsies in
June of 1996, his review of the complete autopsy files and
photographs from the AFIP, and his training and
experience as a forensic pathologist, Dr. Parsons testified
as to his opinion to a reasonable degree of certainty that
16 of the 17 individuals were rendered immediately
unconscious and died immediately or shortly after the
explosion. Id. at 110–111. According to Dr. Parsons,
Airman Christopher Lester, the single plaintiff who did
not die immediately after the explosion, died after a
significant post-injury survival period. Id. at 111.
E. Damages
Before assessing the merits of the individual claims, this
Court must briefly discuss damages in actions against
foreign states arising under the FSIA. To obtain damages
against defendants under the FSIA, the plaintiffs 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 damages by a
‘reasonable estimate’ consistent with this [Circuit’s]
application of the American rule on damages.” Salazar,
370 F.Supp.2d at 115–16 (quoting Hill v. Republic of
Iraq, 328 F.3d 680, 681 (D.C.Cir.2003)) (internal
quotations omitted).
*269 1. Compensatory Damages
As a result of the wrongful conduct of defendants Iran,
MOIS, and the IRGC, plaintiffs have suffered and will
continue to suffer pain and mental anguish. Under the
FSIA, if a foreign state may be held liable, it “shall be
liable in the same manner and to the same extent as a
private individual under like circumstances.” 28 U.S.C. §
1606. Accordingly, plaintiffs are entitled to the typical
bases of damages that may be awarded against tortfeasors
under the laws under which each claim is brought.
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. Prevatt, 421 F.Supp.2d at 160.
“While intervening changes in law have ruled many
cases’ reliance on federal common law improper, such
findings need not disturb the accuracy of the analogy
between solatium and intentional infliction of emotional
distress.” Haim, 425 F.Supp.2d at 71.
In determining the amount of compensatory damages
awards to family members of a surviving victim, this
Court has held that these awards are determined by the
“nature of the relationship” between the family member
and victim, and “the severity of the pain suffered by the
family member.” Haim, 425 F.Supp.2d at 75. Spouses
typically receive greater damage awards than parents,
who, in turn, receive greater awards than siblings.
Compare, e.g., Anderson v. Islamic Republic of Iran, 90
F.Supp.2d 107, 113 (D.D.C.2000) (Jackson, J.) (awarding
$10 million to the wife of a hostage and torture victim);
Cicippio, 18 F.Supp.2d at 70 (same), with Eisenfeld, 172
F.Supp.2d at 8 (awarding $5 million each to the parents
and $2.5 million each to the siblings of victims of a
suicide bombing on a passenger bus); see also Flatow,
999 F.Supp. at 31 (awarding parents each $5 million and
siblings each $2.5 million of victim who was killed in the
same passenger bus bombing in which Seth was injured).
Moreover, “families of victims who have died are
typically awarded greater damages than families of
victims who remain alive.” Id. While the loss suffered by
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the plaintiffs in these cases is undeniably difficult to
quantify, courts typically award between $8 million and
$12 million for pain and suffering resulting from the
death of a spouse24 approximately $5 million to a parent
whose child was killed25 and approximately $2.5 million
to a plaintiff whose sibling was killed.26
2. Pain and Suffering Damages
Dr. Dana Cable testified as an expert for the plaintiffs
concerning the grief process *270 and the factors which
cause it to be more extensive and intensive. (Feb. 10,
2004 Tr. at 9–28; Ex. 267.) Dr. Cable testified concerning
the impact of each decedent’s death on his particular
family. (Feb. 10, 2004 Tr. at 28–214.) Dr. Cable is a
licensed psychologist, a certified death educator, and a
certified grief therapist. (Id. at 5; Ex. 267.)
Dr. Cable described the grief process and the seven stages
of grief: (1) shock; (2) disorganization; (3) volatile
emotions; (4) guilt; (5) loss & loneliness (usually lasting
1–2 years); (6) relief (can go on with life, but experience
some guilt for going on); and (7) reestablishment. (Feb.
10, 2004 Tr. at 9–11.) Dr. Cable stated that each of the
surviving family members were still in the “loss and
loneliness” stage of the grief process. Id. at 11. Dr. Cable
described this stage of the grief process as “the most
intense part of the grief process.” Id. at 10.
Though a person who loses someone to death is only in
the “loss and loneliness” stage for a year or two, Dr.
Cable explained that a number of issues present in this
case complicate the grieving process and cause the “loss
and loneliness” stage to last much longer for family
members of terrorism victims. Id. at 11–12; 19–23.
According to Dr. Cable, the grief process is made worse
for the family members because none of them were
present at the time the terrorist act took place at Khobar
Towers. Id. at 26.
The Court’s review of the testimony and the demeanor of
the plaintiffs, as well as the testimony accepted via
affidavit, leads the Court to agree with Dr. Cable’s
opinion that all of the plaintiffs are still in the “loss and
loneliness” stage of the grief process, even seven and
one-half years after the death of their loved ones.
3. Punitive Damages
In addition to seeking compensatory damages against the
defendants, plaintiffs have also sought punitive damages
against the defendants. Punitive damages, however, are
not available against foreign states. 28 U.S.C. § 1606;
Blais, 459 F.Supp.2d at 60–61. Accordingly, plaintiffs’
claim for punitive damages against defendant Islamic
Republic of Iran cannot be maintained, and is denied.
Moreover, “punitive damages are not recognized against
divisions of a foreign state that are considered to be the
state itself, instead of an agent or instrumentality
thereof.”27 In order to determine whether the entity is
sufficiently linked to the foreign state for punitive
damages purposes, the court must assess the core
functions of the entity. See Roeder, 333 F.3d at 234.
Entities that are governmental are considered a part of the
foreign state itself, while commercial entities are deemed
agencies or instrumentalities of the foreign state, and
thereby subject to punitive damages. Id. Plaintiff has an
affirmative burden of producing evidence that the entity is
commercial. Blais, 459 F.Supp.2d at 60–61.
Here, there is inadequate evidence for this Court to
determine that either MOIS or IRGC is sufficiently
commercial as to justify the imposition of punitive
damages against them. Therefore, this Court lacks
authority to grant plaintiffs’ request for punitive damages
against MOIS and IRGC because both MOIS and IRGC
are governmental entities, and parts of the state of Iran
itself. Accordingly, *271 plaintiffs’ claim for punitive
damages as to the remaining two defendants is denied.
VI. Specific Findings and Conclusions, By State
Plaintiffs’ claims in this action involve the consideration
of the laws of eleven different states. The estates and
family members of the seventeen servicemen killed in the
attack on the Khobar Towers have asserted wrongful
death claims and intentional infliction of emotional
distress claims. The following discussion is organized by
state, first providing an overview of the causes of action
under that state’s law, and then discussing each plaintiff’s
individual claims as applied under those laws.
A. Florida
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1. Causes of Action
a. Wrongful Death
Under Florida law, a right of action exists for wrongful
death in favor of the personal representative of the
decedent’s estate for the benefit of certain designated
beneficiaries. Fla. Stat. Ann. §§ 768.16–768.25 (2005).
Under the Florida Wrongful Death Act,
When the death of a person is
caused by the wrongful act ... of
any person [or entity] ... and the
event would have entitled the
person injured to maintain an
action and recover damages if
death had not ensued, the person
[or entity] ... that would have been
liable in damages if death had not
ensued shall be liable for damages
as specified in this act
notwithstanding the death of the
person injured, although death was
caused under circumstances
constituting a felony.28
Moreover, the Florida Wrongful Death Act allows the
decedent’s personal representative to bring an action for
the benefit of the decedent’s estate and the decedent’s
“survivors.” Fla. Stat. Ann. § 768.20–768.21. Under the
Act, “survivors” who may be entitled to recovery include
the decedent’s: (1) spouse, (2) children, (3) parents, and
(4) blood relatives, provided these blood relatives can
demonstrate they are partly or wholly dependent on the
decedent for support. Fla. Stat. Ann. § 768.18.29
If the decedent has a surviving spouse or lineal
descendants or the decedent is an adult with a surviving
parent but no dependents, then the decedent’s personal
representative may recover the present value of the “loss
of the prospective net accumulations” of the decedent that
might reasonably have been expected but for the wrongful
death. Fla. Stat. Ann. § 768.21(6).30 A personal
representative *272 may recover on behalf of minor
children the value of lost support and services, the loss of
parental companionship, instruction and guidance, and for
mental pain and suffering from the date of injury. Fla.
Stat. Ann. §§ 768.21(1), (3). A decedent’s surviving
spouse and children may recover for mental pain and
suffering from the date of the injury. Fla. Stat. Ann.
768.21(2), (3).31 A decedent’s surviving parents may also
recover for mental pain and suffering if the decedent is
under 25 years old. Fla. Stat. Ann. § 768.21(4). If the
decedent is 25 years old or older, then the decedent’s
surviving parents may only recover for mental pain and
suffering if there are no other survivors. Fla Stat. Ann. §
768.21(4).
b. Intentional Infliction of Emotional Distress
Florida courts have adopted Section 46 of the
RESTATEMENT (SECOND) OF TORTS (1965) as the
definition of the tort of intentional infliction of emotional
distress. Metropolitan Life Ins. Co. v. McCarson, 467
So.2d 277, 278–79 (Fla.1985). Specifically, under Florida
law, a defendant is liable for intentional infliction of
emotional distress if the defendant’s “extreme and
outrageous conduct intentionally or recklessly causes
severe emotional distress to another....” Id. (quoting
RESTATEMENT (SECOND) OF TORTS § 46(1)
(1965)).
In evaluating the degree of severity of the defendant’s
conduct, Florida courts have held that liability for
intentional infliction of emotional distress is found “only
where the conduct has been so outrageous in character,
and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.” McCarson,
467 So.2d at 279 (quoting RESTATEMENT (SECOND)
OF TORTSSSSSSS § 46 cmt. d (1965)). A defendant’s
conduct is deemed intentional where the defendant
“knows that such distress is certain, or substantially
certain, to result from his conduct....” McCarson, 467
So.2d at 279 (quoting RESTATEMENT (SECOND) OF
TORTS § 46 cmt. i (1965)). Plaintiffs who are the spouse,
child, sibling, or parent of a decedent have standing to
recover for intentional infliction of emotional distress
even though plaintiffs were not present at the scene.
Williams v. City of Minneola, 575 So.2d 683, 690
(Fla.App.1991).
2. Plaintiffs
a. Estate and Surviving Family Members of Brent
Marthaler32
i. Estate of Brent Marthaler
Airman First–Class Brent Marthaler was born in 1976,
and was raised in Minnesota. He is survived by his wife,
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plaintiff Katie Lee Marthaler, his parents plaintiffs
Herman C. Marthaler III and Sharon Marthaler, as well as
his brothers, plaintiffs Kirk and Matthew Marthaler.
Brent graduated from high school in June of 1994 and
joined the *273 U.S. Air Force. Brent graduated from
boot camp in September 1994, and Katie drove to Texas
with Brent’s parents to attend his graduation. (Dec. 2,
2003 Tr. at 62–63.) Brent went to technical school in
Texas after his graduation from basic training. After
graduation, Brent was then assigned to Shepherd AFB for
his advanced technical training. (Dec. 3, 2003 Tr. at 21.)
After advanced training, Brent was permanently assigned
to Eglin AFB in Florida. (Dec. 2, 2003 Tr. at 62–63.)
Brent was scheduled to be deployed to Saudi Arabia in
April 1996. Two days prior to his deployment, however,
Brent and Katie Lee Marthaler, his high school sweetheart
of five years, were married to each other. According to
Katie, Brent “just felt better going to Saudi Arabia and
knowing that we were married and that we were taking on
the world together then.” Id. at 73–74.
While he was away, Brent stayed in regular contact with
Katie and his family, talking with Katie on the phone
once a week, and writing letters to her four or five times a
week. Brent clearly had high hopes for his life ahead with
Katie. In one letter to Katie, Brent told her that “I think of
you and all the fun that we have had and all the fun that
will come in the next 50 years or so. I can truly say that
you are the person that keeps a smile on my face 24–7 and
for that I can never repay you, but I’m going to try my
hardest.” Id. at 78–79. Brent was scheduled to return
home from Saudi Arabia on June 27, 1996, a mere two
days after the attack on the Khobar Towers.
Brent Marthaler’s estate is represented by his wife, Katie
Lee Marthaler. Brent’s estate has asserted claims under
Florida’s wrongful death statute because he was last
domiciled in Florida. As the personal representative of
Brent’s estate, Katie Lee Marthaler is the proper plaintiff
to bring a wrongful death action under Florida law. See
Fla. Stat. Ann. § 768.20–768.21. Because Brent had no
children, and no evidence was put forth at trial that his
siblings were dependent upon him, any recovery under
this wrongful death action is for the benefit of Brent’s
wife Katie, and his parents, Herman C. Marthaler and
Sharon Marthaler. See Fla. Stat. Ann. § 768.18.
Based upon the pleadings and evidence presented to the
Court, the estate of Brent Marthaler has made out a valid
claim for wrongful death under Florida law, and the
beneficiaries of this estate are entitled to recover the
present value of any “loss of the prospective net
accumulations” of the decedent that might reasonably
have been expected but for the wrongful death. Fla. Stat.
Ann. § 768.21(6). Additionally, as Brent’s widow, Katie
Lee Marthaler is entitled to recover personally for the loss
of Brent’s companionship and protection, as well as for
her mental pain and suffering she sustained as a result of
her husband’s death. Fla. Stat. Ann. § 768.21(2).
Moreover, Brent’s parents are entitled to recover for their
own mental pain and suffering due to the fact that Brent
was under 25 years of age. See Fla. Stat. Ann. §
768.21(4).
Dr. Herman Miller, an economic consultant testified as
an expert that, were it not for Brent’s untimely death, he
experienced a net economic loss of $1,598,688.00. The
Court should therefore award the Estate of Brent
Marthaler, by Katie Lee Marthaler as personal
representative, $1,598,688.00 in economic damages for
the benefit of Katie Lee Marthaler, Herman C. Marthaler,
and Sharon Marthaler, to be distributed in a manner
consistent with the statute governing intestate distribution
of property under Florida law. As for the intangible
economic damages of the wrongful death recovery, the
Court will address those awards below, in an
individualized discussion of the claims of *274 Katie Lee
Marthaler, and Herman and Sharon Marthaler.
ii. Katie Lee Marthaler
Plaintiff Katie Lee Marthaler is the widow of Brent
Marthaler. Katie is participating in this lawsuit both as the
personal representative to her husband’s estate, and on her
own behalf.
Ms. Marthaler is a United States citizen. She is 25 years
old and was born on March 15, 1978 in Robbinsdale,
Minnesota. (Dec. 2, 2003 Tr. at 52.) Her parents are
Dennis and Jennifer Barthel who have been married for
30 years. She has one sister, Sarah, who is 22 years old.
Katie grew up in Rogers, Minnesota. When Katie was 17,
her family moved to nearby St. Michael, Minnesota. She
attended elementary school in Rogers and junior and
senior high school in Oak River, Minnesota. Id. at 53–54.
Katie met Brent Marthaler in 1991 when she was in the
eighth grade and had just turned 14. Brent had just turned
16, and was in the tenth grade. Brent lived in Cambridge,
Minnesota. Soon after Katie and Brent met each other,
they began dating. Katie dated no one other than Brent
from the time she met him when she was 14 years old
until his death at Khobar Towers in June 1996. Id. at
55–56. Katie described Brent as a thoughtful and caring
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© 2019 Thomson Reuters. No claim to original U.S. Government Works. 18
person. Brent was also close to Katie’s parents. Katie’s
family treated Brent as if he were part of their family for
many years. Id. at 56–57.
Brent graduated from high school in June of 1994 and
joined the U.S. Air Force. Katie kept in touch with him,
but it was not easy to keep in touch during boot camp
because the young airmen do not have much time to write
or call. Once he was out of boot camp, they kept in
regular touch. Even during boot camp Brent would write
letters once or twice a week and would call Katie when he
would get his “morale call.” Brent graduated from boot
camp in September 1994, and Katie drove to Texas with
Brent’s parents to attend his graduation. Id. at 62–63.
Upon graduation, Brent was permanently assigned to
Eglin AFB in Florida. Brent and Katie spoke almost every
night; some nights it was for a half hour, and other nights
it was for hours. Brent came home for Katie’s junior prom
in May 1995. Brent came home to Minnesota in October
of 1995 and asked Katie to marry him. Katie was only a
junior in high school so they had much to do to convince
their parents. Brent had prepared a strategic plan which he
had written down. Katie remembers that her mother was
crying and her father did not say a whole lot. Brent had
brought home a registration form for Katie to go to
college. Katie’s father requested that they visit Father
McLaughlin at St. Michael’s Church. After they met with
him, Father McLaughlin announced that Brent and Katie
were the perfect couple and he did not see any reason why
they should not get married, no matter what their ages
were. As a result, by the end of the weekend, everyone
was excited. As Katie explained, Brent’s “plan worked, so
he had it all figured out.” Id. at 71–72.
Katie visited Brent in Florida during her Spring vacation,
which was in the first week of April 1996. Brent was
scheduled to deploy with his squadron to Saudi Arabia
two days after the end of Katie’s vacation. Katie had just
turned 18. Two days before Katie was scheduled to leave,
Brent explained that he was worried about going to Saudi
Arabia. He knew that it was an unfriendly place and he
wanted to make sure that they had gotten married before
he went there. Katie explained that Brent “just felt better
going to Saudi Arabia and knowing that we were married
and that we *275 were taking on the world together then.”
Id. at 73–74.
So Brent and Katie went to the Courthouse and got
married. They agreed not to tell anybody because they
knew their parents would be upset. Invitations, a wedding
dress, and a wedding cake for a September 1996 wedding
had already been ordered. They agreed not to tell anybody
until after Brent returned from Saudi Arabia. Brent did
not want Katie to have to tell everyone by herself. Id. at
74–75.
In the weeks after Brent was killed, Katie was very angry.
She did not want to eat. Her mother would make her eat
by placing a plate of food in front of her and refusing to
allow her to leave the table until she ate. Katie could not
sleep but she still wanted to be in bed all the time. Her
family would have to drag her out of bed. Id. at 90–91.
In the years since Brent’s death, Katie has had many bad
days. After September 11, 2001, Katie relived her
experience and was very angry. She could not go to work
for a couple of days because she felt so badly for the
families. She was scared that terrorism was occurring in
our country. Id. at 91. Katie has a recurring dream about
Brent. She dreams that she is sleeping with him, and she
knows that he is behind her. She wakes up and rolls over
and puts her arm around him, and he is laying in bed like
he was in the coffin with his head wrapped in gauze and a
plastic device in place of his chin. Id. at 91.
Katie still keeps mementos of Brent in her home. She
displays her wedding picture and also a picture of Brent in
his jet with a big smile and his arms stretched out. She has
a hope chest with the gifts that Brent had given her, her
wedding dress, and all the letters that he sent her. Id. at
91–92.
As Dr. Cable testified, Katie “is in loss and loneliness....
She has tried to rebuild her life. She has tried to go on....
She still thinks about Brent all the time, and that will
never change.... When someone so close to you dies at 18,
your new husband ... you worry about everybody else
close to you. What if something happened to them, too? ...
She has had to grow up very fast, and that’s been
difficult.... And there will always be those questions of:
the life we should have had together; all the plans we had
and all the promise. That will never fade. That will always
stay present.” (Feb. 10, 2004 Tr. at 69–71.)
Based on the evidence presented to the Court, it is clear
that Katie Lee Marthaler has experienced and continues to
experience extreme mental anguish and suffering
resulting from the loss of her husband. Accordingly, the
Court shall award the Estate of Brent Marthaler, by Katie
Lee Marthaler as Personal Representative, $8 million for
the benefit of his surviving wife, Katie Lee Marthaler, to
compensate her for the loss of Brent’s companionship and
protection, as well as for her mental pain and suffering
she sustained as a result of her husband’s death.
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iii. Herman C. Marthaler & Sharon Marthaler
Sharon A. Marthaler, Brent Marthaler’s mother and a
United States citizen, was born in Ortona, Minnesota on
January 11, 1946. She was raised on a dairy farm where
she lived with her mother, father and two brothers. After
graduating from high school, Sharon took a one year
course at the University of Minnesota to train as a medical
technician. She then began working as a medical
technician at Riverview Memorial Hospital in West St.
Paul. On February 26, 1971, she married Herm Marthaler.
(Dec. 3, 2003 Tr. at 2–5.)
*276 Herman Charles Marthaler III, Brent Marthaler’s
father and a United States citizen, was born in St. Paul,
Minnesota on January 12, 1947. He was raised on the
Marthaler homestead in West St. Paul, Minnesota. Herm’s
parents were Donna Ann Merit and Herman Charles
Marthaler, Jr. Herm’s father served in the United States
Air Corps as a navigator on a B–29 during World War II,
flew 22 combat missions out of Guam and “was in the air
with 400 planes when they dropped the atom bomb.”
After his discharge from the military, Herm’s father
owned Marthaler Calf and Cattle where he bought and
sold feeder cattle. After graduating from high school in
1965, Herm went to the University of Minnesota for one
year and then he enlisted in the Air Force in the Fall of
1966. Herm served in five campaigns in Vietnam. On
February 26, 1971, he married Sharon Marthaler. (Dec. 3,
2003 Tr. at 41–44.)
Sharon and Herman Marthaler initially lived in West St.
Paul and then moved to Emery Grove, Minnesota where
they had three sons within 30 months. The oldest, Kirk,
was born in 1974. Matt was born in 1975 and Brent was
born 1976. After Brent was born, the Marthaler family
moved to Cambridge, Minnesota. Id. at 5–7.
In the first years after Brent’s death, it was extremely
difficult for Sharon to go to work and get through each
day. She testified that as time goes on, it gets a little
easier, “but it is always still there. You finally come to
realize things will never be the same.” Every once in a
while, Sharon has dreams about Brent, and he tells her
that “things aren’t as bad as you think.” Id. at 36–37.
Sharon has visited Eglin AFB twice since Brent’s death.
The first time was for a bricklaying ceremony in
September of 1996. She went with Katie and Katie’s
mother. The second time was January of 1998. She and
Herm went there to take pictures of a memorial that had
been erected to honor the victims of the Khobar Towers
bombing and to meet some of Brent’s friends again. By
that time, however, most of the young airmen that Brent
had served with had left Eglin AFB. Sharon recalled
“[t]here weren’t a lot of the old crew there anymore.” Id.
at 37. Sharon and Herm visit Brent’s grave two or three
times a year. They usually go on Memorial Day,
Columbus Day and Veteran’s Day. They leave a wreath
by his grave on Veteran’s Day because in Minnesota, the
cemetery will leave the wreath in place until March when
they do their Spring cleanup. Herman and Sharon also
have a flag garden and a flag in their yard where they
plant flowers. Id. at 37.
Sharon and Herman keep numerous mementos of Brent
around their house. They have two tall cabinets in his old
bedroom full of notes and cards that Brent wrote to them.
They have also kept his baseball and football cards.
Sharon also had a flag flown over the United States
Capitol for Brent and the other 18 airmen killed at the
Khobar Towers. Id. at 38. The Marthalers put a poster on
their mailbox every June 25th with a picture of Brent
taken just before he left for Saudi Arabia and the words
“Remember the 19.” Sharon contributes money in Brent’s
name to an organization called The Little Farm which is a
nursery for disadvantaged children. Sharon makes the
contribution in Brent’s name periodically because it
makes her feel good to write his name. Id. at 40–41.
Herman testified about the impact of Brent’s death on his
wife, Sharon, “[s]he’ll never be the same. Absolutely
never.” Herm thinks of Brent “every second of every
day.” He testified “[w]hen I don’t perform well enough is
the day I wear [Brent’s] T-shirt. When I am not going
*277 fast enough [Brent]’s right here and he says, you can
do this, pop, just bend with the knees and lift harder. So
it’s every second of every day.... This is why Sharon and I
sit down every day for two and a half hours from the
moment she gets home.” The holidays are difficult for the
Marthaler family. Herman testified “Christmas is tough
because we know [Brent] really loved Christmas.
Veteran’s Day ... is the one that we get to put the wreath
down and they’ll leave ... it until Spring.” Herman
believes that “the holidays that [Brent] liked the best is
when it hurts us the most.” Id. at 77–80.
According to Dr. Cable, Herman “is still in loss and
loneliness. Brent was a very important part of his life....
His grief will continue in the future ... [and] there will be
for him a very strong void that will never be filled [t]hat
will continue to cause pain and just is never going to go
away.” (Feb. 10, 2004 Tr. at 72–73.) Similarly, Dr. Cable
testified that Sharon “is still in loss and loneliness. She
thinks of [Brent] all the time, so very much a part of her
life.... She, too, has grief that will continue in the future. I
see her as one who slowly will recover, but who will
experience what we sometimes refer to as waves of grief;
that is, where it comes back and sort of hits us again and
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when we perhaps are least prepared and least expect it....
[S]he is going to be contending with that in the years
ahead.” Id. at 75.
Based upon the evidence presented at trial, both Herman
and Sharon Marthaler have experienced severe mental
anguish and suffering as a result of their son’s untimely
death. Therefore, this Court shall award to the estate of
Brent Marthaler, by Katie Lee Marthaler as Personal
Representative, $5 million for the benefit of his father
Herman Marthaler, and $5 million for the benefit of his
mother Sharon Marthaler to compensate both for the
mental pain and suffering both have sustained as a result
of their son’s death.
b. Estate and Surviving Family Member of Justin
Wood33
i. Estate of Justin Wood
Airman First–Class Justin R. Wood was killed in the
Khobar Towers bombing on June 25, 1996. Pl.Ex. 2.
Justin was born on July 16, 1975 and was 20 years old
when he died. (Dec. 4, 2003 P.M. Tr. at 11.) Justin is
survived by his father Richard Wood, his mother
Kathleen Wood, and his older brother Shawn Wood.
From a very young age, Justin was always interested in
sports. He particularly loved soccer and basketball. But as
Justin got older, he played less soccer and devoted more
and more time to basketball. “Basketball was his love.”
Justin was also a trivia whiz when it came to basketball
and could recite the names and statistics of college
basketball players, particularly players from his favorite
teams. (Id. at 107–108; Dec. 4, 2003 P.M. Tr. at 15.) In
addition to playing basketball and soccer, Justin also took
karate and participated in karate tournaments. (Dec. 4,
2003 A.M. Tr. at 107–108.)
Soon after graduating from high school, Justin joined the
Air Force. Rich and Kathy were surprised by this
decision. Growing up, Justin always said he would not
join the military because “when you go *278 in the
service you die.” Rich and Kathy do not know where
Justin got this idea from, but he never wanted to join the
service. Then one day, after Justin graduated from high
school, he came home and told his parents that he had
enlisted in the Air Force along with his friend Travis
Hudson. (Id. at 113–114; Dec. 4, 2003 P.M. Tr. at 19.)
One of the reasons Justin joined the service was because
he wanted to attend college. Justin knew that Rich and
Kathy could not afford to send him to college and he
knew that he could get that college money by joining the
Air Force. He told Kathy that in the Air Force, “ ‘I can
build up a college fund, save money for college, and I can
take college classes while I’m there.’ ” (Dec. 4, 2003
A.M. Tr. at 113; Dec. 4, 2003 P.M. Tr. at 20.)
After joining the Air Force, Justin attended basic training
at Lackland AFB, then went to Albuquerque, New
Mexico for specialized training. He ultimately became a
loadmaster with a search and rescue squad that was based
at Patrick AFB in Florida. Justin was the first airman to
go straight from boot camp to a loadmaster position with
search and rescue. (Dec. 4, 2003 A.M. Tr. at 114.) Justin
loved his job, particularly the crew of guys he was
working with in the search and rescue squad. Id. at 117.
Justin Wood’s estate is represented by his father, plaintiff
Richard Wood. Justin’s estate has asserted claims under
Florida’s wrongful death statute because he was last
domiciled in Florida. As the personal representative of
Justin’s estate, Richard Wood is the proper plaintiff to
bring a wrongful death action under Florida law. See Fla.
Stat. Ann. § 768.20–768.21. In light of the fact that Justin
had no spouse, or children, and that no evidence was
submitted demonstrating that his brother Shawn was
financially dependent upon Justin, any recovery under this
wrongful death action is for the benefit of Justin’s parents,
Richard and Kathleen Wood. See Fla. Stat. Ann. § 768.18.
Based upon the pleadings and evidence presented to the
Court, the estate of Justin Wood has made out a valid
claim for wrongful death under Florida law. The
beneficiaries of this estate, however, are not entitled to
recover the present value of any “loss of the prospective
net accumulations” of the decedent that might reasonably
have been expected but for the wrongful death because
Justin was under 25 years old when he died, and did not
have either a surviving spouse or any surviving lineal
descendants. Fla. Stat. Ann. § 768.21(6)(a)(1). Still,
Justin’s parents are entitled to recover for their own
mental pain and suffering arising out of this wrongful
death action due to the fact that Justin was under 25 years
of age when he died. See Fla. Stat. Ann. § 768.21(4). A
discussion of these intangible economic damages of the
wrongful death recovery will be addressed below in an
individualized discussion of the claims of Richard and
Kathleen Wood.
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© 2019 Thomson Reuters. No claim to original U.S. Government Works. 21
ii. Richard Wood & Kathleen Wood
Richard (“Rich”) Wood is the father of Justin Wood. He
was born in Hillsboro, Wisconsin on November 12, 1945.
He is an American citizen. (Dec. 4, 2003 A.M. Tr. at 99.)
Kathy Wood is the mother of Justin Wood. She was born
in Los Banos, California on October 7, 1949. She is an
American citizen. (Dec. 4, 2003 P.M. Tr. at 2.)
When Rich moved to Modesto to work at the Gallo’s
warehouse, he met his wife, Kathy Wood. Rich worked at
Ernest and Julio Gallo’s winery in Modesto, California
for 34 years before retiring. (Dec. 4, 2003 A.M. Tr. at
103, 135.) After Rich and *279 Kathy married, they had
two children: Shawn, who was born in March of 1971,
and Justin, who was born in July of 1975. (Dec. 4, 2003
P.M. Tr. at 11.)
Rich does not remember what he and Kathy did after they
learned about their son’s death, other than hold each other
and cry. He felt numb. (Dec. 4, 2003 A.M. Tr. at 122–24.)
Kathy was in shock. “All I could do is just sit and pray for
it not to be true.” (Dec. 4, 2003 P.M. Tr. at 31.)
The day Kathy learned of Justin’s death, her doctor
prescribed Xanax to help her deal with everything. She
did not want the drug, but she did take it and it helped her
sleep. Days after Justin’s death, Rich, Kathy, and Shawn
attended a memorial service at Patrick AFB. Upon
arriving at Patrick AFB, they were met by Justin’s flight
squad, who whisked them away and took care of them for
the next few days. “They did not want us to be anxious
about anything. They went overboard to make sure that
we were comfortable and well taken care of.” The squad
took Rich and Kathy to the hotel, to the base, to their
squad room, and to a squad member’s home, where they
had a huge gathering and met the squad members’
families. (Id. at 36; Dec. 4, 2003 A.M. Tr. at 125–26.)
Since the Modesto ceremony and the burial service, Rich
and Kathy have attended numerous Khobar Towers
memorials and dedications. They attended the opening of
the Khobar Towers display at Heritage Hall, which is the
museum for enlisted men in Montgomery, Alabama.
(Dec. 4, 2003 A.M. Tr. at 118–19, 130.) They attended
the dedication ceremony for the monument to the victims
of Khobar Towers at Patrick AFB. They also attended the
FBI briefing held in Quantico, Virginia, where certain
family members were briefed about the status of the
Khobar Towers criminal investigation. Id. at 130.
After Justin’s death, Rich “just shut down.” He shut
himself up in a room in his house and spent time on the
computer and away from everyone else. “I couldn’t talk to
my wife because if I talked to my wife, she’d cry or if she
talked to me I’d cry. I just had a real difficult time.” Rich
became reclusive and did not want to have anything to do
with anyone. Id. at 130–31. Rich even began showing
physical manifestations of his problems and began
breaking out in welts. (Dec. 4, 2003 P.M. Tr. at 41.)
Rich began seeing a psychiatrist two to three times a week
after Justin died and continued seeing her throughout the
year following Justin’s death. (Dec. 4, 2003 A.M. Tr. at
130, 132.) The psychiatrist prescribed Rich a medication
that helped with his emotional suffering. Rich stayed on
this medication for three to four years. After Rich started
taking the drug, he began to feel better and thought he
could stop taking the drug. But shortly after he went off
the medication, Rich “went bananas” and shut down
again. The psychiatrist was so concerned that she placed
him in a medical facility called Crossroads, where he
stayed for a week. Id. at 132–33.
It has been difficult for Rich to get rid of any of Justin’s
possessions since he died and Rich’s home is now full of
them. He has Justin’s Persian rug, aquarium, lamps,
furniture, and all of his military uniforms. Moreover, Rich
has encountered a hard time coping with life since Justin
died. Rich finds it difficult to make decisions, he gets
confused, and gets lost. He also cries at the drop of a hat.
It is difficult for him to watch the news and see soldiers
being killed because he knows what the parents are going
through. September 11, 2001 was particularly difficult.
Rich’s relationship with his family has also been
dramatically altered since Justin was killed. Today, *280
Rich cannot talk about things with his family the way he
used to. Id. at 140. Holidays are no longer enjoyable for
Rich. Id. at 138.
Rich and Kathy have created a number of lasting
memorials in Justin’s honor. “I have his flag box on his
coffee table. I have eagles all over the place. I put up a
flag pole out in the front [of the house]. Together with the
PTA at Rose Avenue School where he went to grade
school, we put in a rose garden.... And then we have a
plaque and planted a tree at the high school he attended.”
Id. at 141.
Today, Rich still has moments where he just falls apart.
Id. at 131–132. The biggest problem is that the hurt never
goes away. Id. at 136. “I think about Justin every single
day. There’s no particular thing that sets it off. It’s just
always there.” Id. at 139.
According to Dr. Cable, Rich
is in extreme loss and loneliness.
He is also having volatile emotions.
I think the real difficulty for him, in
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© 2019 Thomson Reuters. No claim to original U.S. Government Works. 22
terms of his loss and loneliness, he
doesn’t want to get better.... He is
very lonely. He is very bitter. He is
withdrawn from all of those people
who could support him, all of those
people who love him.... [His
prognosis is] really very poor....
His grief will last a lifetime. He
doesn’t want to forget. He doesn’t
want to let go of the pain, and I fear
will permanently damage any
family relationships.34
After Justin’s death, Kathy was coping with her own
profound grief but also was dealing with her husband,
who “was very angry, very upset, very distraught.” Rich’s
reaction to Justin’s death caused a great deal of friction
between Kathy and Rich, resulting in nearly constant
arguments between Kathy and Rich. Id. at 39–40. To help
Kathy forced herself to go back to work and this was
helpful, because there was a support system in place for
her there. “If someone’s having problems, we do what we
can to make them feel good and strengthen them up as
well, and I needed my friends.” Going back to work
prevented Kathy from going into a deeper depression. Id.
at 41–42. But Kathy felt bad about going back to work
because Rich could not bring himself to do the same thing
and because she began shutting him out more, in the hope
that doing so would prevent further anxiety for him. Id. at
41.
As a result of the rift between Kathy and Rich, Kathy
began doing more things by herself. She regularly attends
church-related events and has girls’ night out with her
friends. She still does not go out with Rich like she used
to before Justin died. Id. at 45. To this day, Kathy and
Rich’s relationship has not returned to normal. Id. at 40.
Kathy and Rich’s physical relationship has also not
returned to normal.
Kathy still thinks about Justin all of the time and likes to
keeps things around that remind her of him. She put
together a scrapbook of pictures from Justin’s childhood
that she carries with her often.
As to her emotional state, Dr. Cable testified that Kathy is
in loss and loneliness. “She has tried to move on and I
think really wants to, but there is a lot of personal grief
still present. Then, of course, it’s complicated by how her
husband has dealt with all of this and then the anger and
intense grief he has got.... [H]er grief will continue for a
long period of time. I believe her marriage will suffer ...
may full break down.” (Feb. 10, 2004 Tr. at 207.)
*281 Based upon the evidence presented at trial, both
Richard and Kathleen Wood have experienced severe
mental anguish and suffering as a result of their son’s
untimely death. Therefore, this Court shall award to the
estate of Justin Wood, by Richard Wood as Personal
Representative, $5 million for the benefit of his father
Richard Wood, and $5 million for the benefit of his
mother Kathleen Wood to compensate both for the mental
pain and suffering both have sustained as a result of their
son’s death.
c. Estate and Surviving Family Members of Michael
Heiser
i. Estate of Michael Heiser
Michael (“Mike”) Heiser was killed in the Khobar Towers
bombing on June 25, 1996. (Dec. 5, 2003 A.M. Tr. at 29;
Ex. 2.) Mike was born on September 20, 1960 and was 35
years old when he died. (Id. at 5, Ex. 67.) Mike was
unmarried and had no siblings. Mike is survived by his
parents, Francis (“Fran”) and Gary Heiser. Though Gary
is not Mike’s biological father, he legally adopted Mike.
Id. at 8, 53–54. Mike had a special and rewarding
childhood in Germany. On weekends and holidays, he
would travel with Fran and Gary to see the German
countryside and became involved in collecting antiques
and other items. Mike was a natural businessman and
even at a young age, helped Fran and Gary purchase
antiques, refurbish them, and sell them for a profit. Id. at
7.
As a child, Mike was smart, funny, and considerate. He
also had a passion for learning. Reading many books and
participating in school activities. Through his travels, he
had many friends all over the world. Mike was also a hard
worker, both during his years as a student and after he
joined the military. Id. at 8–11.
Mike enlisted in the Air Force on June 25, 1979. Because
Gary had served in the Army for 22 years, Mike initially
talked to a recruiter about joining the Army. Gary testified
that he knew the benefits of being in the Air Force and
persuaded Mike look at the Air Force. Mike ultimately
decided that the Air Force was a better career choice, so
he enlisted soon after graduating from high school. Id. at
14, 55.
After attending boot camp and advanced training, Mike
developed a specialty in the communications field and
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© 2019 Thomson Reuters. No claim to original U.S. Government Works. 23
was sent to Mildenhall AFB in England. After spending
three years at Mildenhall, Mike was promoted and
reassigned to Ramstein AFB in Germany, where he was
responsible for communications operations on the Air
Force’s fleet of Gulfstream planes. During Mike’s three
years at Ramstein, he took part in several exciting
missions. For example, he was assigned to the first
airplane escorted into the new, free Russia; he was
assigned to General Schwarzkopf’s personal plane during
the Gulf War; and he was assigned to coordinate
communications when President Clinton visited
Ramstein. Mike loved working and flying on the
Gulfstreams. After spending three years in England and
three years in Germany, Mike transferred back to the
United States and was assigned to Patrick AFB in Florida,
and was later assigned to Saudi Arabia.
Michael Heiser’s estate is represented by his parents, Fran
and Gary Heiser. Michael’s estate has asserted claims
under Florida’s wrongful death statute because he was last
domiciled in Florida. As the personal representatives of
Michael’s estate, Fran and Gary Heiser are the proper
plaintiffs to bring a wrongful death action under Florida
law. See Fla. Stat. Ann. § 768.20–768.21. In light of the
fact that Michael had no spouse or dependents, any
recovery under this wrongful death action is for the
benefit of Michael’s parents, *282 Fran and Gary Heiser.
See Fla. Stat. Ann. § 768.18.
Based upon the pleadings and evidence presented to the
Court, the estate of Michael Heiser has made out a valid
claim for wrongful death under Florida law. Accordingly,
the beneficiaries of this estate are entitled to recover the
present value of any “loss of the prospective net
accumulations” of the decedent that might reasonably
have been expected but for the wrongful death. See Fla.
Stat. Ann. § 768.21(6). Additionally, though Michael was
over 25 years of age at the time of his death, Michael’s
parents are nonetheless entitled to recover for their own
mental pain and suffering arising out of this wrongful
death action due to the fact that Michael died without any
other survivors. See Fla. Stat. Ann. § 768.21(4).
Dr. Herman Miller, an economic consultant testified as
an expert that, due to Michael’s untimely death, he
experienced a net economic loss of $3,720,019.00. The
Court should therefore award the Estate of Michael
Heiser, by Fran and Gary Heiser as personal
representatives, $3,720,019.00 in economic damages for
the benefit of Michael’s parents, Fran and Gary Heiser.
As for the intangible economic damages of the wrongful
death recovery, the Court will address those awards
below, in an individualized discussion of the claims of
Fran and Gary Heiser.
ii. Francis and Gary Heiser
Francis (“Fran”) and Gary Heiser were Mike’s parents.
Fran was born in New Jersey on December 23, 1941 and
was 54 years old when Mike was killed. (Dec. 5, 2003
A.M. Tr. at 4.) Gary was born in Pennsylvania on March
22, 1937 and was 59 years old when Mike was killed. Id.
at 52. Gary was Mike’s adoptive father. Id. at 53–54.
Shortly after graduating from high school, Fran married
and gave birth to Mike who was her only child. After six
years of marriage, Fran and her husband divorced. Fran’s
ex-husband, who was Mike’s biological father, did not
play a a role in Mike’s life after the divorce. In Fran’s
words, her ex-husband “divorced both of us.” Id. at 5–6,
8. Later, Fran met Gary, and they were eventually married
on February 14, 1970. Id. at 6, 53.
When Fran and Gary married, Mike was only nine years
old. Id. at 6, 53. Gary could see that Mike needed a male
influence in his life, and Gary filled that role. In addition
to raising Mike as his own son, Gary formally adopted
Mike. Id. at 8, 53–54, Ex. 67.
Since burying Mike, Fran and Gary have dedicated
themselves to attending numerous memorials all around
the country. “[W]e’ve been to any that we know about.”
Fran and Gary have also kept scrapbooks memorializing
these events and have created a book called “The Story of
a Lifetime,” to preserve Mike’s memory. By posting it on
a website, they have shared this book with other victims
of terrorism, including the other families of the victims of
the Khobar Towers bombing. Id. at 33, 43, 68.
Fran has been deeply affected by the loss of her only
child. After Mike’s death, she did not want to see or speak
with anyone. Id. at 34. It has been particularly difficult for
her to see other people’s children and grandchildren
without becoming emotional. Mike’s death dramatically
impacted Fran’s family life. She is upset how her already
small family broke-down even further when Mike was
killed. Id. at 36, 38. Fran does not even like holidays
anymore.
Fran has experienced severe sleep problems ever since
Mike died. This still occurs today. After Mike’s death,
Fran and *283 Gary decided to sell the family business.
There was no longer a reason to keep the business. The
business had been growing fast, Gary was considering
retiring, and with Mike gone, there was nobody to take
over the business. So after Fran and Gary received an
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offer, they sold the company. Id. at 37.
Fran attended counseling for a short period of time after
Mike died, but did not find it helpful. She then attended a
support group meeting for the Tragedy Assistance
Program for Survivors (“TAPS”) in Washington, D.C.,
which was a support group for family members of
deceased servicemen. Fran found several of the TAPS
support groups helpful, and has made TAPS a beneficiary
of her will. Fran also involved herself with an
organization called Alive Alone, an organization for
parents whose children have died at a young age. Id. at
34–35.
Since Mike’s death, Fran has dedicated much of her life
to being an advocate for victims of terrorism. She has
contacted congressmen about terrorism issues, has
attempted to change the laws to protect United States
servicemembers, and has tried to place terrorism on the
agendas of politicians. She has also spent a great deal of
time reading and educating herself about terrorism. Some
people think Fran is obsessed with it. Id. at 39–40.
To this day, much of Fran and Gary’s home is decorated
with mementos from Mike’s life. Fran and Gary have also
set up the Michael G. Heiser Foundation, in remembrance
of all victims of terrorism. Money donated to the
Foundation is used for ROTC scholarships and to assist
victims of terrorism, through TAPS, Alive Alone, and
another support organization called No Greater Love. Id.
at 41–42.
As Dr. Cable stated, Fran
is very much in loss and loneliness,
and that’s complicated or enhanced
by the lack of family for her future.
So it’s not just present loneliness,
but it’s future loneliness as well;
the family that can never be there....
She will continue in grief the rest
of her life, because there is nothing
besides her husband to put herself
into. There is no one to love. There
is an emptiness there that’s not
going to go away for her. There
will never be grandchildren. So that
real emptiness is long term.
(Feb. 10, 2004 Tr. at 139.)
Gary’s entire life has been affected by the death of his
son. He and Fran always had a small family, but now they
are left without their only child, and their lives have been
shattered. “[O]ur future goes only to the point when I go
and my wife goes. That’s it. The family ceases to exist.”
This has caused great emotional pain for Gary. It forced
Gary and Fran to sell their family business, which they
had planned on passing down to their son. (Dec. 5, 2003
A.M. Tr. at 69–71.)
Like Fran, Gary does not celebrate holidays anymore.
