Harrison v. Republic of Sudan ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RICK HARRISON, et al.,
Plaintiffs,
v.
Civil Action 10-1689 (RCL)
REPUBLIC OF SUDAN,
Defendant.
MEMORANDUM OPINION
This case arises out of the bombing of the U.S.S. Cole (“the Cole”) on October 12, 2000.
The attack ripped a thirty-two-by-thirty-six-foot hole in the side of the vessel when it was berthed
in Yemen’s Aden Harbor. Seventeen servicemen and women were killed, and forty-two suffered
injuries. The eighteen plaintiffs before this Court are fifteen former sailors who were injured
while on the Cole and three of their spouses, who, although not on the Cole during the attack,
allegedly suffered emotional distress upon learning of the incident.1 Plaintiffs bring this action
under the “state-sponsored terrorism” exception to the Foreign Sovereign Immunities Act
(“FSIA”), 28 U.S.C. §§ 1330, 1602 et seq.2 Plaintiffs allege that defendant Republic of Sudan
(“Sudan”) is liable for their injuries by virtue of its support of Al Qaeda, which perpetrated the
Cole bombing. Before the Court is [Dkt # 14] plaintiffs’ motion for a default judgment against
1
Since the filing of this lawsuit, one plaintiff, Rubin Smith, has died. After his
claim was severed, his spouse, as administrator of his estate and upon motion, rejoined the case
[Dkt. #34].
2
This provision which was enacted as part of the 2008 National Defense
Authorization Act (“NDAA”). Pub. L. No. 110-181, § 1083, codified at 28 U.S.C. § 1605A. It
creates a “federal right of action against foreign state.” Simon v. Republic of Iran, 529 F. 3d
1187, 1190 (D.C. Cir. 2008).
Sudan. After making pertinent findings of fact, the Court concludes that plaintiffs have provided
sufficient evidence to establish a cause of action against Sudan under FSIA’s state-sponsored
terrorism exception, that Sudan is liable to the plaintiffs for the alleged harms, and that plaintiffs
are entitled to both compensatory and punitive damages. In accordance with these findings and
conclusions, the Court awards damages to plaintiffs.
I. BACKGROUND
A. Prior and Current USS Cole Litigation.
Two cases involving the Cole attack relate to the case at bar and speak to the question of
Sudan’s liability for the Cole attack. In Rux v. Republic of Sudan fifty-seven survivors of the
seventeen sailors who died in the Cole attack sued Sudan for damages. Rux v. Republic of
Sudan, 2005 WL 2086202 (Aug. 26, 2005). After defaulting, Sudan moved to dismiss plaintiffs’
claims on jurisdictional and immunity grounds. The district court denied Sudan’s motion,
concluding that plaintiffs had alleged sufficient jurisdictional facts to bring their case within the
FSIA state-sponsored terrorism exception. Id. Sudan appealed. The United States Court of
Appeals for the Fourth Circuit affirmed the district court, finding that plaintiffs’ allegations met
FSIA’s jurisdictional pleading requirements “by describing how Sudan provided Al-Qaeda a base
of operations to plan and prepare for the bombing, and provided operational support for the
attack.” Rux v. Republic of Sudan, 461 F.3d 461, 473–74 (4th Cir. 2006). The district court then
proceeded to the merits of plaintiffs’ claims and concluded that, even though Sudan was liable
for plaintiff’s injuries, plaintiffs were only entitled to damages under the Death on the High Seas
Act (DOHSA), 46 U.S.C. § 30302. The Court held that “[w]hile the FSIA vests jurisdiction in
federal courts to hear cases against foreign states, it does not afford plaintiffs with a substantive
cause of action.” 495 F. Supp. 2d 541, 555 (E.D. Va 2007). Accordingly, the district court
2
dismissed plaintiffs’ maritime and state law claims and awarded eligible plaintiffs $ 7,956,344
under DOHSA. Id. at 567–69. Plaintiffs appealed the district court’s judgment. While this
appeal was pending, Congress passed the 2008 NDAA amendment to the FSIA which, in
addition to creating a federal private right of action, added punitive damages and solatium as
recoverable damages in a new section of the FSIA, § 1605A. See 28 U.S.C. § 1605A(c). Under
this provision, the same fifty-seven Rux plaintiffs filed a second lawsuit in August 2010, joining
with two new plaintiffs to the case. Kumar v. Republic of Sudan, 2011 WL 4369122 (E.D. Va.
Sept. 19, 2011). The same district court that heard Rux considered and rejected the claims of the
plaintiffs to whom it had awarded judgments in the previous litigation, reasoning that both res
judicata and the prohibition on legislative reopening of final judgments barred them. Id. at
*10–11 (citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 241 (1995)). The court therefore
awarded damages only to the new plaintiffs who had not been party to the previous Rux
litigation. Id. at *11.3 Plaintiffs in the case at bar were not plaintiffs in Rux or Kumar.
The Court underscores an important matter before proceeding: because plaintiffs in this
case bring their action under the new § 1605A, they are entitled to types of damages — i.e. for
pain and suffering and solatium — and punitive damages that the Rux plaintiffs, who initiated
their action before § 1605A was enacted, did not obtain. As the Court will explain below, these
new damages can amount to substantially larger sums than the Rux court awarded those
plaintiffs. The Court regrets this disparity and emphasizes that the difference primarily reflects a
3
The Court respectfully disagrees with the Kumar court’s application of res
judicata to bar plaintiffs’ claims. For purposes of that doctrine, this Court is not persuaded that
there is a meaningful distinction between the procedural posture of the Kumar plaintiffs and that
of the plaintiffs in In re Islamic Republic Iran Terrorism Litigation where this Court concluded
that res judicata did not preclude claims filed under § 1605A even though they had been litigated
under § 1605(a)(7). In re Islamic Republic of Iran Terrorism Litigation, 659 F. Supp. 2d 31,
84–85 (D.D.C. 2009).
3
change in the governing statute rather than this Court’s assessment of the relative hardship
endured by the Rux plaintiffs and the plaintiffs currently before the Court.
B. Plaintiffs’ Claims Before This Court
Plaintiffs effected service of the complaint, summons, and notice of suit on Sudan by
mail. See 28 U.S.C. § 1608(a)(3). Sudan accepted service on November 17, 2010. Return of
Service/Affidavit, Nov. 23, 2010 [Dkt. # 11]. Under § 1608(d) of the FSIA, this service
obligated Sudan to serve and answer or other responsive pleading within 60 days after service.
28 U.S.C. § 1608(d). It failed to do so. On January 19, 2011 plaintiffs obtained entry of default
from this court. Clerk’s Entry of Default, Jan. 19, 2011 [Dkt. # 13]. Plaintiffs now move for a
default judgment [Dkt. # 14]. To date, Sudan has not served an answer or any other responsive
pleading.
II. LEGAL STANDARDS
A. Default Judgment
The FSIA states that a court shall not enter a default judgment 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 (D.C. Cir. 2003).
This standard mirrors that applied to entry of default judgment against the United States in
Federal Rule of Civil Procedure 55(d).4 See Hill v. Republic of Iraq, 328 F. 3d 680, 684 (D.C.
Cir. 2003). FED . R. CIV . PROC. 55(d).
In considering motions for default judgment, a court may accept as true the plaintiffs’
“uncontroverted evidence,” Wachsman v. Islamic Republic of Iran, 603 F. Supp. 2d 148, 155
4
Rule 55(d) provides: “no default [judgment] shall be entered against the United
States . . . unless the claimant establishes his claim or right to relief by evidence satisfactory to
the court.” FED . R. CIV . P. 55 (d).
4
(D.D.C. 2009) including proof by affidavit. See Valore v. Islamic Republic of Iran, 700 F. Supp.
2d 52, 83–85 (D.D.C. 2010). On September 21, 2011 an evidentiary hearing was held before the
Honorable Henry H. Kennedy, Jr.5 During that hearing, the Court accepted evidence in form of
depositions, affidavits, expert testimony, and original documentary evidence. Reviewing these
submissions, this Court will determine whether or not the evidence is sufficiently “satisfactory”
to prove Sudan’s liability and the damages that plaintiffs seek. 28 U.S.C. § 1608(e).6
B. Jurisdiction and Immunity
To state a viable claim, plaintiffs must first demonstrate that this Court has jurisdiction to
hear the claims they assert and that Sudan is not entitled to immunity from suit. The FSIA is the
“sole basis of jurisdiction over foreign states in our courts.” In re Islamic Republic of Iran
Terrorism Litig., 659 F. Supp. 2d 31, 39 (D.D.C. 2009). While foreign sovereigns enjoy general
immunity from suit in U.S. courts, FSIA § 1605A establishes a waiver provision that is
conditioned on a number of factors. Specifically, a foreign state is not immune from suits in
which the following factors are met: (1) money damages are sought (2) against that state for (3)
personal injury or death that (4) was “caused by” (5) an act of torture, extrajudicial killing . . . or
the provision of material support of resources for such an act if such act or provision of material
support or resources is engaged in 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)(a)(1);
5
Courts are not required to hold an evidentiary hearing, see Bodoff v. Islamic
Republic of Iran, 424 F. Supp. 2d 74, 78 (D.D.C. 2006), but typically do so as a matter of custom
and acknowledgment of the defendants’ sovereign status.
6
This case was reassigned to the undersigned judge on November 4, 2011 after
Judge Kennedy’s retirement. I have carefully reviewed all of the evidence presented to Judge
Kennedy.
5
accord Owens v. Republic of Sudan, 2011 WL 5966900, at *17 (D.D.C. Nov. 11, 2011).7
Because plaintiffs in this case do not allege torture or extrajudicial killing, only the “material
support” provision is relevant to the case at bar. With regard to § 1605A’s causation
requirement, in this Circuit there must be “some reasonable connection between the act or
omission of the defendant and the damages which the plaintiff has suffered.” Valore, 700 F.
Supp. 2d 52, 66 (internal quotations omitted).
Furthermore, the FSIA provides that courts “shall hear a claim” under § 1605A of the
FISA if (1) the foreign state was designated as a state sponsor of terrorism at the time the act
occurred; (2) the claimant was a United States national, a member of the armed forces, or
otherwise an employee or contractor of the Government of the United States, acting within the
scope of her employment and (3) the claimant has afforded the foreign state a reasonable
opportunity to arbitrate the claim, provided that the act occurred in the foreign state against
which the claim is brought. 28 U.S.C. § 1605(A)(a)(2). Combined, these § 1605A(a)(1) and
(a)(2) factors determine the Court’s jurisdiction over the present case and whether Sudan has
effectively waived its immunity from suit. To resolve these threshold questions, the Court first
makes relevant findings of fact, as discussed below.
C. Cause of Action and Theory of Liability
After establishing jurisdiction, plaintiffs must also advance a theory of recovery that is
supported by the evidence presented to the court. When a state is subject to suit under an
7
“[T]he defendant bears the burden of proving that the plaintiff’s allegations do not
bring its case within a statutory exception to immunity.” Phoenix Consulting, Inc. v. Republic of
Angola, 216 F.3d 36, 40 (D.C. Cir. 2000) (citing Transamerican S.S. Corp. v. Somali Democratic
Republic, 767 F.2d 998, 1002 (D.C. Cir.1985) and Princz v. Federal Republic of Germany, 26
F.3d 1166, 1171 (D.C. Cir. 1994)); Owens v. Republic of Sudan, 412 F. Supp. 2d 99, 94 (D.D.C.
