# Barry v. Islamic Republic of Iran

> District Court, District of Columbia · February 4, 2020

URL: https://www.frixlaw.com/law-library/cases/4504352

## Case

- **Court:** District Court, District of Columbia
- **Decided:** February 4, 2020
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Rudolph Contreras
- **Nature of suit:** Civil
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4504352

## How later opinions describe it (automated extraction)

- concluding that “relatively minor” physical injuries “warrant[ed] a downward departure”
- finding “downward departure . . . [to be] warranted for directly- injured claimant whose “injuries were . . . primarily emotional”

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

KEVIN BARRY, et al. :
:
Plaintiffs, : Civil Action No.: 16-1625 (RC)
:
v. : Re Document Nos.: 34, 49, 53, 54
:
ISLAMIC REPUBLIC OF IRAN, :
:
Defendant. :

MEMORANDUM OPINION

GRANTING IN PART SMITH PLAINTIFFS’ MOTION FOR DEFAULT JUDGMENT ON LIABILITY;
GRANTING SMITH PLAINTIFFS’ MOTION TO SUBSTITUTE; GRANTING IN PART SMITH
PLAINTIFFS’ MOTION TO ADOPT SPECIAL MASTER’S REPORT AND RECOMMENDATION;
DENYING AS MOOT SMITH PLAINTIFFS’ MOTION FOR HEARINGS

I. INTRODUCTION

In 1983 and 1984, respectively, two terrorist attacks targeted American servicemembers

and embassy employees stationed in East Beirut, Lebanon. This Court, along with other courts

in this Circuit, has contended with the tragic impact of these bombings in a number of mass tort

lawsuits brought under the Foreign Sovereign Immunities Act (“FSIA”). Presently before the

Court are the claims of hundreds of individuals who were either injured—in some cases fatally—

in these attacks while acting in their capacity as a U.S. government employee or contractor or

who are the immediate family members of such directly-injured individuals. Defendant Iran has

not entered an appearance in the more than three years since the suit was filed. This Court must

now decide whether to enter default judgment concerning liability for Plaintiffs and whether to

adopt the Special Master’s Report and Recommendation (“R. & R.” or “report”) concerning

damages. As set forth below, the Court finds that the majority of the Smith Plaintiffs have
established liability and will enter default judgment concerning these individuals and, further,

adopts in part the Special Master’s suggested damages awards. 1

II. BACKGROUND

A. Procedural History

The instant suit was initially filed by seven individuals—the “Barry Plaintiffs”—who

were serving at the U.S. Embassy Annex in East Beirut, Lebanon at the time of the 1984

bombing. On November 14, 2017, the Court granted leave for hundreds of additional

plaintiffs—the “Smith Plaintiffs”—to intervene. See Order, ECF No. 14; see also Intervenor

Compl. by All Smith Plaintiffs (“Intervenor Compl.”), ECF No. 17. The Smith Plaintiffs, whose

motions are presently before the Court, fall into two categories.

The first category consists of individuals who were employed by or performing contracts

awarded by the U.S. government, or the estates of such individuals, at the time of the 1983

and/or 1984 bombings of the U.S. Embassy and U.S. Embassy Annex in Beirut, Lebanon. 2 See

Mem. Supporting Smith Pls.’ Renewed Consent Motion for Adoption of Administrative Plan

(“Mem. Supporting Smith Pls.’ Renewed Mot.”) 3, ECF No. 33-1. The second category of

Smith Plaintiffs consists of nearly four hundred immediate family members of directly-injured

individuals who “suffered emotional distress as a result of the attacks on their loved ones.” 3

Mem. Supporting Smith Pls.’ Renewed Mot. 3.

1
On January 24, 2020, the Smith Plaintiffs moved for a status conference to
“communicate with the victims regarding any further information the Court may require” to
resolve their pending motions. See Smith Pls.’ Mot. for Status Conference and Mem. in Support,
ECF No. 54. Because the Court finds the written materials before it sufficient to resolve the
pending motions, it denies this motion as moot.
2
For expositional clarity, the Court refers to these individuals as “directly injured.”
3
For expositional clarity, the Court refers to these individuals as “family members.”

2
The Smith Plaintiffs present several theories of relief. First, the directly-injured

individuals seek compensatory damages pursuant to 28 U.S.C. § 1605A(c)’s private cause of

action, see Intervenor Compl. ¶¶ 489–95, and, in addition, the personal representatives of those

who were fatally injured in one of the attacks seek economic damages for wrongful death, id. ¶¶

502–06. Second, all Smith Plaintiffs, including both the directly-injured plaintiffs and the family

member plaintiffs, seek compensatory damages for intentional infliction of emotional distress

(“IIED”), ¶¶ 496–501, and for solatium and/or loss of consortium due to the “extreme mental

anguish, emotional pain and suffering, and the loss of the society and companionship of the

victims,” ¶¶ 510–11. 4

While these claims were pending before the Court, given the number of individuals

involved and their location across multiple continents, see Mem. Supporting Smith Pls.’

Renewed Mot. 3, counsel for the intervenor plaintiffs moved for adoption of an administrative

plan wherein an appointed special master would issue a report and recommendation on

compensatory damages for the Smith Plaintiffs, see Smith Pls.’ Renewed Consent Mot., ECF No.

33. The Court granted this motion, see Order, ECF No. 36, and Special Master Griffin’s sealed

report was filed on August 9, 2019, see ECF No. 39. Thereafter, the Court directed the parties to

submit supplemental briefing to clarify the status of all Smith Plaintiffs and their legal

representatives as well as the methodology used by the Special Master to calculate damages. See

Order (Oct. 21, 2019), ECF No. 47. The Smith Plaintiffs and Special Master Griffin timely

provided the requested information. See Smith Plaintiffs’ Response to Court’s October 21, 2019

Order (“Smith Pls.’ Response”), ECF No. 48. In tandem with their supplementary briefing, the

4
Technically speaking, these plaintiffs seek damages for “loss of solatium,” Intervenor
Compl. 136, but the Court follows the language of section 1605A and uses the term “solatium.”
See 28 U.S.C. 1605A(c).

3
Smith Plaintiffs filed motions requesting the substitution of certain legal representatives, ECF

No. 50, and moving for the Court to adopt the Special Master’s report and recommendations, as

supplemented, ECF No. 53. Defendant Iran continues to decline to participate in this suit, and

the Smith Plaintiffs’ pending motions have ripened.

The Court previously entered default judgment concerning liability and damages for the

Barry Plaintiffs, see Barry v. Islamic Republic of Iran (“Barry I”), 410 F. Supp. 3d 101 (D.D.C.

2019) and will now consider the Smith Plaintiffs’ motion for default judgment concerning

liability, review the Special Master’s damages recommendations, and address the Smith

Plaintiffs’ motion to adopt these recommendations.

B. Factual History

The Smith Plaintiffs were injured in the 1983 terrorist attack on the U.S. Embassy in East

Beirut, Lebanon and/or the attack on the U.S. Embassy Annex in East Beirut the following year. 5

5
As this Court explained in Barry I, 410 F. Supp. 3d 161, the Federal Rules of Evidence
authorize a court to take judicial notice of “adjudicative facts” “not subject to reasonable
dispute” that are “capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned,” Fed. R. Evid. 201(b), including “court records in
related proceedings,” Rimkus v. Islamic Republic of Iran, 750 F. Supp. 2d 163, 171 (D.D.C.
2010) (citing 29 Am. Jur. 2d Evidence § 151 (2010)); Booth v. Fletcher, 101 F.2d 676, 679 n.2
(D.C. Cir. 1938); 2 McCormick on Evid. § 332 (6th ed. 2009)). Because of the number of
individuals affected by terrorist attacks, and the associated “flood of cases that they generate,”
courts in this Circuit resolving FSIA cases have “regularly” taken judicial notice of the record in
related cases. Goldstein v. Islamic Republic of Iran, No. 16-CV-2507 (CRC), 2018 WL
6329452, at *2 (D.D.C. Dec. 4, 2018) (citing Rimkus, 750 F. Supp. 2d at 171); see also Murphy
v. Islamic Republic of Iran, 740 F. Supp. 2d 51, 58–59 (D.D.C. 2010); Brewer v. Islamic
Republic of Iran, 664 F. Supp. 2d 43, 47 (D.D.C. 2009); Estate of Heiser v. Islamic
Republic of Iran (Heiser I), 466 F. Supp. 2d 229, 262–63 (D.D.C. 2006). Significantly, “courts
have taken notice of facts found in earlier proceedings in this District even when those
proceedings have taken place in front of a different judge.” Foley v. Syrian Arab Republic, 249
F. Supp. 3d 186, 191 (D.D.C. 2017) (citing Brewer, 664 F. Supp. 2d at 54).
Other courts in this Circuit have resolved numerous cases arising out of the 1983 and
1984 bombings in East Beirut, Lebanon. See, e.g., Brewer, 664 F. Supp. 2d at 46 (suit involving
survivor of 1984 bombing); Wagner v. Islamic Republic of Iran, 172 F. Supp. 2d 128, 130–33
(D.D.C. 2001) (suit on behalf of individual killed in 1984 Annex attack); Estate of Doe v. Islamic

4
The bombing of the U.S. Embassy on April 18, 1983, “was the first large-scale attack against a

United States Embassy anywhere in the world.” Dammarell I, 281 F. Supp. 2d at 111. At just

past 1:00 p.m. on that date, a vehicle “laden with hundreds of pounds of explosives” was driven

into the main entrance of the Embassy, whereupon it “exploded with a force so powerful that

seven floors in the center section of the crescent-shaped building collapsed.” Id.; see also

Salazar v. Islamic Republic of Iran, 370 F. Supp. 2d 105 (D.D.C. 2005) (taking judicial notice of

the Dammarell court’s factual findings regarding the 1983 attack). As a result of this attack,

over sixty individuals were fatally wounded and over one hundred others were injured. Id.

After the 1983 attack, the operations of the U.S. embassy were transferred to the

Embassy Annex, located in a different part of the city that was believed to be safer. See Estate of

Doe I, 808 F. Supp. 2d at 7. But tragedy struck once more on September 20, 1984. That

morning, the driver of a vehicle loaded with explosives evaded the concrete barriers put up as

protection, ignored orders to halt, and detonated a bomb estimated to contain approximately

1500 kilograms of explosives. See Barry I, 410 F. Supp. 3d at 169 (citing Brewer, 664 F. Supp.