Until Mike died, Gary enjoyed Christmas. But he cannot
enjoy the holiday anymore. Additionally, birthdays and
other holidays are equally tough for Gary to handle. As
Dr. Cable testified, Gary
is in loss and loneliness. As with
his wife, there is no future. There
was a very strong relationship
because of the adoptive choice that
was made between [Gary and
Mike].... His grief will continue for
a great deal of time. Again, the
future is gone. He will move on
with his life, but the grief will
always be there. Part of that will
always be also seeing the pain his
wife is going through.
(Feb. 10, 2004 Tr. at 141–42.)
Based upon the evidence presented at trial, both Fran and
Gary Heiser *284 have experienced severe mental
anguish and suffering as a result of their son’s untimely
death. Therefore, this Court shall award to the estate of
Michael Heiser, by Fran and Gary Heiser as Personal
Representatives, $5 million for the benefit of his mother
Fran Heiser, and $5 million for the benefit of his father
Gary Heiser to compensate both for the mental pain and
suffering both have sustained as a result of their son’s
death.
d. Estate and Surviving Family Members of Earl
Cartrette, Jr.35
i. Estate of Earl Cartrette, Jr.
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Senior Airman Earl Cartrette, Jr. (“J.R.”) was born March
2, 1974, and was the eldest of three sons; J.R.’s two
younger brothers are Lewis, born on November 1, 1976;
and Anthony (“Tony”), born on March 15, 1978. He was
killed on June 25, 1996 while stationed at Khobar
Towers. (Dec. 5, 2003 P.M. Tr. at 2–3; Ex. 9.) J.R.
attended grade and middle school at St. Anthony’s
Catholic School in Sellersburg, Indiana, where his
grandmother worked. His grandmother was in charge of
the school cafeteria. After St. Anthony’s, J.R. attended
Providence High School, a catholic high school in
Clarksville, Indiana. J.R. played football from the third
grade through his junior year in high school. He also ran
track all through grade school, middle school and his
junior year of high school. When he was younger he
played soccer and basketball and wrestled. Id. at 7–8.
J.R. decided to join the U.S. Air Force after high school.
J.R. underwent basic training at Lackland AFB and
advanced technical school at Shepherd AFB, both in
Texas. He was then assigned to Eglin AFB in Florida. Id.
at 20–21. He was deployed with the 58th Fighter
Squadron to Saudi Arabia in March 1996, and was
scheduled to return on June 27, 1996, two days after the
bombing.
J.R.’s estate is represented by his mother, Denise
Eichstaedt. J.R.’s estate has asserted claims under
Florida’s wrongful death statute because he was last
domiciled in Florida. As the personal representative of
J.R.’s estate, Denise Eichstaedt is the proper plaintiff to
bring a wrongful death action under Florida law. See Fla.
Stat. Ann. § 768.20–768.21. In light of the fact that J.R.
had no spouse or lineal descendants, and because no
evidence was presented as to his siblings’ financial
dependence upon J.R., any recovery under this wrongful
death action is for the benefit of J.R.’s mother, Denise
Eichstaedt. See Fla. Stat. Ann. § 768.18.
Based upon the pleadings and evidence presented to the
Court, the estate of Earl Cartrette, Jr. has made out a valid
claim for wrongful death under Florida law. The
beneficiaries of this estate, however, are not entitled to
recover the present value of any “loss of the prospective
net accumulations” of the decedent that might reasonably
have been expected but for the wrongful death because
J.R. was under 25 years old when he died, and did not
have either a surviving spouse or any surviving lineal
descendants. Fla. Stat. Ann. § 768.21(6)(a)(1). Still, J.R.’s
mother is entitled to recover for her own mental pain and
suffering arising out of this wrongful death action due to
the fact that J.R. left *285 no other survivors. See Fla.
Stat. Ann. § 768.21(4).36 A discussion of these intangible
economic damages of the wrongful death recovery, will
be addressed below in an individualized discussion of the
claim of Denise Eichstaedt.
ii. Denise Eichstaedt
Denise Eichstaedt, a United States citizen, was Senior
Airman Earl Cartrette, Jr.’s mother. Denise was born on
March 8, 1953 in Jeffersonville, Indiana. She had three
brothers and a sister and grew up in the Jeffersonville
area. Denise is married to James Eichstaedt. She is a
nurse. Her first husband was Earl Cartrette, Sr. who died
on February 18, 1992, the year that J.R. graduated from
high school. Denise had three sons with Earl Cartrette,
Sr.: J.R. who was born March 2, 1974; Lewis who was
born on November 1, 1976; and Anthony (“Tony”) who
was born on March 15, 1978. Denise raised the three boys
in Sellersburg, Indiana, a small town approximately 6
miles north of Jeffersonville where Denise’s parents still
live. Id. at 4–5.
Denise did not attempt to return to work for two and
one-half months after J.R. was killed. When she did return
to work, she was unable to perform her duties because she
worked on a floor with terminally ill patients, where it
was difficult to work without crying. As a result, the
hospital gave her more time off, and she stayed home for
six months. At that point, however, she decided that it
was in everyone’s best interest for her to resign because
she felt as though she could not do that type of work
anymore. In mid-February 1997, she went to work in a
pediatrician’s office. In the days and weeks following
J.R.’s death, Denise did not want to sleep. That period of
time is essentially “a blur” for her. Id. at 36–37.
Denise has attempted to obtain professional counseling
over the years. She went to see a civilian psychiatrist and
did not continue because he wanted to put her on
medication for depression. Denise explained that she did
not want to take drugs. Denise believes that she is better
off sitting at home contemplating in her own mind,
talking to herself, rather than taking medication. Denise
also attempted to go to a couple of meetings of an
organization called Compassionate Friends which
includes the parents of children who have been killed. She
concluded, however, that she did not fit in because they
did not understand what happens to a parent when her
child is killed by a terrorist. Id. at 36–38. When Denise
looks at a picture of J.R., she begins to cry. Sometimes
she cries for a short period of time and sometimes she
cries off and on for a couple of days.
As Dr. Cable testified, Denise
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is still certainly in the loss and
loneliness [stage]. She is still
having a very difficult time. The
things that keep her going are her
work and her faith.... [S]he has still
got a room almost as a museum
[which] shows that she is frozen in
time at a point back where this
happened.... Her pain will continue
for quite a period of time. She is
trying to *286 do better. She works
at it. She makes her own effort, but
she is still have a difficult time and
will.
(Feb. 10, 2004 Tr. at 121–22.)
Based upon the evidence presented at trial, Denise
Eichstaedt has experienced severe mental anguish and
suffering as a result of her son’s untimely death.
Therefore, this Court shall award to the estate of Earl
Cartrette, Jr., by Denise Eichstaedt as Personal
Representative, $5 million for the benefit of his mother
Denise Eichstaedt to compensate her for the mental pain
and suffering she sustained as a result of her son’s death.
iii. Anthony Cartrette
Anthony W. Cartrette (“Tony”) is a United States citizen,
and is one of the two brothers of Earl Cartrette, Jr. Ex.
280 ¶¶ 1–3. J.R. and Tony lived together in the same
home for 14 years while both were growing up, and still
in school. J.R. was a very supportive big brother to Tony,
and always took care of him. Tony was always able to
confide in J.R. and ask for his guidance. “J.R. was the
glue that held everyone together.” Ex. 280, ¶ 6.
After the memorial services, Tony had a “melt down.” He
was unable to sleep for days and did not eat very much.
Tony was only 17 years old when J.R. died. It is very
difficult for Tony to accept that J.R. is gone. Tony has not
been able to talk to anyone else about J.R.’s death. Ex.
280, ¶ 13.
Tony misses J.R. the most when he goes home to visit
their family and realizes that J.R. will not be joining them.
Birthdays and holidays are also difficult for Tony. There
are still times when Tony is alone that he wants to pick up
the phone and call J.R. and realizes that Tony can’t. J.R.
is on Tony’s mind every second of every day and Tony
misses him more each day. J.R.’s death was a shock.
There is no closure because Tony didn’t get to say
good-bye. Ex. 280, ¶¶ 14–16.
According to Dr. Cable, Tony
is in loss and loneliness certainly....
[H]e also has some unresolved
issues with his brother, kind of
unfinished business issues that
probably evoke some earlier stages
of grief as well. It’s very intense
grief and problems.... He will have
continuing difficulties for quite a
period of time.... He need to be able
to talk about all of his feeling,
including guilt feelings, unfinished
business, and all. So it’s a long
road ahead for him.
(Feb. 10, 2004 Tr. at 125–26.)
As the brother of Earl Cartrette, Jr., Anthony Cartrette
has brought an intentional infliction of emotional distress
claim against the defendants for pain and suffering caused
by the death of his brother. Based on the evidence
presented to the Court, Anthony Cartrette has satisfied the
elements to establish a valid claim for intentional
infliction of emotional distress under Florida law. First,
defendants Iran, MOIS, and the IRGC provided material
support to Saudi Hezbollah with the intent that Saudi
Hezbollah would carry out attacks that would cause
severe emotional distress. Second, the tragic bombing of
the Khobar Towers by means of material support and civil
conspiracy is an act that is nothing short of extreme,
outrageous, and beyond all bounds of civil decency. As is
the nature of terrorism, terrorists seek to perform acts that
are deliberately outrageous and bring about extreme
suffering in order to achieve political ends. Third,
defendants’ actions in facilitating and supporting the
Khobar Towers bombing proximately caused Tony’s
emotional distress because the material support and
direction given to Saudi Hezbollah ensured the event
would occur. Finally, the evidence shows that Tony
suffered *287 emotional distress, and that his emotional
distress was severe. Accordingly, the Court finds that
Anthony Cartrette is entitled to recover from defendants
$2.5 million in compensatory damages for the mental
anguish and suffering associated with the loss of his
brother.
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e. Estate and Surviving Family Members of Patrick
Fennig37
i. Estate of Patrick Fennig
Patrick Fennig (“Pat”) is a United States citizen, who was
born on April 17, 1962 in Wisconsin. Pat had two older
brothers, Mark who was born on March 24, 1959, and
Paul who was born on January 17, 1961. As a child, Pat
loved airlines and reading. Cassie testified that Pat “liked
being a little boy. He was a fun child, always busy.” Pat
had a very good relationship with his two brothers. They
played together and like each other. Ted testified that as a
child Pat “enjoyed doing everything.” (Dec. 9, 2003 Tr. at
8–9, 48–50.)
Ted testified that “[w]hen Pat was about six or seven
years old, somehow—well, his interest in airplanes kind
of came together. And he said, ‘Dad, when I graduate
from high school, I’m going to join the Air Force.’ ... And
he graduated from high school and he lived up to his
convictions and joined the Air Force.” Id. at 50. Pat
attended basic training at Lackland AFB and
corresponded with his parents during this period of time.
Pat had a great interest in maintaining jets in the Air
Force, developed a high level of professional acuity and
was selected maintenance maintainer of the year. Pat’s
first permanent assignment was Malmstrom AFB in
Montana. Pat’s second permanent duty assignment was
Ramstein AFB in Germany. Pat received the Airman of
the Year Award from the Air Force in 1990. Pat was
“very proud that he won it, and happy that he came to that
point in his life; that he did something that he was proud
of.” After completing his assignment in Germany, Pat
came home on leave for three weeks around Christmas.
(Dec. 9, 2003 Tr. at 18–21, 52.)
Next, Pat was assigned to Hill AFB in Utah, and then
reassigned to England. Pat was later deployed to Kunsan
AFB in Korea. While stationed in Korea, Pat was selected
with a few other mechanics and officers to retrieve and fix
a plane that was forced to make an emergency landing on
an island. Pat’s next permanent assignment was Edwards
AFB in California. Ted testified that while he was
stationed at Edwards AFB, Pat was recruited to work in
the private sector by aircraft manufacturing companies.
Pat loved the Air Force and decided to wait to seek
employment in the private sector until after he retired
from the Air Force. (Dec. 9, 2003 Tr. at 21–24, 53–54.) In
July of 1993, Pat was reassigned to Eglin AFB in Florida.
Id. at 24–27. From Florida, Pat was assigned to Saudi
Arabia. Pat was scheduled to return from Saudi Arabia on
June 27, 1996. Id. at 30–31.
Pat’s estate is represented by his parents, Thaddeus C.
Fennig and Catherine Fennig. Pat’s estate has asserted
claims under Florida’s wrongful death statute because he
was last domiciled in Florida. As *288 the personal
representatives of Pat’s estate, Thaddeus C. Fennig and
Catherine Fennig are the proper plaintiffs to bring a
wrongful death action under Florida law. See Fla. Stat.
Ann. § 768.20–768.21. In light of the fact that Pat had no
spouse or other survivors as defined by Fla. Stat. Ann. §
768.18, any recovery under this wrongful death action is
for the benefit of Pat’s parents, Thaddeus and Catherine
Fennig. See Fla. Stat. Ann. § 768.18.
Based upon the pleadings and evidence presented to the
Court, the estate of Patrick Fennig has made out a valid
claim for wrongful death under Florida law. The
beneficiaries of this estate are entitled to recover the
present value of any “loss of the prospective net
accumulations” of the decedent that might reasonably
have been expected but for the wrongful death because
Pat was over 25 years old when he died, and died with
surviving parents, but without other dependents. See Fla.
Stat. Ann. § 768.21(6)(2). Additionally, although Pat was
over 25 years of age at the time of his death, Pat’s parents
are nonetheless entitled to recover for their own mental
pain and suffering arising out of this wrongful death
action due to the fact that Pat died without any other
survivors. See Fla. Stat. Ann. § 768.21(4).
Dr. Herman Miller, an economic consultant testified as
an expert that, as a result of Pat’s untimely death, he
experienced a net economic loss of $1,120,304.00. The
Court should therefore award the Estate of Patrick Fennig,
by Thaddeus C. Fennig and Catherine Fennig as personal
representatives, $1,120,304.00 in economic damages for
the benefit of Pat’s parents, Thaddeus C. Fennig and
Catherine Fennig. As for the intangible economic
damages of the wrongful death recovery, the Court will
address those awards below, in an individualized
discussion of the claims of Thaddeus C. Fennig and
Catherine Fennig.
ii. Thaddeus C. Fennig & Catherine Fennig
Catherine Fennig (“Cassie”) and Thaddeus C. Fennig
(“Ted”) are United States citizens and the parents of
Patrick Fennig (“Pat”). (Dec. 9, 2003 Tr. at 3, 44.) Cassie
was born in Marshfield, Wisconsin on May 13, 1933. Id.
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at 3. Ted was born on October 14, 1931 in Milwaukee,
Wisconsin to Charles and Marie Fennig. Id. at 44. For the
first nine years of their marriage the Fennigs lived in West
Alice, Wisconsin and then moved to Greendale,
Wisconsin, a southwest suburb of Milwaukee, in August
of 1965. Id. at 6.
Cassie described the effect of Pat’s death on her as
follows:
I was devastated. You finally get to
sleep; it takes days. You wake up in
the morning and it’s the first thing
you thought of. When you went to
bed at night, it’s the last thing you
thought of.... And it was hard. I had
many thank yous to write and it
took me a couple of weeks, but I
tried to do some each day. Music
was no longer important to me. I
always had music on in the home.
It was hard to pick up a book and
read. It took quite a while before I
could get things together and—but
it’s always there. There’s a pain in
your chest that never goes away.
Id. at 42–43.
Ted testified that it was difficult to sleep following Pat’s
death. Ted thinks of Pat often. He has regular dreams
about Pat. Id. at 63–64.
According to Dr. Cable, Cassie is
in loss and loneliness. She, too, has
done reasonably well. But she still
expresses and demonstrates a
strong sense of loss and that she is
not through the real loneliness yet.
She has found *289 things that fill
her time, but there is nothing that
replaces Pat for her.... Her grief
will continue. She will experience
it.... [S]he will recover, but it will
be waves of grief that will come
back from time to time; special
events, family affairs, holidays, and
the like.
(Feb. 10, 2004 Tr. at 130.) Additionally, Dr. Cable
testified that Ted, too,
is in loss and loneliness. He has
done reasonably well. He is the
caretaker for the rest of the family,
and he has certainly carried through
on his sense of responsibility in
that. But he still misses his son very
much.... He will continue in his
grief ... [and later] be hit by waves
of grief that may come back from
time to time.
Id. at 127–28.
Based upon the evidence presented at trial, both
Thaddeus and Catherine Fennig have experienced severe
mental anguish and suffering as a result of their son’s
untimely death. Therefore, this Court shall award to the
estate of Patrick Fennig, by Thaddeus and Catherine
Fennig as Personal Representatives, $5 million for the
benefit of his mother Catherine Fennig and $5 million for
the benefit of his father Thaddeus C. Fennig to
compensate both for the mental pain and suffering both
have sustained as a result of their son’s death.
f. Estate and Surviving Family Members of Christopher
Adams38
i. Estate of Christopher Adams
Christopher Adams, a Captain in the Air Force, was born
on April 18, 1966. (Dec. 10, 2003 A.M. Tr. at 10.) There
were eight children in the Adams family, six boys and
two girls. Christopher Adams was the oldest of the boys.
He is the son of Catherine and John Adams. On June 24,
1976, at the age of 36, John Adams died of kidney failure
and a massive heart attack, having been on dialysis for six
to eight hours every day during the eight months before
he died. He died in a car while most the family was
traveling to a Bar Mitzvah of good friends. Christopher
was 10 years old when his father died. Id. at 111, 113.
Ever since he was a little boy, Christopher wanted to
become a pilot. (Dec. 10, 2003 A.M. Tr. at 114.) Even
when he was in high school, he would go in airplanes
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with a certified pilot. Id. at 3. Christopher attended Daniel
Webster College in New Hampshire because of its ROTC
program in which he could learn to be a pilot. Id. at 28.
After his 20 years in the Air Force, Christopher intended
to become a commercial airline pilot. (Dec. 10, 2003
A.M. Tr. at 45; Dec. 10, 2003 P.M. Tr. at 60.) He knew
that being a pilot of such a large plane would help in his
subsequent career. (Dec. 10, 2003 A.M. Tr. at 6.)
Christopher obtained his flight training in Texas around
1989 or 1990 and was commissioned as a First Lieutenant
at Lubbock. Mrs. Adams attended the ceremony, along
with two of the other children, her brother, and
Christopher’s best friend. Id. at 31. Christopher mainly
flew a C–130, a huge transport plane for troops, *290
cargo, trucks, and other large items. Id. at 31. He was
involved in many covert operations in foreign countries.
Id. at 32, 34. Christopher was responsible for airlifting
over 1,000 passengers and over 250 tons of cargo to
resupply U.S. Forces in Operation Desert Storm in 1991.
He was also chosen to fly a sensitive mission filming the
oil fires of Kuwait and supported Operation Promise, a
humanitarian airlift into Bosnia where he flew 16
missions under combat conditions delivering over 336
tons of food, equipment, and urgently needed medical
supplies. Id. at 54.
Sadly, Christopher had not originally been scheduled to
be in Saudi Arabia in June 1996. The wife of one of his
buddies was expecting a baby, and Christopher told his
buddy to stay home and that he, Christopher, would take
the tour of duty. (Dec. 10, 2003 A.M. Tr. at 44.)
Christopher’s estate is represented by his mother,
Catherine Adams. Christopher’s estate has asserted claims
under Florida’s wrongful death statute because he was last
domiciled in Florida. As the personal representatives of
Christopher’s estate, Catherine Adams is the proper
plaintiff to bring a wrongful death action under Florida
law. See Fla. Stat. Ann. § 768.20–768.21. In light of the
fact that Christopher had no spouse or other survivors as
defined by Fla. Stat. Ann. § 768.18, any recovery under
this wrongful death action is for the benefit of
Christopher’s mother, Catherine Adams. See Fla. Stat.
Ann. § 768.18.
Based upon the pleadings and evidence presented to the
Court, the estate of Christopher Adams has made out a
valid claim for wrongful death under Florida law. The
beneficiaries of this estate are entitled to recover the
present value of any “loss of the prospective net
accumulations” of the decedent that might reasonably
have been expected but for the wrongful death because, at
the time of his death, Christopher was over 25 years old,
with surviving parents, but without other dependents. See
Fla. Stat. Ann. § 768.21(6). Additionally, although
Christopher was over 25 years of age at the time of his
death, his mother is nonetheless entitled to recover for her
own mental pain and suffering arising out of this
wrongful death action due to the fact that Christopher
died without any other survivors. See Fla. Stat. Ann. §
768.21(4).
Dr. Herman Miller, an economic consultant testified as
an expert that, as a result of Pat’s untimely death, he
experienced a net economic loss of $3,153,953.00. The
Court should therefore award the Estate of Christopher
Adams, by Catherine Adams as personal representative,
$3,153,953.00 in economic damages for the benefit of
Christopher’s mother, Catherine Adams. As for the
intangible economic damages of the wrongful death
recovery, the Court will address those awards below, in
an individualized discussion of the claims Catherine
Adams.
ii. Catherine Adams
Catherine Adams is the mother of Christopher Adams.
(Dec. 10, 2003 A.M. Tr. at 8.) Catherine Adams was
raised in Brooklyn, and went to public schools in
Brooklyn, but did not go to college. Id. at 8. Between high
school and marriage, she worked in the credit and
collection department of International Paper Company.
She married her husband, John, when she was 20 years
old. Her husband was an only child, born in Brooklyn in
1939. The first of the eight children was born when Mrs.
Adams was 21 and the last was born when she was 31. Id.
at 9–10.
While her husband was alive, Catherine Adams stayed at
home taking care of the growing family. Just a few
months before *291 he died, she went to work for Eastern
Airlines in its security department, beginning each day at
2:00 A.M. Id at 17. When he died, his mother moved in to
help with the eight children, but she only lived for four
more years. Id. at 17–18. After her husband died,
Catherine Adams had to work two jobs, both for United
Artists, beginning at 9:00 A.M. and going until after
midnight, working usually 14–16 hours a day. Id. at 19.
For the last 23 years, Catherine Adams has been a
secretary at Hofstra University. Id. at 20.
During the first year after Christopher died, Catherine
Adams went to the cemetery every week, and after that at
least once a month. She still goes to visit once every other
month. Id. at 65. Catherine Adams and many members of
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© 2019 Thomson Reuters. No claim to original U.S. Government Works. 30
her family have attended virtually every memorial service
held in Florida, Virginia, and Washington after 1996. Id.
at 71–72. There are many memorials in Long Island for
him, and the family itself set up a scholarship at
Christopher’s college. Id. at 73.
Catherine Adams was not able to return to work until the
late summer 1996. Even then, it was very hard for her. Id.
at 74–75. She thinks about Christopher every day. During
the last years, September 11, the bombing of the USS
Cole, and other terrorist attacks are difficult for her. They
bring back all of her terrible memories and make her
relive Christopher’s death. Id. at 84.
According to her son, John, Catherine Adams figuratively
died on the day Christopher died. John, who has been a
mental health counselor, has never seen anyone so sad.
John has worked with a lot of hurt people, but
Christopher’s death changed his mother in a terrible way.
“She kept everybody together and Chris’ death changed
her. She’s different, she’s not the same”. (Dec. 10, 2003
P.M. Tr. at 68.)
According to Dr. Cable, Catherine Adams
is still in the stage of loss and
loneliness. She still continues to
miss [her son], to miss the support
he gave. The daydreaming is
significant ... because he is
continuing to age in her mind. One
of the things that implies is the
grief is a changing kind of grief....
So that makes it very intense with
the grief. Difficult for her to realize
now he will never be married, there
never will be grandchildren.... Her
grief will continue ... her pain will
ease with time, but it’s never going
to go away. She will experience
ongoing bouts of grief in the future.
(Feb. 10, 2004 Tr. at 98–99.)
Based upon the evidence presented at trial, Catherine
Adams has experienced severe mental anguish and
suffering as a result of her son’s untimely death.
Therefore, this Court shall award to the estate of
Christopher Adams, by Catherine Adams as Personal
Representative, $5 million for the benefit of his mother
Catherine Adams to compensate her for the mental pain
and suffering she sustained as a result of her son’s death.
g. Estate and Surviving Family Members of Thanh
(Gus) Nguyen
i. Estate of Thanh (Gus) Nguyen
Thanh (“Gus”) Nguyen was born in South Vietnam in
1959. He had 14 brothers and sisters. (Dec. 11, 2003 A.M.
Tr. at 9.) Gus came to the United States when he was
approximately 14 years old. He had a sister, Maria, who
was already in the United States, and had married an
American serviceman. Id. at 10–11. When he first arrived,
he went to Illinois with a host family, with whom he lived
for about a year. He then moved to Panama City, Florida,
where his sister Maria and her *292 husband were living.
Id. at 11. Eventually, he became an American citizen. He
lived in Panama City until he went into the military in
1979. Id. at 12–13.
In the Air Force, Gus became a jet engine mechanic. He
did his boot camp training in Texas and his technical
training in Illinois. Id. at 15. In 1983, Gus married his
wife, Teresa. He and Teresa had one child, Christopher,
who was born in 1984. Eventually, Gus and Teresa were
divorced in 1988. Id. at 8.
After the divorce, Christopher lived with his father for
about eight months of the year and with his mother for
approximately four months of the year. Id. at 21–22. Gus’
life revolved around Christopher. His career was harmed
by spending all of his time with Christopher when he
would be home. Even though he was a jet engine
mechanic on the F15’s, there were many engines that he
just didn’t have time to study because he wanted to spend
all of his spare time with his son. Id. at 25. Teresa
testified that Gus was “father of the year material.” Id. at
42.
Gus was deployed to Saudi Arabia in April 1996. At that
time, Christopher went to Ohio with his mother for Gus’
three-month tour of duty. Gus was supposed to return to
America on the morning after the bombing. (Dec. 11,
2003 P.M. Tr. at 24, 65.) Gus had planned to spend three
more years in the Air Force after 1996, and then he was
going to obtain a college degree. He ultimately wanted to
build and develop better airplanes. Id. at 17.
Gus’ estate is represented by his son, Christopher. Gus’
estate has asserted claims under Florida’s wrongful death
Annex 41
Estate of Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229 (2006)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 31
statute because he was last domiciled in Florida. As the
personal representative of Christopher’s estate,
Christopher Nguyen is the proper plaintiff to bring a
wrongful death action under Florida law. See Fla. Stat.
Ann. § 768.20–768.21. In light of the fact that Gus is only
survived by his son, any recovery under this wrongful
death action is for the benefit of his son Christopher. See
Fla. Stat. Ann. § 768.18; 768.21.
Based upon the pleadings and evidence presented to the
Court, the estate of Thanh “Gus” Nguyen has made out a
valid claim for wrongful death under Florida law. The
beneficiaries of this estate are entitled to recover the
present value of any “loss of the prospective net
accumulations” of the decedent that might reasonably
have been expected but for the wrongful death because, at
the time of his death, Christopher was survived by a lineal
descendant: his son Christopher. See Fla. Stat. Ann. §
768.21(6). Additionally, as Gus’ child, Christopher is
entitled to recover for “lost parental companionship,
instruction, and guidance and for mental pain and
suffering from the date of injury” arising out of this
wrongful death action. See Fla. Stat. Ann. § 768.21(3).
Dr. Herman Miller, an economic consultant testified as
an expert that, as a result of Pat’s untimely death, he
experienced a net economic loss of $596,905.00. The
Court should therefore award the Estate of Thanh “Gus”
Nguyen, by Christopher Nguyen as personal
representative, $596,905.00 in economic damages for the
benefit of Gus’ son, Christopher Nguyen. As for the
intangible economic damages of the wrongful death
recovery, the Court will address those awards below, in
an individualized discussion of the claims Christopher
Nguyen.
ii. Christopher Nguyen
Christopher knows in reality that his father is dead but his
heart doesn’t accept it. He gets a “blissful look in his eyes
when he looks at his dad.” Id. at 30. He *293 cried a lot
after returning to Ohio, but eventually he stopped crying
in front of other people. He would just go into his
bedroom, lock the door, and cry by himself. Id. at 36–37.
When he moved back to Ohio, his grades went down
because he lacked the motivation. He would often get
angry, and break things. Christopher also began to
withdraw socially. He became much more shy, and has
stayed that way ever since. Id. at 61–64. He is much more
reserved, and has a harder time making friends and
trusting people. Id. at 42.
Shortly after Gus died, Teresa tried to get Christopher to
see a psychologist, but Christopher refused to talk to the
psychologist about his father. Nothing worked in terms of
counseling because Christopher wouldn’t open up. Id. at
40. He thinks about his father all the time. Each year, June
25 is understandably a very sad day for Christopher.
According to Dr. Cable, Christopher
is in loss and loneliness. He has been forced to grow up
very quickly. He lost not only his father, but his best
friend and his real support system. So there is a deep
sense of loss and loneliness for him.... He will continue
in grief. Those significant markers down the road are
going to be real trial times for him. Just as he indicated
“Dad wasn’t there for my high school graduation,” [his
Dad] won’t be there for college or when Chris gets
married or any of those kind of things. So once again
you get those waves of grief that come back because
the person is missing from those significant events in
life that should be shared.
(Feb. 10, 2004 Tr. at 182–83.)
Based upon the evidence presented at trial, Christopher
Nguyen has experienced severe mental anguish and
suffering as a result of his father’s untimely death.
Therefore, this Court shall award to the Estate of Thanh
“Gus” Nguyen, by Christopher Nguyen as personal
representative, $5 million for the benefit of Christopher
Nguyen to compensate him for the mental pain and
suffering he sustained as a result of his father’s untimely
death.
h. Estate and Surviving Family Members of Brian
McVeigh
i. Estate of Brian McVeigh
In June 1996, Brian McVeigh, was a twenty-one-year-old
Assistant–Crew–Chief in the Air Force. Ex. 16. Although
regularly stationed at Eglin AFB, in June 1996, Brian was
on assignment in Dhahran, Saudi Arabia, where he
resided at the Khobar Towers Complex. Id. On June 25,
1996, Brian was killed at Khobar Towers. Ex. 9.
Brian McVeigh was born in Sanford, Florida on March
27, 1975. Ex. 168 at 7–8; Depo. Ex. 1. When Brian was
three years old, his parents divorced. Ex. 168 at 8. Sandra
Annex 41
Estate of Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229 (2006)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 32
had custody of Brian, whose father took no interest or part
in rearing Brian. Id. In fact, Mr. McVeigh only saw Brian
three times after the divorce (in 1978) and never after
Brian turned ten. Id. As a result, Sandra, a single parent,
was both mother and father to Brian for most of his life.
Id. at 27.
Brian grew up in Debary, Florida. Id. at 9. Brian was the
quintessential American boy. He attended middle school
in Deltona, Florida. Id. at 11. Brian participated in
scouting for most of his childhood. He was a tiger cub, a
cub scout, and a boy scout. Id. According to Sandra, Brian
was a good boy who never caused any trouble. Id. at 13.
Brian attended his freshman year of high school at
Deltona High School, Deltona, Florida. Id. at 15. He
attended his *294 sophomore year at a private Christian
school, which was also located in Deltona. Id. Brian
returned to Deltona High School for his junior and senior
years in order to be on the wrestling and weightlifting
teams. Id. Brian excelled at wrestling and weightlifting.
Id. He graduated from Deltona High School in August
1994. Id.; Depo. Ex. 8. Unlike many high school
teenagers, Brian was unaffected by peer pressure. Id. at
17. He did not drink alcohol or smoke cigarettes. Id. He
was also very respectful of others. Id. at 18. After
consulting with his parents, Brian decided to join the Air
Force to get some life training. Id. at 19; Ex. 170 at 16.
After completing his military service in the Air Force,
Brian planned on earning a college degree. Ex. 168 at 17.
Brian’s estate is represented by his mother and
stepfather, Sandra M. Wetmore and James V. Wetmore.
Brian’s estate has asserted claims under Florida’s
wrongful death statute because he was last domiciled in
Florida. As a personal representative of Brian’s estate,
Sandra M. Wetmore is a proper plaintiff to bring a
wrongful death action under Florida law. See Fla. Stat.
Ann. § 768.20–768.21.39 In light of the fact that Brian had
no spouse or lineal descendants, any recovery under this
wrongful death action is for the benefit of Brian’s mother,
Sandra M. Wetmore. See Fla. Stat. Ann. § 768.18; supra
note 39.
Based upon the pleadings and evidence presented to the
Court, the estate of Brian McVeigh has made out a valid
claim for wrongful death under Florida law. The
beneficiaries of this estate, however, are not entitled to
recover the present value of any “loss of the prospective
net accumulations” of the decedent that might reasonably
have been expected but for the wrongful death because
Brian was under 25 years old when he died, and did not
have either a surviving spouse or any surviving lineal
descendants. Fla. Stat. Ann. § 768.21(6)(a)(1). Still,
Brian’s mother is entitled to recover for her own mental
pain and suffering arising out of this wrongful death
action due to the fact that Brian left no other survivors.
See Fla. Stat. Ann. § 768.21(4). A discussion of these
intangible economic damages of the wrongful death
recovery, will be addressed below in an individualized
discussion of the claim of Sandra M. Wetmore.
ii. Sandra M. Wetmore
In addition, Sandra became clinically depressed following
Brian’s death. She saw *295 a psychiatrist and took
medications to control her depression for six years. Id. at
39–40. For about two years, Sandra lost herself in
television and refused to entertain guests at her house. To
help his wife rediscover life, James got Sandra involved
in horse back riding, something she had enjoyed as a
child. Id. at 41. Sandra blames her failing health on
Brian’s death. Two years after Brian’s death, she was
diagnosed with fibromyalgia. Id. at 39. In 2000, she was
diagnosed with diabetes. Finally, Sandra was diagnosed
with cancer in 2003. Id. at 40.
Sandra finds it hard to see parents with their children,
especially when the parents are complaining about their
children. She testified: “I wish mine was here to
misbehave, that would be all right.” Although the pain of
Brian’s death has not gone away, Sandra tries to have a
“positive attitude” because Brian would want her to
embrace the way he lived and not the way he died. Id. at
42. It is hard to be positive, however, because Sandra is
forced to remember the tragedy with each new terrorist
act, especially since the September 11th attacks on the
United States. Id. at 35.
As Dr. Cable stated, Sandra
is in loss and loneliness. It’s
complicated or compounded by her
own health issues now. The loss
and loneliness is very deep because
of the extreme closeness of the
relationship she had with her son.
They were a team for a lot of years
in there, and that makes it very
difficult.... Her grief will continue
for the foreseeable future. I don’t
think she will ever fully recover.
Annex 41
Estate of Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229 (2006)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 33
(Feb. 10, 2004 Tr. at 167.)
Based upon the evidence presented at trial, Sandra
Wetmore has experienced severe mental anguish and
suffering as a result of her son’s untimely death.
Therefore, this Court shall award to the Estate of Brian
McVeigh, by Sandra M. Wetmore as personal
representative, $5 million for the benefit of Sandra M.
Wetmore to compensate her for the mental pain and
suffering she sustained as a result of her son’s untimely
death.
i. Estate and Surviving Family Members of Joseph
Rimkus
i. Estate of Joseph Rimkus
In June 1996, Joseph Edward Rimkus was twenty-two
years old. Ex. 19. Although regularly stationed at Eglin
AFB in Florida, in June 1996, Joseph was on assignment
in Dhahran, Saudi Arabia where he resided at the Khobar
Towers Complex. Id. On June 25, 1996, Joseph was killed
in the terrorist bombing at Khobar Towers. Ex. 9.
Mrs. Brooks married Joseph John Rimkus (“Mr.Rimkus”)
in October 1973. Mr. Rimkus was in the military when
they married. Ex. 19, at 7. Mrs. Brooks and Mr. Rimkus
had three children: Joseph Rimkus, born April 13, 1974,
James Rimkus, born September 12, 1975, and Anne
Rimkus, born December 28, 1976. Id. at 4–5, 44, 71; Ex.
183. Joseph was born at Keesler AFB in Mississippi. Ex.
183. James and Anne were born at Scott AFB in Illinois.
(Feb. 5, 2004 Tr. at 44, 71.)
With the exception of a brief stay at Scott AFB, Illinois
and two years in Turkey, Joseph and his siblings were
raised in the family home in Crestview, Florida. All three
children attended grammar school in Crestview. Mrs.
Brooks was a stay-at-home mother who would work
occasionally and only when the children were in school.
Accordingly, she spent a great deal of time with all of her
children. Ex. 19, at 8–9.
Mrs. Brooks described Joseph as a “wonderful” and
“responsible” boy with a passion for learning. Mrs.
Brooks testified *296 that she had a special “connection”
with Joseph because he almost died at birth. Joseph’s
importance within the family unit changed significantly
when Mr. Rimkus deployed to Korea when Joseph was a
freshman in high school. Id. at 11. When the family
dropped Mr. Rimkus off at the airport to deploy to Korea,
Mr. Rimkus told Joseph that he was the man of the house
and charged him with taking care of his mother and
siblings. Id. at 74. Mr. Rimkus never communicated with
his family since the time of his deployment. Id. at 11–12.
From that point on, Joseph took charge of the family.
Mrs. Brooks testified how Joseph would do the laundry,
watch after James and Anne, plan the menu and do the
grocery shopping, and keep a family budget. James
explained how Joseph delegated and did chores and made
“sure that there wasn’t anything going on behind my
parents back.” Id. at 12. Mrs. Brooks later divorced Mr.
Rimkus in 1991. Id. at 4.
Anne testified that Joseph was a parental figure to her,
advising her not to drink alcohol, to respect herself, and
taught her how to play chess and change the oil in her car.
Id. at 73–74. Indeed, even at such a young age, Joseph
took up his responsibilities with ease and without
complaint. Joseph’s attitude and assistance was invaluable
to Mrs. Brooks, who was working full time and taking
college courses in the evening. Id. at 11–12.
In addition to running the Rimkus home, Joseph worked
several part-time jobs in high school. He worked at a local
gym and fish restaurant. Joseph, along with James, even
found time to volunteer at a camp for disabled children.
Mrs. Brooks testified that Joseph was a “good saver” and
was “generous” with his money, giving money to his
siblings and his paternal grandmother regularly. Id. at 13.
Joseph graduated from Crestview High School in June
1992. Ex. 185. In addition to wanting to serve his country,
Joseph joined the military to earn money to pay for
college. (Feb. 5, 2004 Tr. at 11.) Joseph’s entry into the
Air Force did not diminish the closeness of the Rimkus
family. Joseph regularly wrote, sent care packages, and/or
telephoned to Mrs. Brooks, James, and Anne while he
was in the Air Force. Id. at 23, 52, 80. Joseph left for
Saudi Arabia on his twenty-second birthday. Id. at 22.
Joseph’s estate is represented by his mother, Bridget
Brooks. Joseph’s estate has asserted claims under
Florida’s wrongful death statute because he was last
domiciled in Florida. As a personal representative of
Joseph’s estate, Bridget Brooks is a proper plaintiff to
bring a wrongful death action under Florida law. See Fla.
Stat. Ann. § 768.20–768.21. In light of the fact that
Joseph had no spouse or lineal descendants, any recovery
under this wrongful death action is for the benefit of his
mother, Bridget Brooks. See Fla. Stat. Ann. § 768.18.
Based upon the pleadings and evidence presented to the
Court, the estate of Joseph Rimkus has made out a valid
Annex 41
Estate of Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229 (2006)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 34
claim for wrongful death under Florida law. The
beneficiaries of this estate, however, are not entitled to
recover the present value of any “loss of the prospective
net accumulations” of the decedent that might reasonably
have been expected but for the wrongful death because
Joseph was under 25 years old when he died, and did not
have either a surviving spouse or any surviving lineal
descendants. Fla. Stat. Ann. § 768.21(6)(a)(1). Still,
Joseph’s mother is entitled to recover for her own mental
pain and suffering arising out of this wrongful death
action due to the fact that Joseph left no other survivors.
See Fla. Stat. Ann. § 768.21(4). A discussion of these
*297 intangible economic damages of the wrongful death
recovery, will be addressed below in an individualized
discussion of the claim of Bridget Brooks.
ii. Bridget Brooks
Mrs. Brooks resides at 432 Barbados Way, Niceville,
Florida. (Feb. 5, 2004 Tr. at 3.) She was born on
December 6, 1955 in St. Charles, Missouri. Mrs. Brooks
is a United States citizen. She is an operations analyst for
the United States Air Force at Eglin AFB, where she was
worked for 17 years. Id. at 3, 26. Mrs. Brooks is married
to Donald Brooks, whom she married after divorcing her
first husband, Joseph John Rimkus in 1991. Id. at 3–4.
Mrs. Brooks married Joseph John Rimkus (“Mr.Rimkus”)
in October 1973. Mr. Rimkus was in the military when
they married. Id. at 7.
Joseph’s death dramatically affected Mrs. Brooks. Mrs.
Brooks visits Joseph’s grave, which is an hour away from
her house, regularly and on special anniversary dates.
Mrs. Brooks also visits Joshua Woody’s grave on
Joshua’s birthday. (Feb. 5, 2004 Tr. at 35.) Mrs. Brooks
sought help to cope with Joseph’s death. She relied
heavily on her faith and has consulted with several priests
about her grief. She also participated in a grief support
group named “Under Pressure,” which is comprised of
several women who lost loved ones in the Khobar Towers
bombing. Id. at 37–39. Mrs. Brooks involvement with
Under Pressure helped her immensely with Joseph’s
death. Id. at 37.
Even today, Mrs. Brooks misses Joseph terribly around
the holidays. Id. at 42. She still hangs Joseph’s Christmas
stocking in his honor. Id. at 68. Mrs. Brooks becomes
particularly depressed on the anniversary of the bombing.
She experiences additional grief each and every time she
learns of another terrorist act committed in the United
States or abroad. Id. at 42.
According to Dr. Cable:
[Mrs. Brooks] is in loss and
loneliness. Her son was her real
strength. Her emotions are till very
raw. It’s still hard for her to talk
about what happened. Quite a bit of
pain there.... I believe her grief will
continue for a long time into the
future. She will go on with life, but
the grief will keep coming back if
she thinks about what should be or
what should have been now. So it’s
not going away.40
Based upon the evidence presented at trial, Bridget
Brooks has experienced severe mental anguish and
suffering as a result of her son’s untimely death.
Therefore, this Court shall award to the Estate of Joseph
Rimkus, by Bridget Brooks as personal representative, $5
million for the benefit of Bridget Brooks to compensate
her for the mental pain and suffering she sustained as a
result of her son’s untimely death.
iii. James Rimkus
James Rimkus lives in Crestview, Florida. He was born
on September 12, 1975, in Illinois and is United States
citizen. James is married to Christina Renee Rimkus, with
whom he has a daughter and a stepson. (Feb. 5, 2004 Tr.
at 44.)
James Rimkus was completely devastated by his brother’s
death. Joseph was James’ best friend. Id. at 47. James
looked up to Joseph and considered him a role model and
father figure. Id. at 48–49. Indeed, Joseph was the first
person James wrote to when he was at boot camp. Id. at
52. James testified how Joseph and he were like twins.
*298 James’ grief was intensified because he was in the
Navy and was not allowed to remain with his family
following Joseph’s death. He had to return to his ship and
deploy to the Mediterranean. The Navy also did not offer
James any counseling. Id. at 63.
James testified that he began drinking more and more
after his brother’s death and became a severe alcoholic.
Id. at 64. James did take Adavan, an anti-depressant, for a
few months to help him cope with Joseph’s death. The
prescription did not work because of his drinking.
Apparently, James was self-medicating with alcohol.
James entered into a Christian rehabilitation clinic after
Annex 41
Estate of Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229 (2006)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 35
leaving the Navy and has been sober for more than four
years. Id. at 65.
James has only visited his brother’s grave once. It is just
too painful for him to visit Joseph’s grave. Even today,
James is terribly saddened because his children and
Anne’s future children will never know their uncle
Joseph. Id. at 67. Although James has had good dreams
about Joseph since his death, James tries not to dream
about Joseph because it causes him too much grief
afterwards. He testified that he misses Joseph especially
around the holidays, and on Joseph’s birthday.
As Dr. Cable testified, James
is in loss and loneliness. He has had
to grow up very quickly in a very
difficult way. He is, I think, much
older than his years. He sounds it;
he acts it. It’s really aged him. Very
emotional, very haunted by his
brother’s death.... Grief will always
be with him. Family is his strength.
That’s the thing that will get him
through. But the grief process is
still very present.
(Feb. 10, 2004 Tr. at 188–89.)
Because plaintiffs offered no evidence that James Rimkus
was financially dependent upon Joseph Rimkus prior to
his death, and because damages are only available to
siblings under Florida’s wrongful death statute when there
is evidence that the sibling was wholly or partly
dependent upon the decedent, James Rimkus cannot
recover for his loss under that statute. See Fla. Stat. Ann.
§ 768.18(1). Instead, James Rimkus is proceeding under
an intentional infliction of emotional distress claim.
Because James Rimkus was domiciled in Florida on the
date of his brother’s death in the bombing, Florida law
will govern his intentional infliction of emotional distress
claim.