2006) (citing Phoenix and stating “sovereign immunity is in the nature of an affirmative
defense.”).
6
exception to immunity, “the foreign state shall be liable in the same manner and to the same
extent as a private individual under like circumstances.” Id. § 1606.
Section 1605A(c) of the FSIA creates an explicit “private right of action,” which, when
read in concert with §1605A(a)(1), establishes the requirements for a viable claim. Id.
§1605A(a)(1). Courts have interpreted the FSIA-created cause of action to require plaintiffs to
prove a theory of liability under which defendants cause the alleged injury or death. Valore, 700
F. Supp. 2d at 73; see also Rimkus v. Islamic Republic of Iran, 750 F. Supp. 2d 163, 176 (D.D.C.
2010). Plaintiffs must supply the elements of each specific claim — in this case, assault, battery,
and intentional infliction of emotional distress (“IIED”). Because the statute is silent as to these
elemental requirements, courts in this district apply principles of law found in the Restatement of
Torts and other leading treatises. See, e.g., Valore, 700 F. Supp. 2d at 76; In re Islamic Republic
of Iran Terrorism Litigation, 659 F. Supp. 2d at 60 n.19; Heiser v. Islamic Republic of Iran
(Heiser II), 659 F. Supp. 2d 20, 24 (D.D.C. 2009); see also Bettis v. Islamic Republic of Iran 315
F.3d 325, 333 (D.C. Cir. 2003) (“[F]ederal courts in FSIA . . . cases have accepted § 46 of the
Restatement (Second) of Torts as a proxy for state common law of intentional infliction of
emotional distress”). Having established the applicable law and evidentiary requirements, the
Court now reviews the evidence and makes findings of fact.
III. FINDINGS OF FACT
A. Judicial Notice of Facts Found in Other Courts
As a preliminary matter, the Court must determine whether or not it will take judicial
notice of findings made in Rux, as plaintiffs request [Dkt. #26]. As discussed above, both the
district court and the Fourth Circuit concluded in that litigation that plaintiffs had alleged
sufficient facts as to Sudan’s material support of Al Qaeda and the Cole attack and that the
7
country was therefore not immune from suit. Rux, 495 F. Supp. 2d at 554 (citing and reaffirming
Rux v. Sudan, 461 F.3d at 467–75 (E.D. Va 2006); Rux, 461 F.3d at 473–74.8 The district court
then proceeded to find that, as a matter of fact, Sudan had provided such support and was liable
for plaintiffs’ harm. Rux, 495 F. Supp. 2d at 556.
Courts in this district have taken judicial notice of related FSIA proceedings and findings
of fact made therein. See, e.g., Estate of Doe v Islamic Republic or Iran, 808 F. Supp. 2d 1(D.D.C. 2011) (taking judicial notice of facts found in Dammarell v. Islamic Republic of Iran,
2006 WL 2583043 (D.D.C. Sept. 7, 2006) which found Iran had provided material support to
Hizbollah for the attack on the U.S. Embassy in Beirut); Brewer v. Islamic Republic of Iran, 664
F. Supp. 2d 43 (D.D.C. 2009) (taking notice of the same for Wagner v. Islamic Republic of Iran,
172 F. Supp. 2d 128, 132 (D.D.C. 2001)); Taylor v. Islamic Republic of Iran, 811 F. Supp. 2d
1,6–7 (D.D.C. 2011) (taking notice of facts found in Peterson v. Islamic Republic of Iran, 264 F.
Supp. 2d 46 (D.D.C. 2003), which found Iran provided material support for the 1984 bombing of
the U.S. Marine barracks)). Indeed, “[t]he statutory obligation found in § 1608(e) was not
designed to impose the onerous burden of re-litigating key facts in related cases arising out of the
same terrorist attack,” Rimkus v. Republic of Iran, 750 F. Supp. 2d 163, 172 (D.D.C. 2010).
Thus, when a court has found facts relevant to a FSIA case involving material support to
terrorist groups, courts in subsequent, related cases may “rely upon the evidence presented in
8
Sudan appeared in these earlier proceedings. It filed a motion to dismiss, which
was denied on August 26, 2005. Rux, 495 F. Supp. 2d at 543. On appeal, the United States
Court of Appeals for the Fourth Circuit affirmed the Eastern District of Virginia’s ruling.
Subsequently, counsel for Sudan notified the Eastern District that they would not defend nor
participate in the proceeding on the merits. A clerk default was entered, and the matter
proceeded to trial. Id. Counsel for Sudan attended trial but did not participate other than to make
a brief closing statement regarding damages. Id. Based upon the evidence submitted at trial,
judgment was entered against Sudan on July 25, 2007. Id. at 566–69.
8
earlier litigation . . . without necessitating the formality of having that evidence reproduced.”
Taylor, 811 F. Supp. 2d at 7.
At the same time, taking notice of another court’s finding of fact does not necessarily
denote adoption or finding of that fact. Indeed, just as “findings of fact made during this type of
one-sided hearing should not be given a preclusive effect,” Weinstein v. Islamic Republic of Iran,
175 F. Supp. 2d 13, 20 (D.D.C. 2001), they also “should not be assumed true beyond reasonable
dispute.” Murphy v. Islamic Republic of Iran, 740 F. Supp. 2d 51, 58–59 (D.D.C. 2010).
Moreover, because “default judgments under the FSIA require additional findings than in the
case of ordinary default judgments,” Weinstein, 175 F. Supp. 2d at 19–20, the Court “should
endeavor to make such additional findings in each case.” Murphy, 740 F. Supp. 2d at 59.
Therefore, taking judicial notice of the facts established by the Rux court, does not conclusively
establish the facts found in Rux for, or the liability of the defendants in, this case. Based on this
judicial notice of evidence presented in earlier, similar cases “courts may reach their own
independent findings of fact.” Anderson v. Islamic Republic of Iran, 753 F. Supp. 2d 68, 75
(D.D.C. 2010). As a result, employing this FSIA-specific approach to judicial notice-taking of
prior proceedings, the Court grants plaintiffs’ motion to take judicial notice of the findings of fact
in Rux [Dkt. # 26], reviews the relevant evidence, and makes its own findings of fact and
conclusions of law. Turning to the facts presented and noticed, the Court finds the following:
1. The USS Cole Bombing9
9
This section is based on a Navy report cited in Rux: Investigation to Inquire Into
the Actions of USS Cole (DDG 67) In Preparing For And Undertaking a Brief Stop For Fuel at
Bandar at Tawahi (Aden Harbor) Aden, Yemen, On Or About 12 October 2000. See Rux, 495 F.
Supp. 2d at 544 n.12 (citing report). The report describes the attack and its aftermath, and the
Court summarizes relevant portions here.
9
At approximately 8:30 a.m. on October 12, 2000, the Cole entered the Port of Aden,
Yemen, to temporarily stop for refueling. The ship began refueling at approximately 10:31 a.m.
At approximately 11:10 a.m., a small boat manned by two drivers pulled up parallel to the ship.
Seconds later, the boat exploded.
The explosion occurred between approximately 11:15 and 11:18 a.m., just as some of the
crew was sitting down for lunch. The blast ripped a large hole in the port side of the ship, and
the main engine room, auxiliary machine room, and a storeroom were flooded. Smoke, dust, and
fuel vapors filled the air. Several chambers were structurally destroyed. As discussed above, the
blast and its after-effects killed seventeen navy sailors, and forty-two others were injured.
2. Sudan’s Support of the USS Cole Bombing10
a. Sudan and Al Qaeda
Since 1993, the United States has designated Sudan as a state sponsor of terrorism. 58
Fed. Reg. 52523-01 (Oct. 8, 1993); U.S. Department of State, State Sponsors of Terrorism,
available at http://www.state.gov/j/ct/c14151.htm (last visited March 22, 2012). During the
1990s, Hassan Abdallah Turabi, head of the Sudanese political party and leader of the Muslim
Brotherhood and the National Islamic Front (“NIF”), transformed Sudan into a centralized,
10
In determining whether Sudan provided material support and assistance to Al
Qaeda in perpetrating the attack on the Cole, the Court accepts the deposition testimony from
three experts including: Lorenzo Vidino, a Research Program Manager at the Jebsen Center for
Counter-Terrorism Studies at The Fletcher School of Tufts University, Ex. 78; James Woolsey,
the director of the Central Intelligence Agency from 1993 to 1995, Ex. 79; and Steve Emerson,
Executive Director of The Investigative Project on Terrorism and an expert on Islamic extremist
networks. Ex. 77. The Court accepts each as an expert witness on terrorism, the relationship
between Al Qaeda and Sudan, and the material support Sudan provided to Al Qaeda for the Cole
bombing.
10
Islamic state that supported movements and organizations with militant Islamic ideologies. Exs.
80 at 12 & 81 at 18-19.
As is well-known today, Al Qaeda is a worldwide terrorist network. Ex. 81 at 29:4-7.
Founded by Osama Bin Laden in approximately 1990, Ex. 22, it has organized, executed or
inspired acts of terrorism around the world that killed or injured thousands of innocent people,
including the September 11, 2001 attacks on the United States. Exs. 28 & 74 at 70.
According to the U.S. State Department, Bin Laden relocated to Sudan from Afghanistan
in 1991, where he was welcomed by Turabi. Ex. 17. Turabi and Bin Laden shared a common
extremist ideological and religious outlook. Bin Laden agreed to help Turabi in the regime’s
ongoing war against African Christian separatists in southern Sudan, and also to invest his wealth
in the poor country’s infrastructure. Exs. 81 at 21–23 & 74 at 57. In exchange, Sudan provided
Bin Laden’s fledgling terrorist group with a sanctuary within which it could freely meet,
organize, and train militants for operations. Ex. 80 at 13:3–14:7. In 1996, he was expelled from
the country under international pressure and returned to Afghanistan. Exs. 23 & 74 at 57, 109.