2d at 47; Wagner, 172 F. Supp. 2d at 132). The explosion, which “demolished the embassy

Republic of Iran (Estate of Doe I), 808 F. Supp. 2d 1, 7 (D.D.C. 2011) (suit by family members
and individuals killed or injured in 1983 or 1984 attacks); Dammarell v. Islamic Republic of Iran
(Dammarell I), 281 F. Supp. 2d 105, 108–113 (D.D.C. 2003) (suit involving over eighty
survivors of 1983 Embassy attack). In fact, as Special Master Griffin’s report states, the instant
case involves the family members of some of the plaintiffs who brought claims in Estate of Doe
and Dammarell. See, e.g., R. & R. 842 n.31, ECF No. 39; id. at 1047 n.36; id. at 1077 n.43. In
resolving these and other prior suits, courts in this Circuit have offered detailed factual reporting
of the attacks. Thus, in this section and throughout this opinion, the Court takes judicial notice
of these and related cases to draw its own, independent findings of fact in the instant case. See
Rimkus, 750 F. Supp. 2d at 172 (“[C]ourts in FSIA litigation” may, in resolving “subsequent
related cases,” properly “rely upon the evidence presented in earlier litigation—without
necessitating the formality of having that evidence reproduced—to reach their own, independent
findings of fact in the cases before them.” (citing Murphy, 740 F. Supp. 2d at 58–59)).

5
building,” Wagner, 172 F. Supp. 2d at 132, killed over ten individuals and injured over fifty

others, see Estate of Doe I, 808 F. Supp. 2d at 8.

The Smith Plaintiffs were among those struck by one or both attacks. More than 80

individuals who were at the site of one or both explosions were injured, many fatally, and their

hundreds of immediate family members have contended with the ongoing pain of the bombings

for over three decades. Based on the Smith Plaintiffs’ filings and the Special Master’s

submissions to the Court, it is clear that these acts of terror deeply affected these individuals’

lives. The question facing the Court is whether it should, as a matter of law, enter default

judgment on the Smith Plaintiffs’ claims, and if so, what measure of compensatory and economic

damages are appropriate. For the reasons set forth below, the Court enters default judgment

concerning liability and adopts in part the damages recommendations in the Special Master’s

report.

III. LEGAL STANDARD

A. Default Judgment

As this Court previously detailed in Barry I, 410 F. Supp. 3d 161, Federal Rule of Civil

Procedure 55 sets forth a two-step process for a party seeking default judgment: entry of default,

followed by entry of default judgment. Fed. R. Civ. P. 55; see also Int’l Painters & Allied

Trades Indust. Pension Fund v. Rose City Class Co., Inc., 729 F. Supp. 2d 336, 338 n.3 (D.D.C.

2010) (citing Fed. R. Civ. P. 55; Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986); Meehan

v. Snow, 652 F.2d 274, 276 (2d Cir. 1981)). First, after a defendant has failed to plead or

otherwise defend against an action, the plaintiff may request that the clerk of the court enter

default against that defendant. See Fed. R. Civ. P. 55(a). Second, following the clerk’s entry of

default, and where the plaintiff’s claim is not for a sum certain, Rule 55(b)(2) permits the

6
plaintiff to apply to the court for entry of default judgment. Id. 55(b)(2). By providing for a

two-step process, Rule 55 provides the defendant an opportunity to move the court to set aside

the default before the court enters default judgment. Id. 55(b), (c).

Although entry of default judgment may at times be appropriate, it is “not automatic.”

Braun v. Islamic Republic of Iran, 228 F. Supp. 3d 64, 74 (D.D.C. 2017) (footnote omitted)

(quoting Mwani v. bin Laden, 417 F.3d 1, 6 (D.C. Cir. 2005)). Because “strong policies favor

the resolution of disputes on their merits[,]” the court “normally” must view the default judgment

as “available only when the adversary process has been halted because of an essentially

unresponsive party.” Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980) (quoting H. F.

Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691 (D.C. Cir. 1970) (per

curiam)). Even if a defendant appears “essentially unresponsive,” id., the court still has an

“affirmative obligation” to ensure that it has subject matter jurisdiction over the suit, James

Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996). The court must also

“satisfy itself that it has personal jurisdiction before entering judgment against an absent

defendant.” Mwani, 417 F.3d at 6–7. “Although the plaintiffs retain ‘the burden of proving

personal jurisdiction,” “[i]n the absence of an evidentiary hearing,” plaintiffs can “satisfy that

burden with a prima facie showing.” Braun, 228 F. Supp. 3d at 74 (internal quotation marks

omitted) (quoting Mwani, 417 F.3d at 6–7). To make the required prima facie showing,

plaintiffs may rely on “their pleadings, bolstered by such affidavits and other written materials as

they can otherwise obtain.” Mwani, 417 F.3d at 6–7.

B. Evidentiary Showing Required by the FSIA

A court addressing a FSIA claim can enter default judgment against a foreign state only if

“the claimant[s] establish[] [their] right to relief by evidence satisfactory to the court.” 28 U.S.C.

7
§ 1608(e); see also Roeder v. Islamic Republic of Iran, 333 F.3d 228, 232 (D.C. Cir. 2003) (“The

court . . . has an obligation to satisfy itself that plaintiffs have established a right to relief.”). This

statutory standard mirrors the default judgment standard of Federal Rule of Civil Procedure

55(d). See Hamen v. Islamic Republic of Iran, 401 F. Supp. 3d 85, 90 (D.D.C. 2019) (citing

Owens v. Republic of Sudan (Owens II), 864 F.3d 781, 785 (D.C. Cir. 2017), cert granted sub.

nom. Opati v. Republic of Sudan, 139 S. Ct. 2771 (2019); Hill v. Republic of Iraq, 328 F.3d 680,

683 (D.C. Cir. 2003)). The “FSIA leaves it to the court to determine precisely how much and

what kinds of evidence [] plaintiff[s] must provide, requiring only that it be ‘satisfactory to the

court.’” Han Kim v. Democratic People’s Republic of Korea, 774 F.3d 1044, 1047–48 (D.C.

Cir. 2014) (quoting 28 U.S.C. § 1608(e)). A court making a determination about the evidence

required must bear in mind Congress’s statutory purpose in enacting a private right of action in

section 1605A of the FSIA: to “compensate[] the victims of terrorism [and thereby] punish

foreign states who have committed or sponsored such acts and deter them from doing so in the

future.” Id. at 1048 (quoting Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82,

88–89 (D.C. Cir. 2002)). In parsing the evidence that plaintiffs offer, “[c]ourts may rely on

uncontroverted factual allegations that are supported by affidavits.” Roth v. Islamic Republic of

Iran, 78 F. Supp. 3d 379, 386 (D.D.C. 2015) (citing Rimkus, 750 F. Supp. 2d at 171).

“Uncontroverted factual allegations that are supported by admissible evidence are taken as true.”

Braun, 228 F. Supp. 3d at 74–75 (citing Roth, 78 F. Supp. 3d at 386; Gates v. Syrian Arab

Republic, 580 F. Supp. 2d 53, 63 (D.D.C. 2008), aff’d, 646 F.3d 1 (D.C. Cir. 2011)); see also

Estate of Botvin ex rel. Ellis v. Islamic Republic of Iran, 510 F. Supp. 2d 101, 103 (D.D.C. 2007)

(citing Greenbaum v. Islamic Republic of Iran, 451 F. Supp. 2d 90, 94–95 (D.D.C. 2006)).

8
IV. THRESHOLD STATUTORY REQUIREMENTS

As the Court explained in Barry I, 410 F. Supp. 3d 161, before entering default judgment

in a suit under the FSIA, it is to complete a multi-step process. First, as a threshold matter, it

must ensure that it has subject matter jurisdiction over the Smith Plaintiffs’ claims and, in

addition, the Court must confirm that it may properly exercise personal jurisdiction over the

Defendant. Then, upon a finding that jurisdiction is proper, the Court must decide liability and

damages. For the reasons set forth below, the Court finds that it has original jurisdiction over

this suit pursuant to the FSIA, that it has personal jurisdiction over Defendant Iran, and that the

Smith Plaintiffs whose claims remain pending before this Court 6 have established liability and a

right to relief in the form of compensatory damages.

A. Jurisdiction 7

Subject to an adequate showing by the Smith Plaintiffs, the FSIA waives Defendant’s

sovereign immunity and grants this Court subject matter jurisdiction over this suit. The FSIA

separately sets forth procedural requirements to establish personal jurisdiction. For the reasons

discussed below, the Court concludes that it has jurisdiction here.

6
Two of the Smith Plaintiffs have voluntarily dismissed their claims. See Notice of
Voluntary Dismissal of Claims, ECF No. 51. Thus, the Court does not address these individuals.
In addition, as the Court discusses infra Part IV.B, one of the recently-deceased Smith Plaintiffs
has not yet appointed a legal representative, and thus cannot establish his estate’s standing to
pursue a claim for relief at this time.
7
As explained in Barry I, 28 U.S.C. § 1330 confers federal district courts with “original
jurisdiction” in FSIA cases. See 28 U.S.C. § 1330(a) (stating that original jurisdiction exists
“without regard to amount in controversy” in “any nonjury civil action against a foreign state”
that “seeks relief in personam,” and for which “the foreign state is not entitled to immunity).
Here, the Smith Plaintiffs have not demanded a jury trial and seek only monetary damages, see
generally Intervenor Compl., and Defendant Iran is plainly a foreign state. Thus, the Court will
focus on the final element: whether Defendant Iran is “not entitled to immunity,” such that the
Court may exercise subject matter jurisdiction over Plaintiffs’ claim.