As the brother of Joseph Rimkus, James Rimkus has
brought an intentional infliction of emotional distress
claim against the defendants for pain and suffering caused
by the death of his brother. Based upon the evidence
presented to the Court, the elements of James Rimkus’
intentional infliction of emotional distress claim are met.
The defendants conduct in facilitating, financing, and
providing material support to bring about this attack was
intentional, extreme, and outrageous. As the evidence
shows, this horrific act precipitated by the defendants’
planning and assistance brought immediate emotional
distress to James Rimkus. Finally, it is clear that James
Rimkus has continued to experience emotional distress
since that time due to the fact that his brother was taken
away from him in such a tragic and horrific manner.
Therefore, this Court shall award to James Rimkus $2.5
million to compensate him for the emotional distress, pain
and suffering that he sustained as a result of his brother’s
untimely death.
iv. Anne Rimkus
Anne Rimkus lives in Gainesville, Florida. She was born
on December 28, 1976 in *299 Illinois and is a United
States citizen. (Feb. 5, 2004 Tr. at 71.) Anne, like Mrs.
Brooks and James, is still grieving over Joseph.
Anne was particularly close to Joseph. She testified how
grateful she is for Joseph stepping in when her father left
for Korea and never returned to the family unit. Id. at
74–75. As an adult, she now realizes just how much
Joseph did for her growing up. Id. at 75.
Anne noted that Joseph was the emotional rock that
mediated the family relationships. Id. Anne misses
Joseph’s great sense of humor and “uplifting spirit.” Id. at
75, 79. Anne testified that she has only just now begun to
cope with Joseph’s death. Id. at 86. To deal with these
wounds, Anne has recently started to see a counselor at
the University of Florida, where she studies sociology. Id.
at 72, 87.
Anne testified that Joseph’s death caused James to close
off and distance himself from her. Id. at 89. In contrast,
Joseph’s death caused Mr. Rimkus to reach out to both
Anne and James. Id. at 88. As Dr. Cable stated, Anne
is still in loss and loneliness, but
complicated by guilt issues that
have not been resolved.... She has a
lot of regrets, a lot of unfinished
business ... She will continue in
grief.... There is not a really good
support system for her, and so she
is sort of dealing with everything
on her own, and I think that’s going
to be difficult for her in the years
ahead.
Annex 41
Estate of Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229 (2006)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 36
(Feb. 10, 2004 Tr. at 190–91.)
Because plaintiffs offered no evidence that Anne Rimkus
was financially dependent upon Joseph Rimkus prior to
his death, and because damages are only available to
siblings under Florida’s wrongful death statute when there
is evidence that the sibling was wholly or partly
dependent upon the decedent, Anne Rimkus cannot
recover for her loss under that statute. See Fla. Stat. Ann.
§ 768.18(1). Instead, Anne Rimkus is proceeding under
an intentional infliction of emotional distress claim.
Because Anne Rimkus was domiciled in Florida on the
date of her brother’s death in the bombing, Florida law
will govern her intentional infliction of emotional distress
claim.
As the sister of Joseph Rimkus, Anne Rimkus has
brought an intentional infliction of emotional distress
claim against the defendants for pain and suffering caused
by the death of her brother. Based upon the evidence
presented to the Court, the elements of Anne Rimkus’
intentional infliction of emotional distress claim are met.
The defendants conduct in facilitating, financing, and
providing material support to bring about this attack was
intentional, extreme, and outrageous. As the evidence
shows, this horrific act precipitated by the defendants’
planning and assistance brought immediate emotional
distress to Anne Rimkus. Finally, it is clear that Anne
Rimkus has continued to experience emotional distress
since that time due to the fact that her brother was taken
away from her in such a tragic and horrific manner.
Therefore, this Court shall award to Anne Rimkus $2.5
million to compensate her for the emotional distress, pain
and suffering that she sustained as a result of her brother’s
untimely death.
j. Estate and Surviving Family Members of Kendall
Kitson41
i. Estate of Kendall Kitson, Jr.
In June 1996, Kendall Kitson (“Kenny”), deceased, was a
39 year old mechanic for *300 F15s and F16s in the
United States Air Force. Ex. 292, at 13. Although
regularly stationed in Florida, in June 1996, Kenny was
on assignment in Dhahran, Saudi Arabia where he resided
at the Khobar Towers Complex. Id. On June 25, 1996,
Kenny was killed at Khobar Towers. Plaintiffs Kendall
Kitson, Sr., Nancy R. Kitson, Nancy A. Kitson, and Steve
Kitson are Kenny’s father, mother, sister, and brother
respectively (collectively, the “Kitson family”). The
Kitson family, through counsel, offered affidavits of their
testimony in this matter, and their affidavits were
admitted into evidence by the Court on February 9, 2004.
(Feb. 9, 2004 Tr. at 67–68.) Kenny was born in 1956 in
Virginia. Ex. 292, at 4. The Kitson children, like their
parents, are all United States citizens. Id. at 1.
When Kenny was in high school, he went to a vocational
and technical school where he learned about aircraft. Ex.
291 at 8. After high school, Kenny went to college for
two years, but did not enjoy college, and wanted to use
his hands. After two years in college, Mr. Kitson
remembers Kenny coming home from school one day and
holding up a T-shirt that read “United States Air Force.”
Mr. Kitson was surprised to learn that Kenny had joined
the military, but he knew how interested he was in
aviation since taking the classes in high school. Id.
Kenny’s sister, Nancy, was not surprised when Kenny
joined the military and felt that he wanted to follow in
their father’s footsteps. Ex. 292, at 13.
Kenny wanted to be a pilot when he joined the Air Force,
but could not work as a pilot because he did not have
perfect vision. Instead, Kenny worked as a mechanic for
F15s and F16s. On military operations, Kenny would be
one of the first people to arrive and one of the last people
to leave. Kenny enjoyed the Air Force, and kept
reenlisting, and was promoted to Technical Sergeant. He
was a flight line expediter, flight chief, and production
superintendent. Id.
Kenny had been in the Air Force for 17 years when he
was killed. He was only three years away from being able
to fully retire. Kenny volunteered to stay in Saudi Arabia
during his last tour to help one of his friends who was
married and had two daughters, one of whom was ill. Id.
at 10.
Kenny’s estate is represented by his parents, Kendall
Kitson, Sr., and Nancy R. Kitson. Kenny’s estate has
asserted claims under Florida’s wrongful death statute
because he was last domiciled in Florida. As the personal
representatives of Kenny’s estate, Kendall Kitson, Sr.,
and Nancy R. Kitson are the proper plaintiffs to bring a
wrongful death action under Florida law. See Fla. Stat.
Ann. § 768.20–768.21. In light of the fact that Kenny had
no spouse or other survivors as defined by Fla. Stat. Ann.
§ 768.18, any recovery under this wrongful death action is
for the benefit of his parents, Kendall Kitson, Sr., and
Nancy R. Kitson. See Fla. Stat. Ann. § 768.18.
Based upon the pleadings and evidence presented to the
Court, the estate of Kendall Kitson, Jr., has made out a
Annex 41
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© 2019 Thomson Reuters. No claim to original U.S. Government Works. 37
valid claim for wrongful death under Florida law. The
beneficiaries of this estate are entitled to recover the
present value of any “loss of the prospective net
accumulations” of the *301 decedent that might
reasonably have been expected but for the wrongful death
because Kenny was over 25 years old when he died, and
died with surviving parents, but without other dependents.
See Fla. Stat. Ann. § 768.21(6)(2). Additionally, although
Kenny was over 25 years of age at the time of his death,
Kenny’s parents are nonetheless entitled to recover for
their own mental pain and suffering arising out of this
wrongful death action due to the fact that Kenny died
without any other survivors. See Fla. Stat. Ann. §
768.21(4).
Dr. Herman Miller, an economic consultant testified as
an expert that, as a result of Kenny’s untimely death, he
experienced a net economic loss of $2,183,460.00. The
Court should therefore award the Estate of Kendall
Kitson, Jr., by Kendall Kitson, Sr., and Nancy R. Kitson
as personal representatives, $2,183,460.00 in economic
damages for the benefit of Kenny’s parents, Kendall
Kitson, Sr., and Nancy R. Kitson. As for the intangible
economic damages of the wrongful death recovery, the
Court will address those awards below, in an
individualized discussion of the claims of Kendall Kitson,
Sr., and Nancy R. Kitson.
ii. Kendall Kitson Sr. & Nancy R. Kitson
Kendall Kitson, Sr., met and married his wife, Nancy R.
Kitson, in the late 1930s. He then joined the Navy and
served his country in the Navy for approximately 22 ½
years. Ex. 291, at 3. The Kitsons now reside in Yukon,
Oklahoma and Ft. Walton Beach, Florida. Id.
Kenny’s death has dramatically affected Kendall and
Nancy R. Kitson and their lives together. As Mr. Kitson
testified in his affidavit:
Kenny’s death has ruined my entire
family.... My life has changed
dramatically since Kenny’s death.
If Kenny were alive, he wouldn’t
let me sit around like I do. He
never let me sit down.... We miss
Kenny all the time, every day.
Some days are harder than others.
We miss him terribly on his
birthday and on certain days
because he loved his mother’s
potato salad.... I miss just seeing
Kenny and talking to him. He
always used to drive by the house.
It’s hard to laugh now or have any
fun. It’s difficult when my wife and
I run into his classmates on the
street or in a store. We hardly eat or
sleep. I used to be a lot more
outgoing. My wife and I used to be
more social before Kenny’s death.
Now, we don’t do anything.
Ex. 291 at 12, 17–19.
Since Kenny’s death, Mr. Kitson sometimes flies into
rages about Kenny’s death and the news on our country’s
fight against terrorism. Nancy feels as though her parents
now hate the world. Ex. 292, at 26. Mr. and Mrs. Kitson
do not like to go out or visit with anyone since Kenny’s
death. In fact, Mr. Kitson will not visit his daughter
Nancy’s home because she has so many of Kenny’s
things on display. Id. at 30.
Mrs. Kitson is terminally ill with cancer. Mr. Kitson, as
well as his children, are convinced that her declining
health is related to their loss of Kenny. Exs. 291, at 23;
292, at 31; 293, at 26. Mrs. Kitson used to visit Kenny’s
grave all the time and put fresh flowers on it.
As Dr. Cable testified, Mrs. Kitson
is in loss and loneliness. That, of
course, is complicated by her own
physical condition at this point. She
misses her son terribly. Her life
was gone with his death, and now
literally her life is going.... She will
never recover. She will die still
very much enmeshed in the grief
that she is in right now.
(Feb. 10, 2004 Tr. at 144.)
Additionally, Dr. Cable stated that Kendall Kitson, Sr.,
*302 is in intense loss and
loneliness. He is also in volatile
Annex 41
Estate of Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229 (2006)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 38
emotions with a tremendous
amount of anger over what
happened. He is still experiencing a
lot of rage over that. He cannot
seem to move on with his grief....
[H]e is one of these individuals for
whom the grief will never end. I
don’t think he will ever be able to
put things forward in his life. With
his wife’s death, I think he is one of
these individuals who probably will
see very little reason for even
fighting for himself after that.
Id. at 146–147.
Based upon the evidence presented at trial, both Kendall
Kitson, Sr., and Nancy R. Kitson have experienced severe
mental anguish and suffering as a result of their son’s
untimely death. Therefore, this Court shall award to the
estate of Kendall Kitson, Jr., by Kendall Kitson, Sr., and
Nancy R. Kitson as Personal Representatives, $5 million
for the benefit of his mother Nancy R. Kitson, and $5
million for the benefit of his father Kendall Kitson, Sr., to
compensate both for the mental pain and suffering both
have sustained as a result of their son’s untimely death.
k. Estate and Surviving Family Members of Jeremy
Taylor42
i. Estate of Jeremy Taylor
In June 1996, Jeremy Taylor, deceased, was a 23 year old
Senior Airman in the United States Air Force. Although
regularly stationed in Florida, in June 1996, Jeremy was
on assignment in Dhahran, Saudi Arabia where he resided
at the Khobar Towers Complex. Ex. 20. On June 25,
1996, Jeremy was killed at Khobar Towers. Ex. 9.
Plaintiffs Lawrence Taylor, Vickie Taylor, and Starlina
Taylor are Jeremy’s father, mother, and sister,
respectively (collectively, the “Taylor family”). The
Taylor family, through counsel, offered affidavits of their
testimony in this matter, and their affidavits were
admitted into evidence by the Court on February 9, 2004.
(Feb. 9, 2004 Tr. at 66–67.)
Jeremy was born in 1973 in Tennessee. Jeremy is
remembered by his parents as a “fun person; the class
clown who had friends from all different social sections
of school. He was very athletic and played soccer almost
his entire life.... Jeremy was also very creative. Everyone
who met Jeremy loved him; he was very talkative and
open.” Ex. 289, at 10, 15–16.
Jeremy’s estate is represented by his parents, Lawrence
and Vickie Taylor. Jeremy’s estate has asserted claims
under Florida’s wrongful death statute because he was last
domiciled in Florida. As a personal representative of
Jeremy’s estate, Lawrence and Vickie Taylor are proper
plaintiffs to bring a wrongful death action under Florida
law. See Fla. Stat. Ann. § 768.20–768.21. In light of the
fact that Jeremy had no spouse or lineal descendants, any
recovery under this wrongful death action is for the
benefit of his parents, Lawrence and Vickie Taylor. See
Fla. Stat. Ann. § 768.18.
Based upon the pleadings and evidence presented to the
Court, the estate of Jeremy Taylor has made out a valid
claim for wrongful death under Florida law. The
beneficiaries of this estate, however, are *303 not entitled
to recover the present value of any “loss of the
prospective net accumulations” of the decedent that might
reasonably have been expected but for the wrongful death
because Jeremy was under 25 years old when he died, and
did not have either a surviving spouse or any surviving
lineal descendants. Fla. Stat. Ann. § 768.21(6)(a)(1). Still,
Jeremy’s parents are entitled to recover for their own
mental pain and suffering arising out of this wrongful
death action due to the fact that Jeremy left no other
survivors. See Fla. Stat. Ann. § 768.21(4). A discussion of
these intangible economic damages of the wrongful death
recovery, will be addressed below in an individualized
discussion of the claims of Lawrence and Vickie Taylor.
ii. Lawrence and Vickie Taylor
Mr. and Mrs. Taylor were born in 1950 and 1951,
respectively, in Tennessee, and are United States’
citizens. Exs. 288, at 3; 289, at 3. When they met, the
Taylors were still in high school, but, as Mrs. Taylor
describes, “it was love at first sight.” The Taylors finished
high school and married in 1969. Ex. 289, 3. Soon after
they married, Mr. Taylor joined the United States Air
Force, and served his country as an aircraft mechanic for
20 years.
A couple of years after the Taylors married, Mrs. Taylor
gave birth to their daughter, Starlina, in 1971. Id. at 9.
Twenty-one months later, in 1973, the Taylors’ son
Annex 41
Estate of Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229 (2006)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 39
Jeremy was born. Jeremy was born prematurely and Mrs.
Taylor had several complications during her pregnancy.
Ex. 289, at 10.
Jeremy’s death has dramatically affected Lawrence and
Vickie Taylor and their lives together. As Mr. Taylor
testified in his affidavit:
I feel like my life has not been
worth anything since Jeremy’s
death. It doesn’t matter what you
do or how much money you have
or how many good jobs you have,
there’s just a big chunk missing. A
part of my life is gone. Jeremy is
gone. Half of our world is gone. I’ll
never see him again, I’ll never see
his kids, I’ll never know who is
wife was, nothing. It stopped. But I
can’t move on, I’m just there. I
drive by his grave every morning
going to work and I drive by on my
way home. Even though we try to
go on with our lives and be there
for our grandson, until I die, I just
feel like it’s another day.... I realize
that my life could be worse and I
have much to be grateful for, like
my material possessions, but it
doesn’t matter if I lived in the
White House or if I lived in a trailer
in Alabama, my son is gone. This
pain is going to be with me forever,
regardless.
Ex. 288, at 25, 30.
Mrs. Taylor drives by her son’s grave everyday. The
Taylor family decorates Jeremy’s grave for the holidays
such as Christmas, Valentine’s Day, Memorial Day, and
Halloween, and they plant flowers nearby. On Jeremy’s
birthday, the family goes to the cemetery and releases
balloons in his memory. Ex. 289, 27. Since Jeremy’s
death, holidays are especially difficult for the Taylor
family. Mr. Taylor does not celebrate holidays anymore.
Jeremy’s death has totally changed Mrs. Taylor’s way of
thinking. Ex. 289, 29, 36.
Jeremy’s death also had a negative impact on the Taylors’
health. For example, Mr. Taylor now takes a pill every
night to help him sleep, and another pill twice a day to
calm his heart. Exs. 288, at 29; 289, at 33. Mrs. Taylor
health has suffered greatly since Jeremy’s death. She has
gained weight and has had to have knee replacement
surgery. Mrs. Taylor is now living in constant pain
because she has fibromyalgia, and she doesn’t sleep *304
unless she takes sleeping pills. Mrs. Taylor also takes an
antidepressant and has arthritis. Ex. 288, at 30.
The Taylors visited a counselor for a year or so after
Jeremy’s death. They also did individual counseling and
parents of murdered children and compassionate friends.
Both Mr. and Mrs. Taylor have given up on counseling.
Jeremy’s death has also been very hard on the Taylors’
marriage. Mrs. Taylor feels that her husband is much
more distant since Jeremy’s death, while also being more
affectionate at times than he used to be. Many times he
goes to his workshop and stays there in his own little
world. Exs. 288, at 28; 289, at 34.
According to Dr. Cable, Lawrence
is in loss and loneliness, but he is
also back in the guilt, and also
volatile emotions [stages]. There is
a lot of anger and such there. So he
has got a very complicated kind of
grief going on right now. Very
bitter, a lot of self blame as well as
anger toward others.... [H]e is one
of these who will never really
recover from his grief, because he
doesn’t see anything that can make
it better. The only thing that would
be better is if his son would come
back. Since that’s not going to
happen, nothing will ever in his
mind make it better.
(Feb. 10, 2004 Tr. at 195–96.)
Similarly, Dr. Cable testified that Vickie
is in loss and loneliness, and that’s
complicated by the fact that she
really has a minimal support
system because of her husband’s
difficulties. He is not able to be a
support to her, and he is not willing
to get support for himself. So her
loss and loneliness is very difficult.
Annex 41
Estate of Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229 (2006)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 40
Then she is bothered by the
premonition, and that complicates
it, too. ... She will continue in her
grief for a long period of time. I
don’t know that she can ever really
come out of it.
Id. at 197–98.
Based upon the evidence presented at trial, both
Lawrence and Vickie Taylor have experienced severe
mental anguish and suffering as a result of their son’s
untimely death. Therefore, this Court shall award to the
estate of Jeremy Taylor, by Lawrence and Vickie Taylor
as Personal Representatives, $5 million for the benefit of
his mother Vickie Taylor, and $5 million for the benefit
of his father Lawrence Taylor to compensate both for the
mental pain and suffering both have sustained as a result
of their son’s untimely death.
B. California
1. Causes of Action
a. Wrongful Death
Under California law, a wrongful death cause of action
arises “for the death of a person caused by the wrongful
act or neglect of another.” Cal Civ. Proc.Code §
377.60(a). Such a cause of action may be asserted by a
number of individuals, including the decedent’s surviving
spouse, children, personal representative, and, when the
decedent has no surviving spouse or children, the
decedent’s parents. Id.; Nelson v. County of Los Angeles,
113 Cal.App.4th 783, 6 Cal.Rptr.3d 650, 654–56 (2003).
A plaintiff asserting a wrongful death claim is entitled to
such damages that, under the circumstances of the case,
may be just. Cal Civ. Proc.Code § 377.61. In California,
“just” damages that a wrongful death plaintiff may
recover include “lost present and future economic support
as well as the pecuniary (as opposed to sentimental) value
of such factors as lost comfort, society, companionship,
*305 care and protection.”43 The amount of available
damages in claims brought by a decedent’s personal
representative are limited, however, and do not include
damages for pain, suffering or disfigurement.44
b. Intentional Infliction of Emotional Distress
In California, the elements of the tort of intentional
infliction of emotional distress are: (1) extreme and
outrageous conduct by the defendant with the intent to
cause, or with reckless disregard of the probability of
causing, emotional distress; (2) the plaintiff suffering
severe or extreme emotional distress; and (3) the
defendant’s conduct is the actual and proximate cause of
the plaintiff’s emotional distress. Davidson v. City of
Westminster, 32 Cal.3d 197, 185 Cal.Rptr. 252, 649 P.2d
894, 901 (1982). Under California law, in order for a
plaintiff to have standing to recover for an intentional
infliction of emotional distress claim, there is a
requirement that the conduct either is directed at a
plaintiff or occur within the plaintiff’s presence. See
Christensen v. Superior Court, 54 Cal.3d 868, 2
Cal.Rptr.2d 79, 820 P.2d 181, 203–204 (1992). The
plaintiff’s presence is not, however, always required, and
is deemed unnecessary in situations where the defendant
is aware of the high probability that the defendant’s acts
will cause a plaintiff severe emotional distress. Id.
As has been noted by this Court and courts of other
jurisdictions, “a terrorist attack-by its nature-is directed
not only at the victims but also at the victims’ families.”
Salazar, 370 F.Supp.2d at 115 n. 12 (citing Burnett v. Al
Baraka Inv. and Dev. Corp., 274 F.Supp.2d 86, 107
(D.D.C.2003)). In this case, the evidence demonstrates
that the defendants’ motives in planning the attack on the
Khobar Towers, and indeed their motives in carrying out
a systematic plan of funding and organizing terrorist
attacks, were intended to harm both the victims of the
attack, and to instill terror in their loved ones and others
in the United States. Accordingly, in the case of a terrorist
attack as this, the Court finds that the presence element
does not need to be proven in order to successfully bring a
cause of action for intentional infliction of emotional
distress under California law.
In its discussion of the tort of intentional infliction of
emotional distress, comment l to Section 46 of the
RESTATEMENT (SECOND) OF TORTS notes that
recovery for third-parties has typically been granted to
members of the victim’s “near relatives.”
RESTATEMENT (SECOND) OF TORTS § 46, cmt. l.
The Court finds this approach to be a logical one.
Accordingly, under California law, a victim’s near
relatives, as defined by California’s probate code, who
were not present may nonetheless have standing to seek
redress under a claim of intentional infliction of emotional
distress.
Annex 41
Estate of Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229 (2006)
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 41
*306 2. Plaintiffs
a. Estate and Surviving Family Members of Joshua
Woody
i. Estate of Joshua Woody
Josh was killed at Khobar Towers in Dharhan, Saudi
Arabia, on June 25, 1996. (Feb. 6, 2004 Tr. at 3, 27; Ex.
9.) Josh was a happy child. Josh loved the outdoors and
would go hunting and fishing with his father. Josh also
loved motorcycles. Id. at 7.
During high school, Josh was a good student who made
the honor roll. To stay in shape, Josh ran, swam, and
lifted weights. Josh wrestled, played football and worked
two jobs during high school, at McDonald’s and Beekman
Electric. Josh graduated in 1994. Id. at 10–11, 32–33.
According to his stepfather, Josh was a “very
conscientious, very thorough and very proud of
everything he did.” He was mechanically talented, and
could read a manual once and then rebuild an engine or
weld a diamond plate in the bed of a truck. Id. at 34–35.
As soon as he turned 16, Josh got his driver’s license and
started working at McDonald’s as a cook. Once the owner
of McDonald’s learned that Josh was handy mechanically
Josh was promoted to the maintenance manager for that
store and later for three stores. Id. at 37.
After high school, Josh decided to join the United State
Air Force. Josh wanted to go to college and he knew that
his cousin Joseph had gone into the Army to obtain
money for college. Josh had the same plan. Josh enlisted
in the Air Force in August 1995 and attended basic
training at Lackland AFB in Texas. Josh wrote letters to
Bernie from Texas. Josh was next assigned to Sheppard
AFB for advanced training to load armaments onto F–16
fighter jets. Id. at 11–13, 38.
While Josh was stationed at Sheppard he and a friend took
a weekend trip to Oklahoma. During this trip, Josh met
Dawn. Josh next received his permanent assignment to
the 58th Fighter Squadron at Eglin AFB in Florida.
Eventually, Josh and Dawn moved to Florida together and
on February 22, 1996, Josh and Dawn were married in
Oklahoma. Bernie and George attended the wedding. The
day after the wedding, Josh and Dawn and Bernie and
George spent the day together looking through antique
stores. This was the last time that either George or Bernie
saw Josh alive. Id. at 13–14, 38–40; Ex. 204 at 109–111,
116.
Josh was deployed to Saudi Arabia on April 3, 1996 and
was scheduled to return to Eglin at the end of June 1996.
Josh was in very good health. He worked out and used to
run on the beach. Josh was a weapons loader on F–15s in
the 58th Fighter Squadron. After completing his six years
in the Air Force, Josh had plans to go to college and to
work for American Airlines. (Feb. 6, 2004 Tr. at 63–64.)
Josh was buried next to his best friend Joseph Rimkus on
July 5, 1996. Josh and Joe were roommates at Khobar
Towers.
Josh’s estate is represented by his wife, Dawn Woody.
Josh’s estate has asserted claims under California’s
wrongful death statute because he was last domiciled in
California. As the personal representative of Josh’s estate,
Dawn Woody is the proper plaintiff to bring a wrongful
death action under California law. See Cal Civ. Proc.Code
§ 377.60(a). Because Josh was married at the time of his
death, any recovery under this wrongful death action is
for the benefit of his wife Dawn Woody. See Cal Civ.
Proc.Code § 377.60(a).
Based upon the pleadings and evidence presented to the
Court, the estate of Joshua Woody has made out a valid
claim for wrongful death under California law, and *307
the beneficiaries of this estate are entitled to recover the
present value of any lost present and future economic
support of the decedent that might reasonably have been
expected but for the wrongful death. See supra note 43
and accompanying text. Though, as Josh’s widow, Dawn
Woody is entitled to recover personally for the loss of
Josh’s companionship and protection, the California
wrongful death statute does not allow for recovery of
damages for any mental pain and suffering Dawn Woody
sustained as a result of her husband’s death. See supra
note 44. Accordingly, this Court will limit its analysis
presently to a discussion of lost present and future
economic earnings of Joshua Woody. A discussion of the
intangible economic damages resulting from Dawn
Woody’s mental anguish shall be dealt with in a
discussion of Dawn Woody’s individual intentional
infliction of emotional distress claim, below.
Dr. Herman Miller, an economic consultant testified as
an expert that, were it not for Josh’s untimely death, he
experienced a net economic loss of $1,981,521.00. The
Court therefore awards the Estate of Joshua Woody, by
Dawn Woody as personal representative, $1,981,521.00
in economic damages for the benefit of Dawn Woody.
Annex 41
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© 2019 Thomson Reuters. No claim to original U.S. Government Works. 42
ii. Dawn Woody
Dawn Woody, a United States citizen, is the widow of
Joshua Woody. Josh was murdered on June 25, 1996 at
Khobar Towers in Saudi Arabia. (Feb. 6, 2004 Tr. at 54.)
Dawn was born on May 18, 1972 in Dubuque, Iowa.
Dawn met Josh at a party in Miami, Oklahoma during the
summer of 1995. Josh was stationed at Sheppard AFB at
the time and he and a friend had taken a weekend trip to
Oklahoma. Id. at 56.
Josh received his orders to transfer to Eglin AFB in
Florida. Josh and Dawn “decided [they] didn’t want to be
apart.” Josh and Dawn moved to Ft. Walton Beach,
Florida and got an apartment. They were young and broke
but they were happy. Id. at 58, Ex. 207. Josh proposed to
Dawn in the Fall of 1995 while they were in their car
driving home after he picked her up from work. Dawn’s
family was very happy for Dawn and Josh. Josh and
Dawn were married in Claremore, Oklahoma on February
21, 1996.
After the attack on the Khobar Towers, Dawn didn’t eat
or drink for two days. On Friday, June 28, 1996 the
military personnel returned to tell Dawn that Josh was
dead and his body had been identified. For a long time,
Dawn visited Josh’s grave every weekend. Id. at 73, Ex.
212.
Dawn testified regarding the effect of Josh’s death on her
life:
I don’t have the self-confidence I
used to have. I’m not married. I
don’t have children.... It’s difficult
and it’s just hard. There are certain
things I can’t do.... I don’t want
people in my home. I used to be
social.... [I’m] just a lot more
closed off than I used to be. I’m not
the same person that I was.
(Feb. 6, 2004 Tr. at 77.)
Dawn tried to go back to work a couple months after
Josh’s death but was unable to cope. It took Dawn about
two years to return to work. Dawn eventually decided to
return to graduate school to work on her master’s degree.
The first year was about attending the various memorial
services which made it very difficult to function. Dawn
was proud of Josh, wanted him to be remembered and
believed he deserved all the recognition he received but it
was hard for Josh’s family. Dawn too was in a lot of pain.
Id. at 78.
After the attack, Dawn did not initially seek professional
help. She joined a support group with the other widows
and Bridget Brooks. These women bonded together *308
and became friends. In the past year, at the
encouragement of her family, Dawn began seeing a
therapist. The therapist told Dawn that Dawn hadn’t yet
dealt with Josh’s death. The therapist recommended that
Dawn write a letter to Josh to tell him goodbye. Dawn
stopped seeing that therapist because she didn’t want to
do that and she didn’t want to be medicated. Id. at 79.
Dawn doesn’t like the holidays anymore. Josh’s birthday,
their wedding anniversary, and the anniversary of Josh’s
death are especially difficult for Dawn. Dawn sometimes
dreams about Josh and wakes up crying. Id. at 80. Dawn
thinks about Josh every day. Id. at 82.
As Dr. Cable testified, Dawn
is still in loss and loneliness.... She
has put her life back together to a
degree with her work and so on, but
she still has a lot of sense of
missing him, a lot of sense of
emptiness, and a lot of the “What
ifs?” for her life.... She will
continue in loss and loneliness for
the period ahead; slowly, ... move
on to where the grief will re-occur
from time to time, but be able to
reshape a life.
(Feb. 10, 2004 Tr. at 83–84.)
As the wife of Joshua Woody, Dawn Woody has brought
an intentional infliction of emotional distress claim
against the defendants for pain and suffering caused by
the death of her husband. Based upon the evidence
presented to the Court, the elements of Dawn Woody’s
intentional infliction of emotional distress claim are met.
The defendants conduct in facilitating, financing, and
providing material support to bring about this attack was
intentional, extreme, and outrageous. As the evidence
shows, this horrific act precipitated by the defendants’
planning and assistance brought immediate emotional
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distress to Dawn Woody. Finally, it is clear that Dawn
Woody has continued to experience emotional distress
since that time due to the fact that her husband was taken
away from her in such a tragic and horrific manner.
Therefore, this Court shall award to Dawn Woody $8
million to compensate her for the emotional distress, pain
and suffering that she sustained as a result of her
husband’s untimely death.
iii. Bernadine Beekman
Bernadine Rose Beekman (“Bernie”), a United States
citizen, is the mother of Airman First–Class Joshua E.
Woody (“Josh”). (Feb. 6, 2004 Tr. at 2–3.) In 1989,
Bernie met George Beekman who was born in Los
Angeles, California on December 29, 1939, at the
anniversary party of a mutual friend. George was an
aerospace engineer who retired in December 1989 before
he turned 50. On August 22, 1971, Bernie married John
Edward Woody. Bernie and John had four children: Tracy
in August 1971; Jonica in April 1974; Josh in October
1975; and Timothy in March 1978. Bernie and Edward
were divorced in April 1989. Id. at 4.
Bernie testified that even though she has other children,
she will never get over losing her son, Josh. Bernie had
trouble sleeping in the days and weeks after Josh’s death.
Sometimes Bernie dreams of Josh. Bernie thinks about
Josh every day. Additionally, other terrorist attacks like
September 11, 2001 devastate her emotional state.
Bernie has been given some assistance through attending
grief counseling sessions. Id. at 23–24. Still, as Dr. Cable
testified, Bernie “is in loss and loneliness. She was very
close to her son and is obviously in a lot of pain right
now. That’s not about to subside.... I would see a good
many years yet of continued pain, *309 loss and
loneliness, and a need for some real counseling.” (Feb.
10, 2004 Tr. at 85.)
As the mother of Joshua Woody, Bernadine Beekman
has brought an intentional infliction of emotional distress
claim against the defendants for pain and suffering caused
by the death of her son. Based upon the evidence
presented to the Court, the elements of Bernadine
Beekman’s intentional infliction of emotional distress
claim are met. The defendants’ conduct in facilitating,
financing, and providing material support to bring about
this attack was intentional, extreme, and outrageous. As
the evidence shows, this horrific act precipitated by the
defendants’ planning and assistance brought immediate
emotional distress to Bernadine Beekman. Finally, it is
clear that Bernadine Beekman has continued to
experience emotional distress since that time due to the
fact that her son was taken away from her in such a tragic
and horrific manner. Therefore, this Court shall award to
Bernadine Beekman $5 million to compensate her for the
emotional distress, pain and suffering that she sustained
as a result of her son’s untimely death.
iv. George Beekman
In 1989, Bernie met George Beekman who was born in
Los Angeles, California on December 29, 1939, at the
anniversary party of a mutual friend. George was an
aerospace engineer who retired in December 1989 before
he turned 50. Bernie and George were married in Carson
City, Nevada in April 1990, and they bought a house
together in Corning, California. (Feb. 6, 2004 Tr. at
9–10.) Josh was 15 years old. During the remainder of
high school, Josh lived with George and Bernie. George
was active in Josh’s life, attending his football games and
other sports activities. Id. at 36.
As Josh’s stepfather, George Beekman has brought an
intentional infliction of emotional distress against the
defendants.45 Based on the evidence presented to the
Court, however, Mr. Beekman is not entitled to recover
under an intentional infliction of emotional distress claim
due to the fact that, as a stepparent, Mr. Beekman lacks
sufficient standing to recover for Josh’s death.
Under California law, standing to bring a claim against a
defendant resulting from the death of an individual is
conferred on those who are entitled to inherit property of
the deceased under the provisions of the California
Probate Code. See Cal.Civ.Proc.Code § 377.60; Cal.
Prob.Code § 6402. Inheritance is reserved to near
relatives of the deceased. Cal. Prob.Code § 6402.
Accordingly, in order for Mr. Beekman to have standing
to bring an intentional infliction of emotional distress
claim arising from the death of his stepson, Mr. Beekman
must qualify as a near relative of Joshua Woody as
defined by California’s Probate Code.
Under California’s Probate Code, parents of the deceased
are deemed near relatives for the purposes of inheritance.
Cal. Ann. Prob.Code § 6402. In California, however, a
parent-child relationship only exists in certain
circumstances: (1) between a child and the child’s natural
parents; and (2) in the case of an adoption, the
parent-child relationship exists between the child and the
child’s adoptive parents. See Cal. Ann. Prob.Code §
6450(a), (b). Indeed, as the California *310 Supreme
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Court has held, “a stepchild ... does not automatically
become the ‘child’ of the stepparent ... for purposes of
inheritance.” Estate of Joseph, 17 Cal.4th 203, 70
Cal.Rptr.2d 619, 949 P.2d 472, 479 (1998) (quoting
Estate of Cleveland, 17 Cal.App.4th 1700, 22 Cal.Rptr.2d
590, 599 (1993)). It stands to reason, then, that a person
cannot automatically establish a legally binding
parent-child relationship for purposes of inheritance
merely by becoming a stepparent.
Instead, California courts have determined that
stepparents are deemed parents for purposes of
inheritance in one of two situations. First, a stepparent is
deemed a parent if the stepparent legally adopts the child
as his or her own.46 Second, if the stepparent has not
legally adopted the child, California law will nonetheless
deem a stepparent a parent if the stepparent can show the
stepparent-stepchild relationship was created during the
stepchild’s minority, and show by clear and convincing
evidence that the stepparent would have adopted the
stepchild but for a legal barrier. Cal. Ann. Prob.Code §
6454.
In this case, notwithstanding the relationship Mr.
Beekman and Josh had while Josh was alive, there is no
evidence presented by plaintiffs that Mr. Beekman legally
adopted Josh. Moreover, though the relationship between
Mr. Beekman and Josh began while Josh was still a
minor, there is no evidence presented before this Court
that Mr. Beekman would have adopted Josh, but for a
legal impediment. As a result, Mr. Beekman cannot be
considered a parent under California law, and is therefore
precluded from recovering for damages resulting from his
stepson’s death. Accordingly, Mr. Beekman’s claim for
intentional infliction of emotional distress fails for lack of
standing, and must therefore be denied.
v. Tracy Smith
Tracy M. Smith, a United States citizen, was born on
August 27, 1971 in San Jose, California. Ex. 283 at 1.
Tracy is married to Todd Smith and has two children:
Joshua, born on April 15, 1998, and Nicholas, born on
July 30, 1999. Id at 3. Tracy is a sister of Joshua Edward
Woody (“Josh”), who died as a result of a terrorist
bombing at the Khobar Towers in Dhahran, Saudi Arabia,
on June 25, 1996. Tracy graduated from Los Gatos High
School in Los Gatos, California, in June 1989, and is
presently employed as a deli clerk for Publix in
Kennesaw, Georgia. Id. at 4–5.
Josh’s death affected Tracy in many ways. Immediately
after Josh’s death, Tracy experienced trouble sleeping.
Even when she did fall sleep, Tracy would wake herself
crying. To this day, Tracy constantly thinks of Josh. Each
time she does think about him, her heart sinks. Tracy is
particularly emotional on Josh’s birthday and on the
anniversary of his death. Id. at 22. Moreover, celebrating
the holidays has also become less fun for Tracy since
Josh’s death. Even though Tracy now has her own family,
she cannot overcome the emptiness caused by Josh’s
death. Tracy is saddened that Josh is not alive to celebrate
the holidays with her and her sons.
According to Dr. Cable, Tracy is “in loss and loneliness.
Like her stepfather, a lot of her grief energies have really
gone into worrying about her mother. So there are issues
in her own grief that she has not yet been able to deal
with.... Her grief will *311 continue for a considerable
period of time.” (Feb. 10, 2004 Tr. at 88.)
As the sister of Joshua Woody, Tracy Smith has brought
an intentional infliction of emotional distress claim
against the defendants for pain and suffering caused by
the death of her brother. Based upon the evidence
presented to the Court, the elements of Tracy Smith’s
intentional infliction of emotional distress claim are met.
The defendants’ conduct in facilitating, financing, and
providing material support to bring about this attack was
intentional, extreme, and outrageous. As the evidence
shows, this horrific act precipitated by the defendants’
planning and assistance brought immediate emotional
distress to Tracy Smith. Finally, it is clear that Tracy
Smith has continued to experience emotional distress
since that time due to the fact that her brother was taken
away from her in such a tragic and horrific manner.
Therefore, this Court shall award to Tracy Smith $2.5
million to compensate her for the emotional distress, pain
and suffering that she sustained as a result of her brother’s
untimely death.
vi. Jonica Woody
Jonica Woody, a United States citizen, was born on April
28, 1974 in San Jose, California. Jonica is a mother of a
five-year old son named Brendan, who was born on
December 5, 1998. (Dec. 19, 2003 Tr. at 47–48.) Jonica is
the sister of Joshua Woody. She is eighteen months older
than Josh. Id. at 48, 57.
Since Josh’s death, Jonica has had quite a few dreams
about Joshua continuously throughout each passing year.
Id. at 59. Jonica testified that Josh’s death has affected her
in dramatic ways. She lost her emotional rock, close
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friend and brother in Josh.
Jonica has not received any counseling to help her deal
with Josh’s death. Id. at 59–60. Josh’s birthday, October
6th, Christmas, and other holidays when the family
gathers together, are still difficult for Jonica. Id. at 60.
Jonica testified that Joshua’s death spoiled their future
plans. She thinks of Josh “[d]aily, more than once a day,
all the time.” Id. at 61. As Dr. Cable testified, Jonica
is still very much in loss and
loneliness. It is helped by the fact
that she has a son, and that has
been something to occupy her....
Her grief will continue for quite a
period of time. She is one who
really significantly needs grief
therapy. When someone is talking
about their grief, everything being
as it was seven years ago, there is a
lot of unresolved grief there to deal
with.
(Feb. 10, 2004 Tr. at 90.)
As the sister of Joshua Woody, Jonica Woody has
brought an intentional infliction of emotional distress
claim against the defendants for pain and suffering caused
by the death of her brother. Based upon the evidence
presented to the Court, the elements of Jonica Woody’s
intentional infliction of emotional distress claim are met.
The defendants’ conduct in facilitating, financing, and
providing material support to bring about this attack was
intentional, extreme, and outrageous. As the evidence
shows, this horrific act precipitated by the defendants’
planning and assistance brought immediate emotional
distress to Jonica Woody. Finally, it is clear that Jonica
Woody has continued to experience emotional distress
since that time due to the fact that her brother was taken
away from her in such a tragic and horrific manner.
Therefore, this Court shall award to Jonica Woody $2.5
million to compensate her for the emotional distress, pain
and suffering that she sustained as a result of her brother’s
untimely death.
*312 vii. Timothy Woody
Timothy Allen Woody (“Tim”), a United States citizen,
was born on March 28, 1978 in California. Ex. 278, at 1.
Tim is the younger brother of Josh Woody, who died as a
result of a terrorist bombing at the Khobar Towers in
Dhahran, Saudi Arabia, on June 25, 1996. Id. at 3. In June
1996, Tim entered the United States Navy after
graduating from Corning Union High School. He spent
four years in the Navy. Tim is currently employed as a
stock-person at Wal–Mart in Geneva, New York. Id. at 4.
Growing up, Tim remembers always looking up to Josh.
Josh was his role model. In his childhood years, Tim
would always follow Josh around the house and try to
involve himself in whatever Josh was doing. Tim was the
typical little brother, and Josh was the typical big brother.
Id. at 5. Tim lived with his father for several years before
starting high school, while Josh lived with their mother.
Nevertheless, they remained close, and saw each other
regularly. Josh and Tim attended the same high school
and they saw each other every day. Id. at 6.
After learning about Josh’s death, Tim needed to be alone
in order to control his emotions. Tim had just graduated
from high school and was waiting to enter the Navy.
Josh’s death was a severe blow to Tim’s outlook on life.
His big brother, his role model, was gone. Tim was also
saddened by the fact that he did not get to say goodbye to
Josh. The last time Tim saw Josh was before he left for
basic training at Lackland AFB, Texas, around August
1995. Id. at 13.
Tim thinks about Josh all the time. Tim keeps pictures of
Josh in his wallet as well as mementos of his brother. Tim
has often dreamed about Josh since his death. Although
he thinks about Josh often in a week, there are certain
times of the year when Tim’s grief is greater. For
example, he becomes particularly moody and sad on
Josh’s birthday and on the anniversary of his death. On
the anniversary of his death, Tim always lights a candle
for Josh in his house. Id. at 16.
Josh’s death changed everything in Tim’s life. He no
longer has a brother. The holidays and special family
events are less joyous. There is a marked emptiness at
family events and Josh’s absence is overwhelming.
Because Tim cannot replace his brother, he fears that he
will not recover from the sense of emptiness he feels.
Josh’s death was devastating to Tim and his entire family.
Id. at 19–20. As Dr. Cable testified, Tim is
still in loss and loneliness.... There
was a lot of pent up emotion still
inside.... He had a very difficult
time expressing his feelings ....
[H]e will continue in grief for a
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long time to come. He would
benefit greatly from some grief
therapy, and that would be advised
for him.
(Feb. 10, 2004 Tr. at 92–93.)
As the brother of Joshua Woody, Timothy Woody has
brought an intentional infliction of emotional distress
claim against the defendants for pain and suffering caused
by the death of his brother. Based upon the evidence
presented to the Court, the elements of Timothy Woody’s
intentional infliction of emotional distress claim are met.
The defendants’ conduct in facilitating, financing, and
providing material support to bring about this attack was
intentional, extreme, and outrageous. As the evidence
shows, this horrific act precipitated by the defendants’
planning and assistance brought immediate emotional
distress to Timothy Woody. Finally, it is clear that
Timothy Woody has continued to experience emotional
distress since that time due to the fact that his brother was
*313 taken away from him in such a tragic and horrific
manner. Therefore, this Court shall award to Timothy
Woody $2.5 million to compensate him for the emotional
distress, pain and suffering that he sustained as a result of
his brother’s untimely death.
b. Estate and Family Members of Leland (“Tim”)
Haun
i. Estate of Leland (“Tim”) Haun
Leland T. (“Tim”) Haun was killed in the Khobar Towers
bombing on June 25, 1996. (Dec. 19, 2003 Tr. at 33; Ex.
2.) Tim was born on April 25, 1963 and was 33 years old
when he died. Ex. 4. Tim left behind his wife Ibis
(“Jenny”) Haun and two step-children: Senator Haun and
Milagritos (“Milly”) Perez–Dalis.