Both before and after this departure, the effects of Sudan’s support of Al Qaeda were substantial.
b. Joint Business Ventures
Bin Laden established several joint business ventures with the Sudanese regime that
began to flourish upon his arrival in the Sudanese capital of Khartoum in 1991. Ex. 17. Bin
Laden formed symbiotic business relationships with wealthy NIF members by undertaking civil
infrastructure development projects on the regime’s behalf. Id. These included Al-Hijrah for
Construction and Development, Ltd., which built the Tahaddi road between Khartoum and Port
Sudan on the Red Sea coast, as well as a modern international airport near Port Sudan; Wadi al-
Aqiq Company, Ltd., which, dealt in gum, corn, sunflower, and sesame products; and Al-Themar
11
al-Mubarak-ah Agriculture Company, Ltd., which acquired large tracts of land near Khartoum
and in eastern Sudan. Exs. 17 & 32 at 239, 241. These businesses provided income to Al Qaeda,
as well as cover for the procurement of explosives, weapons, and technical equipment, and for
the travel of Al Qaeda operatives. Exs. 24 & 74 at 57–58. Bin Laden continued to maintain his
substantial business interests and facilities in Sudan even after his departure to Afghanistan in
1996. Exs. 23 & 82 at 26-27.
c. Banking Support
Sudan allowed its banking institutions to be used by Al Qaeda to launder money. Ex. 81
at 25. Indeed, Bin Laden and wealthy members of the NIF capitalized Al-Shamal Islamic Bank
in Khartoum; Bin Laden personally invested $50 million in the bank. Exs. 17 & 32 at 332. In
the late 1980s, Sudan adopted an Islamic banking system that forbids interest and lacks the
rigorous accounting standards used by Western banking systems. Ex. 81 at 36. The lack of
scrutiny associated with this system was ideal for Al Qaeda because it allowed the group to move
large sums of money in support of its operations without detection. Exs. 81 at 52 & 80 at 15.
Douglas Farah, former reporter for the Washington Post in West Africa and author of the book
“Blood From Stones: The Secret Financial Network of Terror,” Ex. 76, asserted in a written
deposition, that Sudan “provided [Al Qaeda] fundamentally with a banking structure, Islamic
structure that’s out of the norm of the banking rules that we’re acquainted with in the west, and
allowed them channels to move money through that would be virtually undiscoverable to the
outside world.” Ex. 80 at 14-15, 26. He further stated that Al Qaeda “couldn’t have operated
with that degree of freedom and openness if they had not been sanctioned by the central
government to do so.” Id.d. Training and Direct Finance of Terrorist Groups
12
Starting in the early 1990s, Turabi and the Sudanese regime convened annual conferences
in Sudan under the label Popular Arab and Islamic Conference. Ex. 80 at 26:13–27:15; Ex. 82 at
19:16-20:22. At these conferences, Bin Laden and other top leaders and operatives from the
most violent Islamic terrorist organizations congregated to exchange information and plan
terrorist activities. Exs. 74 at 61 & 81 at 26. Although the conference was closed down in
approximately 2000, Sudan continued to be used as a safe haven by Al Qaeda and other terrorist
groups. Ex. 35.
In addition, as reported by the U.S. Department of State in its annual “Patterns of Global
Terrorism” reports, the Sudanese military cooperated with Bin Laden and Al Qaeda to finance at
least three terrorist training camps in northern Sudan. Ex. 17. As well, each year from 1997
through 2000, Sudan served as a meeting place, safe haven, and training hub for Al Qaeda and
other terrorist groups including Lebanese Hizballah, Palestinian Islamic Jihad, Abu Nidal
Organization, and Hamas. See Exs. 22; 25; 28; 35. Most of the groups maintained offices and
other forms of representation in the capital, using Sudan primarily as a secure base for organizing
terrorist operations and assisting compatriots elsewhere.” Exs. 25 & 28. Moreover, Ayman
Al-Zawahiri, a top-ranking member of Al Qaeda, reached an agreement in 1998 with Sudan’s
national Islamic groups to establish budgets to finance terror operations. Ex. 81 at 43:9–44:4.
Bin Laden’s construction company worked directly with Sudanese military officials to transport
and provision the camps, where terrorists of Egyptian, Algerian, Tunisian, and Palestinian origin
received training. Id.Sudan’s support of Al Qaeda continued after Bin Laden’s 1996 departure until at least the
Cole bombing. Ex. 80 at 12:11–23. As of 1999, this assistance consisted of “paramilitary
13
training, money, religious indoctrination, travel, documents, safe passage, and refuge.” As of
2000 support “included the provision of travel documentation, safe passage, and refuge.” Ex. 28.
e. Diplomatic Cover
As early as 1998, Sudan provided Al Qaeda members with Sudanese diplomatic
passports, diplomatic pouches, and regular Sudanese travel documentation that facilitated the
movement of Al Qaeda operatives in and out of the country. Exs. 22, 25, 35, 53, 81 at 31; 83 at
28. Diplomatic passports allow the holder to pass through airport security in airports and ports
around the world without her bags being checked and without the same level of scrutiny or
searches normally given to regular passport holders. Exs. 80 at 17; 81 at 32. A diplomatic
passport typically lasts between five and ten years. Ex. 81 at 33. Thus, the passports issued in
1998 would not have expired prior to 2003. See id. Diplomatic pouches enjoy diplomatic
immunity from search or seizure. Al Qaeda agents with these passports and pouches were
therefore able to enter and leave Sudan and cross borders in other countries carrying materials to
prepare for attacks without arousing suspicion. Exs. 82 at 19; 81 at 33; 83 at 31; 80 at 14.
Indeed, it was critical to Al Qaeda’s method of training its operatives in one country and then
dispatching them with their materials to other countries to carry out operations or await
instructions. Ex. 83 at 25:5–26:5; Ex. 83 at 31:9–32:1. By providing such cover to Al Qaeda,
Sudan enabled the terrorist organization to transport weapons and munitions outside the country
and into other countries undetected by customs agents. Exs. 82 at 25; 80 at 18.
f. Sudan’s Connection to the Cole Attack
While receiving support from Sudan, Al Qaeda prepared the strike against the Cole. The
attack was part of a decade-long plan conceived and executed by Bin Laden and Al Qaeda to
confront U.S. interests in the Middle East. Ex. 72 at 29. Bin Laden supervised the Cole plot
14
directly. Ex. 74 at 190. As stated in the 9/11 Commission Report, Bin Laden “chose the target
and location of the attack, selected the suicide operatives, and provided the money needed to
purchase explosives and equipment.” Id. Mr. Emerson and Mr. Vidino both testified that the
attack’s “mastermind” was Qaed Salim Sinan al-Harethi, also known as Ali Qaed Sinan Harthi,
who was one of Bin Laden’s bodyguards. Exs. 81 at 45–46; 83 at 33. They further assert that
Al-Harethi was trained by Al Qaeda in Sudan in the 1990s before being dispatched to Yemen
where, according to Mr. Vidino, he became “the chief of operation[s] of Al Qaeda in Yemen.”
Ex. 81 at 46.
In addition to training, Sudan was “more likely than not” the source of the explosives
used in the Cole bombing, according to CIA Director Woolsey. Ex. 82 at 46. Mr. Emerson
testified, “I have no doubt the source [of the explosives used on the Cole] came from Al Qaeda
and was transported to Yemen from Al Qaeda or by the Sudanese government through most
probably the diplomatic pouch.” Ex. 80 at 18–19. Mr. Farah testified that his “best guess” as to
the source of the explosives used in the Cole, based on his “studied opinion and having discussed
this case with intelligence officials,” is Sudan, “which was the closest place to Yemen in which
they had the safe quarter in which to be able to move this type of goods across the border.” Ex.
80 at 18–19. As well, according to Mr. Emerson, the explosives used in the Cole attack were
sent by Al Qaeda operatives in Sudan. Ex. 83 at 25:20–26:5. In criminal proceedings arising out
of the 1998 embassy bombings, one of Bin Laden’s lieutenants in Sudan, Jamal Al-Fadl,
corroborated this fact when he testified against Bin Laden. Ex. 32, U.S. v. Bin Laden, 397 F.
Supp. 2d 465 (S.D.N.Y 2005), Case No. 98-cr-1023, Trial Tr. Feb. 6, 2001. Specifically, Mr.
Al-Fadl stated under oath that he worked under Bin Laden in Sudan; that he stored four crates of
weapons and explosives at a farm in Sudan owned by Bin Laden; and that he shipped the four
15
crates in an Al Qaeda-owned boat from a facility owned by the Sudanese military in Port Sudan
to Yemen, where they were to be used to “fight the Communists.” Ex. 32 at 262, 336–40.
In sum, the evidence suggests that Sudan provided Al Qaeda with the support, guidance,
and resources that allowed it to transform into a sophisticated, terrorist network, and that such
support was critical to Al Qaeda developing the expertise, networks, military training, munitions,
and financial resources necessary to plan and carry out the Cole attack. Ex. 83 at 25:5–28:14.
As Mr. Woolsey testified, “[t]he proximity of Sudan to Yemen, the need for a protected logistics
infrastructure, the confused situation in the Government of Yemen at the time . . . , the amount of
explosives that needed to be put in the boat that attacked the Cole, all that suggests to me that the
logistical support and base of operations that could have been available in Sudan could have been
of substantial assistance to an attack in Yemen, such as the one that occurred.” Ex. 82 at 29. He
summarized: the Cole attack “might have been possible, but it would not have been as easy”
without Sudan’s support. Id. In addition, Mr. Vidino stated that the bombing would have been
“close to impossible” without Sudan’s assistance because “simply all they needed, starting from
the training to the explosives, to all what a terrorist cell needs, even the ideological aspect of it,
came from Sudan. It was clearly necessary to have all these things in place to carry out an
operation such as the attack on the Cole.” Ex. 81 at 47–48. In addition, Mr. Emerson asserted
that the Cole attack would not have occurred without Sudan. Ex. 157 at 34. According to
Emerson, by removing Sudan’s support, “[y]ou would have deprived them of the oxygen needed
to operate.” Id. Moreover, Mr. Farah testified that he did not think the bombing of the Cole
could have happened “without the active support of the Government of Sudan . . . from 1992
through the Cole bombing, Sudan provided an incredibly necessary and vital infrastructure for
Al-Qaeda to be able to prepare and move the explosives and carry out the attacks on the Cole.
16
And it was not clandestine or hidden presence, but rather fairly overt and knowing presence by
senior members of the NIF government in Sudan.” Ex. 80 at 14, 27–30.
In light of the submitted reports, testimony, and other uncontroverted evidence, the Court
finds that Sudan provided material support to Al Qaeda such that the terrorist organization could
attack the Cole. The conforms to the findings of the Rux court, discussed above. With this fact
established, the Court now turns to the uncontested evidence plaintiffs have submitted on the
nature and extent of their injuries.
B. Plaintiffs’ Injuries
1. Plaintiffs on the Cole During the Attack
Plaintiffs who were on the Cole during the attack, each allege assault, battery and IIED.
They claim injuries in the form of post-traumatic stress, lost physical abilities, and anguish, and
they seek compensatory and punitive damages. Each individual’s claim is explained in more
detail below.
Rick Harrison
Rick Harrison was born on January 30, 1962, in Cut Bank, Montana. Ex. 92 at 6:24-7:6.
On January 19, 1982, Mr. Harrison enlisted in the Navy. Ex. 92 at 7:15-17. He intended to
remain in the Navy as a career. Ex. 92 at 7:23-8:17. In July 1999, he was assigned to serve on
the Cole as a fire marshal. Ex. 92 at 8:20-24.
At the time of the bombing, Mr. Harrison was on the starboard side of the ship walking
past the medical station. Ex. 92 at 15:10-17. He was located approximately 47 feet from the
blast. Ex. 92 at 16:13-24. The blast threw him toward the overhead, causing him to strike his
head and suffer a concussion. Ex. 92 at 17:14-18:1. Mr. Harrison landed directly on his knees
causing severe injuries to his knees, back. The blast also damaged the membranes in his ears.