9
1. Waiver of Sovereign Immunity

The pertinent jurisdictional question is whether the FSIA’s “terrorism exception,” 28

U.S.C. 1605A, applies such that Defendant Iran—a foreign state—is “not entitled to immunity,”

28 U.S.C. 1330(a), and the Smith Plaintiffs may pursue their claims before this Court. See Barry

I, 410 F. Supp. 3d at 172–73 (summarizing background sovereign immunity principles). The

terrorism exception establishes “that a foreign state is not immune in ‘any case’ in which ‘money

damages are sought against a foreign state for personal injury or death that was caused by an act

of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material

support or resources for such an act.’” Id. at 173 (quoting 28 U.S.C. § 1605A). A plaintiff in a

suit brought under the FISA “bears [the] initial burden of production to show an exception to

immunity, such as § 1605A, applies,” whereupon, if the defendant fails to appear, “jurisdiction

attaches.” Owens I, 864 F.3d at 784. In addition, the terrorism exception applies only if two

prerequisites are met: (1) the foreign state was designated as a “state sponsor of terrorism at the

time of the act,’” and “remains so designated when the claim is filed,” 28 U.S.C. §

1605A(a)(2)(A)(i)(1), and (2) the “claimant or victim was”—as relevant here— “an employee of

the Government of the United States[] or . . . an individual performing a contract awarded by the

United States Government, acting within the scope of the employee’s employment” at the time

of the act, 28 U.S.C. § 1605A(a)(2)(A)(ii). See also Mohammadi, 782 F.3d at 14; Schertzman

Cohen v. Islamic Republic of Iran, No. 17-1214 (JEB), 2019 WL 3037868, at *3 (D.D.C. July

11, 2019). The Court will first consider whether these threshold requirements are met and then

consider whether this suit falls within the terrorism exception’s waiver of sovereign immunity,

thereby conferring subject matter jurisdiction.

10
a. Requirements for a Claim to be Heard Under Section 1605A

In this case, section 1605A’s prerequisites are met. First, Iran was designated as a state

sponsor of terrorism in 1984, see 49 Fed. Reg. 2836-02 (Jan. 23, 1984), and has remained so

designated ever since, see U.S. Dep’t of State, State Sponsors of Terrorism,

https://www.state.gov/state-sponsors-of-terrorism/ (last visited Oct. 18, 2019). Thus, the claims

involving injuries suffered as a result of the 1984 bombing satisfy the first portion of section

1605A. So, too, do the claims relating to the 1983 bombing. Although Iran was not designated

as a state sponsor of terrorism at the time of the earlier bombing, another subdivision of the

terrorism exception is applicable: a plaintiff may bring an action under section 1605A if “a

related action was commenced” under the statutory predecessor to 1605A, 28 U.S.C. §

1605(a)(7), within 10 years of April 24, 1996. 28 U.S.C. 1605A(b). Following the Circuit’s

guidance in Maalouf v. Islamic Republic of Iran, 923 F.3d 1095, 1115 (D.C. Cir. 2019), the

Court does not consider the 10-year statute of limitations provision set forth in section 1605A(b)

to be jurisdictional. In this case, because Iran has not entered an appearance, it has waived any

argument concerning this aspect of the statute’s requirements for a claim to be heard. 8 Accord,

8
In any event, even if this were not the case, the Court notes without deciding the issue
that the Smith Plaintiffs’ claims would satisfy the terms of section 1605A(b)’s “related action”
provision, which provides that “the foreign state defendants must have been designated by the
U.S. Department of State as a ‘state sponsor of terrorism’ when the original action under §
1605(a)(7) was filed.” Estate of Doe I, 808 F. Supp. 2d at 13. A number of actions related to the
1983 Beirut bombing were commenced in this Circuit under § 1605(a)(7). See Valore v. Islamic
Republic of Iran, 700 F. Supp. 2d 52, 58–59 (D.D.C. 2010) (discussing nine related cases:
Peterson v. Islamic Republic of Iran, No. 01–cv–2094; Boulos v. Islamic Republic of Iran, No.
01–cv–2684; Valore v. Islamic Republic of Iran, No. 03–cv–1959; Bland v. Islamic Republic of
Iran, No. 05–cv–2124; Arnold v. Islamic Republic of Iran, No. 06–cv–516; Murphy v. Islamic
Republic of Iran, No. 06–cv–596; O’Brien v. Islamic Republic of Iran, No. 06–cv–690; Spencer
v. Islamic Republic of Iran, No. 06–cv–750; and Davis v. Islamic Republic of Iran, No. 07–cv–
1302). Moreover, certain of the Smith Plaintiffs have even more direct connections to related
cases: several are the immediate family members of claimants in Estate of Doe v. Islamic
Republic of Iran, Civ. No 08-450 (JDB), and Dammarell v. Islamic Republic of Iran, Civ. No.

11
e.g., Dibenedetto et al. v. Iranian Ministry of Information and Security, et al., No. 16-02429

(TSC), 2019 WL 4860778, at *2 (D.D.C. Sept. 30, 2019); Schooley v. Islamic Republic of Iran,

No. 17-1376 (BAH), 2019 WL 2717888, at *68 (D.D.C. June 27, 2019). Thus, the first

prerequisite for a claim to be heard under section 1605A is met for the Smith Plaintiffs’ claims

involving injuries arising from both the 1983 and 1984 bombings.

In addition, the Smith Plaintiffs have fulfilled the second prong of section 1605A(a).

Again, the terrorism exception applies only if the “claimant or victim was,” at the time of the act,

working as “an employee of the Government of the United States” or “performing a contract

awarded by the United States Government” and, in either case, “acting within the scope of the

employee’s employment.” 28 U.S.C. § 1605A(a)(2)(A)(ii). Special Master Griffin’s findings of

fact establish by a clear and convincing evidence standard, R. & R. 2, that the Smith Plaintiffs

directly injured in the attacks were either U.S. government employees or performing contracts

awarded by the U.S. government at the time of the act, and that all were acting within the scope

of their employment. The Court accepts the Special Master’s findings of fact, derived from

uncontroverted evidence presented to him, on this matter. Thus, these claimants plainly fall

within the section 1605A categories of individuals entitled to bring a claim. Each of the

remaining claims that are brought by immediate family members, moreover, is rooted in one of

these claims. In other words, as has been the case in other suits involving claims for relief by

family members of directly-injured individuals, the remaining “claims are derived from claims

where the victims were U.S. Government employees” or performing contracts awarded by the

U.S. government “at the time of the attack as required by § 1605A(a)(2)(A)(ii)(I)-(III).” Estate

01-2224, see, e.g., R. & R. 842 n.31, id. at 1047 n.36, and still others have previously sought to
recover in related cases for injuries to immediate family members not presently before this Court
in these same attacks, see, e.g., id. at 179 n.5; id. at 799 n.30. Iran was a state sponsor of
terrorism when each of these related original actions were filed.

12
of Doe I, 808 F. Supp. 2d at 13. Thus, all the Smith Plaintiffs have met the threshold

requirements for a claim to be heard under section 1605A.

b. 1605A’s Waiver of Sovereign Immunity

With these threshold requirements met, the next jurisdictional issue facing the Court is

whether the Smith Plaintiffs have met each of the requirements enumerated in section 1605A

itself. As the Court discussed in Barry I, “an exception to sovereign immunity exists for a

foreign defendant when the FSIA claimant seeks [1] ‘money damages’ [2] ‘against a foreign

state’ for [3] ‘personal injury or death that [4] was caused by [5] an act of torture, extrajudicial

killing, aircraft sabotage, hostage taking, or the provision of material support or resources for

such an act.’” 410 F. Supp. 3d at 174 (quoting 28 U.S.C. § 1605A(a)(1) (alterations added)); see

also Oveissi v. Islamic Republic of Iran (Oveissi III), 879 F. Supp. 2d 44, 50–51 (D.D.C. 2012);

Wultz v. Islamic Republic of Iran, 864 F. Supp. 2d 24, 32 (D.D.C. 2012)). Just as in Barry I, the

Court finds that each of the elements is met. First, because the Smith Plaintiffs seek money

damages in the form of compensatory and economic damages against Defendant Iran, see

Intervenor Compl. 137, prongs one and two are satisfied. Second, the Special Master’s report

and recommendation sets forth in substantial detail how each of the directly-injured Smith

Plaintiffs suffered physical injury such as head trauma, loss of hearing, severe lacerations, and—

in the case of nine Plaintiffs—how they were fatally injured in the attack. It also delineates how

each of their immediate family members suffered emotional pain and suffering due to the injuries

of their loved ones. The Court adopts the Special Master’s uncontroverted findings of fact

concerning the personal injury or death of each of the Smith Plaintiffs and therefore finds that the

third prong is met.

13
Furthermore, Plaintiffs carry their burden regarding prong four: causation. “Causation in

a FSIA suit is established when the plaintiff shows proximate cause, or ‘some reasonable

connection’ between the defendant’s act and ‘the damages which the plaintiff has suffered.’”

Barry I, 410 F. Supp. 3d at 174–75 (quoting Valore, 700 F. Supp. 2d at 66); see also Owens I,

864 F.3d at 794 (affirming proximate cause as the jurisdictional standard pursuant to 28 U.S.C. §

1605A). In this case, for the 1983 Embassy bombing, the Smith Plaintiffs allege that “the

personal injuries and/or deaths of the Plaintiff victims of the April 18, 1983 attack, and the

injuries to the Plaintiff family members . . . were the direct and proximate result of the willful,

wrongful, intentional, and reckless acts of” individuals “whose acts were materially supported,

funded and directed by Iran and its agents while acting within the scope of their offices,

employment, or agencies.” Intervenor Compl. ¶ 480. The Smith Plaintiffs further allege that, for

the 1984 Embassy Annex bombing, the same is true. See id. at ¶ 487. The Court, taking judicial

notice of evidentiary findings in other cases in this jurisdiction to draw its own conclusions of

fact, see Rimkus, 750 F. Supp. 2d at 172, agrees.

As the Smith Plaintiffs document in detail, numerous other courts in this district have

linked Iran to both the 1983 and 1984 attacks. Because the Court already established that there is

a “reasonable connection” between Iran’s support for the 1984 Annex attack and injuries

suffered by those present at the site of the bombing, see Barry I, 410 F. Supp. 3d at 174–75, it

will not retread this ground. Here, as in its prior analysis, the Court takes judicial notice of the

ample evidence set forth in prior cases and concludes that this evidence is sufficient to “justify a

specific finding that defendant[] [Iran] provided support for the 1984 attack on the U.S. Embassy

Annex in Lebanon.” Estate of Doe I, 808 F. Supp. 2d at 16 (citing Wagner, 172 F. Supp. 2d at

14
133; Welch v. Islamic Republic of Iran, No. 01-863, 2007 WL 7688043 (CKK) (AK), at *27

(D.D.C. Sept. 20, 2007); Brewer, 664 F. Supp. 2d at 54).