Tim’s estate is represented by his wife, Ibis “Jenny”
Haun. Tim’s estate has asserted claims under California’s
wrongful death statute because he was last domiciled in
California. As the personal representative of Tim’s estate,
Jenny Haun is the proper plaintiff to bring a wrongful
death action under California law. See Cal Civ. Proc.Code
§ 377.60(a). Because Tim was married and had children
at the time of his death, any recovery under this wrongful
death action is for the benefit of his wife, Jenny Haun,
and his two stepchildren Senator Haun and Milly
Perez–Dallis. See Cal Civ. Proc.Code § 377.60(a).47
Based upon the pleadings and evidence presented to the
Court, the estate of Leland “Tim” Haun has made out a
valid claim for wrongful death under California law, and
the beneficiaries of this estate are entitled to recover the
present value of any lost present and future economic
support of the decedent that might reasonably have been
expected but for the wrongful death.48 Though, as Tim’s
widow, Jenny Haun is entitled to recover personally for
the loss of Tim’s companionship and protection, the
California wrongful death statute does not allow for
recovery of damages for any mental pain and suffering
Jenny Haun sustained as a result of her husband’s death.
See supra note 44. Accordingly, this Court will limit its
analysis presently to a discussion of lost present and
future economic earnings of Tim Haun. A discussion of
the intangible economic damages resulting from Jenny
Haun’s mental anguish shall be dealt with in a discussion
of her individual intentional infliction of emotional
distress claim, below.
Dr. Herman Miller, an economic consultant testified as
an expert that, were it not for Tim’s untimely death, he
experienced a net economic loss of $2,822,796.00. *314
The Court therefore awards the Estate of Leland “Tim”
Haun, by Jenny Haun as personal representative,
$2,822,796.00 in economic damages for the benefit of
Jenny Haun, Senator Haun, and Milly Perez–Dallis, to be
distributed in accordance with the method of intestate
distribution under California law. As for the intangible
economic damages of the wrongful death recovery, the
Court will address those awards below, in an
individualized discussion of the claim of Ibis “Jenny”
Haun.
ii. Ibis (“Jenny”) Haun
Jenny Haun is the wife of CPT Tim Haun. She was born
in Lima, Peru on July 9, 1959. She is an American citizen.
(Dec. 19, 2003 Tr. at 3.) Jenny was raised in Peru by her
extended family, including her mother, father,
grandparents, uncles, and cousins. Jenny’s childhood was
a happy one. She attended the best of schools in Peru and
participated in activities like gymnastics, drama, and
acting. At 14 years of age, Jenny left Peru for the United
States to live with her aunt and uncle in New York. Soon
after moving in with her aunt and uncle, though, Jenny
decided to get a job and live on her own. Id. at 3–4, 7.
When Jenny was 15 years old, she married and had her
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first child, whom she named Jose Perez. Years later, he
changed his name to Senator Haun. At age 16, Jenny had
a second child, who she named Milagritos (“Milly”)
Perez. Jenny’s husband had a drug problem, which
wreaked havoc on her young family. “Every time he came
home, he stole things from me and took my money and
my paycheck....” Even though she was only 16 years old,
Jenny worked hard to support her children, while also
dealing with a husband who tried to steal the money she
brought home. Id. at 5–6.
At age 19, Jenny divorced her husband, obtained custody
of her two children, and moved to Chicago, where there
was better pay and more opportunities for her kids. The
biological father of Jenny’s children never had contact
with them again. “The kids don’t know their father. My
kids call him the sperm donor.” Id. at 5, 7.
Upon arriving in Chicago, Jenny began working a job and
attending school at the Central YMCA Community
College. It was difficult for Jenny to make money, attend
classes, and raise her children, so she decided to quit
school to spend more time with her children. After living
in Chicago for five years, Jenny and her children moved
to Tucson, Arizona. It was here that Jenny met Tim Haun.
Id. at 8. Jenny met Tim in April 1990 at a nightclub in
Tucson. They married on October 6, 1990. Id. at 13.
Jenny was crushed by Tim’s untimely death. Jenny also
suffered by seeing how Tim’s death affected her children.
Milly was so unstable after Tim’s death that she was put
in a mental institution for a short period of time.
Since Tim died, Jenny’s entire family has fallen apart.
“We don’t have any family after Tim’s death.” Id. at 38.
Holidays are difficult and the family does not even get
together for Christmas anymore. “This [year] is the first
time we’re going to be together.” Other holidays are
difficult for Jenny as well—Father’s Day, Mother’s Day,
Easter, Halloween, Thanksgiving, the children’s
birthdays, and her wedding anniversary. Id. at 42–43.
The pain of Tim’s death has not subsided for Jenny in the
six and a half years since the bombing. She “feel[s] a lot
of pain ... [her] heart never stops hurting.” Id. at 41. As
Dr. Cable testified, Jenny
is in loss and loneliness. Her loss
and loneliness includes this issue of
future plans, particularly this
having a child *315 together, which
creates a real sense of emptiness
that they were not able to do that
and that that can never be fulfilled.
And also loss and loneliness not
just for herself, but the impact this
has had on her children, because
it’s had a dramatic impact on them.
So she has her own pain for her
loss, but her pain for her children as
well.... She will ... also experience
significant grief into the future. She
has not been able to move off of
this “What if?” and the issue of
having a child.
(Feb. 10, 2004 Tr. at 40–41.)
Based upon the evidence presented to the Court, the
elements of Jenny Haun’s intentional infliction of
emotional distress claim are met. The defendants’ conduct
in facilitating, financing, and providing material support
to bring about this attack was intentional, extreme, and
outrageous. As the evidence shows, this horrific act
precipitated by the defendants’ planning and assistance
brought immediate emotional distress to Jenny. Finally, it
is clear that Jenny has continued to experience emotional
distress since that time due to the fact that her husband
was taken away from her in such a tragic and horrific
manner. Therefore, this Court shall award to Ibis “Jenny”
Haun $8 million to compensate her for the emotional
distress, pain and suffering that she sustained as a result
of her husband’s untimely death.
iii. Senator Haun
Senator Haun is the step-son of Leland “Tim” Haun. He
was born in Newark, New Jersey on June 1, 1975. He is
an American citizen. Ex. 286 at 1, 3. Senator spent part of
his childhood in New Jersey and Chicago, but when
Senator was eight years old, he moved with his mother
and sister to Tucson, Arizona. Senator spent the
remainder of his childhood in Arizona. Id. at 4. Senator’s
birth father has never been a part of his life. He has only
seen his birth father in pictures. Id. at 3.
After Jenny and Tim married, the whole family moved
into a house on base with Tim. Senator’s life quickly
changed for the better. The family began eating dinner
together, had special family brunches, and took family
vacations. Senator developed a close relationship with
Tim and began calling him “Dad.” (Id. at 13–17; Dec. 19,
2003 Tr. at 20.) Senator had a great affection for Tim. Ex.
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286 at 14, 20. Tim treated Senator as if he was Tim’s own
son. (Dec. 19, 2003 Tr. at 22.) In fact, Tim wanted to
adopt Senator, but was unable to because nobody could
locate Senator’s birth father. Senator ended up changing
his last name to “Haun” when he was old enough to do so.
Id. at 21.
After Tim’s funeral, Senator had a difficult time accepting
that he was gone. Senator never saw his Dad’s body and
part of Senator still wonders whether Tim really died or
whether the military had it all wrong. Senator began
feeling depressed and lonely. These feelings were
compounded by the fact that it was difficult for Senator to
talk to his mother because talking with her and hearing
the sadness in her voice made him feel worse. Ex. 286 at
29–30.
Months after Tim died, Senator’s wife Clavel left him.
Senator’s relationship with his wife Clavel began to
deteriorate soon after Tim died. They began arguing often
and as the relationship regressed, the marriage began
falling apart. Clavel left Senator in February of 1997,
filed for divorce, and moved to Tucson with their son,
Tim, Jr. Senator has not seen his son since 1998. Tim
junior is now seven years old and Senator does not even
know where Clavel and Tim junior live. Id. at 31–32.
Soon after Clavel left Senator, his depression and feelings
of loneliness worsened. *316 Senator began drinking and
smoking marijuana in the hopes that this would take away
the pain he was feeling. Senator’s condition continued to
decline, however, and in 1999, Senator began hearing
voices in his head. He had never heard voices before.
Senator began thinking that people were planning
something against him. When someone spoke to him,
Senator would hear what they were saying, but would also
hear other voices. On one occasion, Senator smashed his
arm into a glass window at an apartment complex because
he heard voices telling him to do it. During this period,
Senator felt like the whole world was against him. Id. at
33–34.
Throughout 2000 and 2001, Senator’s problems
continued. He lost his job, then lost his apartment and
became homeless. Senator felt depressed and lonely and
was still hearing voices in his head. Id. at 36. In 2001,
Senator eventually sought help and was diagnosed with
paranoia and schizophrenia. Over the last two years,
Senator has worked with doctors at COPE to address his
psychological problems and eliminate the voices in his
head. Senator has been seeing a psychiatrist regularly and
has also been prescribed different combinations of
medication in an attempt to eliminate the voices he hears.
Senator currently takes, or has recently taken, multiple
medications, including Haldol, Cogentin, Abifill, and
Ativan. Today, Senator no longer hears voices in his head.
Id. at 37.
According to Dr. Cable, Senator Haun
“is still clearly in the loss and
loneliness [stage].... [H]e even still
is back to some degree in the
volatile emotions [stage]. There is
still an awful lot of anger and
sadness.... His father’s death has
had a tremendous impact on him
and has really changed him
forever.... [H]e very definitely
needs professional grief therapy
because the impact on him has been
so severe.... [H]is prognosis is
guarded ... I would be concerned
that without good psychological
help, he could have major problems
in the future.”
(Feb. 10, 2004 Tr. at 44–45.)
As a recognized survivor to Leland “Tim” Haun, Senator
Haun has brought a claim of intentional infliction of
emotional distress against the defendants. Based upon the
evidence presented to the Court, the elements of Senator
Haun’s intentional infliction of emotional distress claim
are met. The defendants’ conduct in facilitating,
financing, and providing material support to bring about
this attack was intentional, extreme, and outrageous. As
the evidence shows, this horrific act precipitated by the
defendants’ planning and assistance brought immediate
emotional distress to Senator. Finally, it is clear that
Senator has continued to experience emotional distress
since that time due to the fact that his father was taken
away from him in such a tragic and horrific manner.
Therefore, this Court shall award to Senator Haun $5
million to compensate him for the emotional distress, pain
and suffering that he sustained as a result of his father’s
untimely death.
iv. Milly Perez–Dallis
Milly Perez–Dalis is the step-daughter of CPT Tim Haun.
She was born in Livingston, New Jersey on December 26,
1977. She is an American citizen. Ex. 287, 1, 3. Milly
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spent portions of her childhood in New Jersey and
Chicago. But when she was five or six years old, Milly
moved to Tucson, Arizona with her mother and brother.
Milly never knew or spoke to her birth father. She has
never even seen him in person. Milly’s birth father never
provided her, her brother, or her mother with money or
support of any kind. Id. at 3, 5. *317 Milly was 12 or 13
years old when her mother Jenny began dating Tim. Id. at
7.
Dealing with Tim’s death was especially difficult for
Milly because she had only recently moved to Florida and
did not have any close friends there to support her or
anyone to talk to. Id. at 30. Milly started feeling depressed
soon after Tim’s death. These feelings of depression
intensified when Milly’s marriage began falling apart. She
was overwhelmed trying to handle things with the
military for Jenny, taking care of her children, and at the
same time coping with the loss of her Dad and the
break-up of her marriage. Id. at 34.
After Milly’s psychological problems got worse, she was
placed in a state mental institution. Nearly two months
after Tim’s death, Milly’s husband sought a divorce and
petitioned the court for custody of the children. In his
petition for divorce, Milly’s husband stated that Tim’s
death had a great impact on Milly and that as a result of
Tim’s death, Milly had been placed in a state mental
institution, was unstable, and was unable to raise her
children. Id. at 37–38.
Milly fell apart after this incident. She swallowed a bottle
of pills, started drinking heavily, and felt like committing
suicide. Milly had never felt this way before. In a short
period of time, she went from being perfectly fine to
being entirely unstable. Id. at 39.
As a result of her declining mental and psychological
state, Milly was again institutionalized. When she was
released, Milly returned home to find her husband
packing up the house. Milly asked what he was doing and
he showed her temporary custody papers that a court had
just issued. He informed Milly that he was taking the
children and leaving town. Milly ultimately moved back
to Tucson, Arizona to be close to her children. Milly was
ordered that she could not see her children without
supervision. To this day, Milly must still be supervised
when she spends time with her kids. Id. at 40–43.
Beginning in 1999, Milly began receiving psychological
help from an agency in Arizona that provided her with a
psychiatrist to visit every month. This psychiatrist listened
to Milly and diagnosed her with major depression, an
anxiety disorder, and a compulsive disorder. Id. at 44.
Since Tim’s death, Milly has experienced difficulties
keeping a job. She gets nervous around people and
sometimes struggles with doing normal things that she
would never have thought twice about before Tim died.
Id. at 46. Father’s Day, Christmas, and the anniversary of
Tim’s death are particularly difficult days for Milly. Id. at
47. September 11, 2001 was also a difficult day for Milly.
Id. at 49.
According to Dr. Cable, Milly
is still looking to recapture the past,
which she can’t get, but she wants
to be the way it was before. Her life
has simply not been the same since
Tim’s death. She wants everything
to be the way it was. So very much
loss and loneliness.... I believe her
grief is going to continue for a long
time into the future. She, too, ...
really needs some intensive grief
therapy to help her get through this.
She is going to have a difficult time
moving on in life, regaining her
balance, really being able to get
back to a normal kind of life.
(Feb. 10, 2004 Tr. at 48–49.)
As a recognized survivor to Leland “Tim” Haun, Milly
Perez–Dallis has brought a claim of intentional infliction
of emotional distress against the defendants. Based upon
the evidence presented to the Court, the elements of Milly
Perez–Dallis’ intentional infliction of emotional distress
claim are met. The defendants’ conduct in facilitating,
financing, and providing material *318 support to bring
about this attack was intentional, extreme, and
outrageous. As the evidence shows, this horrific act
precipitated by the defendants’ planning and assistance
brought immediate emotional distress to Milly. Finally, it
is clear that Milly has continued to experience emotional
distress since that time due to the fact that her father was
taken away from her in such a tragic and horrific manner.
Though the Court typically awards children of terrorist
attack victims $5 million to compensate them for the
severe emotional distress associated with losing a parent,
the Court does have discretion to adjust the amount of the
award in cases where the victim’s emotional distress is
significantly more extreme. Based upon the evidence
presented to this Court, Milly’s emotional distress is of
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such an extreme nature as to warrant an increase in the
award for her emotional distress. Therefore, this Court
shall award to Milly Perez–Dallis $7 million to
compensate her for the emotional distress, pain and
suffering that she sustained as a result of her father’s
untimely death.
c. Shawn Wood
Shawn Michael Wood is an older brother of Justin Wood.
He was born in Modesto, California on March 27, 1971.
He is an American citizen. (Dec. 4, 2003 P.M. Tr. at 50.)
Shawn was raised in Modesto, where he attended and
graduated from public school. After graduating from high
school, Shawn attended junior college for a short period
of time, then left junior college to pursue a career in
music. During the day, Shawn worked at a local
restaurant and during the evenings, he practiced guitar,
wrote songs, and played in bands with his friends. After
playing in bands for a short period of time, Shawn
decided that he wanted to further pursue a career in the
music industry and he enrolled in the Art Institute in
Seattle, Washington to study audio production. Id. at
51–52.
The days following Justin’s death are a blur to Shawn. He
remembers being with his family and his girlfriend’s
family, seeing people he had not seen in a long time, and
receiving many flowers and cards. Id. at 61. He could not
stay focused on school after Justin’s death, so he took a
semester off from the Art Institute. When Shawn returned
to school, his grades suffered. Id. at 65.
Justin’s death deeply affected Shawn’s relationships with
his family, especially his father. It was difficult for Shawn
to interact with his father because they did not
communicate well and because they dealt with Justin’s
death differently. Id. at 72–73.
Shawn has created a web site in Justin’s honor and he
talks to people through email who have lost loved ones in
terrorist attacks. He talks to people who cannot sleep at
night, who cannot close their eyes. Id. at 77–78. Today,
Shawn still thinks of Justin every day. Shawn still keeps
some of Justin’s possessions on display in his home.
Shawn still feels hate and rage as a result of Justin’s
death. Id. at 74. As Dr. Cable testified, Shawn
is in loss and loneliness. It’s
tempered by his wife and children,
which really are a help to him, but
it’s compounded by his parents’
issues, particularly the father in the
sense of not only losing his brother,
but he doesn’t count in his father’s
life any more either. His loss and
loneliness is not just for his brother,
but he is very much devoted to all
of those who died and honoring all
of them.... His grief will continue.
There will always be reminders,
things that make it difficult for him.
(Feb. 10, 2004 Tr. at 211–12.)
As Justin Wood’s brother, Shawn Wood has brought a
claim of intentional *319 infliction of emotional distress
against the defendants. Based upon the evidence
presented to the Court, the elements of Shawn Wood’s
intentional infliction of emotional distress claim are met.
The defendants’ conduct in facilitating, financing, and
providing material support to bring about this attack was
intentional, extreme, and outrageous. As the evidence
shows, this horrific act precipitated by the defendants’
planning and assistance brought immediate emotional
distress to Shawn. Finally, it is clear that Shawn has
continued to experience emotional distress since that time
due to the fact that his brother was taken away from him
in such a tragic and horrific manner. Therefore, this Court
shall award to Shawn Wood $2.5 million to compensate
him for the emotional distress, pain and suffering that he
sustained as a result of his brother’s untimely death.
C. Louisiana
1. Causes of Action
a. Wrongful Death
In Louisiana, the decedent’s survivors49 may bring a
wrongful death action when the decedent dies “due to the
fault of another.” La. Civ.Code Ann. Art. 2315.2(A).
Such a cause of action is intended to “compensate the
victim’s beneficiaries for their compensable injuries
following the victim’s moment of death.” Mathieu v.
Louisiana Dep’t of Transp. & Dev., 598 So.2d 676, 681
(La.Ct.App.1992). Potential beneficiaries entitled to
recovery include the surviving spouse, children, parents,
siblings, and grandparents of the deceased, but do not
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include children who were not legally adopted at the time
of the decedent’s death. La. Civ.Code Ann. Art.
2315.2(A). Recoverable damages for a wrongful death
claim include lost wages, “loss of love and affection, loss
of services, loss of support, medical expenses, and funeral
expenses.” Id. But see La. Civ.Code Ann. Art. 2315.2(B)
(stating that damages do not include costs for future
medical treatment). Surviving relatives under Article
2315.2 may also recover for their own individual pain and
suffering sustained as a result of the wrongful death to the
decedent. Robertson v. Town of Jennings, 128 La. 795, 55
So. 375, 379–80 (1911).
b. Intentional Infliction of Emotional Distress
Louisiana courts follow Section 46 of the
RESTATEMENT (SECOND) OF TORTS in recognizing
the tort of intentional infliction of emotional distress. See
White v. Monsanto Co., 585 So.2d 1205, 1208–1210
(La.1991). The elements of the tort of intentional
infliction of emotional distress in Louisiana are that: (1)
the defendant’s conduct was extreme and outrageous; (2)
the plaintiff suffered severe emotional distress; and (3) the
“defendant desired to inflict severe emotional distress or
knew that severe emotional distress would be certain or
substantially certain to result from his conduct.” Id. at
1209. Under Louisiana law, however, there is a
requirement that, in order for a plaintiff to recover for a
damages caused by injury to another, that plaintiff must
have either viewed or immediately come upon the scene
of the injury. See La. Civ.Code Ann. Art. 2315.6.
Louisiana courts have interpreted the term “view” to
require the plaintiff’s actual presence at the event causing
the injury. See *320 Daigrepont v. State Racing Com’n,
663 So.2d 840, 841 (La.App.1995) (finding that plaintiffs
were entitled to no recovery if “viewing” of injury was
only by videotape). Moreover, the Louisiana Supreme
Court has left little room for interpretation of this
provision, stating that such a law is clear and
unambiguous, and therefore no further interpretation of
the provision may be made with regard to the legislature’s
intent in enacting it. Id. Accordingly, to the extent that
any plaintiffs may not recover under the wrongful death
statute, they may not recover under Louisiana law if they
were not actually present at the site of the attack.
2. Plaintiffs
a. Estate and Surviving Family Members of Kevin
Johnson, Sr.
i. Estate of Kevin Johnson, Sr.
Kevin Jerome Johnson, Sr., was killed in the Khobar
Towers bombing on June 25, 1996. (Dec. 4, 2003 A.M.
Tr. at 64–65; Ex. 2.) Kevin was born on January 25, 1960.
He was 35 years old when he died. Ex. 284, ¶ 4; Ex. A.
Kevin is survived by his wife, Shyrl, his biological sons,
Kevin Johnson, Jr. and Nicholas Johnson, and his stepson,
Che Colson. He is also survived by his mother, Laura
Johnson, and his brother, Bruce Johnson.
When he was growing up, Kevin was a very good student.
In high school, he was always on the Dean’s List and he
was accepted to attend Grambling State University. Id. at
¶ 14. Kevin was also a hard-worker. He got his first job
when he was 15 or 16 years old, helping a local man raise
worms, which were then sold to fishermen.
After Kevin finished college at Grambling, he entered
into the Air Force. He was eventually assigned to Little
Rock Air Force Base in Arkansas upon finishing his
military training. Kevin planned on making the military
his career and wanted to make sure his three little boys
and wife were taken care of. Id. at ¶ 23.
Kevin’s estate is represented by his wife, Shyrl Johnson.
Kevin’s estate has asserted claims under Louisiana’s
wrongful death statute because he was last domiciled in
Louisiana. As the surviving spouse and children of
Kevin’s estate, Shyrl Johnson, Kevin Johnson, Jr., and
Nicholas Johnson are the proper plaintiffs to bring a
wrongful death action under Louisiana law. See La.
Civ.Code Ann. Art. 2315.2(A). Any recovery under this
wrongful death action is for the benefit of Shyrl Johnson,
Kevin Johnson, Jr., and Nicholas Johnson as the surviving
children and spouse. See La. Civ.Code Ann. Art.
2315.2(A).50
Based upon the pleadings and evidence presented to the
Court, the estate of Kevin Johnson, Sr., has made out a
valid claim for wrongful death under Louisiana law, and
the beneficiaries of this estate are entitled to recover the
present value of any lost present and future economic
support of the decedent that might reasonably have been
expected but for the wrongful death. Dr. Herman Miller,
an economic consultant testified as an expert that, due to
Kevin’s untimely death, he experienced *321 a net
economic loss of $1,171,477.00. The Court therefore
awards the Estate of Kevin Johnson, Sr., by his surviving
spouse and children, $1,171,477.00 in economic damages
for the benefit of Shryl Johnson, Kevin Johnson, Jr., and
Nicholas Johnson, to be distributed in accordance with the
method of intestate distribution under Louisiana law. A
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discussion of intangible economic damages of the
wrongful death recovery, will be addressed below in an
individualized discussion of the claims of Shryl Johnson,
Kevin Johnson, Jr., and Nicholas Johnson.
ii. Shryl Johnson
Shyrl Johnson is the wife of Kevin Johnson, Sr. She was
born in Shreveport, Louisiana on October 22, 1958. She is
an American citizen. (Dec. 4, 2003 A.M. Tr. at 4.) Shyrl
was raised in Shreveport, Louisiana by her mother, who
was a nurse, and her stepfather, who was an electrician.
She attended public school and after graduating from high
school, attended college at Northwestern State University.
Id. at 4–5. During Shyrl’s first year at college, she met
Greg Colson, whom she later married. Ironically, Kevin
Johnson, Sr., was the piano player for Shyrl and Greg’s
wedding ceremony.
In 1982, Shyrl and Greg had a son, who they named Che.
Id. at 5–7. Soon after Shyrl had Che’s birth, her marriage
with Greg fell apart due to Greg’s drug addiction. Greg
had a severe drug problem and Shyrl did not want her
young son being around drugs or people caught up in the
drug community. Shyrl and Greg were divorced in 1984.
Id. at 7, 43–44. After Shyrl and Greg divorced, Greg’s
relationship with Che continued to be a distant one. Greg
would come see Che once in a while on the weekends, but
did not visit him on a regular basis. Greg and Che never
shared a traditional father-son relationship. Id. at 7.
Shyrl has always worked since she graduated from
college. When Shyrl was married to Greg, she worked at
the Southwestern Electric Power Company as a
stenographer. She then transferred to the Shreveport Area
School District, where she worked for the school
superintendent as a stenographer and secretary. At one
point, Shyrl joined the Air Force Reserves as a second
job, which she worked on the weekends. Id. at 7–8.
Shyrl and Kevin did not meet again until 1986, when
Shyrl was going through the confirmation process in the
Catholic church. Kevin’s mother, Laura Johnson was
Shyrl’s sponsor through the confirmation process. Shyrl,
who had recently divorced her husband Greg, was pleased
to become reacquainted with Kevin, whom she
remembered from her wedding ceremony, and they
quickly became friends. Id. at 10.
In the weeks and months following their reacquaintance,
Shyrl and Kevin talked on the telephone often. Kevin was
stationed at Little Rock AFB at the time and Shyrl was
still living in Shreveport, so the two could not see each
other often, but they frequently talked to each other on the
telephone over the course of three or four months before
they began dating. During this period, Kevin went on
rotation to Mildenhall AFB in England, but even when he
was travelling, Kevin kept in touch with Shyrl. Their
phone bills were quite high during these three to four
months. Id. at 12–13. Kevin and Shyrl also kept in touch
through letters. Id. at 13.
About six months after becoming reacquainted, Shyrl and
Kevin began dating. Shyrl was taken with Kevin’s smile,
his honesty, and his easygoing nature. Shyrl and Kevin
dated for four years and were married in 1990. Id. at 15;
Ex. 51. After *322 Shyrl and Kevin married, Kevin
transferred to Patrick AFB in Florida. Kevin wanted to
spend more time with the children and the Air Force told
him that he would not have to travel as much. Kevin and
Shyrl were also told that Kevin would not have to travel
to Saudi Arabia, which they both viewed as another
benefit of transferring. Id. at 48–49.
Kevin was a wonderful husband. Kevin would cook,
would clean, would fold clothes. He always listened and
would help Shyrl make important decisions in her life.
Kevin also encouraged Shyrl to do things that she always
wanted to do, like go back to school to become a teacher.
(Dec. 4, 2003 A.M. Tr. at 36–37, 39.)
Kevin was also a great father. “He treated Che just like he
was his biological father.” Kevin played sports with Che,
took him to church, and was the father figure that Che
never had. Id. at 20–23, 38. Kevin and Shyrl also had two
children of their own: Kevin and Nicholas. Kevin was a
great father with these boys as well. Kevin spent a lot of
time with all of the children and enjoyed being a father.
He arranged family trips that the kids would enjoy to
places like Disney World, St. Louis, and Mud Island,
Tennessee and spent his free time with the kids. Id. at
46–48.
Shyrl and Kevin had great plans for the future. In the days
before Kevin died, he and Shyrl were talking about
transferring to Mildenhall AFB in England, which they
thought would be great for the children. Shyrl had
actually gone to pick up information about Mildenhall on
the day she learned about the Khobar Towers bombing.
Kevin planned on staying in the military for at least 25
years, then eventually going to work for a commercial
airline. Id. at 50–53.
Shyrl broke down emotionally immediately after finding
out that Kevin had been killed. Id. at 66. After the funeral,
Shyrl held herself together for about six months, before
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she just “fell apart.” Shyrl has experienced breakdowns
since this initial episode, but they have not been quite as
bad. She especially misses Kevin “[w]hen things start
piling up ... because he was always there to balance me
out and I miss that. I can talk to him but he’s not
answering back.” Id. at 77–79.
Certain days are particularly difficult for Shyrl.
September 11, 2001 was one of those days. Shyrl’s
reaction to the September 11 attack was so severe that she
had to leave the classroom she was teaching in and have
another teacher take over the class. She left work early
that day to pick up her children, so they wouldn’t be
afraid. “I tried to shelter them as much as I could in not
seeing so much of it. But [little] Kevin said, ‘it’s just like
Khobar Towers, mommy. They’re just never going to
catch them.’ ” (Dec. 4, 2003 A.M. Tr. at 87–89.)
As Dr. Cable stated, Shyrl
is also in loss and loneliness. She is
a widow who sees herself under a
great deal of pressure with her job,
her children.... She has really held
herself together as best she could,
more for the children than for
anything else.... She will ...
continue to grieve in the future....
[A]s her children get older, she will
be more open to letting her grief
come out more. A lot of it is still
kept behind closed doors, so to
speak.... [T]here is going to be a lot
of recurrence of grief when the
children reach milestones. When
they graduate from college, when a
child marries, that will tend to
bring back a lot of grief for her,
because those are times that Kevin
should be there to support and be a
part of all of that.
(Feb. 10, 2004 Tr. at 53–55.)
As Kevin Johnson’s wife, Shyrl Johnson has brought a
wrongful death *323 claim arising from the death of her
husband, Kevin Johnson, Sr. Based on the evidence
presented to the Court, Shyrl Johnson has experienced
severe mental anguish and suffering as a result of her
husband’s untimely death. Therefore, this Court shall
award to the estate of Kevin Johnson, Sr., by Shyrl
Johnson as Personal Representative, $8 million for the
benefit of his wife Shyrl Johnson to compensate her for
the mental pain and suffering she sustained as a result of
her husband’s untimely death.
iii. Kevin Johnson, Jr.
Kevin Johnson, Jr., (“Kevin Jr.”) is the son and namesake
of Kevin Johnson, Sr. Kevin, Jr., was born in July 1991
and was only four years old when his father was killed.
Id. at 46.
For a while after Kevin died, Kevin Jr. thought that his
dad might just be hurt and lost somewhere in Saudi
Arabia. Shyrl believes that Kevin’s death hit Kevin Jr. the
hardest because he was so young. Kevin Jr. would have
nightmares, and often thought he saw ghosts. Id. at 61.
To this day, Kevin still has issues related to his father’s
death. Shyrl enrolled him in Big Brothers, Big Sisters
with the hope that he could have a male figure in his life.
Six months after enrolling, however, Kevin’s big brother
was transferred to a different military base, and Kevin lost
another male role model. Id. at 70–71.
Kevin has issues that Shyrl believes are related to the loss
of his father. For example, Kevin is overweight, has low
self-esteem, and has other physical issues. As Dr. Cable
testified, Kevin is in the loss and loneliness stage but still
[shows] behaviors that go back into
some of the earlier stages [of
emotional grieving.] There is still a
lot of emotional reaction there, so
the volatile emotions [stage].
Probably even some of the
disorganization; just not being able
to kind of get things in focus.... He
will continue in significant grief
reactions in the foreseeable
future.... [He is] at risk for
developing other kinds of problems
as a result of the grief experience.
(Feb. 10, 2004 Tr. at 57–58.)
As Kevin Johnson’s son, Kevin Johnson, Jr., has brought
intentional infliction of emotional distress and wrongful
death claims arising from the death of his father, Kevin
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Johnson, Sr. As the evidence shows, Kevin Johnson, Jr.,
was not physically present to witness the harm done to his
father. In light of this fact, and the strict construction
Louisiana courts place on the presence requirement in
intentional infliction of emotional distress claims, Kevin
Johnson, Jr., may not recover under an intentional
infliction of emotional distress claim relating to his
father’s death. Accordingly, to the extent that Kevin
Johnson, Jr., may recover, he must make a valid claim
under Louisiana’s wrongful death statute.
Based on the evidence presented to the Court, Kevin
Johnson, Jr., has experienced severe mental anguish and
suffering as a result of his father’s untimely death.
Therefore, this Court shall award to the estate of Kevin
Johnson, Sr., by Shyrl Johnson as Personal
Representative, $5 million for the benefit of his son Kevin
Johnson, Jr., to compensate him for the mental pain and
suffering he sustained as a result of his father’s untimely
death.
iv. Nicholas Johnson
Nicholas Johnson is the son of Kevin Johnson, Sr.
Nicholas was born in April 1996, and was only two
months old when his father was killed. (Dec. 4, 2003
A.M. Tr. at 46.) Nicholas never knew his father, but he
has learned about him from *324 Shyrl and from Che
Colson. Id. at 71. As Nicholas has gotten older, Shyrl has
given him more information about his father. Nicholas is
“proud of his father and who he is even though he didn’t
know him.” Id. at 96.
Even though Nicholas never knew his father, his life has
been impacted dramatically by Kevin’s death. As Shyrl
stated,
[T]he thing that broke my heart just this year, we were
coming back from school and I think they had this
thing where the fathers come in and my poor baby said,
we were driving back home, “I wish I had a daddy, too,
just like the other kids.” That really just broke my
heart. What do you say to a seven-year-old that misses
something that he didn’t even have but for a short
period of time? When you go to functions and there’s
the mother and the father, that’s when he gets kind of
like he wishes he had both.
Id. at 71.
According to Dr. Cable, Nicholas
is really just beginning the grief
process.... He was so young when
all of this happened, that it’s a blur
to him, obviously. As future events
unfold in his life, then he is going
to have more of a sense of loss, just
like now with the school events and
no father present.... [H]e is at a real
loss in that sense of not having
personal memories as part of his
life.... He will have good support
from his mother and from his
brothers, but he will have
significant grief along the way....
So there is a long-term impact here
for him.
(Feb. 10, 2004 Tr. at 59–60.)
As Kevin Johnson’s son, Nicholas Johnson has brought
intentional infliction of emotional distress and wrongful
death claims arising from the death of his father, Kevin
Johnson, Sr. As the evidence shows, Nicholas Johnson
was not physically present to witness the harm done to his
father. In light of this fact, and the strict construction
Louisiana courts place on the presence requirement in
intentional infliction of emotional distress claims,
Nicholas Johnson may not recover under an intentional
infliction of emotional distress claim relating to his
father’s death. Accordingly, to the extent that Nicholas
Johnson may recover, he must make a valid claim under
Louisiana’s wrongful death statute.
Based on the evidence presented to the Court, Nicholas
Johnson has experienced severe mental anguish and
suffering as a result of his father’s untimely death due to
the fact that he will never know his father. Therefore, this
Court shall award to the estate of Kevin Johnson, Sr., by
Shyrl Johnson as Personal Representative, $5 million for
the benefit of his son Nicholas Johnson to compensate
him for the mental pain and suffering he sustained as a
result of his father’s untimely death.
v. Laura Johnson
Laura Elizabeth Johnson is the mother of Kevin Johnson.
Mrs. Johnson was born in Shreveport, Louisiana in 1933
and was 63 years old when Kevin was killed. She is an
American citizen. Ex. 284, ¶¶ 1–2. Mrs. Johnson was
raised and attended school in Shreveport, Louisiana. After
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graduating from high school, she attended a year-long
nursing school program and graduated from the program
on May 24, 1954. She has been a nurse for 49 years and
still practices on a part-time basis. She has lived in
Shreveport her entire life. Id. at ¶ 3.
When Mrs. Johnson heard that Kevin had died in the
attack, she was devastated. She left work immediately and
headed home, and prayed that Kevin was still alive. Id. at
¶ 29. Mrs. Johnson did not work for a few months after
Kevin’s funeral. *325 She returned to work in September.
It was difficult for Mrs. Johnson to return to work, “but I
knew I had to.” Id. at 32.
Since Kevin died, Mrs. Johnson has hung a picture of him
in the house so she could see him when she walked in the
door. Mrs. Johnson is still grieving over Kevin’s death,
but she can function in a normal life now. Id. at 35. Mrs.
Johnson has relied on her faith in coping with Kevin’s
death. Id. at 36. Before Kevin died, Mrs. Johnson relied
on him to take care of things in case she ever became ill
or could not take care of herself. Kevin was responsible,
so Mrs. Johnson added his name to her bank account and
other important accounts. When Kevin died, Mrs. Johnson
realized she was on her own. (Id. at 37; Dec. 4, 2003
A.M. Tr. at 12.)
According to Dr. Cable, Mrs. Johnson “is still in loss and
loneliness. Nothing will ever replace Kevin in her life....
She will continue to grieve for some time to come....
[S]he will manage to go on, but [may not] ever fully
recover the loss of her son.” (Feb. 10, 2004 Tr. at 62.)
As Kevin Johnson’s mother, Laura Johnson has brought
intentional infliction of emotional distress and wrongful
death claims arising from the death of her son, Kevin
Johnson, Sr. As the evidence shows, Laura Johnson was
not physically present to witness the harm done to her
son. In light of this fact, and the strict construction
Louisiana courts place on the presence requirement in
intentional infliction of emotional distress claims, Laura
Johnson may not recover under an intentional infliction of
emotional distress claim relating to her son’s death.
Accordingly, to the extent that Laura Johnson may
recover, she must make a valid claim under Louisiana’s
wrongful death statute.
Laura Johnson, however, may not maintain a valid
wrongful death claim due to the fact that her son Kevin
Johnson, Sr., died with a surviving spouse and surviving
children. Under Louisiana’s wrongful death code,
surviving parents may not recover for wrongful death if
there is a surviving spouse or surviving children. See La.
Civ.Code Ann. Art. 2315.2(A)(2). Accordingly, Laura
Johnson’s wrongful death claim must also be denied.
vi. Bruce Johnson
Bruce Johnson is the brother of Kevin Johnson. Bruce
was born in Shreveport, Louisiana in 1961 and was 35
years-old when Kevin was killed. He is an American
citizen. Ex. 285, ¶¶ 1, 3. Bruce attended the Blessed
Sacrament Elementary School until sixth grade, then went
to Lake Shore Middle School and Washington High
School. He graduated from high school in 1978. After
high school, he attended and graduated from Louisiana
Technical School, where he studied automotive education
and automotive technologies. Id. at ¶ 3.
Bruce currently works as a paraprofessional for Southern
University, where he supervises a unit that oversees
special education children and helps them prepare for
becoming independent. Bruce is married and has a wife
named Connie and two children: Bruce Jr., who is 16, and
Broderick, who is 14. Bruce also has a step-daughter
named Chavondria. Id. at ¶ 4.
Growing up, Bruce and Kevin were close brothers. From
an early age, Kevin was very protective of Bruce. He
would make sure Bruce did not do anything he wasn’t
supposed to do. This protective relationship continued
until the day Kevin died. Bruce would talk to Kevin about
work, personal, or even family issues. Kevin would
always listen and always give him helpful guidance. Id. at
¶ 7.
Soon after Kevin joined the Air Force, he sat down with
Bruce and had a talk *326 about plans for the future.
Kevin planned on spending 20 years in the service, then
going to work for a commercial airline. Id. at ¶ 11. The
last time Bruce spoke with Kevin, he asked about Bruce’s
boys’ shoe sizes. Kevin wanted to bring the boys some
sneakers from Saudi Arabia when he returned to the
United States. Id. at ¶ 12.
When Kevin died, Bruce took care of making all the
funeral arrangements and contacting people from the
military and the local police department. Bruce arranged
to have the funeral at St. John’s Cathedral, which is where
Kevin and Bruce were first baptized and where they had
their First Communion. Because Bruce was making all of
the arrangements, he could not attend the memorial
service at Patrick AFB. Bruce did, however, attend the
dedication of the memorial at Patrick AFB a few years
after the bombing.
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Today, Bruce still visits Kevin’s grave often. Id. at ¶ 17.
After Bruce learned of Kevin’s death, everything “just
went black for about two straight years. I felt lost because
I didn’t have Kevin to give me direction in life.” Id. at ¶
18. After Kevin died, Bruce began drinking every day.
This led to some trouble with the law and Bruce received
two DUIs in a short period of time. Bruce received the
first one on December 22, 1996, and the second that
following July. Bruce also got into some financial
difficulties. Id. at ¶ 19. Bruce stayed home from work for
about three or four weeks after Kevin’s death. But after
returning to work, he had to take a day or two off every
week because going back was just something he was not
ready for. Bruce continued to take a day or two off a week
for about six months. Id. at ¶ 20.
Today, Christmas and Thanksgiving are particularly
difficult days for Bruce. Kevin’s birthday and the days
leading up to Kevin’s birthday are also tough. In Dr.
Cable’s expert opinion, Bruce
is in loss and loneliness. He still
thinks of Kevin all the time; never
far from his mind. Kevin was his
role model, his support system, and
that’s gone and is not going to be
recovered.... He will continue to be
impacted by the death in the future
... but that ten-day period [each
year when Kevin and Bruce were
the same numerical age] is going to
be a significant marker the rest of
his life. Even if he is able to move
on in general, he is going to have a
down time every year where the
grief is going to be pretty
overwhelming for a while.
(Feb. 10, 2004 Tr. at 64–65.)
As Kevin Johnson’s brother, Bruce Johnson has brought
intentional infliction of emotional distress and wrongful
death claims arising from the death of his brother, Kevin
Johnson, Sr. As the evidence shows, Bruce Johnson was
not physically present to witness the harm done to his
brother. In light of this fact, and the strict construction
Louisiana courts place on the presence requirement in
intentional infliction of emotional distress claims, Bruce
Johnson may not recover under an intentional infliction of
emotional distress claim relating to his brother’s death.
Accordingly, to the extent that Bruce Johnson may
recover, he must make a valid claim under Louisiana’s
wrongful death statute.
Bruce Johnson, however, may not maintain a valid
wrongful death claim due to the fact that his brother
Kevin Johnson, Sr., died with a surviving spouse and
surviving children. Under Louisiana’s wrongful death
code, surviving siblings may not recover for wrongful
death if there is a surviving spouse or surviving children.
See La. Civ.Code Ann. Art. 2315.2(A)(3). Accordingly,
Bruce Johnson’s wrongful death claim must also be
denied.
*327 vii. Che Colson
Che Colson is the step-son of Kevin Johnson, Sr. Che was
born in 1982 and was only 13 years old when Kevin was
killed. (Dec. 4, 2003 A.M. Tr. at 7.) Che’s birth parents
are Shyrl Johnson and Greg Colson. Shyrl and Greg
divorced in 1984, when Che was two years old, and Che
never had a close relationship with his birth father. Greg
developed drug problems and was not around to take care
of Che when he was a child, so Shyrl was the only parent
in his day-to-day life. Id. at 6–7. Che was three and a half
or four years old when Shyrl began dating Kevin. Id. at
12.
Kevin treated Che like he was his biological father. Che
and Kevin maintained their close relationship until the
day Kevin died. Id. at 38, 46. After Shyrl and Kevin
married, Kevin was financially responsible for Che. Id. at
46.
The year after Kevin died was very difficult for Che and
he “kind of shut down that year, where he wasn’t talking
to anybody.” Shyrl noticed that Che “wasn’t showing any
emotion to anybody and I couldn’t read him. But I do
know that his grades suffered. I think it’s because he
missed that male role model that he had in Kevin. [Kevin]
brought stability [from] the male perspective, I would say,
for Che.” Id. at 38–39. As Dr. Cable has stated, Che “feels
abandoned ... and is in loss and loneliness.... He will
continue in grief for the foreseeable future.... [H]e still has
got a number of years ahead of him of trying to come to
grips with everything that has happened.” (Feb. 10, 2004
Tr. at 55–56.)
As Kevin Johnson’s stepson, Che Colson has brought
intentional infliction of emotional distress and wrongful
death claims arising from the death of his stepfather,
Kevin Johnson. As the evidence shows, Mr. Colson was
not physically present to witness the harm done to his
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stepfather. In light of this fact, and the strict construction
Louisiana courts place on the presence requirement in
intentional infliction of emotional distress claims, Mr.
Colson may not recover under an intentional infliction of
emotional distress claim relating to his stepfather’s death.
Accordingly, to the extent that Mr. Colson may recover,
he must make a valid claim under Louisiana’s wrongful
death statute.
Based on the evidence presented to the Court, however,
Mr. Colson is not entitled to recover under an intentional
infliction of emotional distress claim due to the fact that,
as a non-adopted stepson, Mr. Colson lacks sufficient
standing to recover for damages relating to Kevin
Johnson’s death. Under Louisiana law, a decedent’s child
may properly recover for wrongful death. La. Civ.Code
Ann. Art. 2315.2(A)(1). Nevertheless, Louisiana’s code
specifically states that a “child” is limited to biological
children and children by adoption. La. Civ.Code Ann.
Art. 2315.2(A)(4)(D). Moreover, this Court is hampered
from any flexibility in interpreting this provision due to
the fact that “the right of action created by Article 2315
may be extended only to the statutorily designated
beneficiaries enumerated in the article and these classes
of beneficiaries must be strictly construed.” Craig v.
Scandia, Inc., 634 So.2d 944, 945 (La.Ct.App.1994)
(emphasis added). Accordingly, because Mr. Colson does
not fall within the statutorily prescribed classes of
individuals who may properly recover under a wrongful
death action, Mr. Colson’s claim must be denied.