17
Ex. 92 at 17:14-18:1, 18:22-20:1. Mr. Harrison inhaled toxic smoke in a room where wiring was
burning. Ex. 92 at 22:21-23:10. He later developed a lung condition as a result of breathing the
toxic smoke. Id. Mr. Harrison did not cease his rescue activities for 96 hours. Ex. 92 at
20:15-18, 23:17-24:10.
Upon returning to Naval Station in Norfolk, Virginia, Mr. Harrison’s permanent injuries
were discovered when he was unable to pass a physical readiness test. Ex. 92 at 24:17-25:15.
Mr. Harrison was subsequently diagnosed with the compression of ten lower vertebrae, flattened
arches in his feet, damage to the tympanic membrane in his right ear, a separated shoulder and
damage to his rotary cuff, and a severe concussion. Ex. 92 at 19:9-20:1, 25:2-15, 28:13-24.
Aside from the physical injuries, he also had recurring nightmares, mood swings, and severe
headaches. Ex. 92 at 25:16-25. Ultimately, as a result of his physical and emotional condition,
he was medically discharged from the Navy. Ex. 92 at 26:19-27:4. Currently, Mr. Harrison
endures constant physical pain in his knees, shoulders, lower back, and feet. Ex. 92 at 28:8-29:7.
Mr. Harrison testified that the emotional impact of these injuries is still present today. Ex. 92 at
29:8-31:16. His symptoms include anxiety, anger, flashbacks, and nightmares. Ex. 92 at
31:17-32:23.
Dr. Hernandez-Cardenache an expert clinical psychologist, further provided his expert
opinion that Mr. Harrison’s symptoms are consistent with chronic post-traumatic stress disorder.
Ex. 106 at 36:14-39:4.
Keith Lorensen
Keith Lorensen was born on September 28, 1967, in St. Paul, Minnesota. Ex. 90 at
5:13-16. On October 7, 1985, Mr. Lorensen enlisted in the Navy. Ex. 90 at 6:8-25. He intended
18
to remain in the Navy as his career. Ex. 90 at 12:12-18. In 1998, Mr. Lorensen was assigned to
the Cole. Ex. 90 at 14:12-17.
At the time of the attack, Mr. Lorensen was in the chief petty officer’s mess, midship on
the port side very near to the point of impact, conversing with another crew member. Ex. 90 at
14:24-16:6. The blast flung him 30 feet through the air and caused him to black out. Ex. 90 at
16:7-18:8. When he regained consciousness, he found himself lying across the mess underneath
debris from the galley equipment. Id. His right femur was broken four inches above the knee
and had been completely folded behind his back so that his foot was now located near his head.
Ex. 90 at 19:6-20:14. Mr. Lorensen also sustained multiple contusions on each of his legs, a lip
laceration, and a broken wrist in the blast. Ex. 90 at 18:15-20:25, 30:13-31:9. After noticing
bleeding from his right leg, he used his belt as a tourniquet to stop the bleeding from his femoral
artery, and continued applying the pressure until, after approximately 40 minutes, he was
removed from the space by other sailors. Ex. 90 at 18:9-20:14.
After being removed from the mess hall, Mr. Lorensen was given morphine and taken to
the top of the ship with other injured sailors. Ex. 90 at 22:18-23:4. While waiting for additional
medical treatment, Mr. Lorensen witnessed a fellow sailor being declared dead. Ex. 90 at
23:5-15. He was then taken to a hospital in Yemen for further treatment. Ex. 90 at 27:11-18. He
blacked out again in the hospital and only regained consciousness after surgery had been
performed on his broken leg. Ex. 90 at 29:1-6. When he awoke, his leg was in traction, with
makeshift metal components affixed to open wounds in his leg held in place by a piece of
concrete attached via twine as a counterweight. Ex. 90 at 30:13-31:16. The laceration in his lip
was subsequently stitched without any anesthesia. Id.19
The next day he was flown to Germany where he received further medical treatment
before ultimately returning to Virginia. Ex. 90 at 32:13-21. After returning to the United States,
seven months passed before he could put any weight on his right leg. Ex. 90 at 40:10-41:16. He
can no longer squat down and has lost range of motion in his right leg. Ex. 90 at 43: 21-44:7. In
addition to physical injuries, Mr. Lorensen also sustained psychological damage as a direct result
of the incident. Ex. 90 at 46:1-4. Specifically, he experienced increased irritability and could not
sleep through the night for a number of years. Ex. 90 at 46:5-48:17. Mr. Lorensen also
experienced flashbacks and emotional outbursts. Id. He was subsequently diagnosed with post
traumatic stress disorder. Ex. 90 at 46:1-17. The Department of Veterans Affairs has assigned
him a 40% disability rating. Ex. 90 at 60:16-61:1.
Dr. Rene Hernandez-Cardenache provided his expert opinion that Mr. Lorensen’s
symptoms are consistent with chronic post-traumatic stress disorder. Ex. 106 at 74:6-79:21.
John Buckley III
John Buckley III was born on August 10, 1979. Ex. 99 at 4:18-21. He enlisted in the
Navy on May 28, 1997, Ex. 99 at 5:7-8, intending to remain in the service for the duration of his
career. Ex. 99 at 5:15-21. Prior to the terrorist attack, he had been serving on the Cole for
approximately three years. Ex. 99 at 6:18-21.
At the time of the bombing, Mr. Buckley was in a passageway approximately ten feet
from the point of impact. Ex. 99 at 12:25-13:3. The explosion flung him through the air to the
other end of the passageway, where he had a concussion and lost consciousness. Ex. 99 at
13:4-18. After coming to, Mr. Buckley moved toward the area of the blast in an effort to assist
20
injured sailors. Ex. 99 at 13:22-14:17. Mr. Buckley assisted in the medical care and evacuation
of other injured sailors for several hours, until he collapsed due to his own injuries. Id.As a result of the blast, Mr. Buckley suffered fractures to both knees, hearing loss, and
severe lower back trauma. Ex. 99 at 8:25-10:13. Mr. Buckley continues to suffer from his
physical injuries. Ex. 99 at 9:25-10:3. He cannot lift over 100 pounds, has undergone two back
surgeries, and continues to receive treatment for his knee injuries. Id.; Ex. 99 at 17:16-18:7. Mr.
Buckley has also been diagnosed with post-traumatic stress disorder. Ex. 99 at 8:25-10:13. He
continues to experience nightmares and headaches, is prone to aggressive behavior, and hears
voices. Ex. 99 at 19:3-12. On May 29, 2001, Mr. Buckley was honorably discharged from the
Navy. Ex. 99 at 7:13-25. Mr. Buckley was assigned a 100% disability rating by the VA. Ex. 99
at 8:14-21.
According to Dr. Hernandez-Cardenache, Mr. Buckley’s symptoms are consistent with
post-traumatic stress disorder. Ex. 106 at 21:17-25:5.
Margaret Lopez
Margaret Lopez was born on December 26, 1970. Ex. 96 at 6:14-16. She enlisted in the
Navy. Ex. 96 at 7:6-7. It was Mrs. Lopez’s intention to remain in the Navy as a career. Ex. 96
at 7:10-16. In July 1998, Mrs. Lopez was assigned to the Cole as a gas turbine systems
mechanic. Ex. 96 at 10:23-11:8.
At the time of the bombing, Mrs. Lopez was supervising work being performed in the oil
lab. Ex. 96 at 14:12-22. The bomb blast impacted the ship approximately 20 feet from her
location and immediately killed one of the sailors working with her in the oil lab at that time.
Ex. 96 at 15:21-16:13. As a direct result of the blast, Mrs. Lopez sustained burns to her face,
21
neck, legs, and arms; her ear drums were ruptured; and several discs in her spine were ruptured.
Ex. 96 at 19:25-20:13. After the blast, the oil lab began to fill with smoke and water. Ex. 96 at
16:25-17:14, 18:8-18. In order to escape the area, she freed herself from debris and jumped into
the sea through the hole created by the blast. Ex. 96 at 18:20-25. She remained in the water for
over an hour before being pulled to safety. Ex. 96 at 21:8-19.
Mrs. Lopez was transferred to a hospital in Yemen before being sent to Germany for
further treatment. Ex. 96 at 23:15-24:7. She remained in Germany for two weeks under the care
of a burn specialist. Ex. 96 at 24:11-18. While waiting to get a skin graft, Mrs. Lopez developed
pneumonia. Ex. 96 at 24:19-25:1. It took approximately two years for her burns to fully heal.
Ex. 96 at 25:25-26:15. Mrs. Lopez also underwent an eardrum replacement surgery. Id. Since
the bombing, Mrs. Lopez has experienced insomnia, mood swings and nightmares, and has been
diagnosed with post-traumatic stress disorder. Ex. 96 at 34:5-20; 29:9-30:7.
As a result of her medical condition, Mrs. Lopez retired from the Navy on November 4,
2004. Ex. 96 at 27:3-28:1. At the time, she was prescribed antidepressants and pain medication
for her injuries. Ex. 96 at 29:9-30:7. Based upon her injuries, she has been assigned a 100%
disability rating by the Department of Veterans Affairs. Ex. 96 at 30:25-31:15.
Dr. Rene Hernandez-Cardenache testified that Mrs. Lopez’s symptoms are consistent
with chronic post-traumatic stress disorder. Ex. 106 at 59:6-61:25.
Edward Love
Edward Love was born on October 4, 1979. Ex. 94 at 5:16-19. He enlisted in the Navy
on March 30, 2000, Ex. 94 at 6:4-5, intending to spend his career in the Navy. Ex. 94 at
17:22-25. His first assignment was onboard the Cole, which began in approximately August
2000. Ex. 94 at 6:8-10.
22
When the attack occurred, Mr. Love was midship on the port side. Ex. 94 at 8:12-14. As
a result of the blast, he was thrown to the ground and suffered a ruptured eardrum. Ex. 94 at
8:22-9:8. Mr. Love immediately began to assist the injured crew and to repair damage to the ship
to prevent further flooding. Ex. 94 at 9:17-10:25. In doing so, he witnessed many sailors who
were severely injured or had died because of the attack. Id.After three or four hours, Mr. Love left the ship and was transferred to the hospital in
Yemen. Ex. 94 at 10-21. The next day, Mr. Love was moved to Germany where he received
further treatment. Ex. 94 at 14:2-12. Since that day, Mr. Love has not been able to pass a
hearing test for his right ear. Ex. 94 at 14:13-19. The VA has assigned a 10% disability rating
for this injury. Ex. 94 at 14:20-24. After returning to the United States, Mr. Love was stationed
at a naval base in Norfolk, Virginia. Ex. 94 at 16:16-25.
While stationed in Norfolk, Mr. Love was diagnosed with post traumatic stress disorder.