Other courts in this district, moreover, have heard relevant testimony and reached the

same conclusion concerning the 1983 attack on the U.S. Embassy in Lebanon. See Estate of Doe

I, 808 F. Supp. 2d at 15 (“[T]he evidence presented at the Dammarell evidentiary trial ‘show[ed]

unquestionably that Iran and MOIS provided material support to Hezbollah, and that this support

was the proximate cause of the 1983 Beirut embassy bombing and the deaths and injuries that

resulted.’” (emphasis in original) (quoting Dammarell v. Islamic Republic of Iran (Dammarell

III), No. 01-2224 (JDB), 2005 WL 756090, at *6)); Dammarell v. Islamic Republic of Iran

(Dammarell II), 404 F. Supp. 2d 261, 272 (D.D.C. 2005) (citing expert testimony to support the

conclusion that “the complexity of the attack upon the U.S. Embassy in Beirut evidenced Iran’s

central role in the attack”); Salazar, 370 F. Supp. 2d at 109 (“[P]laintiff’s submissions and the

trial record amply support the allegations . . . [that] Iran, the MOIS, and the IRGC directly and

proximately caused the death of Mr. Salazar” in the 1983 embassy bombing). Based on these

prior evidentiary findings and the filings before it, the Court finds that the Smith Plaintiffs have

established a “reasonable connection” between Iran’s support for both the 1983 and 1984 attacks

and their alleged injuries. Thus, the Smith Plaintiffs have satisfied the fourth prong of section

1605A.

In addition, for reasons this Court documented in detail in Barry I, this showing suffices

to meet section 1605A’s fifth prong: the requirement that claims brought pursuant to the FSIA

must arise out of, as relevant here, “extrajudicial killing . . . or the provision of material support

or resources for such an act.” 28 U.S.C. § 1605A(1). Here, the Court concludes that driving a

vehicle laden with explosives into a building filled with U.S. government workers and

15
contractors (as in the 1983 attack) or detonating such a vehicle in close proximity to a building

full of embassy employees (as in the 1984 attack) is plainly an “extrajudicial killing” as set forth

in the FSIA. See 1605A(h)(7) (defining term by reference to section 3 of the Torture Victim

Protection Act of 1991, Pub. L. No. 102-256 § 3(g), 106 Stat. 73 (1992)). Moreover, drawing

from the voluminous evidentiary records compiled by other courts in related cases in this Circuit,

as described above, the Court further concludes that Iran provided “material support or

resources” as defined by the FSIA. See 28 U.S.C. § 1605A(h)(3) (providing, in relevant part,

that “material support or resources’ means any property, tangible or intangible, or service”

(referencing 18 U.S.C. § 2339A)).

Accordingly, all of section 1605A’s subject matter jurisdictional requirements are met,

and Iran’s sovereign immunity is waived with respect to the Smith Plaintiffs’ claims.

2. Personal Jurisdiction

An additional jurisdictional question facing this Court is whether the Smith Plaintiffs

have met the FSIA’s separate procedural requirements regarding personal jurisdiction. “Personal

jurisdiction exists over a non-immune sovereign so long as service of process has been made as

required by section 1608” of the statute. Estate of Heiser v. Islamic Republic of Iran (Heiser I),

466 F. Supp. 2d 229, 255 (D.D.C. 2006) (citation omitted); 28 U.S.C. §1330(b) (“[P]ersonal

jurisdiction over a foreign state shall exist as to every claim for relief over which the district

courts have jurisdiction . . . where service has been made under section 1608 of this title.”).

Section 1608 provides four ways to effect service: [1] “special arrangement for service between

the plaintiff and the foreign state or political subdivision;” [2] “in accordance with an applicable

international convention on service of judicial documents;” [3] in cases where the first two

methods do not suffice to effect service, “by sending a copy of the summons and complaint and a

16
notice of suit” including translations “into the official language of the foreign state, by any form

of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the

head of the ministry of foreign affairs of the foreign state concerned,” or [4] if the third method

also fails,

by sending two copies of the summons and complaint and a notice of suit,
together with a translation of each into the official language of the foreign state,
by any form of mail requiring a signed receipt, to be addressed and dispatched by
the clerk of the court to the Secretary of State in Washington, District of
Columbia, to the attention of the Director of Special Consular Services—and the
Secretary shall transmit one copy of the papers through diplomatic channels to the
foreign state and shall send to the clerk of the court a certified copy of the
diplomatic note indicating when the papers were transmitted.

28 U.S.C. § 1608(a).

Here, neither option one nor option two applies. The Smith Plaintiffs do not have a

“special arrangement” with Iran, nor is there an “applicable international convention.” 28 U.S.C.

§ 1608(a). The Smith Plaintiffs therefore attempted to effectuate service using the third method.

See Aff., Nov. 17, 2017, ECF No. 15 (request by Smith Plaintiffs’ counsel that Clerk of Court

mail a copy of the summons, complaint in intervention, and notice of suit by registered mail to

the Ministry of Foreign Affairs for the Islamic Republic of Iran); Certificate of Clerk, ECF No.

16 (providing certificate of mailing of requested materials, pursuant to 28 U.S.C. § 1608(a)(3)).

When service was not successful with this method, see ECF No. 18, the Smith Plaintiffs resorted

to the fourth method and requested that the “Clerk dispatch the alternative means of service

prescribed by 28 U.S.C. 1608(a)(4),” including service by certified United States mail, return

receipt requested, addressed to the U.S. Department of State’s Director of Consular Services.

Aff., Dec. 22, 2017, ECF No. 20. The Clerk of the Court thereafter indicated that the papers

were transmitted by priority mail, return receipt requested, Certificate of Clerk, Dec. 27, 2017,

ECF No. 22, and the Smith Plaintiffs later provided notice that the documents were transmitted

17
through diplomatic channels as the statute requires, see Return of Service Affidavit, ECF No. 27

(stating that the “documents were delivered to the Iranian Ministry of Foreign Affairs under

cover of diplomatic note No. 1035-IE, dated and delivered on April 10, 2018”). Thus, the Smith

Plaintiffs have satisfied section 1608’s service of process requirements, and the Court may

exercise personal jurisdiction over Defendant.

B. Plaintiffs’ Eligibility to Bring Section 1605A Claim 9

One last threshold matter remains before assessing liability: whether the Smith Plaintiffs

are eligible to bring a claim pursuant to section 1605A. 10 Here, as indicated previously, the

Smith Plaintiffs consist of two categories of individuals: (1) individuals who were employed by

or performing contracts awarded by the U.S. government at the time of one or both attacks, or

the estates of such individuals, and (2) the immediate family members of such directly-injured

individuals, or the legal representatives of these immediate family members. 11 See Mem.

Supporting Smith Pls.’ Renewed Mot. 3. The Court will next consider whether the estates of the

now-deceased Smith Plaintiffs within each of these categories have standing as well as whether

9
In referring to individual Smith Plaintiffs, the Court uses the pseudonym, if any,
associated with an individual in the intervenor complaint and subsequent filings. Where the
Smith Plaintiffs indicate that no pseudonym has been assigned to a newly-appointed
representative acting on behalf of a deceased claimant, the Court refers to that individual by
stating their relationship to the original claimant.
10
As the Court explained in Barry I, this inquiry is essential because “the question [of]
whether a statute withdraws sovereign immunity”—as the Court has concluded, for the reasons
detailed above, that the FSIA has done in this instance—“is ‘analytically distinct’ from whether a
plaintiff has a cause of action.” 410 F. Supp. 3d at 176 (quoting Owens 864 F.3d at 807); see
also FDIC v. Meyer, 510 U.S. 471, 484 (1994); United States v. Mitchell, 463 U.S. 206, 218
(1983)). The Court discusses the relevant theories of liability that might give rise to a cause of
action for each of the categories of Smith Plaintiffs infra Section IV.B.2.
11
As noted previously, two of the Smith Plaintiffs, Jane Sister2 ZSmith, see Intervenor
Compl. ¶ 155, and Jane Sister1 KKSmith, see Intervenor Compl. ¶ 227, have filed a notice of
voluntary dismissal of their claims, see Smith Pls.’ Response 2; Notice of Voluntary Dismissal of
Claims, ECF No. 51. Thus, the Court’s analysis does not consider these two individuals.

18
certain now-deceased or incapacitated Smith Plaintiffs may substitute a legal representative or

change their previously-selected legal representative. 12

1. Standing of Estates

“When, such as here, an estate-plaintiff brings an action under [the] FSIA’s private cause

of action, the plaintiff must first establish the estate’s standing, or “[its] power . . . to bring and

maintain legal claims.” Cohen v. Islamic Republic of Iran, 238 F. Supp. 3d 71, 85 (D.D.C. 2017)

(quoting Taylor v. Islamic Republic of Iran, 811 F. Supp. 2d 1, 12–13 (D.D.C. 2011)). The

standing of the estate is a “threshold question” that is “governed by the law of the state which

also governs the creation of the estate.” 13 Worley, 75 F. Supp. 3d at 333 (quoting Taylor, 811 F.