D. Claims Under New Hampshire Law
1. Causes of Action
a. Wrongful Death
Under New Hampshire’s wrongful death statute, the
administrator of the *328 decedent’s estate may bring a
cause of action when the decedent’s death is “caused by
the injury complained of in the action.” N.H.Rev.Stat.
Ann. § 556:12. The damages wrongful death plaintiffs
may seek include “the mental and physical pain suffered
by the decedent in consequence of the injury, the
reasonable expenses occasioned to the estate by the
injury, the probable duration of life but for the injury, and
the capacity to earn money during the deceased party’s
probable working life.” N.H.Rev.Stat. Ann. § 556:12.
Recoverable damages also include damages for loss of
life and loss of enjoyment of life. See Bennett v. Lembo,
145 N.H. 276, 761 A.2d 494, 498 (2000); Marcotte v.
Timberlane/Hampstead Sch. Dist., 143 N.H. 331, 733
A.2d 394, 405 (1999). Under New Hampshire law,
however, the amount of damages recoverable for the
benefit of a decedent’s sibling is limited to a total of
$50,000,51 unless the sibling shows proof of financial
dependency upon the decedent.
b. Intentional Infliction of Emotional Distress
New Hampshire recognizes the tort of intentional
infliction of emotional distress, following Section 46 of
the RESTATEMENT (SECOND) OF TORTS. Under
New Hampshire law, the elements of the tort of
intentional infliction of emotional distress are: (1) the
defendant intentionally or recklessly inflicted severe
emotional distress or was certain or substantially certain
that his conduct would cause such distress; (2) the
conduct was extreme and outrageous; (3) the defendant’s
conduct caused the plaintiff’s emotional distress; and (4)
the plaintiff suffered severe emotional distress. See Orono
Karate, Inc. v. Fred Villari Studio of Self Defense, Inc.,
776 F.Supp. 47, 51 (D.N.H.1991).
In recognizing the tort of intentional infliction of
emotional distress, New Hampshire courts have adopted
Section 46 of the RESTATEMENT (SECOND) OF
TORTS......... See Orono Karate, Inc. 776 F.Supp. at 51.
Though § 46(2) of the Restatement specifically states that
only present third parties may recover for an IIED claim,
the Caveat to the section leaves open the possibility of
other possible situations where a defendant could be liable
for intentional infliction of emotional distress under this
section. Moreover, Comment l. to the section specifically
expands on the Caveat’s language, stating that the Caveat
was intended “to leave open the possibility of situations in
which presence at the time may not be required.”
RESTATEMENT (SECOND) OF TORTSSSSSSS § 46,
cmt. l.52
The Court finds that a terrorist attack is precisely the sort
of situation in which presence at the time is not required
in light of the severity of the act and the obvious range of
potential grief and distress that directly results from such
a heinous act. This Court and courts of other jurisdictions
have found that “a terrorist attack-by its nature-is directed
not only at the victims but also at the victims’ families.”
Salazar, 370 F.Supp.2d at 115 n. 12 (citing *329 Burnett
v. Al Baraka Inv. and Dev. Corp., 274 F.Supp.2d 86, 107
(D.D.C.2003)). In this case, the evidence demonstrates
that the defendants’ motives in planning the attack on the
Khobar Towers, and indeed their motives in carrying out
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a systematic plan of funding and organizing terrorist
attacks, were intended to harm both the victims of the
attack, and to instill terror in their loved ones and others
in the United States. Accordingly, in the case of a terrorist
attack as this, the Court finds that the presence element
does not need to be proven in order to successfully bring a
cause of action for intentional infliction of emotional
distress under New Hampshire law.
Still, it is of paramount concern to this Court that a line
be drawn to prevent a potentially unlimited number of
plaintiffs who were not present at the site of the attack
from seeking redress. See RESTATEMENT (SECOND)
OF TORTS § 46, cmt. l. The Restatement has noted that
recovery for third-party bystanders has typically been
granted to members of the victim’s “near relatives.” Id.
State courts have also followed this approach, allowing
recovery for the victim’s spouse, child, sibling or parents.
See, e.g., Williams v. City of Minneola, 575 So.2d 683,
690 (Fla.App.1991). The Court finds this approach to be a
logical one. Accordingly, under New Hampshire law, a
victim’s near relatives, as defined by the state’s intestate
succession statute, who were not present may nonetheless
have standing to seek redress under a claim of intentional
infliction of emotional distress.
2. Plaintiffs
a. Estate and Surviving Family Members of Peter
Morgera
i. Estate of Peter Morgera
Peter Morgera was killed on June 25, 1996 at the Khobar
Towers. Ex. 9. He is survived by his two brothers,
Michael Morgera and Thomas Morgera. Michael is three
years older than Peter, who was 11 months older than
Thomas. (Dec. 5, 2003 P.M. Tr. at 94–96.)
After high school Peter attended classes at the University
of New Hampshire and had a few different jobs before
deciding to join the Air Force. Peter also spent time as a
volunteer firefighter in Stratham, New Hampshire. After
basic training and technical school, Peter was assigned to
a duty station in Germany. Id. at 109–111, Ex. 93.
After completing his tour of duty in Germany, Peter was
assigned to Eglin AFB in Florida. Peter and Michael
spoke on the telephone several times during this period.
Michael testified that the Air Force changed Peter.
According to his brother, the time Peter spent in the Air
Force and the time he spent in Germany had given Peter
the confidence to “be much more concerned with the way
he lived his life, not for others but for himself.” (Dec. 5,
2003 P.M. Tr. at 111–14.) Peter volunteered to be
temporarily deployed to Saudi Arabia in place of Stan
Dworkin, a higher ranking airman who had a wife and
children. Id. at 114–115. Fittingly, Peter’s tombstone
reads “Family, community, country.” Id. at 128.
Peter’s estate is represented by his brother, Michael
Morgera. Peter’s estate has asserted claims under New
Hampshire’s wrongful death statute because he was last
domiciled in New Hampshire. As the administrator of
Peter’s estate, Michael Morgera is the proper plaintiff to
bring a wrongful death action under New Hampshire law.
See N.H.Rev.Stat. Ann. § 556:12. In light of the fact that
Peter is survived solely by his brothers, Michael and
Thomas Morgera, any recovery under this wrongful death
action is for Michael and Thomas Morgera.
*330 Based upon the pleadings and evidence presented to
the Court, the estate of Peter Morgera has made out a
valid claim for wrongful death under New Hampshire
law. The beneficiaries of his estate are entitled to recover
compensatory damages arising from the wrongful death,
including “capacity to earn money during the deceased
party’s probable working life.” See N.H.Rev.Stat. Ann. §
556:12(I). Plaintiffs have presented no evidence of any
financial dependency upon the decedent in this case.
Therefore, to the extent that Peter Morgera’s lost wages
exceed $50,000, the total amount of recovery for his
estate must be reduced to conform to the $50,000 limit
imposed by statute under New Hampshire law.
Dr. Herman Miller, an economic consultant testified as
an expert that, as a result of Peter’s untimely death, he
experienced a net economic loss of $1,294,377.00. In
light of the statutory limitation on damages for
non-dependent siblings, the Court must therefore award
the Estate of Peter Morgera, by Michael Morgera as
personal representative, $50,000.00 in economic damages
for the benefit of his brothers, Michael and Thomas
Morgera, to be distributed in accordance with the method
of distribution prescribed under New Hampshire law. See
N.H.Rev.Stat. Ann. § 556:14. As for the intangible pain
and suffering damages incurred by Peter’s surviving
brothers, the Court will address those awards below, in an
individualized discussion of the claims of Michael and
Thomas Morgera.
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ii. Michael Morgera
Michael William Morgera is a United States citizen and
the brother of Peter Morgera and Thomas Morgera.
Michael is three years older than Peter who was 11
months older than Thomas. (Dec. 5, 2003 P.M. Tr. at
94–96.) Michael was born in Dorchester, Massachusetts
on June 4, 1969, and graduated from Exeter Area High
School in 1988. Michael is currently employed as a chef
at First Impressions Catering. Michael was married to his
wife, Kristen, on September 15, 1996. Id. at 94–96.
Upon learning of his brother’s death, Michael said that he
“never felt as much joy as [he] felt pain when [he] lost
[his] brother Peter.” (Feb. 10, 2004 Tr. at 173.) According
to Dr. Cable, Michael
is in loss and loneliness. His grief is
compounded by the whole family
history of abuse and emotional
scars that all three brothers shared.
I think it’s hard for him to know
what they survived early in life,
only to have his brother taken away
this way with everything else that
had happened.... [There’s] still a lot
of emotional upheaval in his life....
His grief will continue for a very
long time.... I am not sure he is
strong enough yet that he could
handle any other significant loss in
his life right now. I think that
would be devastating to him.
Id. at 174.
As the brother of Peter Morgera, Michael Morgera has
brought an intentional infliction of emotional distress
claim against the defendants for pain and suffering caused
by the death of his brother. Based upon the evidence
presented to the Court, the elements of Michael
Morgera’s intentional infliction of emotional distress
claim are met. The defendants’ conduct in facilitating,
financing, and providing material support to bring about
this attack was intentional, extreme, and outrageous. As
the evidence shows, this horrific act precipitated by the
defendants’ planning and assistance brought immediate
emotional distress to Michael Morgera. Finally, it is clear
that Michael Morgera has continued to experience
emotional *331 distress since that time due to the fact that
his brother was taken away from him in such a tragic and
horrific manner. Therefore, this Court shall award to
Michael Morgera $2.5 million to compensate him for the
emotional distress, pain and suffering that he sustained as
a result of his brother’s untimely death.
iii. Thomas Morgera
Thomas E. Morgera, a United States citizen, is on active
duty in the United States Air Force. He is currently
assigned to Andrews AFB with the 89th Airway MXG, a
special mission unit. The unit maintains aircraft that serve
as Air Force 2 and transport the Vice President, the Joint
Chiefs of Staff, and Cabinet Members. Thomas Morgera
is a flying crew chief with Air Force 2. He has been in the
Air Force for 12 years, and has been assigned to bases
throughout the United States and the world. He has been
deployed to South America, Guam, and Puerto Rico, the
Far East, Japan, Thailand, the Philippines and Micronesia
as well as England, Europe, Southwest Asia, Somalia and
Kenya. He has been deployed twice to Dhahran AFB in
Saudi Arabia and has lived in the Khobar Towers
complex. (Dec. 5, 2003 P.M. Tr. at 40–43.)
Thomas Morgera grew up in a small house located at 35
Lewis Street in Chelsea, Massachusetts. As children,
Peter and Thomas were inseparable. Thomas’ earliest
memory of Peter was missing him. He remembers that,
when Peter started kindergarten, he would sit in the
window all day long waiting for his brother to come home
because before Peter went to kindergarten, the two boys
played together everyday from the time they woke up
until they went to sleep. Id. at 45–47.
Thomas and Peter Morgera lived in a difficult and
sometimes violent environment as they were growing up.
Their parents frequently quarreled and there was much
screaming and sometimes physical violence. Thomas
recalled that his mother would consume large amounts of
alcohol and took illegal drugs. Many times she would not
come home at night. Peter and Thomas’ parents separated
in 1972 when Thomas was approximately six years old.
Id. at 50–51.
After his parents separated, Thomas, Peter, and Michael
stayed with their mother. At this point their mother was
home even less than previously. The three boys were left
to fend for themselves, and Michael, who was four years
older, spent more and more time away from the home.
Peter and Thomas often cooked their own meals. On some
occasions they would go down the street to their
grandmother’s house, but their mother warned them not to
go their grandmother’s house too often for dinner. As a
result, they often went without dinner. Id. at 51–53.
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When Thomas returned to Japan, he was suffering from
depression. He wanted to sleep all the time and became
introverted. He cut himself off from all others, including
his wife and step-daughter. Further, he was deployed from
Japan and away from his family soon after he returned
there. His wife had no family or other support in Japan.
As things worsened for Thomas, his wife left and came
home to the United States. Thomas and his wife
ultimately separated and divorced.
Thomas’ chain of command told him that he could either
voluntarily go to psychiatric counseling or they would
order him to do so. Thomas met with an Air Force
psychiatrist who, after hearing Thomas’ story, told
Thomas that he had been through more in the last six to
eight months than most people go through in their entire
lifetime. Thomas still has bad days and thinks often of
Peter. Id. at 89–90.
*332 Thomas has remarried and has a son who he named
Peter James Morgera, II. Thomas gave his son this name
because he wants people to ask why his son has this
name, so that he has an opportunity to explain who Peter
was and what he endured and accomplished in life. Id. at
92–93. According to Dr. Cable, Thomas
is still in loss and loneliness. He
was greatly affected by Peter’s
death. He is able to move on to a
degree because of his family, his
new family. But I think that
description he uses of a roller
coaster is very accurate—that it’s
still a lot of ups and downs for him.
There is not a sense of real
stability. There is still a lot of pain,
still a lot of emotion there. Again,
for him, it’s hard to see—it’s hard
for him to understand how they
could come through so much only
to have Peter die this way.... He
will continue with his grief, more
in the sense of waves, because his
family will help stabilize his grief
to a degree. But there will still be
those events and those activities
and time when he is going to be
kind of overcome for a period with
ongoing grief.
(Feb. 10, 2004 Tr. at 177.)
As the brother of Peter Morgera, Thomas Morgera has
brought an intentional infliction of emotional distress
claim against the defendants for pain and suffering caused
by the death of his brother. Based upon the evidence
presented to the Court, the elements of Thomas Morgera’s
intentional infliction of emotional distress claim are met.
The defendants’ conduct in facilitating, financing, and
providing material support to bring about this attack was
intentional, extreme, and outrageous. As the evidence
shows, this horrific act precipitated by the defendants’
planning and assistance brought immediate emotional
distress to Thomas Morgera. Finally, it is clear that
Thomas Morgera has continued to experience emotional
distress since that time due to the fact that his brother was
taken away from him in such a tragic and horrific manner.
Therefore, this Court shall award to Thomas Morgera
$2.5 million to compensate him for the emotional distress,
pain and suffering that he sustained as a result of his
brother’s untimely death.
E. Texas
1. Causes of Action
a. Wrongful Death
Under Texas’ wrongful death statute, a wrongful death
action may be brought against a person if that person’s
“wrongful act, neglect, carelessness, unskillfulness, or
default” causes an individual’s death. Tex. Civ. Prac. &
Rem.Code Ann. § 71.002. Such an action is brought for
the exclusive benefit of the decedent’s surviving spouse,
children, and parents. Tex. Civ. Prac. & Rem.Code Ann. §
71.004(a). Any one of the surviving spouse, children, or
parents of the deceased may bring a wrongful death
action. Tex. Civ. Prac. & Rem.Code Ann. § 71.004(b).
A wrongful death plaintiff may seek those damages that
are “proportionate to the injury resulting from the death.”
Tex. Civ. Prac. & Rem.Code Ann. § 71.010(a). These
damages include pecuniary loss, medical expenses,
funeral expenses, loss of companionship and society, and
mental anguish. See Wellborn v. Sears, Roebuck & Co.,
970 F.2d 1420, 1427–29 (5th Cir.1992). Any awarded
damages are divided among those entitled to recover and
who are alive at the time of the award. Tex. Civ. Prac. &
Rem.Code Ann. § 71.010(b). Though a right of action
exists for all persons within the designated class to
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© 2019 Thomson Reuters. No claim to original U.S. Government Works. 61
recover for wrongful death, under the statute only one
wrongful death action can exist to recover a single sum
that is *333 apportioned among the entire eligible class.
Texas & P. Ry. Co. v. Wood, 145 Tex. 534, 199 S.W.2d
652, 654 (1947).
b. Intentional Infliction of Emotional Distress
As a general rule, to state a claim for intentional infliction
of emotional distress, the outrageous and extreme conduct
must be directed at the plaintiff, although a cause of
action may be allowed to an immediate family member
who was present at the time. See RESTATEMENT
(SECOND) OF TORTS § 46(2). Some states, however,
have done away with the plaintiff presence element
altogether. In Texas, however, the issue of whether a
plaintiff must be present in order to recover for a claim of
intentional infliction of emotional distress has not been
specifically addressed by the courts. In cases such as
these, the Court must assess whether such a claim would
be valid under the laws of that state. See, e.g., Dammarell
v. Islamic Republic of Iran, 2006 WL 2382704, *175–76
(D.D.C. Aug 17, 2006) (Facciola, J.) (interpreting law of
Washington State); Salazar, 370 F.Supp.2d at 115
(interpreting Illinois law).
In Texas, the issue of whether a plaintiff must be present
in order to recover for a claim of intentional infliction of
emotional distress has not been specifically addressed by
the courts. The fact that Texas courts have adopted
Section 46 of the RESTATEMENT (SECOND) OF
TORTS in recognizing the tort of intentional infliction of
emotional distress allows this Court to follow the same
reasoning regarding the presence requirement set forth
previously in this opinion.53 Applying this rationale, this
Court finds that the presence element does not need to be
proven in order to successfully bring a cause of action for
intentional infliction of emotional distress under Texas
law, and that standing to seek such recovery is limited to
the victim’s near relatives who were not present at the
time of the attack.
2. Plaintiffs
a. Estate and Surviving Family Members of Millard
Campbell
i. Estate of Millard Campbell
Millard D. Campbell (“Dee”) was a Sergeant in the Air
Force. (Dec. 6, 2003 A.M. Tr. at 83.) He was killed at
Khobar Towers on June 25, 1996. Ex. 9. Dee was born in
a small town in California on September 20, 1965, where
he lived for just a couple of years and then moved with
his family to Angleton, Texas. (Dec. 6, 2003 A.M. Tr. at
89.) Dee went to the public schools in Angleton,
graduating from high school in 1984. Id. During high
school, Dee was a baseball player, and received a baseball
scholarship to play baseball in junior college. Id. at 109.
Dee became engaged to his future wife, Marie, in the fall
of 1986, and shortly after the engagement, he enlisted in
the Air Force. Id. at 90. Dee was supposed to be on a
three-year tour in England, but ultimately he received a
humanitarian reassignment back to Texas because his
father had cancer. His father died in April 1989. When
Dee returned to Texas, he was stationed at Bergstrom Air
Force Base in Austin, Texas. There, Dee changed his
career field, and started working in flight operations and
scheduling. Id. at 95.
Marie continued to attend college at Sam Houston State
University. She was apart from him during the week, but
they were with each other on weekends. Being away from
him so that she could go to school was not easy because
her school *334 was three hours away from his Air Force
Base, but Dee was determined that she get her college
degree. Id. at 96–97.
After Marie received her college degree, she moved to
Austin in order to be with Dee. She worked at a couple of
different jobs, the most permanent of which was a job in a
retail department store. Id. at 97. Dee volunteered to go to
Iraq as part of Operation Desert Storm in early 1991.
Marie was very worried about this. Dee arrived in the
Middle East just a few days before the war started and
came home at the end of March or the beginning of April
1991. Id. at 98.
In October 1992, Dee and Marie moved to Eglin Air
Force Base in Florida, where again, he was with a fighter
squadron, being the air controller and scheduling arrivals
and departures. Id. at 101. Dee was very popular with the
other men in the Air Force. He also did his job very well.
He re-enlisted for another six years because he loved his
job so much. Dee planned to be an air traffic controller in
private industry after the conclusion of his tour of duty
with the Air Force. Id. at 102. Dee returned to Saudi
Arabia the second (and last time) in April 1996.
Dee’s estate is represented by his wife, Marie Campbell.
Dee’s estate has asserted claims under Texas’ wrongful
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death statute because he was last domiciled in Texas. As
the personal representative of Dee’s estate, Marie
Campbell is the proper plaintiff to bring a wrongful death
action under Texas law. See Tex. Civ. Prac. & Rem.Code
Ann. § 71.004(b). Any recovery under this wrongful
death action is for the benefit of his wife, Marie
Campbell, and his mother, Bessie Campbell, to be
distributed in a manner consistent with Texas law
governing intestate property distribution. Tex. Civ. Prac.
& Rem.Code Ann. § 71.010(b); see also Texas & P. Ry.
Co. v. Wood, 199 S.W.2d at 654.
Based upon the pleadings and evidence presented to the
Court, the estate of Millard “Dee” Campbell has made out
a valid claim for wrongful death under Texas law, and the
beneficiaries of this estate are entitled to recover the
present value of any lost wages and compensatory
damages that would have been recoverable had Dee lived.
Dr. Herman Miller, an economic consultant testified as an
expert that, due to Dee’s untimely death, he experienced a
net economic loss of $1,572,314.00. The Court therefore
awards the Estate of Millard “Dee” Campbell, by Marie
Campbell as personal representative, $1,572,314.00 in
economic damages for the benefit of Marie Campbell and
Bessie Campbell, to be distributed in a manner in
accordance with the method of intestate distribution under
Texas law. A discussion of intangible economic damages
of the wrongful death recovery will be addressed below in
an individualized discussion of the claims of Marie
Campbell and Bessie Campbell.
ii. Marie Campbell
Marie was born on June 13, 1966, and was raised in
Houston. Her parents are still alive, and her father works
for a credit union. Id. at 83. Marie attended public schools
as well, graduating from high school in 1984. After high
school, she attended Glen Junior College, in Burham,
Texas, where she met Dee. Id. When Dee first thought
about joining the Air Force, Marie was concerned because
her two grandfathers had served in World War II and she
only knew of the military in terms of war time. Dee told
her not to worry about it. Id. at 91. On the afternoon Dee
learned he passed his test to join the Air Force, he
proposed marriage to Marie, and she accepted. Id. at 92.
Dee joined the Air Force on April 15, 1987. Dee and
Marie had been married *335 one month earlier, while
she was on spring break from school. At first, Dee and
Marie moved into Marie’s grandfather’s house, where she
had been living while at school. Id. at 92–93. In October
1992, Dee and Marie moved to Eglin Air Force Base in
Florida, where again, he was with a fighter squadron,
being the air controller and scheduling arrivals and
departures. Id. at 101.
Dee and Marie never had any children. Id. at 113. Dee
wanted children but Marie wanted to wait until she was
about 32 years old. When Dee died, she had just turned
30. Id. at 113. For two years Marie tried not to take any
medication, but around 1998 she had to start taking
medication to help her. She went on Prozac, then went off
of it for a while, but has now been taking it for several
years continuously. Id. at 145.
Marie continued to teach, but only on a sporadic basis.
After missing a number of days, Marie took a leave of
absence, and ultimately quit her job altogether. Finally,
Marie moved back to Dallas, and eventually went back to
school to get a master’s degree with teaching certification.
Id at 147.
In early 1998, Marie started seeing a licensed professional
counselor, and still sees a counselor today. Her feelings
fluctuate. Sometimes she sleeps well, but at other times,
she wakes up in the middle of the night and dreams about
Dee. Id. at 148.
She is also followed by the fact that she hasn’t had any
children, that she had wanted to wait until she was 32 to
have children, but that now she is 37. This has also made
it difficult to have relationships with another man. She
cannot think about marriage because she wakes up every
day and thinks about Dee. Id. at 149.
As Dr. Cable stated, Marie “still needs medication to help
her cope with the depression. So it’s a very extreme sense
of loss and loneliness, a lot of pain.... I see her continuing
to grieve in the foreseeable future.... [S]he is probably
going to need to continue with medication for quite some
time.” (Feb. 10, 2004 Tr. at 36–37.)
Based upon the evidence presented at trial, Marie
Campbell has experienced severe mental anguish and
suffering as a result of her husband’s untimely death.
Therefore, this Court shall award to the estate of Millard
“Dee” Campbell, by Marie Campbell as Personal
Representative, $8 million for the benefit of his wife
Marie Campbell to compensate her for the mental pain
and suffering she sustained as a result of her husband’s
death.
iii. Bessie Campbell
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Bessie Amaryllis Campbell was the mother of Millard D.
Campbell (“Dee”). Telephone Deposition Tr., Ex. 181 at
5. Bessie was born a little town in Texas on January 25,
1928. Her father was initially a farmer for a period and
then became a shipper of jars. Her mother was a
homemaker. Mrs. Campbell had two brothers, both of
whom served in World War II. Id. at 6. Bessie graduated
from high school but did not go to college. After high
school she went to work in a county clerk’s office for
three years, and then she met her husband. He was a truck
driver at that time and became a mechanic. Id. at 8–9. She
and her husband had seven children. Dee was the
youngest. Id. at 10.
After Dee died, Mrs. Campbell went to the cemetery
several times a week for a very long time and would talk
to Dee. Even today, she goes to the cemetery at least once
a week. Id. at 36–37. She thinks of Dee every day. At
times she can’t believe that he’s gone and she thinks that
“he’ll probably walk in the door any *336 minute.” She
dreams about him a lot. She and her family even endowed
a scholarship fund in Dee’s name. She put some of her
own money into the fund. Id. at 38.
She often wakes up in the middle of the night thinking
about Dee and as a result can’t go back to sleep. Id. at 39.
Bessie finds it very difficult to watch television when she
hears about our soldiers being killed in Iraq because it
makes her think about Dee. Id. at 41. Life has not been
easy for her since her son was killed on June 25, 1996.
According to Dr. Cable, Bessie Campbell
is still really in loss and loneliness.
She still has a hard time admitting
to his death.... Her prognosis is she
is one who does cope but it’s very
difficult. I would see her continuing
to experience pain, feelings of
emptiness for a considerable period
of time in the future.
(Feb. 10, 2004 Tr. at 32–33.)
Based upon the evidence presented at trial, Bessie
Campbell has experienced severe mental anguish and
suffering as a result of her son’s untimely death.
Therefore, this Court shall award to the estate of Millard
“Dee” Campbell, by Marie Campbell as Personal
Representative, $5 million for the benefit of his mother
Bessie Campbell to compensate her for the mental pain
and suffering she sustained as a result of her son’s death.
b. Steve Kitson
Steve Kitson is a brother to decedent Kendall Kitson, Jr.
(“Kenny”). As Steve explained in his affidavit to the
Court, on June 25, 1996, “the rug was pulled out from
under [him.]” Ex. 293 at 10. Up until Kenny’s death,
Steve was doing very well professionally and making a
happy life for himself in Dallas, Texas. Id. at 9.
After Kenny’s death, Steve’s father asked him to quit his
job and come and live with them in Florida. Id. at 14.
Steve gave up his job in Dallas to be with his parents and
help them through the difficult time. Id. at 14. After living
with his parents for a year or so in Florida following
Kenny’s death, Mr. Kitson then asked Steve to move to
Oklahoma and assist him with his properties and farms.
For several years now, Steve has lived in one of his
parent’s homes in Oklahoma and helped his father watch
over their properties. Id. at 16.
The mornings are the hardest time of day for Steve. The
most difficult days for Steve include Kenny’s birthday,
the anniversary of his death, and holidays. It is difficult
for Steve because his friends do not understand what he is
going through and so it has created some awkward
moments. Steve’s therapy is working in the yard and
lifting weights. Id. at 20–22. Steve has dreamed about
Kenny. Id. at 24.
According to Dr. Cable, Steve
is in loss and loneliness. He has got
his own grief issues, but it’s
complicated by his parent’s
bitterness, by his mother’s health
issues. Kenny was the person who
accepted [Steve] for who he was.
He doesn’t feel any of that now....
He is going to have significant
difficulties, because he keeps so
much into himself and he doesn’t
really have an outlet.... So it’s not a
good prognosis.
(Feb. 10, 2004 Tr. at 149.)
As the brother of Kendall Kitson, Jr., Steve Kitson has
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brought an intentional infliction of emotional distress
claim against the defendants for pain and suffering caused
by the death of his brother. Based upon the evidence
presented to the Court, the elements of Steve Kitson’s
intentional infliction of emotional distress claim are met.
The defendants’ conduct in *337 facilitating, financing,
and providing material support to bring about this attack
was intentional, extreme, and outrageous. As the evidence
shows, this horrific act precipitated by the defendants’
planning and assistance brought immediate emotional
distress to Steve Kitson. Finally, it is clear that Steve
Kitson has continued to experience emotional distress
since that time due to the fact that his brother was taken
away from him in such a tragic and horrific manner.
Therefore, this Court shall award to Steve Kitson $2.5
million to compensate him for the emotional distress, pain
and suffering that he sustained as a result of his brother’s
untimely death.
F. Ohio
1. Causes of Action
a. Wrongful Death
Under Ohio’s wrongful death statute, a civil action may
be brought “in the name of the personal representative of
the decedent for the exclusive benefit of the surviving
spouse, the children, and the parents of the decedent, ...
[as well as] the other next of kin of the decedent.” Ohio
Rev.Code. Ann. § 2125.02(A)(1).54 A decedent’s next of
kin may include the decedent’s siblings. Karr v. Sixt, 146
Ohio St. 527, 67 N.E.2d 331, 335 (1946). Available
compensatory damages for a wrongful death action
include pecuniary damages, loss of support, services,
society and prospective inheritance, as well as pain and
suffering incurred by the bereaved plaintiff. The surviving
spouse, children and parents of the decedent, if any, are
“rebuttably presumed to have suffered damages by reason
of the wrongful death.” Ohio Rev.Code. Ann. §
2125.02(A)(1). The decedent’s next of kin, however, bear
the burden of proving that the alleged damages were
suffered. Ohio Rev.Code. Ann. § 2125.02(A)(1);
Shoemaker v. Crawford, 78 Ohio App.3d 53, 603 N.E.2d
1114, 1119–21 (1991).
2. Plaintiffs
a. Estate and Surviving Family Members of
Christopher Lester
i. Estate of Christopher Lester
In June 1996, Christopher Lester (“Chris”) was nineteen
years old. Ex. 14. Although regularly stationed at Wright
Patterson AFB in Ohio, in June 1996, Chris was on
assignment in Dhahran, Saudi Arabia where he resided at
the Khobar Towers Complex. Id. On June 25, 1996, Chris
was killed at Khobar Towers as a result of the terrorist
bombing. Ex. 9. As previously noted,55 Chris was the only
decedent of the 17 decedents whose estates are
represented in this trial who survived the blast for a
discernable amount of time prior to his death.
Plaintiffs Judy Lester, Cecil Lester, Cecil Lester, Jr., and
Jessica Lester are Chris’ mother, father, brother, and sister
respectively (collectively, the “Lester family”). The
Lester family testified at the trial of this matter on
December 8, 2003.
Before he entered the Air Force, Chris was an outstanding
athlete. He loved football and played on various football
teams from the time he was six years old until he
graduated from high school. Id. at 6. *338 Chris was
known as being pleasant, honest, sweet, loving, and
generous. Id. at 6. Most remarkable about Chris was his
ever-present smile. Id. at 5. Throughout school, Chris was
an outstanding student his whole life. He never received a
grade below a “B.” Id. He was a member of the Honors
Society at Pineville High School, where he graduated in
1995. Chris always talked about going to college and he
joined the Air Force to pay for college. Id. at 7–8. Chris
planned on taking college courses when he returned from
his deployment in Saudi Arabia. Id. at 8.
Christopher’s estate is represented by his parents, Cecil
Lester, Sr., and Judy Lester. Christopher’s estate has
asserted claims under Ohio’s wrongful death statute
because he was last domiciled in Ohio. As a personal
representatives of Christopher’s estate, Cecil Lester, Sr.,
and Judy Lester are proper plaintiffs to bring a wrongful
death action under Ohio law. See Ohio Rev.Code. Ann. §
2125.02(A)(1). Under Ohio law, any recovery under this
wrongful death action is for the benefit of his parents,
Cecil Lester, Sr., and Judy Lester, as well as his siblings,
Cecil Lester, Jr., and Jessica Lester, who have proven that
they suffered damages resulting from Christopher’s
death.56
Based upon the pleadings and evidence presented to the
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Court, the estate of Christopher Lester has made out a
valid claim for wrongful death under Ohio law. The
beneficiaries of this estate are entitled to recover the
present value of compensatory damages, including lost
wages that the decedent might reasonably have been
expected to earn but for the wrongful death. Dr. Herman
Miller, an economic consultant testified as an expert that,
as a result of Christopher’s untimely death, he
experienced a net economic loss of $1,960,466.00.
Additionally, Christopher’s beneficiaries are entitled to
pain and suffering damages suffered by Christopher
because he survived in extreme pain for a time following
the attack. In cases where victims survive an attack for a
period of time, courts typically award a lump sum award.
Haim, 425 F.Supp.2d at 71–72. In light of Dr. Parson’s
testimony that Christopher Lester was alive for 15
minutes after the attack, and was conscious for 10
minutes, this Court finds that the estate of Christopher
Lester should be awarded an additional $500,000.
Accordingly, the Court should award the Estate of
Christopher Lester, by Cecil Lester, Sr., and Judy Lester
as personal representatives, $1,960,466.00 in economic
damages, plus $500,000 in personal pain and suffering
damages for the benefit of Cecil Lester, Sr., Judy Lester,
Cecil Lester, Jr., and Jessica Lester, to be distributed in a
manner consistent with the statute governing intestate
distribution of property under Ohio law. A discussion of
intangible economic damages of the wrongful death
recovery, will be addressed below in an individualized
discussion of the claims of Cecil Lester, Sr., Judy Lester,
Cecil Lester, Jr., and Jessica Lester.
ii. Cecil Lester, Sr. & Judy Lester
Judy and Cecil Lester met when Judy was still in high
school. Id. at 4. They were married on February 4, 1972.
Id. Judy and Cecil Lester have three children: Cecil
Lester, Jr. (“Cecil Jr.”), born in 1974; Chris, born in 1977,
and Jessica Lester, born in 1987. Id. at 3–4. All three
children were born in Beckley, West Virginia. Id. The
Lester children, like their parents, *339 are all United
States citizens. Id. at 55, 71.
Chris’ death has dramatically affected Judy and Cecil and
their marriage. Judy was so distraught that for several
years after Chris’ death, she prayed to God to help her get
through each day. She could not sleep. Id. at 29. Indeed,
Cecil testified that Judy still wakes up at night and cries.
Id. at 25. Judy feels incomplete since Chris died. Id. at 29.
In order not to think about Chris, both Judy and Cecil
intentionally keep themselves busy. Although Judy
questioned her faith in God when Chris died, she now
believes her faith is allowing her to heal. Id. at 51.
Similarly, Cecil is not the same man since Chris’ death.
Mr. Lester testified that things he once took a lot of joy in
no longer interest him anymore. Cecil rarely fishes and
hunts anymore. He cannot get himself to go motorcycle
riding at all. Cecil has lost interest in football. Id. at 28.
Cecil also explained that Judy and he deal with Chris’
death differently. Judy finds it helpful to talk about Chris.
Id. at 51. She also has pictures and memorabilia of Chris
throughout the house. Id. at 32; Ex. 105. Cecil is the
opposite. He becomes upset and emotional when
discussing Chris. Id. at 51. Cecil returned to work six
weeks after Chris’ funeral. A year later, Cecil’s employer
asked him to see a counselor because he was not focused
at his job. He saw the counselor several times but did not
find counseling helpful because it is too painful to talk
about Chris. Id. at 52–53.
Even though they deal with Chris’ death differently, both
Judy and Cecil think about Chris every day. Id. at 32, 54.
For the first five years following Chris’ death, Judy
visited his grave two or three times a week. Presently, she
visits Chris’ grave about every other week. Id. at 20. Cecil
visits Chris’ grave three or four times a month. Id. at 48.
Both Judy and Cecil Lester clean Chris’ tombstone when
they visit. Id.; Ex. 104.
According to Dr. Cable, Judy
is still in loss and loneliness, but
she has made conscious efforts to
try to move on. She has got a lot of
guilt issues, and the guilt is this not
being able to protect her son.... She
will continue with her grief. She
was a mother for whom the mother
role was very important. Her sense
of having failed to protect her son
is an issue that’s not going to
resolve itself quickly.
(Feb. 10, 2004 Tr. at 155–56.)
Additionally, Dr. Cable stated that Cecil
is still in loss and loneliness. He
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can’t seem to let go; holding on to
those memories. The dreams are a
part of those ongoing memories. He
just can’t seem to move to the next
step along the way.... His grief will
continue. I think he is one of these
individuals who likely will have a
very difficult time ever getting his
life really back together again.
(Feb. 10, 2004 Tr. at 158.)
Based upon the evidence presented at trial, both Cecil
Lester, Sr., and Judy Lester have experienced severe
mental anguish and suffering as a result of their son’s
untimely death. Therefore, this Court shall award to the
estate of Christopher Lester, by Cecil Lester, Sr., and
Judy Lester as Personal Representatives, $5 million for
the benefit of his mother Judy Lester, and $5 million for
the benefit of his father Cecil Lester, Sr., to compensate
both for the mental pain and suffering both have sustained
as a result of their son’s untimely death.
iii. Cecil Lester, Jr.
Cecil Jr. was utterly crushed by his brother’s death. Chris
was Cecil Jr.’s confidant. *340 Cecil Jr. shut down
emotionally after Chris died. Cecil Jr. believes that the
effect that Chris’ death had on him directly affected his
own marriage. He wouldn’t share his emotions with his
wife, and found it difficult to talk with her. (Dec. 8, 2003
Tr. at 67.)
According to Judy, “Cecil Jr. and Chris [were] like twins
... there was 2–1/2 years between them, but you would
never know that. When they were together, they were like
best of friends, playmates and they just loved each other.”
Id. at 30. Because of their close relationship, Chris’ death
has left an unspeakable void in Cecil Jr.’s life. Cecil, Jr.
thinks about Chris every day. Like his father, Cecil Jr.
does not enjoy fishing or hunting anymore since Chris’
death, and believes that he has become less sociable since
Chris died. Id. at 68–69.
Cecil Jr. has dreamed often about Chris. He visits Chris’
grave on the holidays, and drives by Chris’ grave two or
three times a day on his way to and from work. Id. at
66–67.
As Dr. Cable stated, Cecil
is still in loss and loneliness. He
also has some elements of guilt ...
that [their] last conversation, [their]
last time together had an element of
an argument to it.... [I]n his own
mind, it was not the way to end his
relationship to his brother.... His
grief will continue. He will always
have a feeling of needing to be the
protector for others. His brother’s
[death] will affect his life in may
ways throughout his life.
(Feb. 10, 2004 Tr. at 163–64.)
Based upon the evidence presented at trial, Cecil Lester,
Jr., experienced severe mental anguish and suffering as a
result of his brother’s untimely death. Therefore, this
Court shall award to the estate of Christopher Lester, by
Cecil Lester, Sr., and Judy Lester as Personal
Representatives, $2.5 million for the benefit of his brother
Cecil Lester, Jr., to compensate him for the mental pain
and suffering he sustained as a result of his brother’s
untimely death.
iv. Jessica Lester
Jessica Lester is the sister of Christopher Lester. She was
nine years old when Chris died. (Dec. 8, 2003 Tr. at 30.)
Jessica remembers Chris “as being so friendly and happy
all the time.” He was a cheerful person who played and
watched movies with her. I d. at 75–76. He was a great
big brother to her.
Since Chris’ death, Jessica visits Chris’ grave about once
or twice a month. Id. at 78. Jessica is saddened by the
void Chris’ death has caused her and her family. She
laments the fact that she does not have Chris in her life
anymore.
As Dr. Cable stated, Jessica
is in loss and loneliness. Her grief
is complicated by the age she was
at the time that this happened....
She not only lost a brother, but she
lost a father figure and she lost a
part of her own identity.... She will
continue in her grief for a long
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time. I think she will begin to
recover, but I think that down the
road the issue she may face is that
when she marries, when she has
children, the regrets that Chris can’t
be there to be a part of those things.
Because of the significant role he
played in her life, she is going to
miss that he can’t be a significant
role in the rest of her family’s life
at that point.
(Feb. 10, 2004 Tr. at 160–61.)
Based upon the evidence presented at trial, Jessica Lester
experienced severe mental anguish and suffering as a
result of her brother’s untimely death. Therefore, this
Court shall award to the *341 estate of Christopher
Lester, by Cecil Lester, Sr., and Judy Lester as Personal
Representatives, $2.5 million for the benefit of his sister
Jessica Lester to compensate her for the mental pain and
suffering she sustained as a result of her brother’s
untimely death.
G. Minnesota
1. Causes of Action
a. Wrongful Death
Under Minnesota’s wrongful death statute a
court-appointed trustee may bring an action “when death
is caused by the wrongful act or omission” of another.
Minn.Stat. Ann. § 573.02. The amount of recovery for a
wrongful death action is the amount the judge “deems fair
and just in reference to the pecuniary loss resulting from
the death.” Minn.Stat. Ann. § 573.02. Pecuniary loss
includes loss of income, as well as “loss of advice,
comfort, assistance, and protection.” Rath v. Hamilton
Standard Div. of United Tech. Corp., 292 N.W.2d 282,
284–85 (Minn.1980) (quoting Gravley v. Sea Gull
Marine, Inc., 269 N.W.2d 896, 901 (Minn.1978)).
Any damages awarded in a wrongful death action are
“for the exclusive benefit of the surviving spouse and next
of kin, proportionate to the pecuniary loss severally
suffered by the death.” Minn.Stat. Ann. § 573.02. “Next
of kin” are those blood relatives who may properly
recover under Minnesota’s intestacy statute, and include
the decedent’s children, parents, and siblings. Wynkoop v.
Carpenter, 574 N.W.2d 422, 427 (Minn.1998).
b. Intentional Infliction of Emotional Distress
Minnesota recognizes the tort of intentional infliction of
emotional distress, and has adopted Section 46 of the
RESTATEMENT (SECOND) OF TORTS. See Dornfeld
v. Oberg, 503 N.W.2d 115, 117 (Minn.1993).
Accordingly, the elements of the tort of intentional
infliction of emotional distress under Minnesota law are:
(1) extreme and outrageous conduct; (2) the conduct is
intentional or reckless; (3) the conduct causes emotional
distress; and (4) the emotional distress is severe.
Dornfeld, 503 N.W.2d at 117. In order for a defendant’s
conduct to be considered extreme and outrageous, it must
be “so atrocious that it passes the boundaries of decency
and is utterly intolerable to the civilized community.”
Hubbard v. United Press Intl., Inc., 330 N.W.2d 428,
438–39 (Minn.1983).
In Minnesota, the issue of whether a plaintiff must be
present in order to recover for a claim of intentional
infliction of emotional distress has not been specifically
addressed by the courts. The fact that Minnesota courts
have adopted Section 46 of the RESTATEMENT
(SECOND) OF TORTS in recognizing the tort of
intentional infliction of emotional distress allows this
Court to follow the same reasoning regarding the presence
requirement set forth previously in this opinion.57
Applying this rationale, this Court finds that the presence
element does not need to be proven in order to
successfully bring a cause of action for intentional
infliction of emotional distress under Minnesota law, and
that standing to seek such recovery is limited to the
victim’s near relatives who were not present at the time of
the attack.
2. Plaintiffs
a. Additional Surviving Family Members of Brent
Marthaler
i. Matthew Marthaler
Matthew Lucas Marthaler (“Matt”), a United States
citizen, was Brent Marthaler’s *342 brother. Matt was
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born in St. Paul, Minnesota on February 19, 1975. (Dec.
3, 2003 Tr. at 110.) Matt is one year younger than his
brother Kirk, and one year older than his brother Brent.
Matt testified that Brent’s funeral service at the church in
Minnesota “was a blur.” In the days and weeks following
Brent’s death, Matt “made sure that [his] Mom and Dad
were able to go to work the next day and soldier on.” Matt
then returned to the base in Meridan, Mississippi and told
his Chief, “I’ll hold on for as long as you tell me but I
don’t have much left for the Navy. I just got my heart
ripped out.”
Matt felt isolated following Brent’s death. Matt visited
Kirk in Alabama every chance he could even though they
were stationed about 200 or 300 miles away from each
other. Id. at 120–22. He still thinks of Brent often. Id. at
127.
According to Dr. Cable, Matt
is in loss and loneliness. He has had
a very difficult time coping with his
brother’s death.... Following the
death and the family estrangement,
he was the only member of the
family speaking to everybody.... He
will have continuing grief for a
good many years to come. He is
one again that ... is in need of some
real grief therapy. The fact that this
is the first time in all these years he
has really talked about this would
clearly say there is a need to have
an opportunity to share and to deal
with it. He, too, will have grief that
re-emerges with significant life
events in the future.
(Feb. 10, 2004 Tr. at 79–80.)
As the brother of Brent Marthaler, Matthew Marthaler
has brought an intentional infliction of emotional distress
claim against the defendants for pain and suffering caused
by the death of his brother. Based upon the evidence
presented to the Court, the elements of Matthew
Marthaler’s intentional infliction of emotional distress
claim are met. The defendants’ conduct in facilitating,
financing, and providing material support to bring about
this attack was intentional, extreme, and outrageous. As
the evidence shows, this horrific act precipitated by the
defendants’ planning and assistance brought immediate
emotional distress to Matthew Marthaler. Finally, it is
clear that Matthew Marthaler has continued to experience
emotional distress since that time due to the fact that his
brother was taken away from him in such a tragic and
horrific manner. Therefore, this Court shall award to
Matthew Marthaler $2.5 million to compensate him for
the emotional distress, pain and suffering that he
sustained as a result of his brother’s untimely death.
ii. Kirk Marthaler
Kirk Charles Marthaler, a United States citizen, was Brent
Marthaler’s brother. Kirk was born in St. Paul, Minnesota
on December 8, 1973. (Dec. 3, 2003 Tr. at 82.) Kirk is
one year older than his brother Matt and was two years
older than Brent. As children, the three brothers were very
close.