Ex. 94 at 17:2-9. The lasting effects from the bombing have caused Mr. Love’s personality to
change, with symptoms including problems with anxiety, mood swings, lack of appetite, and
trouble sleeping. Ex. 94 at 18:18-23. As a result of these continuing issues, on March 3, 2003,
he was discharged from the Navy. Ex. 94 at 17:10-21. Mr. Love continues to receive treatment
for his symptoms to this day. Ex. 94 at 19:14-20:25.
According to Dr. Hernandez-Cardenache, Mr. Love’s symptoms are consistent with
chronic post-traumatic stress disorder and co-morbid mood disorder. Ex. 106 at 62:1-65:4.
Robert McTureous
Robert McTureous, born on May 25, 1972, Ex. 89 at 5:13-16, enlisted in the Navy. Ex.
89 at 5:23-24. It was his intention to have a career in the Navy. Ex. 89 at 5:25-6:5. In August
2000, Mr. McTureous joined the crew of the Cole. Ex. 89 at 9:11-24.
23
On the day of the attack, Mr. McTureous was in the oil lab, with Margaret Lopez,
preparing to relieve other sailors who were involved in the refueling process. Ex. 89 at 13:2-14.
The blast occurred in close proximity to the oil lab, and the room began to fill with water. Ex. 89
at 13:20-15:8. Because the exit door of the oil lab had been damaged by the blast, Mr.
McTureous escaped by climbing through the wreckage and jumping through the hole in the ship
that had been caused by the explosion. Id.; Ex. 89 at 16:3-16.
After being rescued from the water by his shipmates, Mr. McTureous was taken to a
hospital in Yemen where he remained overnight until being transferred to Germany and then
Portsmouth Naval Hospital for further treatment. Ex. 89 at 18:5-19:13. After the bombing, Mr.
McTureous was discharged from the Navy because he could not face “the reality of going back to
sea.” Ex. 89 at 23:18-24:4.
As a result of the blast, Mr. McTureous sustained severe, permanent, painful, life long
injuries including two ruptured eardrums, second degree burns on his face, a fractured finger and
shrapnel in his arms. Ex. 89 at 15:5-8, 20:4-13, 24:5-25:11. Currently, Mr. McTureous has
significant hearing loss in both ears. Ex. 89 at 25:8-11. Due to his physical injuries, the
Department of Veterans Affairs has assigned him a 70% disability rating. Ex. 89 at 25:12-15,
39:14-40:6.
In addition to severe physical injuries, Mr. McTureous was diagnosed with post-traumatic
stress disorder in 2002. Ex. 89 at 26:21-29:5. The psychological effect of the blast has caused
Mr. McTureous to suffer from flashbacks, nightmares, and a fear of crowds. Id.; Ex. 89 at
30:8-37:15. Prior to the bombing, Mr. McTureous was outgoing, but now describes himself as
reserved, scared, on edge, and shy. Ex. 89 at 27:16-22.
24
Dr. Rene Hernandez-Cardenache testified that Mr. McTureous’ symptoms are consistent
with chronic post-traumatic stress disorder and reduced cognitive functioning as a result of the
attack. Ex. 106 at 25:6-28:1.
David Morales
David Morales was born on February 19, 1978 and enlisted in the Navy in July 1999. Ex.
93 at 6:8-12. It was his intention to remain in the Navy for his career. Ex. 93 at 6:20-25. After
graduating from basic training, Mr. Morales was assigned to the Cole as a boatswain’s mate. Ex.
93 at 6:16-25.
On the day of the bombing, Mr. Morales had just finished his morning duties and had
gone to his room to rest. Ex. 93 at 14:17-15:1. He was lying in his rack approximately 30 feet
from the point of impact when he felt the explosion rock the ship. Ex. 93 at 15:10-25. The force
of the blast caused him to impact the ceiling above his rack and then fall to the floor. Id. He
immediately went to the top of the ship to assist his injured shipmates, encountering many
severely injured and dead sailors on his way. Ex. 93 at 16:3-25:21. In the rescue efforts, Mr.
Morales attempted to perform CPR on a fellow sailor who ultimately died. Id. Mr. Morales was
later commanded to stand security on the deck, which he did for the next three days. Id.As a result of the blast, Mr. Morales suffered whiplash in his neck. Ex. 93 at 26:8-27:4.
Three weeks after the incident he was diagnosed with post-traumatic stress disorder, and
continues be treated for this condition to this day. Ex. 93 at 28:6-29:18, 33:5-8. Mr. Morales’
symptoms include irritability, nervousness and anxiety, and flashbacks. Ex. 93 at 36:8-39:5. His
condition caused Mr. Morales to be discharged from the Navy in 2002. Ex. 93 at 10:19-22,
11:18-24.
25
Dr. Rene Hernandez-Cardenache provided his expert opinion that Mr. Morales’s
symptoms are consistent with post-traumatic stress disorder. Ex. 106 at 33:14-36:13.
Gina Morris
Gina Morris was born on October 15, 1980. Ex. 88 at 3:22-25. She enlisted in the Navy
in 1998. Ex. 88 at 4:13-18. She intended to remain in the Navy for her career. Ex. 88 at
4:24-5:1. The Cole was her first assignment. Ex. 88 at 5:15-17.
At the time of the attack, Ms. Morris was on the inside of the ship moving towards the oil
lab. Ex. 88 at 7:22-8:2. Immediately upon hearing the explosion, she went toward the oil lab to
help her shipmates who had been injured in the blast. Ex. 88 at 7:22-10:9. For over five hours,
Ms. Morris assisted in the medical treatment of sailors injured in the blast. Id. Ms. Morris then
left the ship to escort injured sailors to a hospital in Yemen. Id.Although she did not sustain any physical injuries, Ms. Morris has suffered severe
emotional distress as a direct result of the attack. Ex. 88 at 10:10-19:22. Upon going to the aid
of her shipmates, Ms. Morris witnessed the horrific aftermath of the bombing. Ex. 88 at
8:24-10:9. Ms. Morris left the Navy, in August 2001, as a direct result of the attack. Ex. 88 at
23:1-11. She is currently undergoing treatment for her ongoing symptoms including anger, sleep
issues, high anxiety, flashbacks and guilt. Ex. 88 at 10:10-19:22.
Dr. Hernandez-Cardenache testified that Ms. Morris’ symptoms are consistent with
post-traumatic stress disorder. Ex. 106 at 65:5-67:24.
Rubin Smith
Rubin Smith was born on July 26, 1979, in Albemarle, North Carolina. Deposition of
Tracey Smith, (“D.E. 36”), Supplemental Proposed Findings of Fact (“Supp. Ex. 1”) at 6:21-7:3.
In 1997, Mr. Smith enlisted in the Navy. D.E. 36, Supp. Ex. 1 at 7:16-18. Mr. Smith loved his
26
experience in the Navy and only left the Navy because of the trauma he experienced in the
bombing of the U.S.S. Cole. Supp. Ex.1 at 14:2-22.
In October 2000, Mr. Smith was serving onboard the U.S.S. Cole as an operations
specialist. D.E. 36, Supp. Ex. 1 at 8:1-13. At the time of the bombing, Mr. Smith was assigned
to work in the ship’s galley, which was near the epicenter of the blast. D.E. 36, Supp. Ex. 1 at
10:1-16. However, a shipmate, who was a close friend, volunteered to take his shift. Id. Mr.
Smith’s friend was in the galley as Mr. Smith’s replacement at the time of the explosion and was
killed. Id. Mr. Smith was in his quarters at the time and was thrown from his bunk to the deck
by the force of the blast. The fall caused him to dislocate his ankle and suffer a torn tendon and
nerve damage in his lower leg. D.E. 36, Supp. Ex. 1 at 11:20-25. As a result of his injuries, Mr.
Smith was evacuated from the ship to a military treatment facility. D.E. 36, Supp. Ex. 1 at
11:3-8. Mr. Smith suffered scarring as a result of his injuries and received treatment for ongoing
pain up until the time of his death. D.E. 36, Supp. Ex. 1 at 11:9-10 and 22; 13:19-23.
As a result of the blast, Mr. Smith suffered severe emotional distress, which caused him
to develop post-traumatic stress disorder. D.E. 36, Supp. Ex. 1 at 12:1-13. For the rest of his
life, Mr. Smith was plagued by feelings of guilt over the death of the shipmate who had
volunteered to take his shift in the galley and other friends who were also lost onboard. D.E. 36,
Supp. Ex. 1 at 10:10-16. His symptoms, which included depression and anger, resulted in
problems with maintaining personal relationships. D.E. 36, Supp. Ex. 1 at 14:9-15; 16:10-18. In
2003, Mr. Smith, who believed that he was no longer emotionally capable of serving, was
discharged from the Navy. D.E. 36, Supp. Ex. 1 at 14:9-15; 7:19-21.
Mr. Smith was diagnosed with post-traumatic stress disorder and was receiving
psychological treatment at the time of his death. D.E. 36, Supp. Ex. 1 at 14:9-15; 16:10-18. As a
27
result of his physical and mental injuries, Mr. Smith was assigned a 50% disability rating by the
Department of Veterans Affairs. D.E. 36, Supplemental Ex. 2 at 2.
Martin Songer, Jr.
Martin Songer was born on August 3, 1970. Ex. 102 at 4:24-5:4. On June 11, 1991, Mr.
Songer enlisted in the Navy. Ex. 102 at 6:19-22. In 1998, Mr. Songer was assigned to the Cole
as a Second Class Boatswain Mate. Ex. 102 at 10:7-24. At the time of the bombing, Mr. Songer
was in the boatswain workshop in the aft part of the ship on the port side, approximately 150 feet
away from the area of direct impact. Ex. 102 at 17:8-23. The blast threw Mr. Songer against a
bulkhead. Falling equipment bruised and lacerated him. Ex. 102 at 19:11-19. Mr. Songer
witnessed many dead and severely injured shipmates. Ex. 102 at 23:16-24:3, 25:20-27:9.
These events impacted Mr. Songer emotionally. Ex. 102 at 23:16-24:3, 25:20-27:9. As a
direct result of the bombing, he now suffers from anxiety and temper control issues. Ex. 102 at
34:7-12. A few months after the terrorist attack, Mr. Songer decided to leave the Navy. Ex. 102
at 34:20-35:5.
Dr. Hernandez-Cardenache further provided his expert opinion that Mr. Songer’s
symptoms are consistent with moderate to severe emotional distress. Ex. 106 at 71:10-73:22.
Jeremy Stewart
Jeremy Stewart was born on March 5, 1981. Ex. 95 at 5:7-10. He enlisted in the Navy on
February 9, 2000. Ex. 95 at 7:21-23. It was Mr. Stewart’s intention to remain in the Navy for
the full duration of his career. Ex. 95 at 5:25-6:4. Two weeks after he completed basic training,
Mr. Stewart was assigned to the Cole as a Hull Maintenance Technician Fireman. Ex. 95 at
7:4-20.
28
When the bomb exploded, Mr. Stewart was thrown to the ground and suffered a
concussion, losing consciousness for five to fifteen minutes. Ex. 95 at 9:12-10:18. He was
removed from the debris by other sailors, taken to the flight deck on the top of the ship, and
evacuated to a hospital in Yemen. Ex. 95 at 10:25-11:2. He again lost consciousness and did not
come to until approximately one week later, after having been transported to Germany. Ex. 95 at
11:3-7.