12
There was previously another sub-category of Smith Plaintiffs: family members who
are alive, but who were initially represented by a third party for a reason not discussed in any
detail in any of the filings. See Mem. Supporting Smith Pls.’ Renewed Mot. 1–2 n.1 (noting in
passing that certain “Smith Plaintiffs are currently incapacitated”). The Smith Plaintiffs’
response to this Court’s order for supplementation suggests that all of the living Plaintiffs that
were formerly represented by third parties are now proceeding in their individual capacities.
Smith Pls.’ Response 4–5. These Plaintiffs, who were uniformly Lebanese nationals at the time
of the relevant attack(s), id. Ex. 2 at 6, Former Representative Information, are John Husband
Smith, see Intervenor Compl. ¶ 5, Jane Daughter2 Smith, see id. ¶ 7; John Brother3 ESmith, see
id. ¶ 44; John Brother2 NSmith, see id. ¶ 97; Jane Sister1 NSmith, see id. ¶ 99; Jane Sister2
NSmith, see id. ¶ 100; Jane Sister 3 RRSmith, see id. ¶ 268; and Jane Sister2 LLLSmith, see id. ¶
402. With this change, with the exception of one legally incompetent Plaintiff, discussed below,
the Court reads the Smith Plaintiffs’ response to indicate that all Smith Plaintiffs who are not
proceeding in their individual capacity are deceased and therefore represented by legal
representatives acting on behalf of the estate. In other words, all living and legally competent
Smith Plaintiffs sue in their individual capacity, and all legal representatives are acting on behalf
of the estate of a deceased or legally incompetent Smith Plaintiff. The following analysis reflects
this interpretation of the uncontroverted record before the Court.
13
The Smith Plaintiffs contend that the Court should not assess this issue because
Defendant has not raised it and “the ability of a legal representative to bring a claim after the
death of the decedent is not a jurisdictional question.” Smith Pls.’ Response 7 n.3 (citing
Malvino v. Delluniversita, 840 F.3d 223, 228 (5th Cir. 2016)). However, the out-of-circuit
disposition on which the Smith Plaintiffs’ argument relies is not only contrary to the FSIA
analysis of myriad district courts in this Circuit, but also represents a RICO-specific judgment
that does not stand firmly for the stated proposition concerning the survivability of claims in all
instances. See Malvino, 840 F.3d at 228 (“Whether the RICO claim survives the injured party’s
death is thus more accurately viewed as a question of statutory standing.”). Moreover, the Smith

19
Supp. 2d at 12); see also Lelchook v. Syrian Arab Republic (Lelchook II), No. CV 16-1550 (RC),

2019 WL 2191177, at *1 (D.D.C. Mar. 25, 2019) (quoting Taylor, 811 F. Supp. 2d at 12).

With the submission of their response to this Court’s October 21, 2019 Order, the Smith

Plaintiffs have now provided uncontroverted evidence regarding which state’s law governs the

creation of each of the estates bringing claims in this suit. 14 See Smith Pls.’ Response 10–13.

Specifically, two estates were created under Florida law; 15 one estate was created under Indiana

law; 16 one estate was created under Michigan law; 17 one estate was created under New York

Plaintiffs’ reliance on language from Estate of Doe to argue that Lebanese law permits “an heir
of a decedent . . . [to] bring the equivalent of a ‘Survival Act’ claim under District of Columbia
law on behalf of the heirs to recover damages for emotional distress suffered by a decedent
before death” is misplaced insofar as it again conflates the standing of the estates with what legal
cause of action is brought by the estate. See Smith Pls.’ Response 13–14 (quoting 808 F. Supp.
2d at 21). This Court reserves judgment as to whether the standing of an estate is jurisdictional
in the FSIA context. Here, for the reasons that follow, all of the estates with appointed legal
representatives have standing in this suit.
14
The Smith Plaintiffs appear to argue that—because, on Plaintiffs’ theory, each of the
immediate family members’ claims are “governed uniformly by District of Columbia law”—
D.C. state law is the applicable source of law for the analysis of whether the estates have
standing. Smith Pls.’ Response 8–9. However, this assertion ignores the routine practice of
courts in this district, wherein the “threshold question regarding the ‘power of the estate to bring
and maintain legal claims’” is governed by the “law of the state which also governs the creation
of the estate.” Worley, 75 F. Supp. 3d at 333 (quoting Taylor, 811 F. Supp. 2d at 12). The Smith
Plaintiffs’ contrary argument conflates two distinct legal inquiries: (1) under which state’s law, if
any, a claim for relief may be established, and (2) whether the estate has standing to bring and
maintain the claim in the first instance. The Court addresses the question of which state’s law
applies to the substantive claims of this category of the Smith Plaintiffs infra Section IV.C.
15
These are the estates of Leo Pezzi Sr. and Mary Donato Pezzi, respectively, see
Intervenor Compl. ¶¶ 464, 465, whose claims are brought by their son, Leo Rene Pezzi, see
Representative Information – Estates 4.
16
This is the estate of Richard L. Korn, see Intervenor Compl. ¶ 445, whose claim is
brought by his wife, Mildred D. Korn, see Representative Information – Estates 4.
17
This is the estate of John Victim NSmith, see Intervenor Compl. ¶ 94, whose claim is
brought by his wife, Jane Representative NSmith, see Representative Information – Estates 2.

20
law; 18 one estate was created under Pennsylvania law; 19 two estates were created under Texas

law; 20 two estates were created under Syrian law; 21 and the rest of the estates were created under

Lebanese law. 22

18
This is the estate of John Brother1 NNSmith, see Intervenor Compl. ¶ 243, whose
claim is brought by his wife, see Representative Information – Estates 4.
19
This is the estate of Frances M. Faraci, see Intervenor Compl. ¶ 444, whose claim is
brought by his son, Philip M. Faraci, Jr., see Representative Information – Estates 4.
20
These are the estates of James Richard Byers, see Intervenor Compl. ¶ 438, whose
claim is brought by his wife, Jo Ann Byers, see Representative Information – Estates 4, and
Charlene Bouldin Watson, see Intervenor Compl. ¶ 440, whose claim is brought by her
granddaughter, Shpwan Watson, see Representative Information – Estates 4.
21
These are the estates of John Father UUSmith and Jane Mother UUSmith, respectively,
see Intervenor Compl. ¶¶ 280, 281; the claims of both individuals are brought by their daughter,
Jane Victim UUSmith, see Representative Information – Estates 3.
22
As discussed in the Smith Plaintiff’s Response, these are the estates of Jane Victim
Smith, John Victim ASmith, John Father ASmith, John Victim BSmith, Jane Wife BSmith, John
Son2 BSmith, John Son3 BSmith, John Victim CSmith, Jane Wife CSmith, Jane Mother CSmith,
John Brother1 CSmith, John Brother2 CSmith, John Brother3 CSmith, John Victim DSmith,
John Victim ESmith, John Father ESmith, Jane Mother ESmith, JaneSister3 ESmith, John
Victim FSmith, John Father FSmith, John Brother5 FSmith, John Victim GSmith, John Victim
HSmith, John Brother HSmith, John Victim ISmith, John Father JSmith, John Father KSmith
VictimLSmith, Jane Mother KSmith Wife LSmith, Jane Mother LSmith, Jane Mother NSmith,
John Brother1 NSmith, John Brother 3 NSmith, John Father QSmith, Jane Mother QSmith, John
Brother1 QSmith, Jane Sister1 QSmith, John Father SSmith, Jane Mother SSmith, John Victim
TSmith, John Victim USmith, Jane Mother XSmith, Jane Mother ZSmith, John Brother1
ZSmith, John Brother3 ZSmith, John Father AASmith, Jane Mother AASmith, Jane Sister4
AASmith, John Victim BBSmith, Jane Wife CCSmith, Jane Mother DDSmith, Jane Mother
EESmith, John Brother2 EESmith, John Father FFSmith, John Victim GGSmith, Jane Wife
GGSmith, John Son3 GGSmith, John Father IISmith, Jane Mother IISmith, Jane Victim JJSmith,
Jane Mother JJSmith, John Victim KKSmith, Jane Wife KKSmith, John Son1 KKSmith, John
Brother KKSmith, John Father LLSmith, Jane Mother LLSmith, John Father NNSmith, Jane
Mother NNSmith, John Brother3 NNSmith, Jane Mother OOSmith, Jane Mother PPSmith, John
Father QQSmith, Jane Mother QQSmith, Jane Mother SSSmith, John Victim TTSmith, John
Victim WWSmith, John Father AAASmith, Jane Mother AAASmith, John Father BBBSmith,
Jane Mother CCCSmith, John Brother2 CCCSmith, John Father DDDSmith, John Father
FFFSmith, Jane Mother FFFSmith, John Father GGGSmith, Jane Mother GGGSmith, Jane
Mother IIISmith, John Brother2 IIISmith, Jane Sister1 IIISmith, Jane Mother JJJSmith, John
Victim LLLSmith, John Brother1 LLLSmith, John Brother3 LLLSmith, John Brother4
LLLSmith, Jane Sister1 LLLSmith, Jane Sister3 LLLSmith, John Father MMMSmith, Jane
Mother MMMSmith, Jane Mother NNNSmith, John Brother6 NNNSmith, John Victim
OOOSmith, and Jane Wife OOOSmith Mother PPPSmith, respectively. See ECF No. 48-2.

21
The Court next considers the applicable laws of each of these domestic and foreign

states. 23 For the reasons forth below, the individuals who serve as legal representatives for the

estates of the deceased or otherwise incapacitated Smith Plaintiffs have standing under the

governing statutes and/or law of inheritance for each of the respective jurisdictions.

2. Estates Governed by Florida Law

The two estates governed by Florida law are associated with the father and mother,

respectively, of Leo Rene Pezzi, an individual who was injured in the 1983 attack and was a

plaintiff in Dammarell II, 404 F. Supp. 2d 261. See Smith Pls.’ Response 10–11, Intervenor

Compl. ¶¶ 464, 465. As the Dammarell II court explained, “[b]y statute in Florida, ‘[n]o cause

of action dies with the person.’ Rather, ‘[a]ll causes of action survive and may be commenced,

prosecuted, and defended in the name of the person prescribed by law.’” 404 F. Supp. 2d at 285

(quoting Fla. Stat. Ann. § 46.021 (West 2005)). 24 The text of this statute remains unchanged.

See Fla. Stat. Ann. § 46.021. Now, as then, “any claim for personal injury, which includes IIED,

can be maintained by the personal representative of the claimant once the claimant dies,” so long

as the personal injury did not cause the claimant’s death. Dammarell II, 404 F. Supp. 2d at 285–

86 (citing ACandS, Inc. v. Redd, 703 So. 2d 492, 493 (Fla. 3d DCA 1997); Fla. Stat. Ann. §

768.20). In this instance, because the estates of Mr. Pezzi and Ms. Pezzi seek to recover for

23
The Smith Plaintiffs bring claims for both IIED (in association with directly-injured
victims or the immediate family member of such victims) and wrongful death (on behalf of
victims killed in one of the attacks). All of the wrongful death claims, see Intervenor Compl. ¶¶
4, 8, 19, 24, 33, 39, 50, 63, and 68, involve estates governed by Lebanese law, see Smith Pls.’
Response Ex. 2 at 1–5, Representative Information – Estates. Thus, the Court’s discussion of the
law of all other jurisdictions considers only whether the law of the relevant state provides for a
personal injury action for IIED and/or solatium.
24
Although Dammarell II was decided before the FSIA was amended and current section
1605A was enacted, the amendments do not bear on this analysis, which involves only the
estate’s standing under Florida state law.