Kirk attended the memorial service at Eglin AFB in
Florida with his parents and brother and Katie and Katie’s
family. Brent’s body was returned to Minnesota after the
memorial service. Kirk remembers that the funeral home
director called the Marthaler home and told Herm and
Sharon that he was not sure if they wanted to do an open
casket. The funeral home was willing to take the
wrapping and gauze off of Brent only if they received
strict instructions to do so. The funeral home explained
that the injuries to Brent were horrific, and the Air Force
had done a very clean job of wrapping him. The *343
funeral home explained that if they had undressed the
wrapping, they would not be able to make him viewable.
The funeral home director asked if Herman would come
in first and view the body. Kirk was sent to do this. Kirk
recalled that viewing his brother’s body in the casket was
the most hollow thing he had ever felt in his life. He then
had to call his parents and tell them what he had seen. Id.
at 102–04.
Kirk blames himself for his brother’s death because he
was the one who convinced Brent to join the Air Force
and become a jet airplane mechanic. Id. at 105–08. He
laments the fact that he and Brent “could’ve been best
friends [but] me and my brother spent too much time
competing. We never had an opportunity to become best
friends.” Id. at 108–09.
As Dr. Cable stated, Kirk is
very much in loss and loneliness,
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but with guilt added in his case. He
sees what he will miss the rest of
his life in terms of a relationship
with his brother, how the family
had changed, and how the family
and Kirk will never be the same
again.... The grief will continue,
and that with every major event in
life, he will be struck by the fact
that Brent isn’t here to be a part of
that. So a very strong sense of
yearning .... [T]he grief will be
re-emerging for many years to
come.
(Feb. 10, 2004 Tr. at 77–78.)
As the brother of Brent Marthaler, Kirk Marthaler has
brought an intentional infliction of emotional distress
claim against the defendants for pain and suffering caused
by the death of his brother. Based upon the evidence
presented to the Court, the elements of Kirk Marthaler’s
intentional infliction of emotional distress claim are met.
The defendants’ conduct in facilitating, financing, and
providing material support to bring about this attack was
intentional, extreme, and outrageous. As the evidence
shows, this horrific act precipitated by the defendants’
planning and assistance brought immediate emotional
distress to Kirk Marthaler. Finally, it is clear that Kirk
Marthaler has continued to experience emotional distress
since that time due to the fact that his brother was taken
away from him in such a tragic and horrific manner.
Therefore, this Court shall award to Kirk Marthaler $2.5
million to compensate him for the emotional distress, pain
and suffering that he sustained as a result of his brother’s
untimely death.
H. Wisconsin
1. Causes of Action
a. Wrongful Death
Under Wisconsin’s wrongful death statute, a decedent’s
personal representative may bring an action when the
decedent’s death is “caused by a wrongful act, neglect or
default” of another. Wis. Stat. Ann. §§ 895.03, 895.04(1).
If the decedent dies without a surviving spouse, any
damages inure to the benefit of the decedent’s “lineal
heirs.” Wis. Stat. Ann. § 895.04(2). “Lineal heirs” include
the decedent’s parents. Wis. Stat. Ann. §§ 852.01(1)(c).
Damages recoverable in a wrongful death action include
pecuniary damages, non-pecuniary damages limited to
$350,000, as well as medical and funeral expenses. Wis.
Stat. Ann. §§ 895.04.
b. Intentional Infliction of Emotional Distress
Under Wisconsin law, a plaintiff must prove the
following elements to establish a successful claim of
intentional infliction of emotional distress: (1) the
defendant’s conduct was intended to cause emotional
distress; (2) the defendant’s conduct was extreme and
outrageous; (3) the defendant’s conduct caused plaintiff’s
emotional distress; and (4) the plaintiff *344 “suffered an
extreme disabling emotional response to the defendant’s
conduct.” Rabideau v. City of Racine, 243 Wis.2d 486,
627 N.W.2d 795, 802–03 (2001). In Wisconsin, the issue
of whether a plaintiff must be present in order to recover
for a claim of intentional infliction of emotional distress
has not been specifically addressed by the courts. The fact
that Wisconsin courts have adopted Section 46 of the
RESTATEMENT (SECOND) OF TORTS in recognizing
the tort of intentional infliction of emotional distress
allows this Court to follow the same reasoning regarding
the presence requirement set forth previously in this
opinion.58 Applying this rationale, this Court finds that the
presence element does not need to be proven in order to
successfully bring a cause of action for intentional
infliction of emotional distress under Wisconsin law, and
that standing to seek such recovery is limited to the
victim’s near relatives who were not present at the time of
the attack.
2. Plaintiffs
a. Paul Fennig
Mark Fennig and Paul D. Fennig are United States
citizens and the brothers of Patrick Fennig (“Pat”). Exs.
281, at 1–3; 282, at 1, 3–4. In high school, Pat and Paul
had common interests and friends, and were close to each
other. Ex. 281, at 7.
Pat’s death affected Paul deeply. He has dreams of Pat
and him spending time together. Paul thinks about Pat
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every day. He is sorry that he did not have a chance to say
good-bye to Pat. There is a void in Paul’s life without Pat.
Paul has trouble understanding why Pat was killed. Ex.
281, 21–22. Things are particularly difficult for Paul
when his friends bring up Pat out of the blue.
Nevertheless, though it hurts him emotionally to think of
his dead brother, it means a lot to Paul that his friends
remember Pat so fondly. Ex. 281.
According to Dr. Cable, Paul
is in loss and loneliness. He was
very close to his brother growing
up. That closeness is something
that he misses desperately. So the
loneliness persists. Even though his
life is full, there is an element there
that’s not be replaced that’s not
been taken care of.... He will
continue with this grief in the
future. He will move on, but there
will always be an element of regret
there. There will always be for him
something missing, something
that’s just incomplete in his life.
(Feb. 10, 2004 Tr. at 134–35.)
As the brother of Patrick Fennig, Paul Fennig has
brought an intentional infliction of emotional distress
claim against the defendants for pain and suffering caused
by the death of his brother. Based upon the evidence
presented to the Court, the elements of Paul Fennig’s
intentional infliction of emotional distress claim are met.
The defendants’ conduct in facilitating, financing, and
providing material support to bring about this attack was
intentional, extreme, and outrageous. As the evidence
shows, this horrific act precipitated by the defendants’
planning and assistance brought immediate emotional
distress to Paul Fennig. Finally, it is clear that Paul Fennig
has continued to experience emotional distress since that
time due to the fact that his brother was taken away from
him in such a tragic and horrific manner. Therefore, this
Court shall award to Paul Fennig $2.5 million to
compensate him for the emotional distress, pain and
suffering that he sustained as a result of his brother’s
untimely death.
*345 b. Mark Fennig
Mark Fennig is a brother to Patrick Fennig (“Pat”).
Throughout their lives together, Mark and Pat shared
many common interests. As children, both Mark and Pat
loved building model airplanes with each other. (Ex. 282,
9.) As adults, Pat and Mark developed a common interest
in fine cigars.
Mark returned to work about a week after Pat’s death
hoping that a normal routine would help him deal with
everything. Mark was distracted for several months after
Pat’s death. It was very difficult to concentrate on his
work. Mark’s Catholic upbringing, faith, and family
provided support for him after Pat’s death.
Mark has kept a number of Pat’s personal belongings. The
one that means the most to him is a cigar humidor. It is
displayed in Mark’s office and holds the cigars that he
received from Pat after his death. Ex. 282, 23.
Holidays, anniversaries, and birthdays are difficult for
Paul and Mark. Each involves personal reflection by
Mark and his family. Thanksgiving and Memorial Day
also have much more meaning for Mark now. Mark and
his family attend a Memorial Day procession and service
at the cemetery and in their village. Mark’s sons are
involved in the boy scouts and take part in the procession
which affords Mark the opportunity to share his memories
of Pat with his sons. The Fennig family has a toast on
major holidays in memory of Pat. Ex. 281, 23; 282, 24.
Mark has not been able to shake the feeling of being
cheated. Mark has been cheated out of a relationship with
his brother and having an uncle for his sons. Ex. 282, 25.
According to Dr. Cable, Mark
is in loss and loneliness.... He still
shows a lot of concern over his
mother, worries about how she is
doing. Mark, being the oldest, has
sort of been the family protector, so
he still sees himself as having some
responsibility.... His grief will
certainly continue. He is fortunate
in that he does have a good support
system. But because he is so
concerned about everybody else, he
is not necessarily getting some of
his own needs met and getting his
own grief resolved. So he will have
a road yet ahead of him.
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(Feb. 10, 2004 Tr. at 132–33.)
As the brother of Patrick Fennig, Mark Fennig has
brought an intentional infliction of emotional distress
claim against the defendants for pain and suffering caused
by the death of his brother. Based upon the evidence
presented to the Court, the elements of Mark Fennig’s
intentional infliction of emotional distress claim are met.
The defendants’ conduct in facilitating, financing, and
providing material support to bring about this attack was
intentional, extreme, and outrageous. As the evidence
shows, this horrific act precipitated by the defendants’
planning and assistance brought immediate emotional
distress to Mark Fennig. Finally, it is clear that Mark
Fennig has continued to experience emotional distress
since that time due to the fact that his brother was taken
away from him in such a tragic and horrific manner.
Therefore, this Court shall award to Mark Fennig $2.5
million to compensate him for the emotional distress, pain
and suffering that he sustained as a result of his brother’s
untimely death.
I. New York
1. Causes of Action
a. Intentional Infliction of Emotional Distress
New York, adopting the approach taken in Section 46 of
the RESTATEMENT *346 (SECOND) OF TORTS,
recognizes intentional infliction of emotional distress as a
tort. Howell v. New York Post Co., 81 N.Y.2d 115, 596
N.Y.S.2d 350, 612 N.E.2d 699, 702 (1993). The elements
of intentional infliction of emotional distress under New
York law are: “(i) extreme and outrageous conduct; (ii)
intent to cause, or disregard of a substantial probability of
causing, severe emotional distress; (iii) a causal
connection between the conduct and injury; and (iv)
severe emotional distress.” Id.
In New York, the issue of whether a plaintiff must be
present in order to recover for a claim of intentional
infliction of emotional distress has not been specifically
addressed by the courts. Two factors persuade this Court
to find that the presence requirement for intentional
infliction of emotional distress is unnecessary in this case.
First, New York courts have adopted Section 46 of the
RESTATEMENT (SECOND) OF TORTS in recognizing
the tort of intentional infliction of emotional distress.
Second, the Southern District of New York held in In re
Terrorist Attacks on September 11, 2001, 349 F.Supp.2d
765, 829–30 (S.D.N.Y.2005) that non-present survivors
of victims of the September 11, 2001, attacks on the
World Trade Center and Pentagon were able to bring a
claim of intentional infliction of emotional distress
against the perpetrators of the attacks.59 These two reasons
allow this Court to follow the same reasoning regarding
the presence requirement set forth previously in this
opinion.60 Applying this rationale, this Court finds that the
presence element does not need to be proven in order to
successfully bring a cause of action for intentional
infliction of emotional distress under New York law, and
that standing to seek such recovery is limited to the
victim’s near relatives who were not present at the time of
the attack.
2. Plaintiffs
a. Mary Young
Mary Young is the sister of Christopher Adams. She is
the oldest of the Adams’ children. Mary is a police
communications operator in Manhattan. (Dec. 10, 2003
A.M. Tr. at 87.)
On a personal level, Mary has been emotionally effected
by Christopher’s death. In addition, Mary is angry that
she had to watch her mother go through the seven years of
grief in dealing with Christopher’s death. Id. at 99–100.
Mary thinks about the bombing and about Christopher
every day. Due to the brutality of the attack that killed
Christopher, Mary is much more emotional today than she
was in 1996. Id. at 100. Ever since Christopher was killed,
Mary has had constant trouble sleeping. Additionally,
Mary gained about 60 pounds after Christopher died. She
went on medication shortly after he died. Id. at 102–103.
The medication, the insomnia, and the weight gain are all
attributable to the trauma and sadness that occurred when
Christopher was killed. Id. at 102–104.
Christopher’s death and the manner in which he was
killed has been one of the most devastating things that
have ever happened to Mary and to her whole family. As
she testified, “Death is part of life but *347 not that way,
not the way it all went. It’s just not normal.” Id. at 106.
According to Dr. Cable, Mary
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is still in loss and loneliness. She is
still very much affected by Chris’
death. And her need for ongoing
medication, the sleep difficulties,
help verify the situation that she is
in.... Her grief is going to continue,
and she probably will need to
continue on medication for quite a
period of time. Any future losses
are going to complicate all of this
for her, and probably provide some
setbacks, but I see her grief going
on for a number of years.
(Feb. 10, 2004 Tr. at 102.)
As the sister of Christopher Adams, Mary Young has
brought an intentional infliction of emotional distress
claim against the defendants for pain and suffering caused
by the death of her brother. Based upon the evidence
presented to the Court, the elements of Mary Young’s
intentional infliction of emotional distress claim are met.
The defendants’ conduct in facilitating, financing, and
providing material support to bring about this attack was
intentional, extreme, and outrageous. As the evidence
shows, this horrific act precipitated by the defendants’
planning and assistance brought immediate emotional
distress to Mary Young. Finally, it is clear that Mary
Young has continued to experience emotional distress
since that time due to the fact that her brother was taken
away from her in such a tragic and horrific manner.
Therefore, this Court shall award to Mary Young $2.5
million to compensate her for the emotional distress, pain
and suffering that she sustained as a result of her brother’s
untimely death.
b. Daniel Adams
Daniel Adams is the youngest of the Adams children,
eight years younger than Christopher. When Daniel first
heard that Christopher had been killed, he didn’t believe
it. He felt powerless, sad, and angry. Daniel remembered
everybody in the family crying for days and days. Id. at
43. He went to the service at Patrick AFB and to the other
services and did so much crying, he couldn’t even see out
of his eyes. Id. at 44. Whenever he sees the American
Flag, he thinks of Christopher. Id. at 46.
When Christopher died, Daniel had been working but was
unable to return to work because he lost much of his
motivation. He was angry at God, at the terrorists, and at
the government. He visits the cemetery at least once a
month. Id. at 47.
Prior to Christopher’s death, Daniel had trouble with
drugs, but stopped using them completely during the five
year period before Christopher died. But when
Christopher died, Daniel immediately started drinking
alcohol. Up to about the middle of 2002, he had been very
active in drugs and alcohol constantly for the six-year
period after the murder. Id. at 47–48. He has obtained
counseling from various places. Most of the counseling
centers on his reaction to Christopher’s dying. Id. at 48.
According to Dr. Cable, Daniel “is in loss and loneliness
... also some of those earlier stages, the volatile emotions,
some of the guilt is very present. He has got a lot of pain,
a lot of emotion over Chris. That’s not gone away. He is
at some great risk.... [H]is prognosis is guarded.” (Feb.
10, 2004 Tr. at 115–16.)
As the brother of Christopher Adams, Daniel Adams has
brought an intentional infliction of emotional distress
claim against the defendants for pain and suffering caused
by the death of his brother. Based upon the evidence
presented to the Court, the elements of Daniel Adams’
intentional infliction of emotional distress *348 claim are
met. The defendants’ conduct in facilitating, financing,
and providing material support to bring about this attack
was intentional, extreme, and outrageous. As the evidence
shows, this horrific act precipitated by the defendants’
planning and assistance brought immediate emotional
distress to Daniel Adams. Finally, it is clear that Daniel
Adams has continued to experience emotional distress
since that time due to the fact that his brother was taken
away from him in such a tragic and horrific manner.
Therefore, this Court shall award to Daniel Adams $2.5
million to compensate him for the emotional distress, pain
and suffering that he sustained as a result of his brother’s
untimely death.
c. Elizabeth Wolf
Elizabeth Wolf was Christopher’s only younger sister.
She is now married with two children, ages 1 and 2.
When Christopher was killed, she felt that she had been
abandoned. When she married in 1997, just a year after
Christopher’s death, it was a time of sadness instead of
joy for Elizabeth because Christopher was going to be the
one to walk her down the aisle, and he wasn’t there. She
also felt a sense of guilt because he was not present. Id. at
29–30.
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Elizabeth continues to feel pain today. Many things bring
back the memory of that terrible day, and family
gatherings no longer have the same sense of joy that they
had before 1996. Id. at 32.
After Christopher died, Elizabeth would go to the
cemetery once a month. Even today, seven years later, she
goes once every two months. Id. It hurts Elizabeth that
she was never able to say goodbye to him in person. She
is hurt that the family wasn’t there to help him when he
was killed. Id. at 34. Other terrorist attacks make her think
about Christopher’s death all over again because she
thinks it’s happening again. She thinks about how other
families have to go through the pain, the grief, and the
anguish which the Adams family has experienced. Id. at
35.
According to Dr. Cable, Elizabeth
is in loss and loneliness, with some
real feelings of missing [her
brother, plus] some issues of
guilt.... She chose not to view the
body, and ... there is a lot of regret
over not having had that last
connection.... Her pain is going to
continue into the future. She will
put a lot of her effort into ways of
helping keep Chris’ memory alive.
That, to her, will be important, that
people don’t forget [Chris]. That
helps her grief as well as helps his
memory in her mind.
(Feb. 10, 2004 Tr. at 107–08.)
As the sister of Christopher Adams, Elizabeth Wolf has
brought an intentional infliction of emotional distress
claim against the defendants for pain and suffering caused
by the death of her brother. Based upon the evidence
presented to the Court, the elements of Elizabeth Wolf’s
intentional infliction of emotional distress claim are met.
The defendants’ conduct in facilitating, financing, and
providing material support to bring about this attack was
intentional, extreme, and outrageous. As the evidence
shows, this horrific act precipitated by the defendants’
planning and assistance brought immediate emotional
distress to Elizabeth Wolf. Finally, it is clear that
Elizabeth Wolf has continued to experience emotional
distress since that time due to the fact that her brother was
taken away from her in such a tragic and horrific manner.
Therefore, this Court shall award to Elizabeth Wolf $2.5
million to compensate her for the emotional distress, pain
and suffering that she sustained as a result of her brother’s
untimely death.
*349 J. North Carolina
1. Causes of Action
a. Intentional Infliction of Emotional Distress
North Carolina recognizes the tort of intentional
infliction of emotional distress. Stanback v. Stanback, 297
N.C. 181, 254 S.E.2d 611 (1979). The tort recognized in
Stanback is in accord with the version found in Section 46
of the RESTATEMENT (SECOND) OF TORTS. Dickens
v. Puryear, 302 N.C. 437, 276 S.E.2d 325, 332 (1981).
The elements of this tort under North Carolina law are:
“(1) extreme and outrageous conduct, (2) which is
intended to cause and does cause (3) severe emotional
distress to another.” Id. In North Carolina, the issue of
whether a plaintiff must be present in order to recover for
a claim of intentional infliction of emotional distress has
not been specifically addressed by the courts. The fact
that North Carolina courts have found their tort of
intentional infliction of emotional distress to be in accord
with Section 46 of the RESTATEMENT (SECOND) OF
TORTS allows this Court to follow the same reasoning
regarding the presence requirement set forth previously in
this opinion.61 Applying this rationale, this Court finds
that the presence element does not need to be proven in
order to successfully bring a cause of action for
intentional infliction of emotional distress under North
Carolina law, and that standing to seek such recovery is
limited to the victim’s near relatives who were not present
at the time of the attack.
2. Plaintiffs
a. Patrick Adams
Patrick Adams is a brother to Christopher Adams. Patrick
thinks about Christopher every day. Id. at 18. He often
prays to Christopher for guidance, for support, and for
help in making the right decisions about his children. Id.
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at 19. He always thinks about Christopher when he reads
about other terrorist killings. He thinks about Christopher
a lot on April 18, because that was the birthday of both
Christopher and Paul Revere, a great patriot. Id. at 21.
According to Dr. Cable, Patrick
is in loss and loneliness. Grief has
altered his world view, in a sense;
this attitude of live today, you don’t
know what’s coming. But very
much misses his brother and what
his brother’s role would be in his
life now.... Patrick sill has feelings,
empty feelings, that overwhelm
him at times.... [G]rief [will
continue] to be a pretty significant
issue for him for a long time.
(Feb. 10, 2004 Tr. at 105–06.)
As the brother of Christopher Adams, Patrick Adams has
brought an intentional infliction of emotional distress
claim against the defendants for pain and suffering caused
by the death of his brother. Based upon the evidence
presented to the Court, the elements of Patrick Adams’
intentional infliction of emotional distress claim are met.
The defendants’ conduct in facilitating, financing, and
providing material support to bring about this attack was
intentional, extreme, and outrageous. As the evidence
shows, this horrific act precipitated by the defendants’
planning and assistance brought immediate emotional
distress to Patrick Adams. Finally, it is clear that Patrick
Adams has continued to experience emotional distress
since that time due to the fact that his brother was taken
away from him in such a tragic and horrific manner.
Therefore, this Court shall award to Patrick Adams *350
$2.5 million to compensate him for the emotional distress,
pain and suffering that he sustained as a result of his
brother’s untimely death.
b. John Adams
John Adams is the twin brother of Patrick Adams, and is
the younger brother of Christopher Adams by one year.
Christopher’s death has had a terrible impact on John
because Christopher was his power base and gave him
strength. Id. at 68. John thinks of him a lot, definitely
during the holidays, and whenever he sees the flag, and
whenever he hears the National Anthem. Id. at 68–69.
When September 11 occurred, he thought about the
experiences of other families. Every year on June 25,
John says a prayer and thanks God that there is an angel
up in heaven looking over the family. Id. at 69. For John,
family occasions are not the same anymore. The biggest
difference is their mother. She is not the same. Id.
As Dr. Cable stated, John is in loss and loneliness:
Chris was the big brother. He was
the one everybody looked up to....
John has an inner strength and a
faith that helps him get by. There is
a wistfulness in his voice for a
relationship with his brother that
can never be. His grief will
continue, but he will work on it. He
will work to move on.
(Feb. 10, 2004 Tr. at 104.)
As the brother of Christopher Adams, John Adams has
brought an intentional infliction of emotional distress
claim against the defendants for pain and suffering caused
by the death of his brother. Based upon the evidence
presented to the Court, the elements of John Adams’
intentional infliction of emotional distress claim are met.
The defendants’ conduct in facilitating, financing, and
providing material support to bring about this attack was
intentional, extreme, and outrageous. As the evidence
shows, this horrific act precipitated by the defendants’
planning and assistance brought immediate emotional
distress to John Adams. Finally, it is clear that John
Adams has continued to experience emotional distress
since that time due to the fact that his brother was taken
away from him in such a tragic and horrific manner.
Therefore, this Court shall award to John Adams $2.5
million to compensate him for the emotional distress, pain
and suffering that he sustained as a result of his brother’s
untimely death.
c. William Adams
William Adams (“Billy”) was a brother of Christopher
Adams, who was six years older. Billy was the seventh of
the eight children in the family and his oldest brother was
six years older than he was. Ex. 277, 3. Billy’s testimony
was admitted by Affidavit. Id.
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Christopher’s death had a huge impact on Billy. (Dec. 3,
2003 P.M. Tr. at 66–67.) About two months after the
Khobar Towers incident, Billy moved away from North
Carolina to go back up to Long Island to be with his
mother. Billy thinks about Christopher every day,
especially on holidays, and on June 25. He keeps pictures
of Christopher in his home and has Christopher’s Air
Force Academy sword that Caren gave to him, a flag and
a bracelet that Christopher bought for him on one of his
previous trips to Saudi Arabia. Ex. 277, 19 and 20.
According to Dr. Cable, Billy
is in the loss and loneliness stage.
He does ... have some repressed
emotion.... He will continue in grief
for a significant time. There is a
strong identification with his
brother, and so the loss of his
brother will impact him for a long
time into the future. There is a *351
need for some real therapy to help
him work through and express
some of those repressed emotions.
(Feb. 10, 2004 Tr. at 112–13.)
As the brother of Christopher Adams, William Adams
has brought an intentional infliction of emotional distress
claim against the defendants for pain and suffering caused
by the death of his brother. Based upon the evidence
presented to the Court, the elements of William Adams’
intentional infliction of emotional distress claim are met.
The defendants’ conduct in facilitating, financing, and
providing material support to bring about this attack was
intentional, extreme, and outrageous. As the evidence
shows, this horrific act precipitated by the defendants’
planning and assistance brought immediate emotional
distress to William Adams. Finally, it is clear that
William Adams has continued to experience emotional
distress since that time due to the fact that his brother was
taken away from him in such a tragic and horrific manner.
Therefore, this Court shall award to William Adams $2.5
million to compensate him for the emotional distress, pain
and suffering that he sustained as a result of his brother’s
untimely death.
d. Michael Adams
Michael Adams, brother to Christopher Adams, was born
in 1971; he was the sixth of the eight children.
Christopher was five years older than Michael. Ex. 276, at
3–4. Michael’s testimony was admitted by way of
Affidavit. Ex. 276.
Christopher’s death has greatly affected Michael. Michael
has kept all the newspaper accounts of Christopher’s
death and funeral and his medals in a box at his home. He
also keeps his green flight suit and keeps a poster of the
Khobar Towers after the bombing on the wall above his
desk. Id. at 27.
Michael thinks a lot about Christopher during the entire
month of June, not just June 25, and many other things
remind him of Christopher. Id. at 29. He thinks of
Christopher every time he turns on the news and hears
about military casualties. He thinks about the grief that all
the families are going through, not only the families of the
dead Iraqi soldiers, but also the families of the people
who were killed on September 11. Id. at 30. Watching his
mother today dealing with Christopher’s loss brings as
much pain to him as Christopher’s own death. Id. at 32.
It makes Michael very sad to think that Christopher will
not be part of the lives of his children. Id. at34. As Dr.
Cable stated, Michael
is in loss and loneliness.... He has
got a lot of pent up emotion there
that he really hasn’t allowed
himself to express.... [T]here is
some volatile emotions that are not
quite out in the open. There is still
a lot of effort to protect his
mother.... He has a lot of pain
ahead and a lot of grief work to do.
(Feb. 10, 2004 Tr. at 110.)
As the brother of Christopher Adams, Michael Adams
has brought an intentional infliction of emotional distress
claim against the defendants for pain and suffering caused
by the death of his brother. Based upon the evidence
presented to the Court, the elements of Michael Adams’
intentional infliction of emotional distress claim are met.
The defendants’ conduct in facilitating, financing, and
providing material support to bring about this attack was
intentional, extreme, and outrageous. As the evidence
shows, this horrific act precipitated by the defendants’
planning and assistance brought immediate emotional
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distress to Michael Adams. Finally, it is clear that
Michael Adams has continued to experience emotional
distress since that time due to the fact that his brother was
*352 taken away from him in such a tragic and horrific
manner. Therefore, this Court shall award to Michael
Adams $2.5 million to compensate him for the emotional
distress, pain and suffering that he sustained as a result of
his brother’s untimely death.
K. Indiana
1. Claims Under Indiana Law
a. Wrongful Death
Under Indiana’s wrongful death statute, the decedent’s
personal representative may bring an action against the
person whose wrongful act or omission caused the death
of the decedent. Ind.Code Ann. § 34–23–1–1. A
successful wrongful death plaintiff may recover damages
that include “reasonable medical, hospital, funeral, and
burial expenses,” in addition to the decedent’s lost
earnings. Ind.Code. Ann. § 34–23–1–1. Any damages
awarded for reasonable medical, hospital, funeral, and
burial expenses inure to the benefit of the decedent’s
estate, while all other damages are awarded to the benefit
of “the widow or widower, ..., and to the dependent
children, if any, or dependent next of kin, to be distributed
in the same manner as the personal property of the
deceased.” Ind.Code. Ann. § 34–23–1–1.
“Dependent next of kin” include those individuals who
show that: (1) they need support; and (2) the decedent
contributed to their support. Estate of Sears v. Griffin, 771
N.E.2d 1136, 1139 (Ind.2002). A plaintiff does not have
to be wholly dependent on the decedent to be considered a
dependent next of kin. Id. Instead, a court must examine
“the assistance that the decedent would have provided
through money, services or other material benefits.” Id.
(quoting Luider v. Skaggs, 693 N.E.2d 593, 596–97
(Ind.Ct.App.1998)).
b. Intentional Infliction of Emotional Distress
Indiana recognizes the tort of intentional infliction of
emotional distress, following Section 46 of the
RESTATEMENT (SECOND) OF TORTS. Under Indiana
law, the elements of an intentional infliction of emotional
distress claim are: “(1) ‘extreme and outrageous conduct’
that (2) intentionally or recklessly (3) causes (4) severe
emotional distress to another.” Creel v. I.C.E. & Assocs.,
Inc., 771 N.E.2d 1276, 1282 (Ind.Ct.App.2002). In
Indiana, the issue of whether a plaintiff must be present in
order to recover for a claim of intentional infliction of
emotional distress has not been specifically addressed by
the courts. The fact that Indiana courts have adopted
Section 46 of the RESTATEMENT (SECOND) OF
TORTS in recognizing the tort of intentional infliction of
emotional distress allows this Court to follow the same
reasoning regarding the presence requirement set forth
previously in this opinion.62 Applying this rationale, this
Court finds that the presence element does not need to be
proven in order to successfully bring a cause of action for
intentional infliction of emotional distress under Indiana
law, and that standing to seek such recovery is limited to
the victim’s near relatives who were not present at the
time of the attack.
2. Plaintiffs
a. Lewis Cartrette
Lewis W. Cartrette is a United States citizen, and the
brother of Earl “J.R.” Cartrette, Jr. Exs. 279, 1–2. Lewis
was born in Sellersberg, Indiana on November 1, 1976.
His parents are Denise Eichstaedt *353 and the late Earl
Frederick Cartrette, Sr. Ex. 279, at 4.
Lewis was unable to shake the misery that he felt as a
result of J.R.’s death. Lewis shut everyone out and did not
want to go on with his life. Lewis was depressed and did
not want to function. Lewis testified, “J.R.’s death is the
hardest, most painful thing that I have ever had to deal
with because just when everything was good, J.R. was
killed and there was nothing I could do about it. My
brother, my friend was gone.” After J.R.’s death, Lewis
began using drugs and alcohol, became physically violent,
and contemplated suicide on more than one occasion.
Lewis had three encounters with the criminal justice
system which involved increasingly serious offenses.
Lewis lost his job, his wife, his children, his home, and
spent one year in jail. Ex. 279, 16–17.
After J.R.’s death, Lewis began seeing a psychiatrist and
was prescribed medication. Lewis is no longer seeing the
psychiatrist or taking medication. Ex. 279, at 18.
Holidays, anniversaries, and birthdays are still particularly
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difficult days for Lewis. Lewis is remarried and will soon
become a father of twins. Lewis’ children will never
know their uncle J.R. Lewis always wanted his children to
have someone like J.R. in their life.
J.R.’s death is also difficult for Lewis when he is around
antique cars which J.R. and Lewis both loved. When
Lewis thinks about J.R., the pain and misery today is as
strong as it was when Lewis learned of J.R.’s death on
June 27, 1996. Ex. 279, at 19–20.
According to Dr. Cable, Lewis
very clearly is in loss and
loneliness. He has had major
difficulties with his brother’s death.
His brother was really a father
figure as well as a brother to him,
very close, and was not there to
keep [Lewis] from kind of sinking
in what happened to him. So the
death has had a major impact on
[Lewis], and continues to do so....
His problems, his grief, is going to
continue in the future. He is in need
of grief therapy. He has got a lot of
rebuilding of his life to do, and
that’s going to take a significant
amount of time. It’s going to be an
ongoing struggle for him to get
back where he can function
effectively.
(Feb. 10, 2004 Tr. at 123–24.)
As the brother of Earl Cartrette, Jr., Lewis Cartrette has
brought an intentional infliction of emotional distress
claim against the defendants for pain and suffering caused
by the death of his brother. Based on the evidence
presented to the Court, Lewis Cartrette has satisfied the
elements to establish a valid claim for intentional
infliction of emotional distress. First, defendants Iran,
MOIS, and the IRGC provided material support to Saudi
Hezbollah with the intent that Saudi Hezbollah would
carry out attacks that would cause severe emotional
distress. Second, the tragic bombing of the Khobar
Towers by means of material support and civil conspiracy
is an act that is nothing short of extreme, outrageous, and
beyond all bounds of civil decency. As is the nature of
terrorism, terrorists seek to perform acts that are
deliberately outrageous and bring about extreme suffering
in order to achieve political ends. Third, the defendants’
actions in facilitating and supporting the Khobar Towers
bombing proximately caused Lewis emotional distress
because the material support and direction given to Saudi
Hezbollah ensured the event would occur. Finally, the
evidence shows that Lewis suffered emotional distress,
and that his emotional distress was severe. Accordingly,
the Court finds that Lewis Cartrette is entitled to recover
from defendants $2.5 million in compensatory damages
for the mental anguish and suffering *354 associated with
the loss of his brother.
L. Oklahoma
1. Causes of Action
a. Intentional Infliction of Emotional Distress
Oklahoma also recognizes the tort of intentional
infliction of emotional distress, having adopted Section 46
of the RESTATEMENT (SECOND) OF TORTS.
Breeden v. League Servs. Corp., 575 P.2d 1374, 1376–78
(Okla.1978). To recover damages for intentional infliction
of emotional distress under Oklahoma law, the plaintiff
must show: “(1) the defendant acted intentionally or
recklessly; (2) the defendant’s conduct was extreme and
outrageous; (3) the defendant’s conduct caused the
plaintiff emotional distress; and (4) the resulting
emotional distress was severe.” Computer Publ’n, Inc. v.
Welton, 49 P.3d 732, 735 (Okla.2002).
In Oklahoma, the issue of whether a plaintiff must be
present in order to recover for a claim of intentional
infliction of emotional distress has not been specifically
addressed by the courts. The fact that Oklahoma courts
have found their tort of intentional infliction of emotional
distress to be in accord with Section 46 of the
RESTATEMENT (SECOND) OF TORTS allows this
Court to follow the same reasoning regarding the presence
requirement set forth previously in this opinion.63
Applying this rationale, this Court finds that the presence
element does not need to be proven in order to
successfully bring a cause of action for intentional
infliction of emotional distress under Oklahoma law, and
that standing to seek such recovery is limited to the
victim’s near relatives who were not present at the time of
the attack.
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2. Plaintiffs
a. Nancy A. Kitson
Nancy A. Kitson is the oldest sibling to Kendall Kitson,
Jr. (“Kenny”). After Kenny’s death, Nancy took at least
one month off of work. She stayed in Florida with her
parents. Nancy was the only one to keep many of Kenny’s
personal items. Ex. 292, 21.
For the first several years after Kenny’s death, Nancy
attended the memorial services the military hosted in
Washington, D.C. and Quantico, Virginia. Id. at 22.
Nancy does her best to keep going, in spite of her grief.
She breaks down sometimes when people ask her how she
is or do not know that Kenny was killed. Id. at 23.
The most difficult time of the year for Nancy is around
Kenny’s birthday in October. For many years, Christmas
time was also very difficult for Nancy and she would not
celebrate the holiday. Id. at 24. In addition to her own loss
of Kenny, Nancy’s grief has been compounded by the
tension Kenny’s loss has created between herself and her
parents. Nancy’s parents will not even visit Nancy’s
daughter. Nancy is very hurt by her parents’ failure to
love anyone else since Kenny died. Id. at 27.
As Dr. Cable stated, Nancy A. Kitson
is in loss and loneliness. She misses
her brother terribly, and in addition
has to cope with her parents’
bitterness, her mother’s illness.
Fells very alone in the family and
very lonely without Kenny.... She,
too, will continue to experience
grief into the future. The feelings of
loss and loneliness will continue.
(Feb. 10, 2004 Tr. at 151–52.)
As the sister of Kendall Kitson, Jr., Nancy Kitson has
brought an *355 intentional infliction of emotional
distress claim against the defendants for pain and
suffering caused by the death of her brother. Based upon
the evidence presented to the Court, the elements of
Nancy Kitson’s intentional infliction of emotional distress
claim are met. The defendants’ conduct in facilitating,
financing, and providing material support to bring about
this attack was intentional, extreme, and outrageous. As
the evidence shows, this horrific act precipitated by the
defendants’ planning and assistance brought immediate
emotional distress to Nancy Kitson. Finally, it is clear that
Nancy Kitson has continued to experience emotional
distress since that time due to the fact that her brother was
taken away from her in such a tragic and horrific manner.
Therefore, this Court shall award to Nancy Kitson $2.5
million to compensate her for the emotional distress, pain
and suffering that she sustained as a result of her brother’s
untimely death.
M. Kansas
1. Causes of Action
a. Outrage
In Kansas the tort of intentional infliction of emotional
distress is recognized, although it is called the tort of
Outrage.64 Naturally, the elements of Outrage are the same
as those for intentional infliction of emotional distress,
namely the plaintiff must prove that: “(1) the conduct of
the defendant was intentional or in reckless disregard of
the plaintiff; (2) the conduct was extreme and outrageous;
(3) there was a causal connection between the defendant’s
conduct and the plaintiff’s mental distress; and (4) the
plaintiff’s mental distress was extreme and severe.” Smith
v. Welch, 265 Kan. 868, 967 P.2d 727, 733 (1998).
In Kansas, the issue of whether a plaintiff must be
present in order to recover for a claim of Outrage has not
been specifically addressed by the courts. The fact that
Kansas courts have found their tort of Outrage to be in
rooted in Section 46 of the RESTATEMENT (SECOND)
OF TORTS allows this Court to follow the same
reasoning regarding the presence requirement set forth
previously in this opinion.65 Applying this rationale, this
Court finds that the presence element does not need to be
proven in order to successfully bring a cause of action for
Outrage under Kansas law, and that standing to seek such
recovery is limited to the victim’s near relatives who were
not present at the time of the attack.
2. Plaintiffs
a. Starlina Taylor
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Starlina Taylor is the sister to Jeremy Taylor. Jeremy’s
death has been particularly difficult for Starlina due to the
closeness of her relationship with Jeremy. When Jeremy
died, Starlina lost both a brother and her best friend.
Moreover, Starlina is grieving the loss of the her
relationship with her parents due to the fact that her
parents—in particular, her father—have become
emotionally unavailable as a result of Jeremy’s death. Ex.
289, 35. Further, since Jeremy’s death, Starlina has had
difficulty maintaining a fulfilling relationship with a man.
She has been divorced twice and has trouble letting
anyone get close to her. Exs. 289, 35 and 290, 32.
*356 After Jeremy died, Starlina was upset to her stomach
all the time and had menopausal symptoms. She also
drank excessively from time to time following Jeremy’s
death. While she visited a counselor for a short period,
she felt like it was a waste of time and only added to her
father’s bills. Ex. 290, 29–30. Starlina feels as though the
grief process is getting worse instead of better for her. She
is withdrawing into a smaller and smaller group, and there
are only a few people who are her friends. Starlina
fantasizes about running away and going somewhere
where no one knows her. Id. at 35.
According to Dr. Cable, Starlina
is in loss and loneliness, feeling
very much the loss of her brother,
her support system. Then
complicated because there is a loss
of her father as well. He is no
longer effective or functioning in
that father role, and so that just
makes it more intense of loss and
loneliness.... She will continue in
her grief for a long period of time.
(Feb. 10, 2004 Tr. at 199–200.)
As the sister of Jeremy Taylor, Starlina Taylor has
brought an intentional infliction of emotional distress
claim against the defendants for pain and suffering caused
by the death of her brother. Based upon the evidence
presented to the Court, the elements of Starlina Taylor’s
intentional infliction of emotional distress claim are met.
The defendants’ conduct in facilitating, financing, and
providing material support to bring about this attack was
intentional, extreme, and outrageous. As the evidence
shows, this horrific act precipitated by the defendants’
planning and assistance brought immediate emotional
distress to Starlina Taylor. Finally, it is clear that Starlina
Taylor has continued to experience emotional distress
since that time due to the fact that her brother was taken
away from her in such a tragic and horrific manner.
Therefore, this Court shall award to Starlina Taylor $2.5
million to compensate her for the emotional distress, pain
and suffering that she sustained as a result of her brother’s
untimely death.
CONCLUSION
This Court takes note of plaintiffs’ courage and
steadfastness in pursuing this litigation and their efforts to
take action to deter more tragic suffering of innocent
Americans at the hands of terrorists. Their efforts are to
be commended.
A separate Order and Judgment consistent with these
findings shall issue this date.
SO ORDERED.
ORDER & JUDGMENT
In accord with the Findings of Fact and Conclusions of
Law issued this date, it is hereby
ORDERED that Default Judgment be entered in favor of
plaintiffs and against defendants, jointly and severally, in
the amount of $254,431,903.00, which shall be allocated
in the following manner:
Estate and Surviving Family Members of Brent
Marthaler
• $1,598,688.00 in economic damages to be allocated
to the Estate of Brent Marthaler, by Katie Lee
Marthaler as personal representative, for the benefit
of Katie Lee Marthaler, Herman C. Marthaler, and
Sharon Marthaler, to be distributed in a manner
consistent with the statute governing intestate
distribution of property under Florida law;
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• $8 million to be allocated to Katie Lee
Marthaler;
• $5 million to be allocated to Herman
Marthaler;
*357 • $5 million to be allocated to Sharon
Marthaler;
• $2.5 million to be allocated to Matthew
Marthaler;
• $2.5 million to be allocated to Kirk Marthaler
Estate and Surviving Family Members of Justin Wood
• $5 million to be allocated to Richard Wood;
• $5 million to be allocated to Kathleen Wood;
• $2.5 million to be allocated to Shawn Wood;
Estate and Surviving Family Members of Michael
Heiser
• $3,720,019.00 in economic damages to be allocated
to the Estate of Michael Heiser, by Fran and Gary
Heiser as personal representatives, for the benefit of
Fran and Gary Heiser;
• $5 million to be allocated to Fran Heiser;
• $5 million to be allocated to Gary Heiser;
Estate and Surviving Family Members of Earl Cartrette,
Jr.
• $5 million to be allocated to Denise Eichstaedt
• $2.5 million to be allocated to Anthony
Cartrette
• $2.5 million to be allocated to Lewis Cartrette
Estate and Surviving Family Members of Patrick
Fennig
• $1,120,304.00 in economic damages to be allocated
to the Estate of Patrick Fennig, by Thaddeus C.
Fennig and Catherine Fennig as personal
representatives, for the benefit of Thaddeus C.
Fennig and Catherine Fennig;
• $5 million to be allocated to Thaddeus C.
Fennig;
• $5 million to be allocated to Catherine Fennig;
• $2.5 million to be allocated to Paul Fennig;
• $2.5 million to be allocated to Mark Fennig;
Estate and Surviving Family Members of Christopher
Adams
• $3,153,953.00 in economic damages to be allocated
to the Estate of Christopher Adams, by Catherine
Adams as personal representative, for the benefit of
Catherine Adams;
• $5 million to be allocated to Catherine Adams;
• $2.5 million to be allocated to Mary Young;
• $2.5 million to be allocated to Daniel Adams;
• $2.5 million to be allocated to Elizabeth Wolf;
• $2.5 million to be allocated to Patrick Adams;
• $2.5 million to be allocated to John Adams;
• $2.5 million to be allocated to William
Adams;
• $2.5 million to be allocated to Michael
Adams;
Estate and Surviving Family Members of Thanh “Gus”
Nguyen
• $596,905.00 in economic damages to be allocated
to the Estate of Thanh “Gus” Nguyen, by
Christopher Nguyen as personal representative, for
the benefit of Christopher Nguyen;
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• $5 million to be allocated to Christopher
Nguyen;
*358 Estate and Surviving Family Members of Brian
McVeigh
• $5 million to be allocated to Sandra M. Wetmore;
Estate and Surviving Family Members of Joseph
Rimkus
• $5 million to be allocated to Bridget Brooks;
• $2.5 million to be allocated to James Rimkus;
• $2.5 million to be allocated to Anne Rimkus;
Estate and Surviving Family Members of Kendall
Kitson, Jr.
• $2,183,460.00 in economic damages to be allocated
to the Estate of Kendall Kitson, Jr., by Kendall
Kitson, Sr., and Nancy R. Kitson as personal
representatives, for the benefit of Kendall Kitson,
Sr., and Nancy R. Kitson;
• $5 million to be allocated to Kendall Kitson,
Sr.;
• $5 million to be allocated to Nancy R. Kitson;
• $2.5 million to be allocated to Steve K.
Kitson;
• $2.5 million to be allocated to Nancy A.