As a result of the blast, Mr. Stewart suffered multiple fractures and shattered bones in his
arms and legs, a gastric rupture, internal bleeding, and shrapnel wounds. Ex. 95 at 10:19-24. His
injuries caused permanent scarring on his forearms, knees, legs, and stomach. Ex. 95 at 11:8-14.
He is no longer able to run and has lost range of motion in his right shoulder, and endures
constant pain on a daily basis. Ex. 95 at 11:15-20, 13:5-11. As a result of the attack, Mr. Stewart
also exhibits a variety of emotional symptoms, including sadness, flashbacks, nightmares,
irritability, and high anxiety. Ex. 95 at 15:13-16:12, 17:21-23:8. In December 2003, the Navy
discharged Mr. Stewart was discharged due to his injuries. Ex. 95 at 13:14-14:4. The
Department of Veterans Affairs assigned Mr. Stewart a 60% disability rating. Ex. 95 at
11:21-24.
According to Dr. Hernandez-Cardenache, Mr. Stewart’s symptoms are consistent with
post-traumatic stress disorder and a traumatic brain injury. Ex. 106 at 39:7-41:25.
Kesha Stidham
Kesha Stidham was born on June 12, 1981. Ex. 100 at 4:2-5. She enlisted in the Navy in
July 1999, Ex. 100 at 4:18-21, and intended to remain in the Navy for her career. Ex. 100 at
6:22-24. Ms. Stidham was assigned to the Cole on October 30, 1999. Ex. 100 at 5:20-22.
29
The center of the explosion was approximately 50 or 60 feet away from her location. Ex.
100 at 8:23-9:5. Several sailors standing within only a few feet of her were killed by the blast.
Id. The explosion caused Ms. Stidham to be thrown back ten feet through the air. Ex. 100 at
9:6-10:3. She suffered large thigh and leg bruises, fractured ribs, burns to her neck, and deep
lacerations to her cheek, jawline, chin, and right ear. Id. She was initially treated for her injuries
on the vessel. Ex. 100 at 11:24-12:19. She saw other sailors injured and lying on the deck, some
covered in soot, and others screaming in pain. Id.After being transported off the Cole, Ms. Stidham was taken to a hospital in Yemen. Ex.
100 at 15:8-18. Ms. Stidham received 15 stitches in her face without anesthesia. Ex. 100 at
15:19-16:24. She described the pain of the stitching as tremendous. Ex. 100 at 16:4-10. Ms.
Stidham had to undergo re-stitching of the wounds on her face in Germany. Ex. 100 at 17:12-15,
18:6-19:1.
Upon returning to the U.S., Ms. Stidham was placed on leave for 30 days, then returned
to service on the U.S.S. Whitney. Ex. 100 at 23:9-12, 25:23-26:5. While onboard, she suffered
an anxiety attack. Ex. 100 at 26:17-27:23. She was ultimately removed from the ship, placed on
limited duty and discharged from the Navy. Ex. 100 at 31:6-12, 32:24-33:24. The Department
of Veterans Affairs has given her a 40% disability rating due to her injuries. Ex. 100 at 54:18-22.
Ms. Stidham received psychological treatment for her emotional distress caused by the
attack and was diagnosed with post-traumatic stress disorder. Ex. 100 at 28:4-22. Her
symptoms, such as anger and anxiety, have resulted in problems with maintaining personal
relationships and employment. Ex. 100 at 33:20-35:1, 37:5-38:2. Ms. Stidham still experiences
panic attacks on a daily basis. Ex. 100 at 42:23-43:9.
30
Dr. Rene Hernandez-Cardenache provided his expert opinion that Stidham’s symptoms
are consistent with chronic post-traumatic stress disorder and panic disorder as a result of the
attack. Ex. 106 at 28:2-33:13.
Aaron Toney
Aaron Toney was born on March 21, 1979 and enlisted in the Navy on December 23,
1997. Ex. 105 at 7:8-10. It was Mr. Toney’s intention to remain in the Navy as his career. Ex.
105 at 7:17-22. In April 1998, Mr. Toney was assigned to the Cole as a fireman recruit. Ex. 105
at 9:1-13.
At the time of the bombing, Mr. Toney had just been relieved from his post in the engine
room when he heard a loud explosion. Ex. 105 at 13:2-10. Mr. Toney immediately changed into
his firefighting ensemble. Ex. 105 at 13:11-14:15. As he moved around the ship, he witnessed
severely injured and dead sailors. Id. For 72 hours, Mr. Toney was involved in the medical care
of his fellow shipmates. Ex. 105 at 17:22-20:8. Mr. Toney also assisted in repairing the damage
to the ship for three weeks after the incident, and was among the last of the crewmembers to
leave the vessel. Ex. 105 at 20:20-21:9.
Although Mr. Toney was not physically injured in the bombing, he has been diagnosed
with post traumatic stress disorder. Ex. 105 at 23:18-24:23. His symptoms include difficulty
sleeping, nightmares, memory problems, anxiety, and feelings of emptiness and distrust. Ex. 105
at 30:4-22, 36:16-37:21, 40:2-41:21, 44:11-48:17, 49:21-58:25. These symptoms ultimately
caused him to leave the Navy. Ex. 105 at 28:18-29:14. He has been assigned a 30% disability
rating by the Department of Veterans Affairs. Ex. 105 at 61:19-62:12.
Eric Williams
31
Eric Williams was born on November 12, 1980. Ex. 98 at 4:13-15. On June 16, 1999, he
enlisted in the Navy. Ex. 98 at 5:3-6. It was Mr. Williams’ intention to remain in the Navy as
his career. Ex. 98 at 7:14-22. In 2000, Mr. Williams was assigned to the Cole as a Tomahawk
technician. Ex. 98 at 8:13-9:13. His duties included maintenance and operation of the
Tomahawk missile system. Id.At the time of the bombing, Mr. Williams was eating in the mess hall, in the center of the
ship. Ex. 98 at 9:25-11:13. The explosion occurred directly adjacent to his location. Id.Shrapnel from the explosion lacerated the top of his head, which caused him to suffer a
concussion and drift in and out of consciousness. Id. After the explosion, he witnessed sailors
die from their injuries and others who had been severely injured. Ex. 98 at 18:3-23. Mr.
Williams was able to move to the top of the ship, and assisted in the treatment and evacuation of
other injured sailors until he again fell unconscious. Ex. 98 at 21:7-22:6. Mr. Williams was then
removed to a hospital in Yemen where he received stitches for the wound to his head. Ex. 98 at
23:3-12. In the U.S., he was diagnosed with a severe concussion. Ex. 98 at 29:20-24, 33:4-9.
To this day, Mr. Williams has trouble remembering events from his childhood. Ex. 98 at
33:10-23. The bombing continues to have a profound effect on Mr. Williams. Mr. Williams has
been diagnosed with severe post-traumatic stress disorder and has experienced nightmares,
extreme anger, and issues maintaining relationships, symptoms which he did not experience prior
to the bombing. Ex. 98 at 69:13-75:21. For several years, he struggled with alcohol abuse. Ex.
98 at 35:13-36:13, 40:15-44:4, 46:2-48:2, 50:1-51:16, 54:13-56:19, 67:1-24.
Dr. Hernandez-Cardenache provided expert opinion that Mr. Williams’ symptoms are
consistent with chronic post-traumatic stress disorder and anxiety disorder. Ex. 106 at 42:5-50:7.
Carl Wingate
32
Carl Wingate was born on April 15, 1979. He enlisted in the Navy in August 31, 1998,
Ex. 101 at 7:7-9, 8:20-24, intending to stay in the Navy for the remainder of his career. Ex. 101
at 7:10-17.
At the time of the bombing, Mr. Wingate was in his rack. Ex. 101 at 10:16-23. The
impact of the blast caused him to be thrown from his rack and land on his head and shoulder. Id.Shortly thereafter, he made his way to the top of the ship and began assisting in the medical
treatment of sailors injured in the blast and the transport of injured sailors from the ship to
mainland. Ex. 101 at 10:24-12:13. Mr. Wingate provided medical attention to eleven injured
sailors, two of which died. Id. One of the sailors who died was his bunkmate. Id.As a result of the bombing, Mr. Wingate suffered impingement of both shoulders,
herniated discs in his back, hearing loss, memory loss, and post-traumatic stress disorder. Ex.
101 at 13:8-21. Since the bombing, the physical effects of Mr. Wingate’s injuries have become
progressively more severe. Ex. 101 at 14:1-16:16. He continues to experience significant pain in
his shoulders, neck, and back, and his range of motion is limited. Id. Post-traumatic stress
disorder symptoms include irritability, anxiety, flashbacks, and nightmares. Ex. 101 at
30:11-33:1, 33:19-37:6. The emotional damage from the bombing has caused his personal
relationships to suffer and led to a divorce from his wife. Ex. 101 at 21:7-22:3. In 2007, Mr.
Wingate was discharged from the Navy as a result of the injuries he sustained from the bombing.
Ex. 101 at 19:16-25, 20:21-21:6. The Department of Veterans Affairs assigned him a 60%
disability rating. Ex. 101 at 19:2-5.
According to Dr. Hernandez-Cardenache, Mr. Wingate’s symptoms are consistent with
post-traumatic stress disorder. Ex. 106 at 50:8-55:5.
2. Plaintiffs Who are Spouses of Plaintiffs on the Cole During the Attack
33
Spouses of the injured sailors allege IIED and injury in the form of mental anguish and
loss of consortium. They seek punitive and compensatory damages, including loss of solatium.
Their claims include the following individualized injuries.
Andy Lopez
Andy Lopez is the spouse of Margaret Lopez, Ex. 97 at 5:2-6, and a former Navy master
chief. Ex. 97 at 5:7-11. He married Margaret Lopez on November 8, 1996. Ex. 97 at 6:19-20.
Mr. and Mrs. Lopez have two children together. Ex. 97 at 7:9-14.
On the day of the bombing, Mr. Lopez learned of the attack on the Cole from the morning
news. Ex. 97 at 8:6-15. At noon that day, the Navy officially informed him of the incident and
asked him to proceed to a local naval base for further information. Ex. 97 at 8:16-18. Mr. Lopez
did not learn that his wife survived the blast until the next day when he spoke with her on the
telephone. Ex. 97 at 9:3-19. Mr. Lopez immediately flew to meet her in Germany, where she
was being treated under the care of a burn specialist. Ex. 97 at 9:23-10:4. When he arrived, Mrs.
Lopez was in a medically–induced coma. He stayed there with her until her return to the United
States. Ex. 97 at 10:13-11:8, 12:4-21.
The bombing and resultant injuries to his wife have affected Mr. Lopez psychologically.
Ex. 97 at 17:14-18:22. Indeed, he has been diagnosed with post-traumatic stress disorder and has
entered into counseling. Ex. 97 at 18:23-19:19. Dr. Hernandez-Cardenache, testifies that Mr.
Lopez’s symptoms are consistent with chronic post-traumatic stress disorder. Ex. 106 at
55:15-59:5.