22
IIED suffered in association with the non-fatal injury of their son in the 1983 bombing, their

estates have standing under Florida law.

3. Estates Governed by Michigan Law

Under Michigan state law, as the Smith Plaintiffs note, the general rule is that “[a]ll

actions and claims survive death.” Smith Pls.’ Response 11 (quoting MI ST § 600.2921). An

exception applies for a wrongful death action seeking to recover an injury that resulted in death,

which “shall not be prosecuted after the death of the injured person except” as statutorily

prescribed. MI ST § 600.2921. In this case, the rule and not the exception controls. The estate

created under Michigan law represents the claims of an individual who was injured in both the

1983 and 1984 attacks. See Smith Pls.’ Response Ex. 2 at 2; Special Master R. & R. ¶ 233.

There are no allegations that the injury caused the death of the Plaintiff. Thus, his estate has

standing under Michigan law.

4. Estates Governed by New York Law

For estates governed by New York law, the state’s law of estates, powers, and trusts

determines whether an estate may bring a personal injury action. See Anderson v. Islamic

Republic of Iran, 753 F. Supp. 2d 68, 83 (D.D.C. 2010). Under the relevant statutory provision,

“[n]o cause of action for injury to person or property is lost because of the death of the person in

whose favor the cause of action existed. For any injury an action may be brought or continued

by the personal representative of the decedent.” N.Y. Est. Powers & Trusts Law § 11-3.2

(McKinney). Moreover, as the Anderson court noted, New York’s highest state court has

emphasized that, under this statute, personal injury causes of actions (not merely claims alleging

injuries to property or claims based in contract) survive a decedent’s passing. Heslin v. County

of Greene, 923 N.E. 2d 1111, 1114 n.4 (N.Y. 2010) (“[A]ll tort and contract actions that

23
belonged to a decedent may now be maintained by the estate’s personal representative.”). Here,

the estate governed by New York State law represents the claims of the brother of an individual

directly injured in the 1983 attack. See Smith Pls.’ Response Ex. 2 at 4; Special Master R. & R.

¶ 243. Under New York state law, his estate has standing to bring all tort actions on his behalf.

5. Estates Governed by Texas Law

The two estates governed by Texas law are associated with the brother and sister,

respectively, of Rayford Byers, an individual who was injured in the 1983 attack and who was a

plaintiff in Dammarell v. Islamic Republic of Iran, 404 F. Supp. 2d 261 (D.D.C. 2005). 25 Texas

State law provides that a so-called “survival” “cause of action for personal injury to the health,

reputation, or person of an injured person does not abate because of the death of the injured

person.” Tex. Civ. Prac. & Rem. § 71.021(a). “A decedent’s personal injury action therefore

survives death and may be prosecuted on her behalf.” Taylor, 811 F. Supp. 2d at 13 (quoting

Elliott v. Hollingshead, 327 S.W. 3d 824, 833 (Tex. App. 2010)); see also Austin Nursing Ctr.,

Inc. v. Lovato, 171 S.W.3d 845, 850 (Tex. 2005) (“Because a decedent’s survival claim becomes

part of her estate at death, it follows that the estate retains a justiciable interest in the survival

action.”). Accordingly, the estates governed by Texas law have standing to pursue personal

injury claims that the two decedent Smith Plaintiffs could have pursued during their lifetime.

25
The sister, Charlene Bouldin Watson, originally sued in her individual capacity, see
Intervenor Compl. ¶ 440, but the Smith Plaintiffs indicate that she is now deceased, see Smith
Pls.’ Response 3. The Smith Plaintiffs thus seek the Court’s approval for substitution of her
granddaughter as a party plaintiff on behalf of her estate. Id. Ex. 2 at 4. Under Texas State law,
“[a] personal injury action survives to and in favor of the heirs, legal representatives, and estate
of the injured person.” Tex. Civ. Prac. & Rem. § 71.021(b). Here, because there is no dispute
regarding the identity of the legal representative or the propriety of her representation of the
estate, the Court accepts this substitution.

24
6. Estates Governed by Syrian Law

Turning now to foreign law, the Syrian laws of inheritance govern the claims of the two

deceased Smith Plaintiffs. 26 These individuals are the mother and father of an individual who

was injured in the 1983 attack, see Special Master R. & R. 683–85, and their estates are now

represented by their daughter, see Representative Information – Estates 3. Under Syrian law,

Article 223 of the Syrian Civil Code permits “spouses and relatives of the second degree (which

includes parents, children, and siblings, among others)” to “assert a claim for compensation for

emotional injuries suffered as a result of death or injury caused to a family member.” Legal

Opinion on Syrian Law 1. Such a claim “survives the decedent’s death, and properly may be

asserted regardless of whether the decedent instituted the claim before death.” Id. at 2. In this

instance, because the daughter of the deceased Smith Plaintiffs whose estates are governed by

Lebanese law, representing their estates, asserts a claim for emotional injuries caused by the

injury to their son, the estates have standing under Syrian law.

26
To determine questions of foreign law such as those at hand (the standing of estates
created under Syrian and Lebanese law), “Federal Rule of Civil Procedure 44.1 permits courts
determining foreign law to consider ‘any relevant material or source, including testimony,
whether or not . . . admissible under the Federal Rules of Evidence.’” Lelchook v. Syrian Arab
Republic (Lelchook I), No. CV 16-01550 (RC/RMM), 2019 WL 2191323, at *5 (D.D.C. Jan. 31,
2019), report and recommendation adopted, No. CV 16-1550 (RC), 2019 WL 2191177 (D.D.C.
Mar. 25, 2019). The Smith Plaintiffs have provided two legal opinions on the relevant law of the
foreign jurisdictions that governs some of the estates in this suit. See Smith Pls.’ Response, Ex.
3, Legal Opinion on Some Issues Regarding Lebanese Inheritance Law (“Legal Opinion on
Lebanese Law”), ECF No. 48-3; id. at Ex. 4, Legal Opinion on Certain Issues Regarding Syrian
Law (“Legal Opinion on Syrian Law), ECF No. 48-4. The Smith Plaintiffs indicate therein the
qualifications of these experts, and these filings satisfy the Court that the authors of these
opinions are qualified to testify as experts, as Federal Rule of Evidence 201 requires. Thus, the
Court’s analysis of the standing of the estates governed by foreign law considers the two legal
opinions that the Smith Plaintiffs have provided.

25
7. Estates Governed by Lebanese Law

Before addressing the standing of the estates governed by Lebanese inheritance law, the

Court addresses two preliminary issues regarding the legal representatives pursuing these claims.

a. Substitution of Legal Representatives

The Smith Plaintiffs’ most recent filings present two discrete issues concerning the legal

representatives of certain parties. First, for five Smith Plaintiffs who are now deceased and

whose estates are governed by Lebanese law, the Smith Plaintiffs move pursuant to Federal Rule

of Civil Procedure 25(a) to appoint a legal representative for their estates. 27 See Smith Pls.’ Mot.

to Substitute (“Mot. Substitute”), ECF No. 49. In tandem with this motion, the Smith Plaintiffs

seek to substitute a court-appointed legal guardian as the legal representative for one living

Plaintiff whom a Lebanese Court declared incompetent. 28 Id. at 3. Second, for a number of

other deceased Smith Plaintiffs who were previously represented by a third party acting on

behalf of the estate, the legal representative has passed away “and/or the heirs have appointed a

new legal representative.” 29 Smith Pls.’ Response 3–4. The Smith Plaintiffs have filed a notice

27
These individuals are John Brother5 FSmith, see Intervenor Compl. ¶ 57, for whom the
Smith Plaintiffs seek to substitute his wife; John Brother3 NSmith, see Intervenor Compl. ¶ 98,
for whom the Smith Plaintiffs seek to substitute his wife, see Mot. Substitute 1; Jane Sister4
AASmith, Intervenor Compl. ¶ 167, for whom the Smith Plaintiffs seek to substitute her brother,
John Victim AASmith, see Mot. Substitute 1; John Brother2 EESmith, Intervenor Compl. ¶ 185,
for whom the Smith Plaintiffs seek to substitute his brother, John Victim EE Smith, see Mot.
Substitute 1; and John Brother3 NNSmith, see Intervenor Compl. ¶ 245, for whom the Smith
Plaintiffs seek to substitute his brother, John Brother2 NNSmith, see Mot. Substitute 1.
28
This individual is Jane Mother FSmith, see Intervenor Compl. ¶ 52, for whom the
Smith Plaintiffs seek to substitute her son, John Brother2 FSmith, see Smith Pls.’ Response Ex. 2
at 5, Representative Information – Legally Incompetent Individual.
29
According to the Smith Plaintiffs’ Response, ECF No. 48, the Smith Plaintiffs in this
category are John Victim FSmith, see Intervenor Compl. ¶ 50; Jane Mother NSmith, see id. ¶ 95;
John Brother1 NSmith, see id. ¶ 96; John Father QSmith, see id. ¶ 108; Jane Mother QSmith, see
id. ¶ 109; John Brother KKSmith, see id. ¶ 226; John Father NNSmith, see id. ¶ 241; Jane
Mother NNSmith, see id. ¶ 242; John Brother1 NNSmith, see id. ¶ 243; John Father BBBSmith,
see id. ¶ 326; John Father MMMSmith, see id. ¶ 408, and Jane Mother MMMSmith, see id. ¶

26
of these substitutions. Notice of Substitution of Legal Representatives (“Notice of

Substitution”), ECF No. 50.

Taking these issues in turn, the Court next considers the Smith Plaintiffs’ motion to

substitute legal representatives for the Smith Plaintiffs who have passed away since the filing of

the intervenor complaint. ECF No. 49. “A deceased individual” such as these Smith Plaintiffs

“cannot serve as the real party in interest in a civil action.” Mohammadi, 947 F. Supp. 2d at 54

n.2 (citing Fed. R. Civ. P. 25(a)(1)). If, as here, “a party dies during litigation, Rule 25 allows

for the substitution of a proper party. It states that once a formal suggestion of death is made on

the record, a party or the decedent’s successor or representative has 90 days in which to file a

motion for substitution of a proper party.” Worley, 75 F. Supp. 3d at 333. In this case, no formal

notice has been filed; instead, the Smith Plaintiffs have indicated in their response to the Court

that certain Plaintiffs are deceased. Smith Pls.’ Response 2. Notwithstanding the lack of formal

statement of death, “the Court may, sua sponte, substitute an appropriate person, such as a close

relative, as a representative of’ the decedent’s estate.” Bluth v. Islamic Republic of Iran, 203 F.