Kitson;
Estate and Surviving Family Members of Jeremy Taylor
• $5 million to be allocated to Lawrence Taylor;
• $5 million to be allocated to Vickie Taylor;
• $2.5 million to be allocated to Starlina Taylor;
Estate and Surviving Family Members of Joshua Woody
• $1,981,521.00 in economic damages to be allocated
to the Estate of Joshua Woody, by Dawn Woody as
personal representative, for the benefit of Dawn
Woody;
• $8 million to be allocated to Dawn Woody;
• $5 million to be allocated to Bernadine
Beekman;
• $2.5 million to be allocated to Tracy Smith;
• $2.5 million to be allocated to Jonica Woody;
• $2.5 million to be allocated to Timothy
Woody;
Estate and Surviving Family Members of Leland “Tim”
Haun
• $2,822,796.00 in economic damages to be allocated
to the Estate of Leland “Tim” Haun, by Ibis “Jenny”
Haun as personal representative, for the benefit of
Ibis “Jenny” Haun, Senator Haun, and Milly
Perez–Dallis, to be distributed in a manner in
accordance with the method of intestate distribution
under California law;
• $8 million to be allocated to Ibis “Jenny”
Haun;
• $5 million to be allocated to Senator Haun;
• $7 million to be allocated to Milly
Perez–Dallis;
Estate and Surviving Family Members of Christopher
Lester
• $1,960,466.00 in economic damages, plus
$500,000.00 in pain and suffering damages to be
allocated to the Estate of Christopher Lester, by
Cecil Lester, Sr., and Judy Lester as personal
representatives, for the benefit of Cecil Lester, Sr.,
Judy Lester, Cecil Lester, Jr., and Jessica Lester, to
be distributed in a manner in accordance with the
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method *359 of intestate distribution under Ohio
law;
• $5 million to be allocated to Cecil Lester, Sr.;
• $5 million to be allocated to Judy Lester;
• $2.5 million to be allocated to Cecil Lester,
Jr.;
• $2.5 million to be allocated to Jessica Lester;
Estate and Surviving Family Members of Kevin
Johnson, Sr.
• $1,171,477.00 in economic damages to be allocated
to the Estate of Kevin Johnson, Sr., by Shyrl Johnson
as personal representative, for the benefit of Shyrl
Johnson, Kevin Johnson, Jr., and Nicholas Johnson,
to be distributed in a manner in accordance with the
method of intestate distribution under Louisiana law;
• $8 million to be allocated to Shyrl Johnson;
• $5 million to be allocated to Kevin Johnson,
Jr.;
• $5 million to be allocated to Nicholas
Johnson;
Estate and Surviving Family Members of Peter Morgera
• $50,000.00 in economic damages to be allocated to
the Estate of Peter Morgera, by Michael Morgera as
personal representative, for the benefit of Michael
Morgera and Thomas Morgera, to be distributed in a
manner in accordance with the method of intestate
distribution under New Hampshire law;
• $2.5 million to be allocated to Michael
Morgera;
• $2.5 million to be allocated to Thomas
Morgera;
Estate and Surviving Members of Millard “Dee”
Campbell
• $1,572,314.00 in economic damages to be allocated
to the Estate of Millard “Dee” Campbell, by Marie
Campbell as personal representative, for the benefit
of Marie Campbell and Bessie Campbell, to be
distributed in a manner in accordance with the
method of intestate distribution under Texas law;
• $8 million to be allocated to Marie Campbell;
• $5 million to be allocated to Bessie Campbell;
IT IS FURTHER ORDERED that the claims for
compensatory damages in the form of lost wages and
future earnings for the estates of the following decedents
are hereby DENIED:
• Estate of Justin Wood
• Estate of Earl Cartrette, Jr.
• Estate of Brian McVeigh
• Estate of Joseph Rimkus
• Estate of Jeremy Taylor
IT IS FURTHER ORDERED that the claims brought by
the following plaintiffs are hereby DISMISSED WITH
PREJUDICE:
• James V. Wetmore
• George Beekman Che Colson
• Laura Johnson
• Bruce Johnson
IT IS FURTHER ORDERED that plaintiffs, at their own
cost and consistent with the requirements of 28 U.S.C. §
1608(e), send a copy of this Judgment and the Findings of
Fact and Conclusions of Law issued this date to
defendants.
*360 IT IS FURTHER ORDERED that the Clerk of this
Court shall terminate this case from the dockets of this
Court.
SO ORDERED.
All Citations
466 F.Supp.2d 229
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Footnotes
1 According to the Oxford English Dictionary, the term “Hezbollah” is synonymous with the terms “Hizbollah” and
“Hizbullah,” all of which are English transliterations of the Arabic term referring to the extremist Shiite Muslim group
also known as the “Party of God.” See Oxford English Dictionary (2d ed.1989). Accordingly, to the extent that any of
these terms are used within this opinion, they shall be used interchangeably.
2 At other points during the case, plaintiffs sought redress for their losses from various other defendants who have since
been dismissed from the case, namely Hezbollah and Osama Bin Laden.
3 370 F.3d 41 (D.C.Cir.2004).
4 A detailed discussion of the facts and circumstances associated with each individual plaintiff will not be addressed in
this section, but rather in the respective portions of this opinion relating to the merits of each individual plaintiff’s cause
of action against the defendants. See infra Conclusions of Law, Part VI.
5 Plaintiffs have requested pursuant to LCvR 72.3(c) and LCvR 78.1 that the Court hold a hearing on plaintiffs’ objections
to the magistrate judge’s Report and Recommendation. Pl. Obj. to Report and Recommendation, at 1. Though the
district court must consider any objections that have been made regarding the magistrate judge’s proposed findings,
the language of 28 U.S.C. § 636(b)(1) does not obligate the court to hold a hearing on those objections. See United
States v. Raddatz, 447 U.S. 667, 674–76, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). Rather, by “providing for a ‘de novo
determination’ rather than de novo hearing [in the statutory language], Congress intended to permit whatever reliance
a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate’s proposed findings and
recommendations.” Id. at 676, 100 S.Ct. 2406. Accordingly, to the extent that plaintiffs have objected to Magistrate
Judge Robinson’s Report and Recommendation to this Court, those objections have been considered and will be
addressed within the purview of this written opinion, and not at a hearing before this Court.
6 Previously, Piper Rudnick LLP.
7 As to the magistrate judge’s finding and recommendation regarding the sufficiency of the evidence plaintiffs submitted,
plaintiffs object on the grounds that the evidence presented is sufficient to find the defendants liable, that such
evidence is “consistent with and virtually identical to—and even more direct than—liability evidence found to be
sufficient as a matter of law in 23 other [FSIA] cases,” and that this Court may take judicial notice of evidence, findings
and conclusions entered by this Court in Blais v. Islamic Republic of Iran, 2006 WL 2827372, at *3–4 (D.D.C. Sept.29,
2006) (Lamberth, J.). (Pl.’s Obj. to Report and Recommendation [130] 4–5.)
8 Plaintiffs chief concern is that any final judgment might be collaterally attacked by defendants on these grounds.
9 See supra Part III.A.
10 See, e.g., Blais, 459 F.Supp.2d 40 (D.D.C.2006) (Lamberth, J.); Prevatt v. Islamic Republic of Iran, 421 F.Supp.2d 152
(D.D.C. Mar.27, 2006) (Lamberth, J.); Dammarell v. Islamic Republic of Iran, 404 F.Supp.2d 261 (D.D.C.2005) (Bates,
J.); Salazar v. Islamic Republic of Iran, 370 F.Supp.2d 105 (D.D.C.2005) (Bates, J.); Peterson v. Islamic Republic of
Iran, 264 F.Supp.2d 46 (D.D.C.2003) (Lamberth, J.).
11 According to Col. Cochran, the term “standing rules of engagement” is synonymous with the term “peacetime rules of
engagement.” (Dec. 2, 2003 Tr. at 15.)
12 The magistrate judge had the parties brief the issue of whether a conflict of interest existed.
13 Of additional import is the fact that the former attorneys at the Firm who represented Sudan—and who thereby placed
the Firm in the position of a potential conflict of interest—did not take part in the Firm’s work related to the present
matter before the Court.
14 See Docket Nos. [77] and [79], respectively (ordering plaintiffs to file memoranda addressing the conflict of interest
issue).
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15 Mr. Freeh’s testimony mirrors the testimony he provided at a Joint Hearing before the United States House of
Representatives Permanent Select Committee on Intelligence and the United States Senate Select Committee on
Intelligence, in which he testified under oath as to the defendants’ involvement in sanctioning, funding and directing the
Khobar Towers attack. A transcript of this testimony was admitted into evidence as Plaintiffs’ Exhibit 24. See also Pl.’s
Exh. 25 (May 20, 2003, Wall Street Journal article written by Mr. Freeh in which Mr. Freeh indicated that the FBI’s
investigation indicated Iran, IRGC, and MOIS’s involvement in funding and coordinating the attack on the Khobar
Towers).
16 Blais v. Islamic Republic of Iran, 2006 WL 2827372 (D.D.C. Sept.29, 2006) (Lamberth, J.).
17 This Court also found that Mr. Fallahian’s representative in Damascus, Syria, a man by the name of Nurani, provided
additional direct support for the operation. Id.
18 As noted in Finding of Fact # 23 in the Blais opinion:
Dr. Bruce Tefft was one of the founding members of the CIA’s counterterrorism bureau in 1985. He served in the CIA
until 1995, and has continued to work as a consultant on terrorism since that time, including work as an unofficial
adviser to the New York Police Department’s counterterrorism and intelligence divisions. Id. He retains a top-secret
security clearance in connection with his work. Id. He has been qualified as an expert witness in numerous other
cases involving Iranian sponsorship of terrorism. Ex. 1 at 3. He was qualified as an expert witness on terrorism in
this case.
Blais, 459 F.Supp.2d at 48–49.
19 An investigation for which Watson was responsible for day-to-day oversight. Id.
20 See, e.g., Greenbaum v. Islamic Republic of Iran, 2006 WL 2374241 (D.D.C. Aug.10, 2006) (Lamberth, J.); Prevatt v.
Islamic Republic of Iran, 421 F.Supp.2d 152 (D.D.C. Mar.27, 2006) (Lamberth, J.); Haim v. Islamic Republic of Iran,
425 F.Supp.2d 56 (D.D.C. Mar.24, 2006) (Lamberth, J.); Stern v. Islamic Republic of Iran, 271 F.Supp.2d 286
(D.D.C.2003) (Lamberth, J.); Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13 (D.D.C.2002) (Lamberth, J.).
21 Rusheen v. Cohen, 37 Cal.4th 1048, 39 Cal.Rptr.3d 516, 128 P.3d 713, 722 (2006) (“The elements of an action for civil
conspiracy are (1) formation and operation of the conspiracy and (2) damage resulting to plaintiff (3) from a wrongful
act done in furtherance of the common design.”); Walters v. Blankenship, 931 So.2d 137 (Fla.Dist.Ct.App. Apr.28,
2006) (finding that a civil conspiracy exists under Florida law where there is “(a) a conspiracy between two or more
parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance
of the conspiracy, and (d) damage to plaintiff as a result of the acts performed pursuant to the conspiracy”); Sims v.
Beamer, 757 N.E.2d 1021 (Ind.Ct.App.2001) (“ ‘Civil conspiracy’ consists of a combination of two or more persons, by
concerted action, to accomplish an unlawful purpose or to accomplish some purpose, not in itself unlawful, by unlawful
means.”); Sullivan v. Wallace, 859 So.2d 245, 248 (La.App.2003) (“To recover under a civil conspiracy theory of
liability, the plaintiff must prove that an agreement existed to commit an illegal or tortious act which resulted in plaintiff’s
injury.”); Harding v. Ohio Cas. Ins. Co. of Hamilton, Ohio, 230 Minn. 327, 41 N.W.2d 818, 824 (Minn.1950) (“A
conspiracy is a combination of persons to accomplish an unlawful purpose or a lawful purpose by unlawful means.”)
(quoting Dairy Region Land Co. v. Paulson, 160 Minn. 42, 199 N.W. 398 (1924)); In re Appeal of Armaganian, 147
N.H. 158, 784 A.2d 1185, 1189 (2001) (“[U]nder New Hampshire law, the elements of a civil conspiracy are: (1) two or
more persons ...; (2) an object to be accomplished (i.e., an unlawful object to be achieved by lawful or unlawful means
or a lawful object to be achieved by unlawful means); (3) an agreement on the object or course of action; (4) one or
more unlawful overt acts; and (5) damages as the proximate result thereof.”) (quoting Jay Edwards, Inc. v. Baker, 130
N.H. 41, 534 A.2d 706, 709 (1987)); Piccoli A/S v. Calvin Klein Jeanswear Co., 19 F.Supp.2d 157 (S.D.N.Y.1998)
(“Elements of a civil conspiracy under New York law are (1) the corrupt agreement between two or more persons, (2)
an overt act, (3) their intentional participation in the furtherance of a plan or purpose, and (4) the resulting damage.”);
Boyd v. Drum, 129 N.C.App. 586, 501 S.E.2d 91, 96 (1998) (“A civil conspiracy claim consists of: (1) an agreement
between two or more persons; (2) to do an unlawful act or to do a lawful act in an unlawful way; (3) which agreement
resulted in injury to the plaintiff.”); Matthews v. New Century Mortg. Corp., 185 F.Supp.2d 874 (S.D.Ohio 2002) (“Under
Ohio law, the tort of civil conspiracy is a malicious combination of two or more persons to injure another in person or
property, in a way not competent for one alone, resulting in actual damages.”); Jenkins v. Entergy Corp., 187 S.W.3d
785, 2006 WL 488580 (Tex.App.Corpus Christi 2006), reh’g overruled, (Apr. 7, 2006) (“Elements of a civil conspiracy
claim include: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or
course of action; (4) one or more unlawful, overt acts; and (5) damages as a proximate result.”); Onderdonk v. Lamb,
79 Wis.2d 241, 255 N.W.2d 507, 510 (1977) (“To state a cause of action for civil conspiracy, the complaint must allege:
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(1) The formation and operation of the conspiracy; (2) the wrongful act or acts done pursuant thereto; and (3) the
damage resulting from such act or acts.”).
22 See supra note 21.
23 This Court also found in Blais that “Saudi Hezbollah, Iran, MOIS and the IRGC reached an understanding to do an
unlawful act, namely the murder and maiming of American servicemen.”
24 See, e.g., Anderson v. Islamic Republic of Iran, 90 F.Supp.2d 107, 113 (D.D.C.2000) (Jackson, J.) (awarding $10
million to the wife of a hostage and torture victim); Weinstein (granting $8 million to the widow of a bus bombing victim);
Kerr v. Islamic Republic of Iran, 245 F.Supp.2d 59, 64 (D.D.C.2003) (awarding $10 million to the widow of a murder
victim); Salazar, 370 F.Supp.2d at 116 (awarding $10 million to the widow of a bombing victim). As this Court noted in
Greenbaum, however, “larger awards are typically reserved for cases with aggravating circumstances that appreciably
worsen the surviving spouse’s pain and suffering, such as cases involving torture or kidnaping of a spouse, or in which
the victim survives with severe physical and emotional conditions that continue to cause severe suffering by the
spouse.” Greenbaum v. Islamic Republic of Iran, 451 F.Supp.2d 90, 108 (D.D.C. August 10, 2006) (Lamberth, J.)
(citing Cicippio, 18 F.Supp.2d at 70; Acree, 271 F.Supp.2d at 222.)
25 Eisenfeld, 172 F.Supp.2d at 8.
26 Prevatt v. Islamic Republic of Iran, 421 F.Supp.2d 152, 161 (D.D.C.2006) (Lamberth, J.).
27 Prevatt, 421 F.Supp.2d at 161(citing Roeder v. Islamic Republic of Iran, 333 F.3d 228, 234 (D.C.Cir.2003)).
28 Fla. Stat. Ann. §§ 768.19 (2005).
29 Accordingly, siblings of a decedent are not considered “survivors” unless evidence is presented demonstrating that
sibling’s dependence upon the decedent. Fla. Stat. Ann. § 768.18. As the Florida Supreme Court has held, a plaintiff’s
dependency upon the decedent must be proven irrespective of any relationship or legal right to support. Benoit v.
Miami Beach Electric Co., 85 Fla. 396, 96 So. 158, 159 (1923). Moreover, in cases where adults—siblings or
otherwise—claim dependency upon the deceased, the plaintiff must show “an actual inability to support themselves
and an actual dependence upon some one for support, coupled with a reasonable expectation of support, or with some
reasonable claim for support from the deceased.” Id.
30 The Act defines “net accumulations” as the portion of the decedent’s expected net business or salary income that the
decedent would have retained if the decedent had lived her or his normal life expectancy. Fla. Stat. Ann. § 786.18(5).
“Net business or salary income” means the part of decedent’s probable gross income after taxes and after the
decedent’s costs of maintenance. Id.
31 Each parent of an adult child may recover for mental pain and suffering if there are no other survivors. Id.
32 As will be discussed further below, plaintiffs Matthew and Kirk Marthaler, Brent’s brothers, cannot recover under
Florida’s wrongful death statute because no evidence was put forth that they were dependent upon the decedent, their
brother. Accordingly, each must demonstrate that he may recover under a valid cause of action under the laws of
Minnesota, the state in which each was domiciled at the time of the attack. A more detailed discussion of both Matthew
and Kirk’s claims will be provided later in this opinion. See infra Part VI.G.2.a.
33 As will be discussed further below, plaintiff Shawn Wood, Justin Wood’s brother, cannot recover under Florida’s
wrongful death statute because no evidence was put forth that he was dependent upon the decedent. Accordingly, he
must demonstrate that he may recover under a valid cause of action under the laws of California, the state in which he
was domiciled at the time of the attack. A more detailed discussion of his claim will be provided later in this opinion.
See infra Part VI.B.2.c.
34 (Feb. 10, 2004 Tr. at 204–05.)
35 As will be discussed further below, plaintiff Lewis Cartrette, Earl Cartrette, Jr.’s brother, cannot recover under Florida’s
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wrongful death statute because no evidence was put forth that he was dependent upon the decedent. Accordingly, he
must demonstrate that he may recover under a valid cause of action under the laws of Indiana, the state in which he
was domiciled at the time of the attack. A more detailed discussion of his claim will be provided later in this opinion.
See infra Part VI.K.2.a.
36 In addition to being survived by his mother, J.R. was survived by his two brothers. J.R.’s brothers, however, are not
considered “survivors” under the Florida wrongful death statute because they have not put forth evidence of any
dependence upon J.R. See supra note 29. Therefore, any potential recovery under the wrongful death claim brought
be J.R.’s estate shall be solely for the benefit of his mother, Denise Eichstaedt. To the extent that J.R.’s brothers can
recover, they must make a valid intentional infliction of emotional distress claim under the laws of the states in which
each was domiciled at the time of the attack.
37 As will be discussed further below, plaintiffs Paul and Mark Fennig, Patrick’s brothers, cannot recover under Florida’s
wrongful death statute because no evidence was put forth that either was dependent upon the decedent. Accordingly,
each must demonstrate that he may recover under a valid cause of action under the laws of Wisconsin, the state in
which each was domiciled at the time of the attack. A more detailed discussion of their claims will be provided later in
this opinion. See infra Part VI.H.2.a, b.
38 As will be discussed further below, Christopher Adams’ siblings, plaintiffs Mary Young, Daniel Adams, Elizabeth Wolf,
Patrick Adams, John Adams, William Adams, and Michael Adams, cannot recover under Florida’s wrongful death
statute because no evidence was put forth that any was dependent upon the decedent. Accordingly, each must
demonstrate that he or she may recover under a valid cause of action for intentional infliction of emotional distress
under the laws of the state in which each was domiciled at the time of the attack. A more detailed discussion of their
claims will be provided later in this opinion. See infra Parts VI.I.2, J.2.
39 As the evidence before this Court shows, James Wetmore is a non-adoptive stepparent to Brian. Under Florida law, a
non-adoptive stepparent is deemed in loco parentis to the child, as distinct from being considered as the child’s parent.
K.A.S. v. R.E.T., 914 So.2d 1056, 1062–63 (Fla.Dist.Ct.App.2005). This distinction is important because “a stepparent
... or other person standing in loco parentis to a child does not acquire all of the rights or assume all of the obligations
of a natural parent.” Id. at 1063. This is in large part due to the fact that a person in loco parentis is under no binding
obligation to care for the child, whereas—absent an adoption order—the bond between a natural parent and child is
permanent. Id. In light of Florida’s stance limiting the rights of non-adoptive stepparents as to their stepchildren, this
Court finds that a non-adoptive stepparent under Florida law may not seek personal recovery under Florida’s wrongful
death statute. Cf. Florida East Coast Ry. Co. v. Jackson, 65 Fla. 393, 62 So. 210, 211 (1913) (holding under a previous
version of Florida’s wrongful death statute that it was error for the child’s stepfather to join the mother as a plaintiff in
the wrongful death action because only parents—and not stepparents—had the right to sue for wrongful death on
behalf of their children). Accordingly, though both Sandra and James Wetmore are listed as the personal
representatives of Brian’s estate, only Sandra Wetmore, as Brian’s mother, may properly maintain the action on her
son’s behalf. To the extent that James Wetmore has sought any damages in his personal capacity as Brian’s
non-adoptive stepfather, his claim must be denied.
40 (Feb. 10, 2004 Tr. at 186.)
41 As will be discussed further below, plaintiffs Steve K. Kitson and Nancy A. Kitson, Kendall Kitson, Jr.’s siblings, cannot
recover under Florida’s wrongful death statute because no evidence was put forth that either was dependent upon the
decedent. Accordingly, each must demonstrate that he may recover under a valid cause of action for intentional
infliction of emotional distress under the laws of the state in which each was domiciled at the time of the attack, Texas
and Oklahoma, respectively. A more detailed discussion of their claims will be provided later in this opinion. See infra
Parts VI.E.2.b, L.2.a.
42 As will be discussed further below, plaintiff Starlina Taylor, Jeremy Taylor’s sister, cannot recover under Florida’s
wrongful death statute because no evidence was put forth that she was dependent upon the decedent, her brother.
Accordingly, she must demonstrate that she may recover under a valid cause of action under the laws of Kansas, the
state in which she was domiciled at the time of the attack. A more detailed discussion of her claim will be provided later
in this opinion. See infra Part VI.M.2.a.
43 Fox v. Pacific Southwest Airlines, 133 Cal.App.3d 565, 184 Cal.Rptr. 87, 89 (1982), disavowed on other grounds by,
Canavin v. Pacific Southwest Airlines, 148 Cal.App.3d 512, 196 Cal.Rptr. 82 (1983).
44 Cal.Civ.Proc.Code § 377.34 (“In an action or proceeding by a decedent’s personal representative ..., the damages
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recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any
penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent
lived, and do not include damages for pain, suffering, or disfigurement.”); Cal.Civ.Proc.Code § 377.61 (stating that
“just” damages arising out of a wrongful death action do not include those damages allowed under Section 377.34)
45 Because Josh was survived by his wife, Dawn, and because damages are only available to parents under California’s
wrongful death statute when there is no surviving spouse or children, Mr. Beekman cannot recover for his loss under
that statute. See Cal Civ. Proc.Code § 377.60.
46 See, e.g., Estate of Cleveland, 22 Cal.Rptr.2d at 595. Such a requirement makes sense because adoption of a child
“extinguishes the rights of natural parents [as to that child] forever,” whereas mere guardianship by a stepparent “only
suspends the rights of parents.” Id.
47 Senator Haun and Milly Perez–Dallis are the decedent’s non-adopted stepchildren, and may therefore only recover if
plaintiffs show evidence that the stepparent-stepchild relationship between Tim Haun and his stepchildren was created
during the time they were minors, and show clear and convincing evidence that Tim Haun would have adopted the
Senator and Milly but for a legal barrier. See Cal. Ann. Prob.Code § 6454. Here, the Court finds there is sufficient
evidence that both elements are met. Tim became Senator and Milly’s stepfather when both were still minors. (Dec. 19,
2003 Tr. at 13.) And plaintiffs have presented evidence that he wished to adopt his stepchildren, and would have but
for the inability to locate their biological father, which this Court finds to be a sufficient legal barrier to prevent the legal
adoption. Ex. 286. This Court is also persuaded by the litany of evidence plaintiffs have submitted that shows Tim
Haun held Senator and Milly as his own children, and provided sole financial care for them. See, e.g., (Dec. 19, 2003
Tr. at 13–14.) Accordingly, this Court finds that Senator Haun and Milly Perez–Dallis may recover as beneficiaries to
the estate of Leland “Tim” Haun. Consequently, they may also recover for own personal claims arising out of Tim
Haun’s death, provided the elements of their claims are satisfied.
48 See supra note 43 and accompanying text.
49 According to Louisiana Civil Code, the decedent’s surviving spouse and children may bring such an action. If there are
none, however, then the decedent’s parents, siblings, or grandparents—in that order—may bring the action for
wrongful death. See La. Civ.Code Ann. Art. 2315.2(A).
50 Under Louisiana’s wrongful death code, surviving parents and siblings may not recover if there is a surviving spouse or
surviving children. See See La. Civ.Code Ann. Art. 2315.2(A)(2), (3). Accordingly, neither Kevin’s mother, Laura
Johnson, nor his brother, Bruce Johnson, may bring a wrongful death action under Louisiana law. Additionally, as will
be discussed below, Che Colson is not a proper plaintiff under Louisiana’s wrongful death statute due to the fact that
non-adopted stepchildren are not considered “children” under Louisiana’s wrongful death code. See infra Part
VI.C.2.a.vii.; La. Civ.Code Ann. Art. 2315.2(D).
51 This figure constitutes a sum of $50,000 in toto, as opposed to $50,000 per surviving non-dependent relative. Such a
figure is justified because the New Hampshire legislature “intended wrongful death actions to benefit the estate, rather
than the distributees.” In re Estate of Infant Fontaine, 128 N.H. 695, 519 A.2d 227, 229 (1986).
52 Though the Court is cognizant that both the Caveat and comments to a section of the Restatement are not law by any
means, they are instructive in helping to interpret the issue at hand.
53 See supra Part VI.D. 1.b.
54 Under Ohio law, a personal representative from a foreign state is not precluded from bringing an action under Ohio law
on behalf of the decedent’s estate and its beneficiaries. See Ohio Rev.Code Ann. § 2113.75. Therefore,
notwithstanding the fact that Cecil Lester—the personal representative of the estate of Christopher Lester—was
domiciled in West Virginia at the time of the attack, he may nonetheless maintain this action on behalf of the estate and
its beneficiaries.
55 See supra Part V.D.
56 See infra Parts VI.F.2.a.iii, iv.
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57 See supra Part VI.D. 1.b.
58 See supra Part VI.D. 1.b.
59 Though the precedent set forth by the federal court in the Southern District of New York is not binding on the state
courts in New York, in light of the severity of the attacks involved in both cases, the court’s opinion carries a great deal
of weight in determining whether a presence requirement is necessary in cases involving intentional infliction of
emotional distress claims arising out of terrorist attacks.
60 See supra Part VI.D. 1.b.
61 See supra Part VI.D. 1.b.
62 See supra Part VI.D. 1.b.
63 See supra Part VI.D. 1.b.
64 Though the Kansas courts have offered a different moniker for these two torts, the tort of Outrage stems from the same
root as intentional infliction of emotional distress: Section 46 of the RESTATEMENT (SECOND) OF TORTS. See
Dotson v. McLaughlin, 216 Kan. 201, 531 P.2d 1, 7–9 (1975).
65 See supra Part VI.D. 1.b.
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8/19/2019 William Buckley: The spy who never came in from the cold
https://canadafreepress.com/2006/thomas102506.htm 1/8
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William Buckley:
The spy who never came in from the cold
By Gordon Thomas
Wednesday, October 25, 2006
On Friday morning March 16, 1984, William Buckley, the CIa Station Chief in Lebanon, began his three hundred and forty-third day in Beirut. He was alone in his tenth floor
apartment in the al-Manara apartment building in the western suburb of the city. Beyond the windows of his living room were views of the Chouf Mountains and the
Mediterranean Sea. It was going to be one of those sublime days which compensated for what Lebanon had become for the few foreigners still living here: a dangerous and
volatile hell hole.
Below, stretching into the distance, were a hundred and more spiralling mosque minarets. From them loudspeakers would soon summon the faithful to their first prayers.
Despite its size -- four bedrooms, dining room, living room, maid's cubicle -- Buckley had insisted on keeping house himself; he hated the idea of anyone snooping through his
personal belongings. Evidence of his failure to be tidy was all around him: dishes scattered casually about the living area and the laundry bag over-flowing.
Undoubtedly he had much else to preoccupy him. His attempts to cultivate informants and gain information about Lebanon's disparate political factions had met with mixed
success. Part of the reason, he believed, was he still found it difficult to communicate in arabic.
Early on in Beirut, Buckley had made contact with the senior Mossad katsa, a field agent, in the city.
a few days before this March morning, the two men had met in the George Washington caf on Beirut seafront. They were developing plans to rescue the foreign hostages
already held captive by the Hezbollah in Beirut. a team of Green Berets would be flown from the United States to Tel aviv and sail with Israeli Special Forces on gunboats
which would drop them off the coast of Beirut. The craft would wait off-shore while the team hid in the sand dunes waiting for the "go" signal.
That would come when other Mossad agents had infiltrated into the city to place bombs outside the homes of known Islamic terrorists. The ensuing panic would be the signal
for the force in the dunes to make its way into the city and join Buckley.
Dangerous and daring though the plan was, Buckley believed its element of surprise would ensure success. Besides, he had carried out similar operations in Vietnam to
snatch Vietcong leaders from their redoubts. The previous day, March 15, 1984, the plan had been green lighted in an "eyes only" coded signal to Buckley from CIa's William
Casey.
That Friday morning of March 16, 1984, almost certainly Bill Buckley followed a routine which had become part of his life.
First he placed a classical album on the stereo at the side of his bed and carried one of the speakers on its extension flex to the door of the bathroom. Shaved and showered,
he dressed, selecting a short-sleeved shirt, silk tie and a grey, light-weight suit.
The clothes were another of his unbreakable habits. For the past thirty years he had bought them from Brooks Brothers in New York. He bought four suits every year, two
light-weight, two medium-worsted. He remained a size 38. His ties came from the classical range of plain or muted stripes.
Having a low tolerance for silence, he moved the speaker from the bedroom to the kitchen and prepared a breakfast of orange juice, cereal, toast and coffee. He had enjoyed
an identical start to the day for as long as he could remember.
The meal over and the crockery stacked in the dishwasher, he replaced the classical record with one of Dean Martin singing.
He had met the crooner during one of his spells at Langley when he had spent a weekend at Las Vegas. One Martin's song also had a more personal memory for Buckley. It
was a reminder of the one woman he had established a personal relationship with. Her name was Candace Hammond and she lived in the small hamlet of Farmer in North
Carolina. He had spoken to her on the phone a few days ago. He'd ended the call by saying he hoped to be home soon and then she could cook him a "good old-fashioned
Southern-fried chicken," Candace would recall.
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Annex 43
8/19/2019 William Buckley: The spy who never came in from the cold
https://canadafreepress.com/2006/thomas102506.htm 2/8
Listening to Martin singing Return to Me, Buckley prepared sandwiches, something he had done every morning in Beirut. He disliked the food at the embassy canteen almost
as much as the curious stares he attracted from other diplomatic staff. He suspected they regarded him as a dinosaur, an old work-horse heading for retirement. Let them
think that. With his direct communication to William Casey he was only a step away from the Oval Office. Casey had said as much. "anything you turn up, Bill, goes straight on
to the President's desk," was how the Director had put it.
Sandwich-making over, Buckley returned to the living room. It contained the only clues to his personal life. On one wall was a framed copy of a French World War One victory
poster. Candace had given it to him. They had met when he had returned from Vietnam and quickly became lovers. Over the years, she had written him scores of letters.
Sunday was her day for writing. He had seldom written back, preferring to make phone calls from various parts of the world. Proof of her love was the inscription she had
written across the framed portrait of her on a table in the living room: "To Bill. My fearless warrior and wonderful lover. Candace."
In a few months he would be fifty-eight years old. But Candace had been the only woman he had ever come close to loving. To demonstrate that, he insisted on taking with
him everywhere the ever-growing bundle of letters Candace had written.
They went into the bottom of the briefcase he fetched from the safe in his bedroom. Known as a "burn bag", it was intended at a twist of the key clockwise, the usual way of
opening or closing a bag, to incinerate the contents by triggering flames from a ring of gas jets built into the base. after the letters, Buckley placed a number of files marked
"Top Secret", "Secret" or "Confidential" in the bag. The sandwiches went on top.
Buckley locked the case by turning the key anti-clockwise, then attached the bag to his wrist by a bracelet fixed to a steel chain secured to the bag's handle.
He dead-locked the apartment door behind him and walked across the hall to the elevator. It stopped at a floor below. a man entered. He was young, well dressed and carried
a leather briefcase. a few floors further down the elevator paused again. This time a woman tenant whom Buckley knew joined them. He exchanged polite greetings with her.
The man did not speak.
at the ground floor the woman stepped out, wishing Buckley to "have a nice day", no doubt proud of her grasp of american idiom. The two men rode down to the basement
garage where Buckley kept his car. Normally his embassy driver would have been waiting but this morning Buckley had decided to drive himself to his appointments. He had
told no one at the embassy of this violation of security; it was an unbreakable rule that no american official nowadays travelled alone in the city.
as he walked towards his car, Buckley's first inkling of trouble may well have been the fierce blow from the man's briefcase to the back of his head, powerful enough to leave
traces of blood and hair on the hide. The attacker dropped his bag. When it was later recovered, it was found to contain several rocks. From somewhere inside the garage a
white Renault drove up. There were two men in the car, the driver and his companion in the rear. He may well have assisted Buckley's assailant to get him and the burn bag
into the back of the car. With Buckley half-sprawled on the floor and the other two men squatting on top, the Renault roared out of the garage, its rear door flapping open
dangerously.
The woman who had exchanged pleasantries with the CIa station chief moments before was standing at a bus stop near the garage exit. She glimpsed what had happened
and started to scream for help.
Bill Buckley was not only an important and totally reliable source for me in the intelligence world, but also became a good and trusted friend. The idea of having a friend who
operates in the nether regions of our society does not always sit well with the purists of our world. They regard men like Bill Buckley as belonging to a world they want no part
of.
Bill was highly educated and articulate and was a gifted host. He could easily have found himself a secure place on Wall Street or some other niche in the East Coast
Establishment. Instead he chose to work for the Central Intelligence agency. He saw it as a real opportunity to satisfy two powerful driving forces in his psyche, a need to
serve his country in a way that would satisfy that second force by giving him a life of excitement and the essential sense of danger that permeated so much of what he did. He
was an authentic man's man who regularly managed to seduce women with his old-fashioned charm and a style that the Great Gatsby would have admired.
Physically he was not exactly handsome. The angles of his face did not quite coalesce to provide a striking whole. His chin would jut at unexpected moments and his eyes
were a little too close set, giving him a look of theatrical menace. To really appreciate his best physical side you had to catch him in motion, crumbling a roll for his soup or
using his finger to make a point.
as I came to know him, I realized that Bill cultivated his little eccentricities and displayed them like badges of honour. He liked ties whose patterns never seemed to match his
shirt or jacket. There was the long leather topcoat he wore for a while so that he looked like an extra in a wartime movie. His greatest concern was to ensure his shoes always
gleamed. He could not pass a shoeshine stand without stopping for an application of further gloss.
We began to meet on a regular basis. Usually Bill would turn up with two or three staff from the embassy. The conversation was as good as the food. One night he arrived with
William Colby, a quiet and self-contained man with the inquisitorial manner of a foot soldier in the Society of Jesus. He asked few questions but listened a great deal. Later Bill
told me that Colby had parachuted into German-occupied France in 1944. after the war he had gone on fighting the Fascists in Italy as an early member of the CIa.
Bill had a waspish way with words. He once said the only real way to write about intelligence matters was to listen for "the murmurs in the mush". It was his shorthand for
learning about a deadly skirmish in an alley with no name; the collective hold-your-breath when an agent or network is blown; a covert operation that could have undone years
of overt political bridge building; a snippet of mundane information that completed a particular intelligence jigsaw. Later, as we came to know one another better, he convinced
me that secret intelligence is the key to fully understanding international relations, global politics and terrorism.
Eventually I came to know a great deal about Bill and his own life and times.
William Buckley was kidnapped shortly after eight o'clock in the morning, Beirut time, on March 16, 1984. Several hours passed before senior Embassy officials concluded he
had been abducted.
a priority signal was sent to the State Department and the Central Intelligence agency. It was still early morning in Washington.
at State, news of what had happened was given to Chip Beck who had served with Buckley in Beirut. He was "too stunned to take it in. I was having a hard time emotionally,"
he said later.
at Langley the signal had been delivered to CIa Director William Casey's office on the seventh floor. Years later he would recall how: "I just sat there and read the thing two,
three times. Bill had been a prime asset. For three decades, on three continents, he had served the CIa and this nation with unfailing loyalty and without question. He was one
of the bravest men I ever met. He was can-do, go-anywhere. He was street savvy in a way few agents were. So how the hell had this happened?"
an ashen-faced Casey asked that question of anyone who could possibly provide the answer. Receiving none, he shouted in frustration, "Find him! I want him found. I don't
care what it takes, I want him found!"
So began an operation like no other the CIa had organised. Claire George, the agency's deputy director, was ordered to "turn the Middle East upside down". a special inagency
committee chaired by Casey was set up to monitor the search. The National Security agency, NSa, was ordered to provide high-resolution satellite photos of known
terrorist hideouts in Beirut and the Beka'a Valley.
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The intelligence services of Israel, Germany, France and the United Kingdom were asked to help. Every CIa station in the Middle East was ordered to treat the hunt for
Buckley as a top priority. a joint FBI/CIa team flew to Beirut. Shortly afterwards they were joined by NSa technicians, each a specialist in ground communications. They were
to use their equipment to probe deep beneath the rubble of West Beirut where satellites could not penetrate.
In Langley, psychiatrists, psychologists, behavioural scientists and analysts were mobilised to try and assess how Buckley would withstand being kidnapped and to get a fix on
the mindset of his captors. The task was put in charge of Dr Jerrold Post. The fastidious, soberly-dressed psychiatrist also held a senior teaching post at the capital's George
Washington University.
The joint CIa/FBI team sent to Beirut established that embassy security had not been compromised. In their first reports back to Langley, the team painted a picture of the
missing agent as idiosyncratic. He had spent time cleaning mud from the inside of his car's mudguards with a toothbrush. He kept his apartment untidy. He brought his own
food to work.
The judgement infuriated Casey. He knew Buckley; they had travelled together widely through the CIa's global fiefdom. He said later, "Buckley may have had unusual traits,
but he was not a has-been."
Yet, despite the Director's support, the feeling grew in Langley that Buckley was an "oddball", someone who had "goofed up".
Reconstructing what had happened, the CIa/FBI team concluded that the white Renault, with maximum acceleration, roared through the Muslim quarter and was waved past
several Hezbollah checkpoints before reaching a well-prepared safe house.
Buckley was manhandled out of the car and into the house. The team was equally certain one of the kidnappers had unclipped the briefcase from Buckley's wrist and found
the key in his pocket. They could only guess if the terrorist had been able to open the burn bag correctly.
The team was quickly satisfied the Hezbollah had kidnapped Buckley, and that most likely he remained somewhere in the sprawl of West Beirut, between what remained of
the heavily-shelled port in the north and the Hotel Sands to the south, near the international airport. There were simply not enough Green Berets to go in to rescue Buckley
from probably the most hostile area on earth.
Former State Department employee, Chip Beck, recalled that within the CIa there was also a "mood that Buckley knew too much and that he could blow away a lot of people if
he was forced to talk. a lot of agents were watching to see what the agency would do to get him back. There was a feeling that if Casey couldn't rescue Buckley, then no agent
was safe."
In Langley, some of those agents remembered what had happened to Tucker Gouglemann, one of Buckley's closest friends in the CIa. They had served together in Vietnam.
When the Vietcong had swept into Saigon, Gouglemann had stayed behind in the hope of bringing out his Vietnamese wife and their small child. Within days he had been
arrested. Within a month he was dead from torture. It was eighteen months before the Vietcong had turned over his body to the american Red Cross.
Within the agency, Buckley had never tired of saying that more should have been done to rescue Gouglemann. His claim had won him no friends within the CIa hierarchy.
Doctors at Langley continued to assess how Buckley would react to captivity. The CIa specialists concluded Buckley's reactions would follow an almost immutable pattern.
"Even while Buckley was reeling under the blow from the briefcase, he would experience a feeling of disbelief, an instinctive denial that what was happening was actually
occurring to him. That may have remained until his arrival at the hiding place his captors had prepared," said Dr Jerrold Post.
Desperate denial -- the only immediate psychological defence response open to Buckley -- would be replaced by a sudden and shattering reality. Dr Post told me Buckley's
reactions could have included "frozen fright" and, most disturbing of all a need to talk to his kidnappers -- if only to try and convince them he should be freed.
For Buckley's captors that period was also one of critical importance. They would begin to feed back to him information they had earlier gleaned from Buckley, creating a
feeling his captors were all-knowing and therefore all-powerful and that to resist them would be pointless.
The CIa doctors suggested of Buckley: a man bowed down by despair, suddenly aged, his face haggard, slowed up physically and mentally, his voice monotonous and every
word and movement a fearful burden. He would feel constantly exhausted and any sleep would leave him unrefreshed. He would become most depressed in the small hours -
- and then be at his most vulnerable, when his ability to resist every slight pressure would be at its lowest. Self-accusation would be at its most destructive and his lack of hope
at its peak.
Buckley's mental agony could be accompanied by other symptoms: loss of appetite and constipation, followed by a growing feeling the only solution for him was suicide. No
one could guess how long that feeling would last but at some point would come another shattering self-discovery. Not only was resistance manifestly impossible, but so was
escape. That would be the point when he might regard cooperating with his captors.
The doctors continued to make their first cautious predictions. If his captors were sufficiently clever, they would recognise that Buckley's mood changes were part of a
continuously carving-out and refilling of that inner void created by his kidnapping. Under their manipulation, his guilt could be re-directed away from himself so that he would
come to believe that what was important was not so much what he had done -- failed to avoid being kidnapped -- but what he had been: a hated "Western Imperialist".
On Monday morning, May 7, 1984, the United States embassy in athens received a video posted in the city. The wrapping, with its boldly printed name and address, was
carefully undone and placed to one side. The VHS tape was a cheap German make commonly available throughout the Middle East. One of the mail room staff inserted the
cassette in a video player. When the ambassador reviewed the tape, it was couriered to Langley.
In Casey's office, the director and senior staff began to view the video. It showed William Buckley undergoing torture. The absence of sound made it all the more shocking.
The camera zoomed in and out of Buckley's nude and damaged body. He held before his genitalia a document marked "MOST SECRET". It was proof the burn-bag had
failed.
Casey later remembered how "I was close to tears. It was the most obscene thing I had ever witnessed. Bill was barely recognisable as the man I had known for years. They
had done more than ruin his body. His eyes made it clear his mind had been played with. It was horrific, mediaeval and barbarous".
The tape was handed over to technicians. They enlarged frames to try and establish the background against which Buckley had been filmed. They decided it was roughplastered
stone, suggesting the filming had taken place in a cellar. The wrapping paper was the kind Mediterranean shopkeepers used to wrap groceries. The handwriting
suggested the writer was semi-literate.
The agency's pharmacologists took over. They concluded Buckley showed symptoms of being drugged; his eyes were dull and his lips slack. His gaze was of a person
deprived of daylight for some time. He continuously blinked as if he had great difficulty in adjusting to what appeared to be not a very powerful photo-flood used to illuminate
him for filming. They were certain Buckley had spent long periods being hooded. Buckley bore chafe marks on his wrists and neck suggesting he had been tethered with a
rope or chain. a careful study of every inch of visible skin revealed puncture marks indicating he had been injected at various points.
The second video arrived twenty-three days later. This time it was posted to the United States Embassy on Via Veneto in Rome. The tape was air-couriered to Washington.
The video had been shot against a similar background as the first one. It revealed Buckley continued to be horrifically treated. There was sound on the tape. Buckley's voice
was slurred and his manner noticeably more egocentric as if not only the world beyond the camera, but his immediate surroundings, held increasingly less interest for him.
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The pharmacologists found it impossible to decide which drugs had been used. any of a dozen of those powerful agents could have made him appear sedated and stupefied.
His voice was fuzzy and he appeared often unable to shape words. His hands shook and his legs beat a tattoo on the floor as he mumbled pathetic pleas to be exchanged
under a guarantee the United States would remove "all of its influences" from Lebanon and would persuade Israel to do the same.
Specialists tried to decide how long Buckley could survive. His last agency medical records showed he was physically fit. But no one could say how his defence mechanisms
would respond to anxiety attacks, nightmares, and the overwhelming sense of helplessness. While drugs would have an enormous impact on Buckley's mood and behaviour,
they might leave no permanent damage if he was recovered soon enough. The possibility gave added impetus to the plans beginning to take shape elsewhere within the CIa,
in the Pentagon, the State Department and, ultimately, the White House. Casey repeatedly told colleagues they should see Buckley's release as the agency's personal
crusade. "It is partly a matter of esprit de corps -- we look after our own," was the Director's constant refrain.