Lisa Lorensen
Lisa Lorensen is the spouse of Keith Lorensen, a sailor who was injured during the
bombing of the Cole. Ex. 91 at 6:12-13. She was married to Mr. Lorensen on October 23, 1993.
34
Ex. 91 at 6:14-15. The Lorensens have two children together. Ex. 91 at 6:16-20. Although Mrs.
Lorensen was not enlisted in the Navy, she served as the Ombudsman of the Cole, serving as a
liaison between the families and the commanding officer of a ship. Ex. 91 at 6:21-23.
On the day of the bombing, Mrs. Lorensen received a phone call advising her that
something significant had occurred on the ship. Ex. 91 at 11:3-12:11. However, no specific
details were provided. Id. She was advised to proceed to a naval facility in order to obtain more
information. Id. While on her way to the location, Ms. Lorensen received a phone call from her
mother advising her that the Cole had been attacked. Id. While waiting at the facility, Ms.
Lorensen witnessed the Naval officers present at the location advising sailors’ family members of
the death or injuries suffered by their relatives. Id. After approximately twelve hours, she was
advised that Keith Lorensen was alive, but injured. Ex. 91 at 13:19-14:15:5.
Approximately 24 hours later, Mrs. Lorensen had the opportunity to speak with her
husband. Ex. 91 at 15:6-21. Mr. Lorensen told her that he did not know whether he would be
able to walk again, but would be coming home. Ex. 91 at 15:19-16:4. Mrs. Lorensen then flew
to Germany to see her husband. Ex. 91 at 16:5-14. When they returned to Virginia, Mrs.
Lorensen had tremendous feelings of guilt and sadness as a result of her husband’s injuries and
the death and injury of the other sailors on the vessel. Id. The emotional impact of the events
caused a strain in their marriage. Ex. 91 at 20:9-21:15.
Dr. Rene Hernandez-Cardenache, an expert clinical psychologist, further provided his
expert opinion that Mrs. Lorensen suffered from acute emotional distress as a direct result of the
bombing. Ex. 106 at 79:22-82:3.
Shelly Songer
35
Shelly Songer is the spouse of plaintiff Martin Songer, who was injured during the
bombing of the Cole. Ex. 103 at 5:7-9. Mrs. Songer learned of the bombing through a telephone
call from her mother-in-law. Ex. 103 at 8:23-9:2. Twelve hours later, she learned that her
husband survived the bombing. Ex. 103 at 9:6-15. Upon returning home, the continuing
emotional effect of the terrorist attack on Mr. Songer has adversely affected their marriage. Ex.
103 at 13:4-15:16.
Dr. Hernandez-Cardenache testifies that Ms. Songer’s symptoms are consistent with
severe emotional distress. Ex. 106 at 67:25-71:9.
IV. CONCLUSIONS OF LAW
A. Jurisdiction is Proper and Sudan Is Not Immune from Suit
The Court finds that the plaintiffs have met FSIA’s multi-factor test for jurisdiction and
waiver of immunity discussed above, as set forth above. See 28 U.S.C. § 1605(A)(a)(1); Owens,
2011 WL 5966900, at *17. First, the sole remedy plaintiffs seeks is “money damages.” 28
U.S.C. § 1605(A)(a)(1). Second, Sudan is a foreign state. Id. Third, the evidence presented to
the Court establishes that plaintiffs suffered physical injury form the attack. Id. Fourth, the
evidence presented shows that Sudan aided Al Qaeda in executing the bombing, and this harm
was a direct result of Sudan’s of provision of material support. Id. On the evidence presented,
there is “some reasonable connection between the act or omission of the defendant and the
damages which the plaintiff has suffered.” Valore, 700 F. Supp. 2d at 66 (internal quotations
omitted).
As well, FSIA section 1605A(a)(2) requirements have been met. Sudan has been
designated a state sponsor of terrorism since 1993, and claimants are all U.S. nationals, both
36
statutory requirements. 28 U.S.C. § 1605A(a)(2).11 Thus, for purposes of this action, FSIA does
not protect Sudan with immunity from suit, and this Court has jurisdiction over plaintiffs’ claims.
B. Plaintiffs Have Established a Cause of Action and Theory of Liability
The same facts as to material support and causation support plaintiffs’ cause of action and
theory of liability. Plaintiffs have shown that Sudan’s support of Al Qaeda has a “reasonable
connection” to the damages they suffered. Id. As described in detail below, they also
demonstrate the other elements of the torts they allege. See Murphy, 740 F. Supp. 2d at 72. In
keeping with the prevailing approach in this Circuit, see id.; Bettis, 315 F.3d at 333, the Court
apply the generally accepted principles of tort law. The Court addresses first the claims of the
sailors who were on the Cole at the time of the attack and then the claims of their spouses who
were not present during the attack.
1. Harm to Plaintiffs Injured on the Cole
a. Assault
Sudan is liable to plaintiffs for the assault they allege if, when it provided material
support to Al Qaeda, (1) it acted “intending to cause a harmful contact with . . . , or an imminent
apprehension of such a contact” by, those attacked and (2) those attacked were “thereby put in
such imminent apprehension.” RESTATEMENT (SECOND ) OF TORTS § 21(1); accord Murphy, 740
F. Supp. 2d at 73 (citing Valore, 700 F. Supp. 2d at 76). Here, the record shows that Sudan acted
with intent to cause harmful contact and the immediate apprehension thereof: acts of terrorism
are, by their very nature, intended to harm and to terrify by instilling fear of further harm.
11
As for the § 1605A(a)(2)(A)(iii) arbitration requirement, plaintiffs were not
required to extend an offer to arbitrate because the FSIA only requires as much when the alleged
terrorist act occurred in the foreign state against which the claim is brought. Id. Even though the
attack did not take place in Sudan, the plaintiffs sent Sudan an offer, to which it did not respond.
See Notice of Amended Offer to Arbitrate, Oct. 11, 2010 [Dkt. # 6].
37
Accepting these plaintiffs’ uncontroverted assertions that they did, in fact, fear such harm
because of the attack, the Court concludes that Sudan is liable for assault.
b. Battery
Likewise, Sudan is liable for battery. It acted “intending to cause a harmful or offensive
contact with . . . , or an imminent apprehension of such a contact” by, those attacked and (2) “a
harmful contact with” those attacked “directly or indirectly result[ed].” RESTATEMENT (SECOND )
OF TORTS § 13; accord Murphy, 740 F. Supp. 2d at 74 (citing Valore, 700 F. Supp. 2d at 76).
Harmful contact is that which results in “any physical impairment of the condition of another's
body, or physical pain or illness.” RESTATEMENT (SECOND ) OF TORTS § 15. Accepting
plaintiffs’ uncontroverted assertions that they did, in fact, suffer physical injury from the attack
on the Cole, the Court concludes Sudan is liable to certain plaintiffs for battery.
c. Intentional Infliction of Emotional Distress
Sudan is liable for IIED if it (1) “by extreme and outrageous conduct” (2) “intentionally
or recklessly” (3) “causes severe emotional distress to another.” RESTATEMENT (SECOND ) OF
TORTS § 46(1). Further, “if bodily harm to the other results from it, for such bodily harm.” Id.
Here, plaintiff-sailors have proven each element. In the FSIA-terrorism context, courts have held
that “[a]cts of terrorism are by their very definition extreme and outrageous and intended to cause
the highest degree of emotional distress.” Belkin v. Islamic Republic of Iran, 667 F. Supp. 2d 8,
22 (D.D.C. 2009) (citing Stethem v. Islamic Republic of Iran, 201 F. Supp. 2d 78, 89 (D.D.C.
2002)). Based on the evidence presented, the Court concludes that Sudan’s support of the Cole
bombing was both intentional and reckless and caused plaintiffs emotional distress. It is
therefore liable to plaintiffs for IIED.
2. Harm to Spouses of Sailors
38
Spouses of injured sailors have brought IIED claims, alleging that extreme and
outrageous conduct directed at their spouses caused these plaintiffs severe emotional distress.
According to the second Restatement of Torts, Sudan is liable in these cases under such claims if
it (1) engaged in extreme and outrageous conduct (2) which was directed at persons other than
plaintiffs (3) which intentionally or recklessly caused severe emotional distress, but not
necessarily bodily harm, (4) to such persons’ immediate family members — the
immediate-family requirement — who were present at the time such conduct occurred-the
presence requirement. Valore, 700 F. Supp. 2d at 78 (citing RESTATEMENT (SECOND ) OF TORTS
§ 46(1)–(2)(a)). As the record shows, plaintiff-spouses have proven the first three elements.
Although the fourth element appears to prohibit recovery for emotional injury by those not
present at the time such conduct occurs, the drafters of the Restatement include a caveat that this
Court has interpreted liberally: “‘[i]f the defendants’ conduct is sufficiently outrageous and
intended to inflict severe emotional harm upon a person which is not present, no essential reason
of logic or policy prevents liability.’” Heiser II, 659 F. Supp. 2d at 27 (quoting DAN B. DOBBS,
THE LAW OF TORTS § 307, at 834 (2000)). As the Court noted in Heisler II, “[t]errorism, unique
among the types of tortious activities in both its extreme methods and aims, passes this test
easily.” Id.; accord Brewer, 664 F. Supp. 2d at 47. Therefore, plaintiff-spouses need not have
been present at the time of a terrorist attack to recover for severe emotional injuries suffered as a
result. Here, accepting the uncontroverted evidence that the plaintiffs named above suffered
severe emotional and physical injury as a result of the injuries suffered by their spouses, the
Court concludes that Sudan is liable to them for IIED.12
12
Plaintiffs’ also alleged “loss of solatium.” Such a claim under the FSIA-terrorism
exception is indistinguishable from an IIED claim. Valore, 700 F. Supp. 2d at 85 (citing Heiser
II, 659 F. Supp. 2d at 27 n. 4); Beer v. Islamic Republic of Iran, 574 F. Supp. 2d. 1, 13 (D.D.C.
2008). Therefore the Court only considers the IIED claim and awards appropriate damages (also
39
D. Damages
Plaintiffs have stated claims and seek recovery for assault, battery, IIED, and loss of
solatium. Section 1605A(c)(4) of the FSIA provides that damages available under the
FSIA-created cause of action may “include economic damages, solatium, pain and suffering, and
punitive damages.” Accordingly, those who survived the Cole attack can recover damages for
their pain and suffering, as well as any other economic losses caused by their injuries; family
members can recover solatium damages for their emotional injury; and all plaintiffs can recover
punitive damages.
“To obtain damages against defendants in an FSIA action, the plaintiff must prove that
the consequences of the defendants’ conduct were ‘reasonably certain (i.e., more likely than not)
to occur, and must prove the amount of the damages by a reasonable estimate consistent with this
[Circuit’s] application of the American rule on damages.’” Valore, 700 F. Supp. 2d at 84(citing,
Salazar, 370 F. Supp. 2d at 115-16); accord Hill v. Republic of Iraq, 328 F.3d 680, 681 (D.C. Cir
2003). As discussed above, plaintiffs have demonstrated that Sudan’s provision of material
support to Al Qaeda was reasonably certain to — and indeed intended to — cause injury to
plaintiffs. The Court now estimates the differing amounts of damages sought under the
FSIA-created cause of action, based in part on the expert report that plaintiffs submitted as well
the framework established by this Court in similar FSIA terrorism cases.