Supp. 3d 1, 22 n.17 (D.D.C. 2016) (quoting Mohammadi, 947 F. Supp. 2d at 55). Moreover, as

the Mohammadi court explained, Federal Rule of Civil Procedure “25(a)(1) itself provides that

‘[i]f a party dies and the claim is not extinguished, the court may order substitution of the proper

409. As mentioned previously, one estate in this category, that of John Brother1 NNSmith, is
governed by New York law. See Representative Information – Estates 3. The estates of all of
the other individuals in this category are governed by Lebanese law. See generally id.
Based on the Court’s review of the submitted materials, most of the substituted legal
representatives are an immediate family member (specifically, a brother, daughter, or son) or a
surviving spouse. See Legal Representatives – Estates. The substituted legal representatives for
John Brother1 NSmith and John Brother KKSmith are the nephews of each of these individuals,
and the substituted legal representative for both John Father MMMSmith and Jane Mother
MMMSmith is the grandson of these individuals.

27
party.’” 947 F. Supp. 2d at 54 n.2. With these principles in mind, the Court grants the Smith

Plaintiffs’ motion to substitute legal representatives for the now-deceased Plaintiffs. 30

The Court also finds the substitution of a legal representative for a legally incompetent

plaintiff to be procedurally authorized by Federal Rule of Civil Procedure 25(b). Rule 25(b)

states that, “[i]f a party becomes incompetent, the court may, on motion, permit the action to be

continued by . . . the party’s representative.” 31 Here, the Smith Plaintiffs present uncontroverted

evidence that Plaintiff Jane Mother FSmith was deemed legally incompetent by a Lebanese

court, and that this court appointed her son, John Brother2 FSmith, as her legal guardian and

representative in this action. Smith Pls.’ Response 2. The Smith Plaintiffs have filed a motion to

make this substitution. See Mot. Substitute. Upon consideration of these materials, the Court

permits Plaintiff Jane Mother FSmith’s claims to be continued by her court-appointed legal

representative.

The Court turns now to the second preliminary matter: the deceased Smith Plaintiffs for

whom the original legal representatives have passed away and/or the heirs have appointed a new

legal representative. Smith Pls.’ Response 3–4; see also Notice of Substitution. As stated

previously, the law of this Circuit authorizes substitution of “‘an appropriate person, such as a

close relative, as a representative of’ the decedent’s estate,” including sua sponte substitution by

30
For one recently-deceased individual, the heirs have not yet appointed a representative
of the estate. Id. at 8. Because a deceased individual is not a proper party, see Fed. R. Civ. P.
25(a); Mohammadi, 947 F. Supp. 2d at 54 n.2 (citing Fed. R. Civ. P. 25(a)(1)), the Court will
hold the claims of John Brother6 NNNSmith in abeyance pending this appointment. See
Intervenor Compl. ¶ 420.
31
Federal Rule of Civil Procedure 25 additionally requires that any such motion be
“served on the parties as provided in Rule 5.” Fed. R. Civ. 25(a)(3). As relevant here, Rule 5
states that “no service is required on a party who is in default for failing to appear.” Fed. R. Civ.
P. 5(a)(2). Defendant Iran has not appeared in this suit, and the Clerk of the Court has entered
default as to Iran with respect to the Smith Plaintiffs. Clerk’s Entry of Default, ECF No. 31.
Thus, the Smith Plaintiffs need not take further action, beyond filing a motion, to comply with
Rule 25(b).

28
the Court without a formal motion. Bluth, 203 F. Supp. 3d at 22 n.17 (citing Mohammadi, 947 F.

Supp. 2d at 55).

In this case, there has been no motion to substitute; thus, the Court must determine

whether to permit the substitutions of which the Smith Plaintiffs have provided notice. To

determine whether the substituted individuals are appropriate representatives of the decedents’

estates, the Court looks to the Legal Opinion on Lebanese Law that governs the creation of the

estates. “Under Lebanese law, there is no formal judicial or administrative process for . . . the

appointment of an estate representative;” rather, “the heirs of the decedent acquire their

inheritance rights ipso jure” and “are entitled to invoke the rights of the decedent and their own

rights as heirs without further formalities.” Legal Opinion on Lebanese Law 1. Moreover, “any

group of a decedent’s heirs may agree to the appointment of an individual as the representative

of the heirs.” Id. at 2. Applying these principles, because the Smith Plaintiffs state that each of

the newly-appointed representatives was substituted at the heirs’ discretion, Smith Pls.’

Response 3–4, these individuals may carry forth the claims brought by the decedents’ respective

estates. 32 Thus, the Court approves these substitutions. The record before the Court,

accordingly, indicates that all claims brought by Smith Plaintiffs who are not proceeding in their

individual capacity are represented by an authorized third party. The Court now addresses

whether the estates governed by Lebanese law have standing to pursue these claims.

32
The same is true for John Brother1 NNSmith, whose estate is governed by New York
law. As discussed previously, New York law permits a personal representative of the decedent
to continue a personal injury action. N.Y. Est. Powers & Trusts Law § 11-3.2 (McKinney).
Here, the Smith Plaintiffs indicate that this individual is now represented by his wife. See
Representative Information – Estates 3. There is no dispute in the record before the Court
regarding the identity of the legal representative or the propriety of her representation of the
estate.

29
b. Standing of Estates under Lebanese Law

Lebanese law both recognizes a cause of action for the emotional distress caused by the

death or injury of an immediate family member and provides that a claim for compensation for

such emotional distress survives the passing of the individual and may be asserted by the

decedent’s heir(s). Legal Opinion on Lebanese Law 2. More precisely, pursuant to Article 134

of the Code of Obligations and Contracts, “emotional distress may be compensated provided

that” the claimant and the initial victim share either “a legitimate kinship” based on an

immediate family relationship “or [a] marriage alliance.” Id. Where such a relationship or a

“marriage alliance” exists, upon the death of the original claimant, the emotional distress that the

claimant suffered is considered to be “automatically transferred to his or her heirs by operation

of law,” authorizing the heirs to assert the claim for compensation on behalf of the decedent. Id.

In short, then, “Lebanese law allows for the award of compensation for ‘moral damages,’ such as

emotional distress, suffered as the result of the wrongful death or tortious injury of an immediate

relative,” Estate of Doe I, 808 F. Supp. 2d at 21, and the estate of the original claimant has

standing to pursue the claim. Here, because all of the estates governed by Lebanese law assert a

claim for emotional injuries caused by the injury to or death of an immediate family member, the

estates have standing to pursue the claims of the deceased Smith Plaintiffs. The Court next

considers what legal standard governs the claims of all of the Smith Plaintiffs.

C. Liability

With these jurisdictional matters in hand, the Court is now ready to address the question

of liability. As the Court explained in Barry I, “although section 1605A creates a private right of

action for claimants who meet its other requirements, a FSIA plaintiff must further “prove a

theory of liability to establish a claim for relief that entitles them to damages.” 410 F. Supp. 3d

30
at 176 (first quoting Valore, 700 F. Supp. 2d at 73, then citing Rimkus, 750 F. Supp. 2d at 175–

76); see also Owens I, 864 F.3d at 807 (citing FDIC v. Meyer, 510 U.S. 471, 484 (1994); United

States v. Mitchell, 463 U.S. 206, 218 (1983)) (“[T]he question [of] whether a statute withdraws

sovereign immunity is ‘analytically distinct’ from whether a plaintiff has a cause of action.”).

As detailed below, the theory of liability that each Smith Plaintiff may raise depends on the

claimant’s identity. Again, the Smith Plaintiffs fall into two categories: (1) Plaintiffs who were

directly injured in one or both of the attacks, and (2) the immediate family members of these

individuals, the majority of whom are not U.S. nationals. For the following reasons, all of the

Smith Plaintiffs state a valid claim under the FSIA, though the formal means by which the two

categories of Smith Plaintiffs do so is distinct.33

1. Directly-Injured Smith Plaintiffs

The directly-injured Smith Plaintiffs’ claims are directly governed by FSIA’s private

right of action. This private right of action, codified in its present form at section 1605A(c),

“limits claimants” to individuals who, at the time of the attack, fell within a category enumerated

by the statute, or the legal representative of such an individual. See Owens I, 864 F.3d at 805,

807 (Ҥ 1605A(c) authorizes a cause of action not only for . . . [the enumerated] groups but also

for the legal representative of a member of those groups.”). The enumerated categories, as

relevant here, cover “an employee of the Government of the United States, or . . . an individual

performing a contract awarded by the United States Government, acting within the scope of the

employee’s employment.” 28 U.S.C. § 1605A(c). As the Smith Plaintiffs state, and as the

Court’s review of Special Master’s findings of fact confirm, the individuals who seek relief

33
For concision, the Court uses the term “Smith Plaintiff” or “Smith Plaintiffs” to refer
both to plaintiffs who pursue claims in their individual capacity and those who are represented
by a third party acting on behalf of a deceased individual’s estate or on behalf of a legally
incapacitated individual.

31
based on the direct injury to them during the attack fall within this provision. See Smith Pls.’

Response 6; see generally Special Master’s R. & R. Thus, these plaintiffs may draw directly on

section 1605A(c) to establish a cause of action, but still must establish the theoretical basis that

underpins the allegation of liability.

Plaintiffs who seek relief in section 1605A actions “‘generally’ turn to ‘the lens of civil

tort liability’” to articulate the “justification for such recovery.” Barry I, 410 F. Supp. 3d at 176

(quoting Rimkus, 750 F. Supp. 2d. at 175–76; see also, e.g., Schertzman Cohen, 2019 WL

3037868, at *5 (discussing Valore and Rimkus). “Based on the D.C. Circuit’s guidance, district

courts in this jurisdiction ‘rely on well-established principles of law, such as those found in the

Restatement (Second) of Torts . . .’ to define the elements and scope of these theories of

recovery.” Worley, 75 F. Supp. 3d at 335 (quoting Oveissi III, 879 F. Supp. 2d at 54); see

also Fraenkel v. Islamic Republic of Iran, 892 F.3d 348, 353 (D.C. Cir. 2018) (“The courts are

not authorized to craft a body of federal common law in deciding FSIA terrorism exception

cases. However, a district court may rely on well-established statements of common law.”