During his first weeks in captivity, William Buckley was hidden in a succession of cellars in West Beirut, each soon filled with the stench of his body waste, misery and, no
doubt, fear.
On Friday, October 26, 1984, two hundred and twenty-four days since Buckley was kidnapped, a third video arrived at the CIa. The tape was even more harrowing than its
predecessors. Buckley was close to a gibbering wretch. His words were often incoherent; he slobbered and drooled and, most unnerving of all, he would suddenly scream in
terror, his eyes rolling helplessly and his body shaking. From time to time he held up documents, which had been in his burn-bag, to the camera. Then delivered a pathetic
defence of his captor's right to self-determination in Lebanon.
Specialists reviewed the tape to try and decide whether he was already resigned to inevitable death. The specialists wondered if he had put aside the normal Christian
abhorrence to suicide and overcome the memory of his formative years when, as a devout Catholic boy, he had listened to his priest speak of the Hell which faced those who
took their own lives. Would he remember he had been told his work permitted suicide as the ultimate means to protect the CIa's secrets?
There was no indication the ruined figure on the video remembered that as he pleaded to live in exchange for the patently impossible demands of his captors.
The specialists tried to estimate the level of anxiety in Buckley's voice. It was clear he could no longer confront the sheer terror of his situation. Its magnitude had
overwhelmed him. For hours the specialists considered whether his words showed "true guilt" or "neurotic guilt". They used a language no outsider could readily comprehend
as they tried to make distinctions over how much in his case "the human order of being is disturbed", and how far he might have experienced "existential guilt arising from a
specific act", in his case revealing secrets to his captors. They returned to consider whether Buckley not only accepted but yearned for the inevitability of death.
William Buckley's kidnapping was into its second year by the spring of 1985.
The CIa consensus was that he would be blindfolded and chained at the ankles and wrists and kept in a cell little bigger than a coffin.
He would, if he was lucky, be fed twice a day: early in the morning and some time after dark. He would not know the time because his watch, like all his personal belongings,
would have been taken from him.
From close study of the video other clues had emerged. His loss of weight was marked between the first and last tape, perhaps as much as thirty pounds. His drugging was
evident.
How had he spent those long, dreadful hours in isolation? One way could have been to try and remember some of his training exercises, designed to help him if captured.
There was the one where he had to try and recall as many passages as possible from the Bible, from his favourite books, or dialogue from a film. anything at all to link him
with the past, to remind him there was a world to return to, his psychologist/instructor had said.
Had Buckley managed to do this? Had he been able to decipher time, the passing of an hour, a half day, a day, a week, a month even?
In training he had shown himself able to calculate the hours. But a week? a month? Had he learned to cope with silence in the stifling darkness of his cell-coffin? again, there
was a way. He had been taught to recall conversations and play back in his mind both sides, his and the person he had spoken to. again he had shown a certain aptitude for
that in training. But no matter how realistic that was, it would still not match the reality of captivity.
Over the past two years, speculation had died -- just as some people in Langley thought it would be best if Buckley was dead rather than he should have to go on enduring.
When his name was mentioned and his fate speculated upon, colleagues reminded each other that everything possible had been done to retrieve him. "Short of sending in the
Marines to fight their way street-by-street through West Beirut, there was nothing else we could have done," was a commonly-held view.
Only in William Casey's suite on the seventh floor of Langley had hope refused to be extinguished. He had rejected the proposal made a year after Buckley had been
kidnapped that his name should be officially added to the list of CIa agents killed or missing on duty. Their fate was commemorated by small stars carved into the marble walls
in the CIa main lobby. Before Buckley had vanished, there had been over fifty such stars, each representing an officer who had lost his or her life in the service of the agency.
Since then a further half dozen had been added. But Casey had mumbled it was too soon to include Buckley among the display.
The director stubbornly clung to the hope Buckley was being kept alive for a trade off. The idea had taken root in his mind when the Israeli ambassador in Washington had told
Casey that a number of Israel's own prisoners, who had been captured in various wars with its arab neighbours, were being kept alive in Syria and Iran as barter for future
exchanges.
Encouraged Casey had sat, often late into the night, at his desk going over all the reports on the hunt for Buckley. Reading the files, it had not been hard for Casey to imaging
Buckley chained in some dungeon deep beneath the rubble of West Beirut. No satellite camera, however powerful, would be able to penetrate that far down. By now Buckley
would be emaciated and probably kept in total darkness.
The focus of the search had remained on Lebanon. But in Friday prayers the priests in the mosques had given up referring to Buck-lee. His name, once on the lips of almost
everyone in West Beirut, was now rarely heard.
Reports from foreign diplomats in the city all said the same thing: while the other Beirut hostages still clung to life in the bowels of the infamous "Beirut Hilton" -- a series of
cells scooped out deep beneath the rubble of West Beirut -- of Buckley there was not even a whisper.
There had been a rumour that Buckley had been transferred to a Hezbollah redoubt out in the Beka'a Valley. another rumour said he had been secretly flown to Tehran for
interrogation.
Finally there were no more rumours to track down. Even the newspapers, which had once routinely recycled old stories about the kidnapping, had no new spin to put on it.
Yet William Casey still would not allow himself to give up. Everything that made him what he was -- his quality of mind, his healthy scepticism and detachment -- convinced
him that Buckley was better off alive than dead for his captors. as long as he lived, Buckley had a value for them.
By april 1985, Casey became increasingly attracted to the idea of using Israel to recover William Buckley. It had been done before, notably after the 1965 Suez War. Mossad's
chief, Meir amit, had written to Egypt's then president, Gamal abdul Nasser, asking him to exchange two Israeli spies in return for hundreds of Egyptian prisoners-of-war
captured in the Six Day War. Initially Nasser had refused. Finally he had asked that the POWs be freed first. amit had agreed. The Egyptians were taken by trucks to the edge
of the Sinai Desert where they were transferred to Egyptian buses. Two days later the two Israeli spies were back in Tel aviv.
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Casey knew there had been other occasions when similar swaps had been organized by Mossad chiefs. and none of them was more astute than Mossad's present Director
General, Nahum admoni.
While Casey knew that admoni had a deep-seated suspicion of US intentions in the Middle East, his own personal relationship with the Mossad chief was cordial.
Late in april 1985, Casey flew to Tel aviv. admoni had been at the airport to meet him.
Once Casey had settled into his Tel aviv seafront hotel, he told admoni the purpose of his visit: to see if Israel would go along with a deal to swap Buckley for arab prisoners
held in Israeli prisons.
Casey was to recall admoni said it was a "no go area". With that avenue firmly closed, Casey had asked if it was possible for Mossad to find out if Buckley was dead?
Over the next few days, admoni had introduced Casey to some of the key Mossad operatives with up-to-date knowledge of Lebanon. They had included David Kimche who
until recently had been in charge of Mossad's ‚Lebanese account'. He had no doubt: Buckley was dead. Rafi Eitan, a former Director of Operations for Mossad, held a
similar view. So did admoni.
"Buckley's over and done with," admoni said as he drove Casey back to the airport to fly back to Washington.
The news Casey had gone on what had turned out to be a fruitless mission had brought to the surface questions which had been simmering for some time in Langley.
The impression had gotten around that Casey regarded Buckley as more important than just an agent gone missing. People started to ask more pointedly what was so special
about Buckley that the Director, beset with a hundred and more urgent and important matters, appeared to be making Buckley his special case?
There were those who recalled it had been the same when Dulles ran the CIa. In those days Buckley, gung-ho from the Korean War, had been treated like a favourite son by
Dulles, given access that at the time even senior men had envied.
Others remembered the way Buckley had been allowed to operate in Vietnam. He had come and gone more or less as he pleased and set his own agenda. In the end others
in the CIa had been badly burned over what america had done in that war. But Buckley had come out without so much as a stain on his character. In the closed world of
Langley, that alone was enough to raise eyebrows.
a CIa officer agreed to talk to me on the understanding he would not be identified, said: "The blunt truth is that Buckley wasn't liked, not liked at all. There were people who
hated him at the CIa, who were glad that he went to Beirut. Now that he has vanished in that sink hole, why the hell should they go looking for him?"
More certain, a number of factors had come together to settle Buckley's fate. He understood, better than anyone, that to survive within the agency you had to cope with the
office politics, the battles for turf, the back-stabbing. His way of dealing with any of that was to fight back -- hard. It had not made him popular but then, as he used to say: "I'm
not running for Miss Langley Pageant Queen." He had also acquired a record of success that was almost unmatched by any agent in the history of the agency. That had led
some people to envy him.
Difficult, ruthless, short-tempered, yes, Buckley was all those things, and he made no apology for being so. Shortly before going to Beirut he had expressed his attitude to me:
"I try and do my work well, but I also understand that gratitude is not part of doing it."
By late May 1985, William Casey had finally given up hope of getting Buckley back. Oliver North, the former Marine, was the lynchpin of a plan to recover all the US hostages
held in Lebanon. He was working closely with amiram Nir, an Israeli counter-terrorism expert. Nir's sources had told him the decision over Buckley's fate had been made at a
meeting of the Hezbollah leadership. Nir had told North that his contacts had no other information to offer, except they were certain Buckley was now dead.
No one knows for certain when William Buckley did die. The likeliest date is sometime during the night of June 3, 1985, the 444 day of his captivity.
David Jacobson, who had been the director of the Beirut University Hospital and had been kidnapped some months before and incarcerated in the "Beirut Hilton", believed
Buckley was in a nearby cell on that night. When he was released some 17 months later, Jacobson had tried to recall what he had heard in the stifling darkness of that June
night.
"The man was an american. Of that I have no doubt. But he was in a very bad way, delirious and coughing. It was hard for me to make out what he was saying because I
myself was hooded. Then, in the end there was just this long silence. after a while I heard the guards shouting in arabic and then what sounded like a body being dragged
away," Jacobson told me.
In October 1985, confirmation that Buckley was dead came in an announcement by the Hezbollah. accompanying it was a photograph of his corpse, together with copies of
some of the once secret documents from Buckley's burn bag. The announcement added that the body would not be handed over to the United States for burial.
Casey went to the White House to break the news to President Reagan. afterwards the two men had sat for a while in silence in the Oval Office. Finally the President said:
"The sooner we get all those other hostages out of Beirut, the better. Do whatever it has to take, Bill."
The arms-sales-for-hostages deal which became known as Irangate had gone into overdrive. But what followed was for another day.
Bill Buckley had served the CIa for thirty years, joining at a time when the agency had been part of the american dream of creating a new world. He had died at a time when
the agency had become increasingly a bureaucracy that was driven by a belief that technocracy and qualitative analysis were the twin gods who ruled over Langley. In that
world Buckley had become an outsider. Buckley's vision of america was that its strength was in being deliberately separate from the world. The america he wanted was one of
Midwestern virtues that had largely gone and the all-embracing Christianity of his youth no longer was there.
Despite being a through-and-through professional, his ideals were no longer those of his paymasters. To them there was something of a past long gone about Bill Buckley; he
was like a mediaeval knight left alone on a battlefield that had moved on. ari Ben-Menashe, the former Israeli intelligence officer who had briefly known Buckley, saw him "as
someone who still clung to his sword while the rest of us were using laser guns, but he was a decent man who was a faithful servant of the agency and his country."
In the intervening years since the Hezbollah announcement, there were conflicting reports that Buckley's body had been burnt or had been buried under the foundations of
one of the new hotels going up along Beirut's seafront to once more attract tourists to a city which still styled itself as the Paris of the Near Orient. When none of these reports
could be verified, whispers ran through the alleys of West Beirut that the americans would pay big money for the Buck-lee corpse.
Early in October 2002, two young arabs drove a battered van out of West Beirut heading for the Beka'a Valley. They reached the spot they were looking for some hours later. It
was marked on a piece of paper for which they had paid a substantial sum. The man who had sold them the paper had boasted he had been one of the guards who had
watched Buck-lee die and had brought him to this spot for burial.
One using a pick, the other a shovel, the youths began to dig. By late afternoon they had excavated a sizeable hole but had not come across even a bone. When darkness
came, they dug on using the headlights of the van. Finally they gave up, realising they had been the victims of a con-man.
almost certainly, if he had been alive, that would have brought a smile to the lips of William Buckley.
th
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ANNEX 47
U.S. Department of State
Office of Language Services
Translating Division
LS No. 2019-0108852
French/English
ALK/GPG
TRANSLATION
_lexbase
pdf generated July 30 2019
Court of Cassation, Criminal Division, July 9, 1998. No. 9783.612. Not published in the
Bulletin [official case-law reporter for the Court of Cassation]. Appeal denied.
Court of Cassation
Judgment of July 9, 1998
Mojtaba MASHHADY or MASHMADY[] v. Justice M. Schumacher,
Presiding Judge of the Criminal Division
French Republic
In the Name of the French people:
On July 9, 1998, at the Palais de Justice Courthouse
in Paris, the Criminal Division of the Court of Cassation
delivered the following judgment in open court:
Based on: the report of Justice ... [name redacted;
ellipsis in original]; the submissions of the Law Firm of
Nicolay LaNouvelle, attorneys admitted to the Court of
Cassation Bar; and the findings of Advocate-General ....
[ellipsis in original] de Costil;
[ Translator’s note: Spelled “Mashadi” in U.S. court documents found online]
Annex 47
- 2 -
Ruling on the appeal in law filed by:
- Mojtaba MASHHADY or MASHMADY, challenging the April
25, 1997 decision of the Tenth Division of the Paris
Court of Appeal which sentenced him to seven years’
imprisonment on charges of conspiracy to plan
terrorist acts and ordered his continued custody and
the confiscation of the materials placed under
judicial seal;
In view of the pleading submitted:
On the first ground of appeal, alleging a violation of
Article 6 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms and Articles 427,
463, 513, and 593 of the Code of Criminal Procedure,
failure to set forth a valid statement of reasons, and lack
of legal grounds:
In that the decision of affirmance from which this
appeal is taken denied Mojtaba Mashhady’s motion for
the attachment of documents, found him guilty of
participation in a conspiracy to commit one or more
low-degree offenses [délits] or one or more high-
Annex 47
- 3 -
degree offenses[crimes] punishable by ten years’
imprisonment, and sentenced him to seven years’
imprisonment; and
On the grounds that:
The Court [of Appeal] found that the documents in
case file P902993901/6 to which the attachment
motion pertained consisted of records dated,
respectively, September 1993, November 1993,
December 1993, January 1994, May 1994, and March
1995;
The Court of [Appeal] noted that an investigation
into this case was opened on December 15, 1993, and
an order serving notice of the closing of that
investigation was issued on December 18, 1995, at
which time the parties were given a period of 20
days to file motions on the basis of Articles 81(9),
82-1, 156(1) and 173(3) of the Code of Criminal
Procedure;
Said court further noted that the investigating
judge himself attached to the Court of Appeal case
Annex 47
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file certain materials from case file P902993901/6,
attachment of which he deemed was necessary, and
that therefore it was permissible for the defendants
and their attorneys to move for the attachment of
other materials;
Said court observed, however, that neither during
the investigation nor during the aforementioned 20-
day period was any motion filed for the attachment
of documents;
Lastly, said court found that the April 12, 1996
order referring the case to the Paris Criminal Court
of First Instance [Tribunal correctionnel de Paris]
terminated the investigative proceeding and had the
effect of binding the case over for trial;
It ruled that denial of the motion for attachment
was warranted;
Yet, when a motion for the attachment of documents
from one proceeding to another is filed after the
order to refer the case to the criminal court of
Annex 47
- 5 -
first instance is issued, such a motion must be
analyzed as a supplementary information request;
The denial by the aforementioned Court of Appeal of
the attachment motion on the ground that said motion
had not been filed during the investigation, which
was terminated by the order to commit the case for
trial, resulted from the court’s flawed
understanding of the scope of its own powers, and
said court thus violated the terms of the provisions
cited;
Yet, unless it can be shown, via a reasoned
decision, that their production is impossible or
pointless, the judge is required to receive all
evidence and hear all defenses at all stages of the
proceedings, even during oral argument, as long as
such evidence and defenses are available to argument
by all parties;
Consequently, taking refuge behind the reasoning
that the motion for attachment was not timely,
without checking to determine whether the documents
of which production was sought were not of such a
Annex 47
- 6 -
nature as to aid in the determination of truth and
therefore should not be brought before the court in
adversary proceedings, the aforementioned Court of
Appeal, engaging in misguided reasoning, rendered a
decision that failed to comply with the
aforementioned legal provisions and the requirements
of due process;
Whereas:
We find that in their denial of the motion filed by Mojtaba
Mashhady to attach to the proceeding certain documents from
the investigation conducted against him on charges of
aiding and abetting murder, the judges of the Court of
Appeal found, based both their own reasoning and on
reasoning adopted from the trial court, that neither the
defendant nor his attorney had moved for the attachment of
documents either during the investigation or during the 20-
day period provided for under Article 175 of the Code of
Criminal Procedure;
Annex 47
- 7 -
Said judges noted that the investigating judge himself
attached the documents he deemed useful and that the case
file contained all those documents favorable to the
defendant;
In regard to this reasoning, we find that because a motion
for attachment of documents from one proceeding to another
cannot possibly be analyzed as a request for additional
information, the Paris Court of Appeal expressed valid
grounds for its decision and, contrary to the allegations
of the Appellant herein as set forth under the first ground
of appeal, did not fail to comply with the provisions of
the European Convention;
The first ground of appeal must therefore be rejected.
On the second ground of appeal, alleging a violation of
Articles 450-1 of the Penal Code and Articles 591 and 593
of the Code of Criminal Procedure, and the lack of
statement of reasons, adequate justification, and legal
grounds:
Annex 47
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In that the decision from which this appeal is taken
sentenced the defendant to seven years’ imprisonment
on charges of conspiracy; and
On the grounds that:
Mojtaba Mashhady contended that he was a victim of
both a smear campaign by Hossein ... [name redacted;
ellipsis in original] and a frame-up by the police,
who, he maintained, concocted evidence against him.
The Court [of Appeal] noted, however, that the
statements that Hossein ...[ellipsis in original]
made to both the crime squad and to the
investigating judge were lengthy, voluntary, and
substantiated with regard to both the acts
constituting the conspiracy engaged in with Mojtaba
Mashhady and the acts’ terrorist aims, of which the
two defendants had knowledge. Those statements were
confirmed by the victims, as well as by a very large
number of witnesses,[including] Ghiasvand, Ghanaee-
Miandoab, Ketabolah, Paul, and Shiraz, who described
in detail the circumstances under which they were
approached by Hossein ...[ellipsis in original] and
Mojtaba Mashhady for recruitment to commit and plan
Annex 47
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the attacks. Mr. ...[ellipsis in original], in
particular, described in great detail the terrorist
activities of Mojtaba Mashhady and the means
Mashhady used to carry them out, and he did not back
down from his accusations on cross-examination;
These statements were also corroborated by the
specific findings of the Territorial Watch Office
and by the results of the surveillance on Mojtaba
Mashhady that was conducted by members of the
judicial police, who testified as to his comings and
goings both alone and with Hossein ... ...[ellipsis
in original], his attempts to evade police
surveillance, and the meetings and gatherings at
Orly Airport during November 1989 between the
defendant, Mr. ...[ellipsis in original], and
members of Iranian intelligence agencies;
This evidence, as well as the reasoning used by the
trial judges, which the Court of Appeal adopted,
shows that Mojtaba Mashhady and Hossein ...[ellipsis
in original] had a genuine agreement to plan one or
more high-degree offenses in connection with a
terrorist enterprise. This agreement, regarding
Annex 47
- 10 -
which the law does not require knowledge of a
specific crime but rather only general knowledge of
the criminal nature of the act planned, is
established by the various substantial preparatory
acts about which the aforementioned witnesses
testified;
Attempts to recruit several Iranian nationals as
henchmen and obtain information from witnesses, and
to monitor and track victims and their families and
friends [sic—end of sentence appears to be missing—
the following may be out of context:]. As a result,
the Court [of Appeal] affirmed the challenged ruling
concerning the classification of the offense and the
guilt of the defendants;
Yet, although the trial court has sole discretion to
assess the elements of an offense, its discretion is
absolute only to the extent that it is accompanied
by a statement of valid reasons and is not tainted
by illegality;
The Court of Appeal had insufficient grounds for its
decision inasmuch as it merely made the finding that
Annex 47
- 11 -
in this case the agreement between the defendants
was established by the various substantial
preparatory acts testified to by the above-mentioned
witnesses rather than finding “preparation
characterized by one or more well-defined
substantial acts.”
Whereas:
We are satisfied that the findings set forth in the
decision from which this appeal is taken, as well as those
set forth in the trial-court decision it affirms, establish
that the Court of Appeal stated sufficient and internally
consistent grounds for its conclusions that all the
elements of the offense of which it found the defendant
guilty were present;
Therefore, this second ground of appeal, which does nothing
but challenge the sole discretion of the trial court to
assess the facts and circumstances of the case and to weigh
the evidence argued, must be rejected.
Annex 47
- 12 -
On the third ground of appeal, alleging violation of
Article 450-1 of the New Penal Code and Articles 2, 2-9,
and 593 of the Code of Criminal Procedure, failure to set
forth a valid statement of reasons, and lack of legal
grounds:
In that the decision from which this appeal is taken
declared Association SOS Attentats eligible to sue
for damages in these criminal proceedings and
ordered Mojtaba Mashhady to pay it 1 franc in
damages, plus compensation for non-recoverable
costs;
On the grounds that:
In a pleading, the attorney of Association SOS
Attentats petitioned the Court of Appeal to affirm
the decision brought before it and order the two
defendants to pay 5,000 francs at the appellate
stage pursuant to Article 475-1 of the Code of
Criminal Procedure;
Annex 47
- 13 -
In a pleading, the attorney of Mojtaba Mashhady
argued that SOS Attentats was ineligible to sue for
damages in these criminal proceedings;
The latter attorney asserted that the offense with
which the defendant was charged, namely conspiracy
to plan one or more high-degree offenses in
connection with a terrorist enterprise, is distinct
from other offenses committed against persons and
property or committed by conspiracy members;
Therefore, inasmuch as SOS Attentats has not cited
any specific harm linked directly to the commission
of the offenses with which Mojtaba Mashhady is
charged, it should be declared ineligible to sue for
damages;
The Court of Appeal noted that Association SOS
Attentats, by law, received the special
authorization provided for in Article 2-9 of the
Code of Criminal Procedure to sue for damages in
criminal proceedings with a view to assisting
victims of offenses falling within the scope of
Article 706-16 of the Code;
Annex 47
- 14 -
Article 706-16 refers expressly to the lower-degree
offense of participation in a conspiracy to plan
terrorist acts and declares its provisions to be
immediately enforceable;
Accordingly, the Court of Appeal found that the suit
for damages instituted by SOS Attentats was
admissible;
It affirmed as justified the trial court’s order
holding Mojtaba Mashhady and Hossein ... [ellipsis
in original] jointly and severally liable for the
harm caused, and it modified the amount assessed
against them under Article 475-1 of the Code of
Criminal Procedure to 10,000 francs, to cover all
levels of proceedings, and upheld the damages award
of 1 franc;
Yet, conspiracy, as defined in Article 450-1 of the
New Code of Criminal Procedure, is an offense that
exists separate and apart from the high-and lowgrade
offenses against persons or property that its
members plan or commit;
Annex 47
- 15 -
Therefore, Association SOS Attentats should be
declared ineligible to sue for damages on the basis
of this charge in these criminal proceedings
inasmuch as it fails to cite any direct harm arising
from the offense charged that is distinct from the
harm that could result from other high- or lowdegree
offenses with which the defendants could be
charged;
Whereas:
We find, contrary to the allegations by Appellant herein,
that the Court of Appeal, in declaring SOS Attentats
eligible to sue for damages in these criminal proceedings,
basing said declaration on the reasoning alluded to in the
third ground of appeal, did express valid grounds for its
decision.
Any association that has been duly registered for at least
five years at the time the offense in question occurs,
where the purpose of such association, as set forth in its
bylaws, is to assist victims of offenses, does indeed hold,
pursuant to Article 2-9 of the Code of Criminal Procedure
Annex 47
- 16 -
the power to exercise the right to sue for damages in
criminal proceedings for offenses falling within the scope
of Article 706-16 of said Code, which refers expressly to
the lower-degree offense of participation in a conspiracy
to plan an act of terrorism, as provided for in Article
421-2-1 of the Penal Code.
Therefore, this third ground of appeal must be rejected.
And whereas the decision of the Court of Appeal is free
from procedural error;
WE DENY the appeal in law filed with this Court of
Cassation.
So adjudged and decreed by the Criminal Division of the
Court of Cassation in open court on the date indicated
earlier in this document.
Present for oral argument and deliberations in this case
were: Justice ... [ellipsis in original], the senior judge,
acting for the presiding judge, who was unable to be
present; Reporting Judge...[ellipsis in original]; Criminal
Division Justices Aldebert, Grapinet, and Roger; Legal
Annex 47
- 17 -
Counselor . . . [ellipsis in original], Advocate-General Le
Foyer de Costil, and Ms. Ely, Division Clerk;
In witness whereof, this judgment is signed by the
Presiding Judge, the Reporting Judge, and the Division
Clerk.
Annex 47
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Annex 47
ANNEX 48
9/27/2019 https://www.ynetnews.com/Ext/Comp/ArticleLayout/CdaArticlePrintPreview/…
https://www.ynetnews.com/Ext/Comp/ArticleLayout/CdaArticlePrintPreview/… 1/1
Print
Terror Threat
Deputy Foreign
Minister Danny
Ayalon Photo:
Shahar Azran
click here to
enlarge text
'Iranians planned to assassinate Israeli ambassador'
As Danny Ayalon seeks African nations' support for Iran stance, Kenya’s intelligence services reveal they prevented plan to
assassinate Israel’s Ambassador in Kenya
Itamar Eichner
Deputy Foreign Minister Danny Ayalon on Thursday praised the Kenyan goverment for its efforts to stop Iranian terror threats against Israeli and Jewish
targets. .
Ayalon who is currently visiting Kenya as part of a round of visits in three African countries – Uganda, Ethiopia and Kenya, praised the local authorities after
they arrested the two Iranians in June when the suspects led Kenyan security forces to 15 kilograms (33 pounds) of RDX, a powerful explosive, in the
coastal city of Mombasa where several hotels are owned by Israelis.
Related stories:
Iranians in Kenya planned Israeli, US attacks
Kenya asks Israel for help fighting terrorists
Iranian: Israeli agents interrogated me in Kenya
It has now been revealed that the targets included Israel's Ambassador to Kenya, Gil Haskel.
One official said the Iranians are members of Iran's Islamic Revolutionary Guards Corps Quds Force, an elite and secretive unit.
During Ayalon's visit, all three countries expressed concern regarding Iran’s attempts to increase its terror activity in Africa.
Ayalon is also using the visits to conduct a diplomatic battle against Iran, and is trying to convince the African leaders not to take part in the conference of
Non Aligned Nations at the end of the month in Teheran.
Avi Granot, deputy director of the African section in the Foreign Ministry, said that the Israeli request to send a delegation of lower ranking representatives
was being mulled.
A week before Ayalon arrived in Africa Iranian Vice President Hamid Bakai visited the continent
for a round of visits and handed each leader a personal invitation to the conference.
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15:04 , 08.17.12
Annex 48
ANNEX 49
9/19/2019 Supreme Court overturns decision to free two Iranian terror suspects » Capital News
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Supreme Court overturns decision to free two Iranian terror suspects
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The judges also that circumstantial evidence had placed the two suspects – Ahmad Mohammed and Sayeed Mousavi – at the scene where the deadly chemical was recovered/FILE
By JEREMIAH WAKAYA (https://www.capitalfm.co.ke/news/author/jwakaya/), NAIROBI, Kenya, Mar 15 – The Supreme Court on Friday overturned a Court of
Appeal decision acquitting two Iranian terror suspects sentenced to fteen years after they were found guilty of three terrorism-related charges.
The ruling of majority judges– Chief Justice David Maraga, Justices Jackton Ojwang and Njoki Ndung’u –carried the day while two– Mohammed Ibrahim and
Smokin Wanjala–dissented.
The majority ruling read by Justice Ojwang, the Supreme Court judges found police to have
lawfully used intelligence reports to unearth 15 kilograms of Cyclotrimethyle trinitramine, a
lethal chemical used to assemble explosives, hidden by the suspects at a golf course in
Mombasa in June 2012.
“The use of intelligence or informer reports is standard and common practice. The police are not
obliged to declare their informants as that will hamper crime detection,” the bench noted.
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Annex 49
9/19/2019 Supreme Court overturns decision to free two Iranian terror suspects » Capital News
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“All aspects of evidence on record go in to corroborate the prosecution’s case that the rst
respondents led the police to the scene where the explosive was dug out,” Justice Ojwang
outlined.
The three judges also held that circumstantial evidence had placed the two suspects – Ahmad
Mohammed and Sayeed Mousavi – at the scene where the deadly chemical was recovered.
According to Justices Maraga, Ojwang, and Ndung’u the Magistrate Court’s and subsequently
High Court decision to reduce the sentence to 15 years for unlawful possession of
cyclotrimethylene trinitramine and intent to cause grievous harm was accordingly entered.
“The circumstantial evidence on record points to the respondents as the people who planted the
explosive at the scene where it was dug out. There’s no evidence of anyone else having
previously planted anything in Mombasa Gold Course and particularly in the vicinity of hole
number nine,” the judges noted.
They cited a witness account indicating that the suspects had visited the spot thrice including a
day before their arrest in June 2012.
In a dissenting opinion however, Justices Mohammed Ibrahim and Smokin Wanjala dismissed the prosecution case against the two Iranians, saying there
was no further evidence to validate claims that the suspects planted the explosive chemical at the golf course.
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Justice Ibrahim noted that the golf course was unfenced hence any person could have accessed it and planted the chemical/CFM NEWS
Justice Ibrahim noted that the golf course was unfenced hence any person could have accessed it and planted the chemical.
“In this appeal it was never the prosecution’s case that the appellants had confessed to committing the offences they were charged with. Accordingly, we are
satised that the two courts below erred in admitting the evidence that allegedly led to the discovery of cyclotrimethylene trinitramine,” he noted.
“Consequently, having examined the decisions of the superior courts, I entertain no doubt that this matter was decided purely on circumstantial evidence
and not on admission of a confession,” Justice Ibrahim concluded.
The judges also differed on standard of proof as provided for under Sections 111 and 119 of the Evidence Act, the dissenting judges insisting that evidence
adduced had not met the required threshold as set out in statutes.
The case shot into the limelight late last month after a botched plan to facilitate the escape of Mohammad and Mousavi was linked to the Iranian
Ambassador to Kenya Hadi Farajvand.
The envoy denied the allegations saying some individuals identifying themselves as interior ministry ocials had attempted to extort him.
“I was the one who reported to the Interior Ministry that there were two people who approached me to prepare the departure of the two Iranian nationals
saying they would be released,” Ambassador Farajvand said.
According to Farajvand, the two people asked for an unspecied amount of money, a request he declined.
“These people who said they were acting on behalf of the Interior Ministry asked me for money. They however did not say how much money they wanted and
immediately I realized they wanted a bribe which I did not offer,” Farajvand said on February 25.
The two suspects had secured their freedom at the Court of Appeal after lodging a second appeal, the High Court having upheld a guilty verdict rendered by
a Magistrate’s Court.
Annex 49
9/19/2019 Supreme Court overturns decision to free two Iranian terror suspects » Capital News
https://www.capitalfm.co.ke/news/2019/03/supreme-court-overturns-decisi… 3/6
Justices Daniel Musinga, Roselyn Nambuye, and Steven Gatembu set Mohammed and Mousavi free in February 2018 citing insucient evidence adduced by
the prosecution.
Three people held over the plot to free the Iranians from jail were set free on Friday after the prosecution said there was no evidence to press charges.
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JEREMIAH WAKAYA Wakaya is the Online Editor for Capital FM News. He joined the newsroom as a News Associate in February 2017
and subsequently covered 2017 party primaries, the General Election at the National Tallying Centre and two presidential election
petitions. He also covered the inaugural UN-Habitat Assembly at the United Nations complex in Nairobi in May 2019. Wakaya primarily
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Annex 49
ANNEX 50
9/25/2019 Iran recalls ambassador to Kenya over court case - Reuters
https://www.reuters.com/article/us-iran-kenya-court-case/iran-recalls-a… 1/8
WORLD NEWS
MARCH 17, 2019 / 1:37 PM / 6 MONTHS AGO
Iran recalls ambassador to Kenya over court case
GENEVA (Reuters) - Iran recalled its ambassador to Kenya because of a court decision
upholding sentences for two Iranians in jail, foreign ministry spokesman Bahram Qassemi said
Sunday, according to the Iranian Students’ News Agency.
Iran also lodged a formal complaint with the Kenyan ambassador in Tehran on Saturday
because of the Kenyan court decision in the case of Ahmad Abolfathi and Seyed Mansour
Mousavi.
In 2016, a Kenyan judge reduced the life sentences given to the two Iranians convicted of
planning bomb attacks to 15 years. The case raised concerns about possible Iranian plans to
strike targets in the east African nation.
The two were arrested in June 2012 and convicted a year later of planning attacks and
possessing 15 kg of military-grade RDX explosives.
The men may have had links to the Quds Force, the elite extra-territorial special forces arm of
Iran’s Revolutionary Guards, Kenyan investigators have said.
Annex 50
9/25/2019 Iran recalls ambassador to Kenya over court case - Reuters
https://www.reuters.com/article/us-iran-kenya-court-case/iran-recalls-a… 2/8
The men were scheduled to be freed before the Kenyan court upheld their sentences on Friday,
Qassemi said.
Reporting By Babak Dehghanpisheh; Editing by Ros Russell
Our Standards: The Thomson Reuters Trust Principles.
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Annex 50
ANNEX 51
9/19/2019 Tehran sets up terror cells in Africa as Western sanctions bite
https://www.telegraph.co.uk/news/2019/06/24/tehran-sets-terror-cells-af… 1/5
See all News
› News
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Tehran sets up terror cells in Africa as Western sanctions bite
By Con Coughlin, DEFENCE EDITOR
24 JUNE 2019 • 10:30AM
Sudan and Niger are among the African nations the Quds force is expanding into CREDIT: ABEDIN TAHERKENAREH/EPA-EFE/REX
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Annex 51
9/19/2019 Tehran sets up terror cells in Africa as Western sanctions bite
https://www.telegraph.co.uk/news/2019/06/24/tehran-sets-terror-cells-af… 2/5
Iran is setting up a network of terror cells in Africa to attack US and other Western
targets in retaliation for Washington’s decision to impose sanctions against Tehran,
according to Western security officials.
The new terror network has been established on the orders of Qassem Suleimani, the head
of the Quds Force, the elite section of Iran’s Republican Guard Corps that has
responsibility for overseas operations.
The aim of the new terror cell is to target US and other Western military bases on the
continent, as well as embassies and officials.
The Iranian cells are said to be active in a number of African countries including Sudan,
Chad, Ghana, Niger, Gambia and the Central African Republic.
“Iran is setting up a new terrorist infrastructure in Africa with the aim of attacking
Western targets,” a senior Western security source told The Daily Telegraph. “It is all part
of Tehran’s attempts to expand its terrorist operations across the globe.”
Intelligence officials say Iran has been working on the new terror network for the past
three years since signing the nuclear deal on freezing its uranium enrichment activities
with the US and other major world powers in 2015.
Annex 51
9/19/2019 Tehran sets up terror cells in Africa as Western sanctions bite
https://www.telegraph.co.uk/news/2019/06/24/tehran-sets-terror-cells-af… 3/5
At a glance | Key players in Tehran
Ayatollah Ali Khamenei - Supreme Leader of
Iran since 1989, the 78-year-old theologian
holds ultimate power under the Islamic
Republic’s concept of velāyat-e faqīh, or
guardianship of the Islamic Jurist.
A cautious and conservative figure, he is
believed to have hardline sympathies and
reluctantly authorised Hassan Rouhani to
pursue the nuclear deal with the US. He has
compared Israel to a cancerous tumour and Israeli officials accuse him of hoping to
destroy the Jewish state.
Maj General Qasem Soleimani – the
commander of the Quds force of the
Revolutionary Guards Corps, an armed force
separate from the regular army, he has been
compared to Erwin Rommel and described as
the single most powerful player in the wars in
Syria.
A decorated veteran of the Iran-Iraq war from
h bl b k dh hi lf
The operation is being organised by Unit 400, a highly specialised section of the Quds
Force which is run by Hamed Abdollahi, a veteran Republican Guard officers who was
designated by the US as supporting terrorist activity in 2012.
The African cell is said to be run by Ali Parhoon, another senior Iranian officer in Unit 400.
Details of the terror cell’s existence were uncovered following a series of arrests in Chad in
April.
Investigators found that Iran was behind the recruitment and training of men between the
ages of 25-35 with the aim of committing terror attacks against Western targets on the
continent.
There are estimated to be around 300 militants who have been recruited by the
Revolutionary Guard and have undergone rigorous training at Iranian-run training camps
in Syria and Iraq.
Show more
Annex 51
9/19/2019 Tehran sets up terror cells in Africa as Western sanctions bite
https://www.telegraph.co.uk/news/2019/06/24/tehran-sets-terror-cells-af… 4/5
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The last batch of recruits were trained at an Iranian base in the southern Iraqi city of Najaf.
Iran’s attempts to establish a new terror operation in Africa follow revelations in The
Telegraph earlier this month that British security officials caught terrorists linked to Iran
stockpiling tonnes of explosives on the outskirts of London.
The British authorities believe this cell was also set up in 2015 after Iran signed the nuclear
deal.
US diplomatic officials say a warning has been circulated to American diplomatic and
military missions in the countries where Iranian militants are said to be operating, as well
as missions of other Western countries, including Britain, France and Italy.
The revelation that Iran is setting up a new terror network in Africa comes at a time when
Tehran has been accused of stoking tensions in the Gulf after Revolutionary Guard
commanders confirmed that they were responsible for shooting down a US military drone
operating close to the Strait of Hormuz.
In addition Iran has been blamed for carrying out attacks on a number of oil tankers
operating in the Gulf that were damaged by mines.
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ANNEX 55
UNCLASSIFIED
New Hamas leader says it is getting aid again from Iran; New Hamas leader
says it is getting aid again from Iran
Canadian Press
August 28, 2017 Monday 01:26 PM EST
Copyright 2017 The Canadian Press All Rights Reserved
Section: INTERNATIONAL
Length: 1105 words
Byline: Fares Akram And Josef Federman, The Associated Press
Body
GAZA, Palestinian Territory - Hamas' new leader in the Gaza Strip said Monday his group has repaired relations with
Iran after a five-year rift and is using its newfound financial and military aid to gear up for new hostilities with Israel.
The announcement by Yehiyeh Sinwar came as U.N. Secretary-General Antonio Guterres was visiting Israel. At a
meeting with the U.N. chief, Israeli Prime Minister Benjamin Netanyahu complained about what he called rising anti-
Israel activity by Iran and its allies in the region.
Iran was once the top backer of Hamas, an Islamic militant group that seeks Israel's destruction. But Hamas broke
with Iran in 2012 after the group refused to support Iran's close ally, Syrian President Bashar Assad, in the Syrian
civil war.
During a four-hour meeting with journalists, Sinwar said those ties have been restored and are stronger than ever.
"Today, the relationship with Iran is excellent, or very excellent," Sinwar said. He added that the Islamic Republic is
"the largest backer financially and militarily" to Hamas' military wing.
It was the first time that Sinwar has met reporters since he was elected in February. The 55-year-old Sinwar, who
spent two decades in Israeli prison after being convicted of masterminding the abduction and killing of two Israeli
soldiers, has close ties with Hamas' militant wing and takes a hard line toward Israel.
Israel and Iran are bitter enemies, and Israel has recently expressed concern that Iran and its Lebanese proxy
Hezbollah are seeking a permanent military presence in Syria near the Israeli border. Both Hezbollah fighters and
Iran have backed Assad's forces in the Syrian war.
In his meeting with Guterres, Netanyahu alleged Iran is building sites in Syria and Lebanon to produce "precisionguided
missiles" to be used against Israel.
"Iran is busy turning Syria into a base of military entrenchment, and it wants to use Syria and Lebanon as warfronts
against its declared goal to eradicate Israel," Netanyahu said. "This is something Israel cannot accept. This is
something the U.N. should not accept."
Annex 55
Page 2 of 3
New Hamas leader says it is getting aid again from Iran; New Hamas leader says it is getting aid again from
Iran
Israel has also accused the U.N. peacekeeping force in Lebanon, UNIFIL, of failing to prevent Hezbollah from
smuggling huge quantities of weapons into southern Lebanon in violation of a 2006 cease-fire. UNIFIL's mandate is
up for renewal at the end of the month and Israel is pressing for the force to have an increased presence to better
monitor and prevent the alleged Hezbollah arms buildup.
UNIFIL's commander, Maj. Gen. Michael Beary, told The Associated Press last week that he has no evidence that
weapons are being illegally transferred and stockpiled in the Hezbollah-dominated south. But Guterres promised
Netanyahu that he will do everything in my capacity" to ensure UNIFIL fulfills its obligations.
"I understand the security concerns of Israel and I repeat that the idea or the intention or the will to destroy the state
of Israel is something totally unacceptable from my perspective," he said.
Responding to Israeli claims that the U.N. is biased, Guterres stressed his commitment to "treating all states equally."
He said those who call for Israel's destruction peddle in a "form of modern anti-Semitism" - though he also said he
doesn't always agree with the country's policies.
Guterres heads to the West Bank on Tuesday and is scheduled to visit Gaza on Wednesday. The U.N. maintains
major operations in Gaza, running schools and health clinics and delivering humanitarian aid. Guterres is not
scheduled to speak to Hamas.
Late Monday, Guterres met with Maj. Gen. Yoav Mordechai, commander of COGAT, the defence body that is
responsible for Palestinian civilian affairs.
Mordechai blamed Hamas for the poor conditions in Gaza, saying the group tries to exploit civilians and aid programs.
He also said Hamas' refusal to return the remains of two dead Israeli soldiers, along with two Israeli civilians it is
holding, hinders Israeli efforts to assist Gaza.
"The terror organization Hamas does not hesitate at all and repeatedly exploits the Gaza residents by attempting to
take advantage of Israel's assistance, despite the severe civil hardships in the strip," Mordechai said.
Guterres later met with the families of the dead soldiers and captive Israeli civilians.
In his briefing with reporters, Sinwar would not say how much aid Iran provides his group. Before the 2012 breakup,
Iran provided an estimated $50 million a month to Hamas.
Hamas wrested control of Gaza from the Western-backed President Mahmoud Abbas' forces in 2007. Since then, it
has fought three wars with Israel. Hamas has killed hundreds of Israelis in suicide bombings, shootings and other
attacks. It is considered a terrorist group by Israel, the United States and the European Union.
Sinwar stressed that the Iranian aid is for "rebuilding and accumulating" Hamas' military powers for a larger fight
against Israel that is meant to "liberate Palestine."
"Thousands of people work every day to make rockets, (dig) tunnels and train frogmen," he said. "The relationship
with Iran is in this context."
But the shadowy leader said his movement does not intend to start a fourth war with Israel, instead preferring to
remedy dire living conditions in the impoverished coastal enclave.
Israel and Egypt imposed a blockade on Gaza after the Hamas takeover a decade ago. Trying to pressure Hamas
and regain control, Abbas has asked Israel to reduce electricity supplies to Gaza, and he has slashed the salaries of
thousands of his former government employees there.
The result is that Gaza suffers acute power outages of up to 16 hours a day, unemployment of nearly 50 per cent and
widespread poverty.
Annex 55
Page 3 of 3
New Hamas leader says it is getting aid again from Iran; New Hamas leader says it is getting aid again from
Iran
Sinwar has turned to Egypt, which has begun to ease the blockade as it seeks Hamas' help in controlling their border.
The Egyptian military has been fighting an Islamic insurgency in the Sinai desert, near Gaza.
Relations with Cairo "have improved dramatically," Sinwar said. Egypt has recently sent fuel to ease the power crisis
in response to Hamas' building of a buffer zone along the border.
"We will knock on all the doors, except that of the (Israeli) occupation, to resolve the problems," he said.
Sinwar was among more than 1,000 Palestinians released by Israel in 2011 in exchange for an Israeli soldier, Gilad
Schalit, whom Hamas kidnapped in 2006.
Sinwar said there would be no new talks over a prisoner swap until Israel frees 54 prisoners released in the Schalit
swap that have been re-arrested.
"We are ready to start negotiations through a mediator, but only when the table is cleaned. Freed prisoners must feel
they are immune."
___
Federman reported from Jerusalem.
Load-Date: August 31, 2017
End of Document
Annex 55
Volume II - Annexes 33-55