1. Economic Damages
The plaintiffs presented evidence of their lost earning capacity through the testimony and
expert reports of Dana Kaufman, JD, CPA, CFE, a forensic accounting expert accepted by the
Court. See Ex. 107. Mr. Kaufman’s reports provide calculations for the lost earnings of each of
known at “solatium damages”) below.
40
the plaintiff-sailors injured in the terrorist attack on the Cole. Id. Mr. Kaufman’s methodology
assumed that each sailor would complete a twenty-year career in the Navy and then retire. Ex.
107 at 29:25-30:22. He did not add any additional lost wages that may have occurred after
retirement from the Navy. Ex. 107 at 19:11-20:13. After calculating what each sailor would
have earned in the Navy, he subtracted their prospective retirement benefits to reach his
conclusion. Id. The Court finds that this conservative approach is acceptable. Based upon his
calculations, two of the sailors injured in the bombing, Keith Lorensen and John Buckley III, did
not suffer any lost earning capacity. Ex. 107 at 26:21-27:11, 25:5-16. Having reviewed Dr.
Kaufmans’ testimony and reports, the Court finds that the plaintiffs are entitled to receive
compensatory damages for the total economic damages. The precise amounts are set forth in the
judgment accompanying this opinion.
2. Sailor-Plaintiffs’ Pain and Suffering
In addition to economic damages, plaintiffs may be entitled to compensation for the pain
and suffering they experienced as a direct result of the Cole bombing. “Damages for surviving
victims [of a terrorist attack] are determined based upon an assessment of such factors as ‘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.’” Valore, 700 F.
Supp. 2d at 83–84 (citing Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d 25, 51 (D.D.C.
2007)). “‘In awarding pain and suffering damages, the Court must take pains to ensure that
individuals with similar injuries receive similar awards.’” Id. “Thus in Peterson, the Court
granted a baseline award of $5 million to individuals suffering such physical injuries as
compound fractures, severe flesh wounds, and wounds and scars from shrapnel, as well as
‘lasting and severe psychological pain.’” Id. “The Court was willing to depart upward from this
41
baseline to $7.5–$12 million in more severe instances of physical and psychological pain, such as
where victims suffered relatively more numerous and severe injuries, were rendered quadriplegic,
partially lost vision and hearing, or were mistaken for dead, as was one soldier who ‘was placed
in a body bag [and] buried alive in a morgue for four days until someone heard him moaning in
pain.’” Id; see also Estate of Bland v. Islamic Republic of Iran, 2011 WL 6396527 (D.D.C. Dec.
21, 2011). Conversely, the Court will depart downward from the $5 million baseline, by an
amount of $2-3 million, where victims suffered “minor shrapnel injuries or minor injury from
small-arms fire,” Valore, 700 F. Supp. 2d at 84. As well, when a serviceman suffers severe
emotional injury without physical injury, this Court has typically awarded the victim $1.5
million. See Valore, 700 F. Supp. 2d at 85; Bland, 2011 WL 6396527 at *3. This Court finds
that the baseline set forth in Valore is appropriate in this case and applies the upward and
downward departures below.
Based upon the severity of certain injuries described above, the Court awards the baseline
amount of $5 million to the following plaintiffs for their pain and suffering: Rick Harrison, Carl
Wingate, Keith Lorenson, Robert McTureous, David Morales, and Rubin Smith. Following the
rule on upward departure, the Court awards the following plaintiffs an upward departure to $7.5
million in damages: John Buckley, Margaret Lopez, and Jeremy Stewart. Finally, the Court
departs downward for plaintiffs whose physical injuries were not as severe. Accordingly, Eric
Williams is awarded $3 million, and Edward Love and Martin Songer, whose physical injuries
were relatively minor, are each awarded $2 million. See Peterson, 515 F. Supp. 2d at 54(departing downward to $2 million where victim “was minimally injured” but “suffered lasting
and severe psychological problems.”).
42
Although the remaining plaintiffs, Martin Songer and Gina Morris, did not suffer direct
physical injuries as a result of the bombing, they have suffered psychological harm. A downward
departure from the baseline of $5 million is also appropriate for these plaintiffs. In accordance
with this Court’s awards in other cases where plaintiffs on the scene of the attack did not suffer
physical harm, Ms. Morris and Mr. Toney are awarded $1.5 million each.
3. Intentional Infliction of Emotional Distress/Solatium to Spouses
In similar actions, this Court held that spouses of surviving servicemembers may be
entitled to $4 million in solatium damages (or harm from IIED). Valore, 700 F. Supp. 2d at 85
(citing Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229, 269 (D.D. C. 2006) and referring
to the amounts it establishes for solatium damages as a “framework”); Peterson v. Islamic
Republic of Iran, 515 F. Supp. 2d 25, 52; cf. Acosta v. Islamic Republic of Iran, 574 F. Supp. 2d
15, 29 (D.D.C. 2008) (“In determining the appropriate award of damages for solatium, the Court
may look to prior decisions awarding damages for intentional infliction of emotional distress as
well as to decisions regarding solatium.”). This amount is “not set in stone,” however, see
Valore, 700 F. Supp. 2d at 86, and the Court may adjust it as it sees fit. In Bland, for example,
this Court held that it is inappropriate for the solatium awards of family members to exceed the
pain and suffering awards of the surviving servicemen. Bland, 2011 WL 6396527 at *5 (“[T]he
Court does not think it appropriate for the . . . spouse to recover more than the victim”). In light
of these holdings, the Court applies the baseline amount to the claims of Lisa Lorenson and Andy
Lopez (whose spouses are awarded $5 and 7.5 million, respecitvely, for their pain and suffering)
and awards them $4 million for the harm they suffered upon learning of the Cole attack and the
injuries of their spouses and for the psychological harm they continue to experience as a result of
the incident. The Court further finds that downward adjustment is warranted for the solatium
43
damages of Shelly Songer because her spouse, Martin Songer, was awarded $2 million for his
pain and suffering. Following Bland, the Court awards Mrs. Songer $1 million.
4. Punitive Damages
Having established the compensatory damage awards, the Court now determines whether,
and to what extent, it should levy punitive damages against Sudan. Under 28 U.S.C. § 1605A,
foreign state sponsors of terrorism may be liable for such damages. See 28 U.S.C. § 1605A(c).
According to the Second Restatement of Torts, punitive damages are designed to both “punish [a
defendant] for his outrageous conduct and to deter him and others like him from similar conduct
in the future.” RESTATEMENT (SECOND ) OF TORTS § 908(1) (1977). Further, they “may be
awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless
indifference to the rights of others.” Id. Here, the Court finds Sudan’s acts sufficiently
outrageous to justify punitive damages. While Sudan’s support of Al Qaeda does not rise to level
of direct involvement in the attacks, it was nonetheless intentional, material and, as a result,
reprehensible. See Baker, 775 F. Supp. 2d at 85 (finding that the character of defendant’s actions
in providing material support and sponsorship to terrorist organization merited award of punitive
damages).
In determining the proper punitive award, courts typically consider four factors: “(1) the
character of the defendants’ act, (2) the nature and extent of harm to the plaintiffs that the
defendants caused or intended to cause, (3) the need for deterrence, and (4) the wealth of the
defendants.” Flatow, 999 F. Supp. at 32 (citing RESTATEMENT (SECOND ) OF TORTS § 908(1)–(2)
(1965)). Synthesizing these factors, courts in similar cases have generated two numbers that,
together, determine the punitive damages award: (1) the multiplicand and (2) the multiplier (the
factor by which the multiplicand should be multiplied to yield the desired deterrent effect).
44
Depending on the evidence available, the multiplicand is either the magnitude of defendant’s
annual expenditures on terrorist activities, see Valore, 700 F. Supp. 2d at 87–88, or the amount of
compensatory damages already awarded, see Bland, 2011 WL 6396527, at *6 (using
compensatory damages as the multiplicand and 3.44 as the multiplier, based on a ratio set forth in
earlier cases). Here, plaintiffs have not presented evidence relating to Sudan’s actual
expenditures on terrorist activities.13 The Court will thus use the compensatory damages value as
the multiplicand.
The multiplier has ranged between three and, in exceptional cases, five. See Haim v.
Islamic Republic of Iran, 784 F. Supp. 2d 1, 13 (D.D.C. 2011); Valore, 700 F. Supp. 2d at 88–89.
The Court finds no exceptional circumstances here. Contrary to plaintiffs’ assertion, Sudan’s
brief and cursory participation in the Rux litigation does not suggest that, at this point in time, its
government is more amenable to a deterrent signal from this Court. Therefore, the Court awards
plaintiffs three times the compensatory damages in punitive damages, to be distributed in
proportion to each plaintiff’s share of the compensatory award.
5. Prejudgment Interest
Plaintiffs also request pre-judgment interest. Whether to award such interest is a question
that rests within this Court’s discretion, subject to equitable considerations. See Pugh v. Socialist
People’s Libyan Arab Jamahiriya, 530 F. Supp. 2d 216, 263 (D.D.C. 2008). “Courts in this
Circuit have awarded prejudgment interest in cases where plaintiffs were delayed in recovering
compensation for their injuries — including, specifically, where such injuries were the result of
13
Citing various publicly availably courses, plaintiffs argue that Sudan benefitted
from Bin Laden and Al Qaeda’s capital and infrastructure investments, submitting figures on
Sudan’s gross domestic product, the growth thereof, and annual revenue from oil. After
reviewing these figures, the Court concludes that these figures do not indicate what level of
punitive damages that would that would punish or deter Sudan from providing future support to
terrorist entities. The Court therefore does not consider them in its damages calculation.
45
targeted attacks perpetrated by foreign defendants.” Baker v. Socialist People’s Libyan Arab
Jamahirya, 775 F. Supp. 2d 48, 86 (D.D.C. 2011). The Court finds no delay here. Plaintiffs
filed their claim in October 2010. As well, Sudan, having never even appeared in this case, has
not prolonged the litigation. Thus, the Court does not find any equitable grounds for awarding
pre-judgment interest. Moreover, because the Court has applied the framework in Heiser, to its
calculation of solatium damages (as explicitly proposed by plaintiffs), prejudgment interest is not
appropriate for these awards. See Oveissi v. Islamic Republic of Iran, 768 F. Supp. 2d 16, 30
n.12 (D.D.C. 2011) (concluding that pre-judgment interest was not warranted for solatium
damages because the values set by the Heiser scale “represent the appropriate level of
compensation, regardless of the timing of the attack.”).
V. CONCLUSION
For the foregoing reasons, this Court finds Sudan liable for the injuries that plaintiffs
suffered and awards damages accordingly. A separate Order and Judgment consistent with these
findings shall issue this date.
Signed by Royce C. Lamberth, Chief Judge, on March 30, 2012.
46