(citing Bettis, 315 F.3d at 333)). As it did in Barry I, the Court follows this approach to address

the claims of the Smith Plaintiffs who fall within section 1605A’s enumerated categories.

The Smith Plaintiffs’ complaint moves for relief under several common law theories of

liability. 34 Two are relevant for the Court’s analysis of liability with respect to the directly-

34
In addition to the causes of action discussed in the body of this opinion, Count I seeks
compensatory damages pursuant to “28 U.S.C. § 1605A(c), Private Right of Action.” Intervenor
Compl. ¶¶ 489–95. As discussed above and in Barry I, the FSIA “‘provides a private right of
action’ without any ‘guidance on the substantive bases for liability to determine plaintiffs’
entitlement to damages.’” 410 F. Supp. 3d at 177 (quoting Braun, 228 F. Supp. 3d at 78). The
text of Count I alleges that the Smith Plaintiffs “suffered, inter alia, death, physical pain and
suffering, mental anguish, emotional pain and suffering, loss of solation [sic], loss of consortium,
and/or economic losses,” Intervenor Compl. ¶ 493, and seeks compensatory damages for these
injuries, id. ¶ 495. Because these claims for relief and the underlying factual allegations overlap

32
injured Smith Plaintiffs. First, the Smith Plaintiffs allege intentional infliction of emotional

distress caused by “[t]he acts of detonating an explosive device at the U.S. Embassy in Lebanon

on April 18, 1983, and on September 20, 1984.” 35 Intervenor Compl. ¶¶ 496–501. Second, the

personal representatives of those fatally injured in one of the attacks bring “wrongful

death/survival claims” and seek to recover damages for Defendant’s conduct. Id. ¶¶ 502–06.

The Court considers each basis for liability in turn.

a. IIED Claims of Directly-Injured Smith Plaintiffs

Taking the IIED claims first, general principles of tort law provide that “a defendant is

liable for IIED if its ‘extreme and outrageous conduct intentionally or recklessly causes severe

emotional distress’ to a plaintiff.” Barry I, 410 F Supp. 3d at 177 (quoting Restatement (Second)

of Torts § 46(1); see also Roth, 78 F. Supp. 3d at 400 (quoting Heiser II, 659 F. Supp. 2d at 26).

The same analysis that this Court applied in Barry I with respect to the Barry Plaintiffs applies

with equal force for the directly-injured Smith Plaintiffs. Here, as there, “[t]he first element of

the IIED tort—an extreme or outrageous act that is intended to cause severe emotional distress—

with the other counts of the Smith Plaintiffs’ complaint, and because a plaintiff may not recover
twice for allegations that arise from the same predicate acts, see Kassman v. Am. Univ., 546 F.2d
1029, 1034 (D.C. Cir. 1976), the Court does not read Count I as presenting a separate theory of
liability for any of the Smith Plaintiffs and considers it no further.
35
The Smith Plaintiffs also move, under a separate count, for compensatory damages for
loss of solatium and/or loss of consortium. Intervenor Compl. ¶¶ 507–11. Because, “[i]n the
context of a suit under the FSIA, courts in this Circuit have found IIED and solatium claims to be
“indistinguishable,’” Lelchook v. Syrian Arab Republic (Lelchook III), No. CV 16-1550 (RC),
2019 WL 4673849, at *4 (D.D.C. Sept. 25, 2019) (quoting Estate of Heiser v. Islamic Republic
of Iran (“Heiser II”), 659 F. Supp. 2d 20, 27 n.4 (D.D.C. 2009)), and because, “[w]here there
has been only one injury, the law confers only one recovery, irrespective of the multiplicity of ...
theories which the plaintiff pursues,” Kassman, 546 F.2d at 1034, the Court considers only the
IIED count with respect to all of the Smith Plaintiffs. The Court separately discusses solatium as
a remedy authorized by the FSIA infra Part IV.D. See 29 U.S.C. § 1605A(c) (stating that
damages in suit pursuant to the statute’s private cause of action “may include economic
damages, solatium, pain and suffering, and punitive damages”).

33
is plainly met” because an act of terrorism is, “[b]y its very definition, . . . ‘extreme and

outrageous and intended to cause the highest degree of emotional distress.’” Barry I, 410 F.

Supp. 3d at 177 (quoting Valore, 700 F. Supp. 2d at 77); see also Belkin v. Islamic Republic of

Iran, 667 F. Supp. 2d 8, 22 (D.D.C. 2009)). Accordingly, the Court finds it self-evident that

Iran’s role in both the 1983 and 1984 bombings was “intended to cause the highest degree of

emotional distress[:]” “terror.” Heiser II, 659 F. Supp. 2d at 26.

The Smith Plaintiffs have, moreover, satisfied the second element of an IIED tort, which

requires evidence that Iran’s provision of material support or resources for the attacks caused

them “severe emotional distress.” The Special Master’s findings of fact make clear that the

attack directly caused a grave immediate and ongoing psychological toll. See generally Special

Master’s R. & R. Based on the undisputed record before it, the Court finds that these materials

“establish . . . [the directly-injured Smith Plaintiffs’] claim or right to relief by evidence

satisfactory to the court,” 28 U.S.C. § 1608(e), in the manner that the FSIA demands. Thus,

applying general IIED tort law principles in the FSIA context, the Court concludes that the

directly-injured Smith Plaintiffs have established liability for this aspect of their claim.

b. Wrongful Death Claims of Directly-Injured Smith Plaintiffs

The estates of nine individuals killed in one of the attacks also pursue relief under a

wrongful death cause of action. 36 See Intervenor Compl. ¶¶ 4, 8, 19, 24, 33, 39, 50, 63, 68. “A

36
Although styled as a “wrongful death/survival claim,” these two theories of liability are
substantively distinct under generally applicable tort law principles. Compare Restatement
(Second) of Torts § 925 (1979) with id. § 926. Whereas a wrongful death action provides a
“measure of damages for causing the death of another,” as typically established by a statute
creating the right of action, id. § 925, “[a] survival action accrues upon the death of an injured
person and ‘limits recovery for damages for loss or impairment of earning capacity, emotional
distress and all other harms, to harms suffered before death,’” Estate of Hirshfeld v. Islamic
Republic of Iran, 330 F. Supp. 3d 107, 139 (D.D.C. 2018) (quoting Restatement (Second) of
Torts § 926). In this case, the Court reads the plain text of the intervenor complaint and the

34
wrongful-death action is one brought by a decedent’s heirs at law, and may be brought through

the estate of the decedent, ‘for economic losses which result from a decedent’s premature

death.’” Roth, 78 F. Supp. 3d at 400 (quoting Valore, 700 F. Supp. 2d at 78); see also Flatow v.

Islamic Republic of Iran, 999 F. Supp. 1, 27 (D.D.C. 1999). General tort law principles provide

that “[v]ictims may recover for their wrongful deaths if they can establish that the defendant[]

caused their deaths.”

A number of courts in this district have distilled the generally applicable principles of a

wrongful death tort in the context of FSIA suits. These courts have determined that a plaintiff

may recover for wrongful death upon a showing that the defendant caused the plaintiff’s death.

See, e.g., Hirshfeld, 330 F. Supp. 3d at 139 (citing Restatement (Second) of Torts § 925); Braun,

228 F. Supp. 3d at 79; Thuneibat v. Syrian Arab Republic, 167 F. Supp. 3d 22, 39 (D.D.C. 2016);

Valore, 700 F. Supp. 2d at 78; see also Restatement (Second) of Torts § 925, cmt. a (discussing

history of wrongful death statutes and noting that English statute was enacted to provide personal

representatives of deceased parties with “a cause of action against the one who tortiously caused

the death, provided that the deceased would have had a cause of action if he had been merely

injured and not killed”). Applying this analysis here, for the reasons detailed in the Court’s

analysis of the FSIA’s waiver of sovereign immunity, supra Part IV.A.1.b, the Court finds that

the Smith Plaintiffs fatally injured in one of the attacks have established that Defendant caused

associated filings to present only a wrongful death cause of action. Specifically, this count of the
Smith Plaintiffs’ complaint alleges that Defendant “caused an explosive device to detonate” in
both 1983 and 1984, Intervenor Compl. ¶¶ 503–04, and that, “as a direct and proximate result of
the willful, wrongful, intentional, and reckless acts of Defendant, certain individuals, who are
represented herein as Plaintiffs by their personal representatives, were fatally injured,” id. ¶ 505.
There are no allegations that relief is sought for these individuals’ pain and suffering before
death (the basis for a survival action), nor do any of the findings of fact speak to this point.
Thus, the Court considers only whether these Smith Plaintiffs have established a wrongful death
theory of liability.

35
their deaths. Furthermore, each of the claims is presented by the personal representative of that

fatally-injured individual’s estate. Thus, the directly-injured Smith Plaintiffs have established

liability for their wrongful death claim.

Accordingly, all of the directly-injured Smith Plaintiffs have provided evidence to

support entry of default judgment in their favor for both their IIED and wrongful death claims.

2. Immediate Family Member Smith Plaintiffs 37

The Court is thus left with the claims of the immediate family members, who (with the

exception of several U.S. nationals), do not fall within the enumerated section 1605A(c)

categories. 38 As the Estate of Doe I court explained, although “those plaintiffs who are foreign

national family members of victims of the terrorist attacks in Beirut lack a federal cause of

action[,] . . . they may continue to pursue claims under applicable state and/or foreign law.” 808

F. Supp. 2d at 20. This is so because section 1605A’s creation of a new cause of action “did not

displace a claimant’s ability to pursue claims under applicable state or foreign law upon the

waiver of sovereign immunity.” Id. (citation omitted) (citing Simon v. Republic of Iraq, 529 F.3d

1187, 1192 (D.C. Cir. 2008), rev’d on other grounds, 556 U.S. 848 (2009)); see also 28 U.S.C. §

1606 (stating that, once waiver of sovereign immunity is established under section 1605, “the

37
Because, as the Court established above, the wrongful death actions are brought
“through the estate of the decedent,” Valore, 700 F. Supp. 2d at 78 (quoting Flatow, 999 F. Supp.
at 27), and not on behalf of the immediate family member plaintiffs (all of whom bring
independent claims in association with the claims of an immediate family member who was
directly harmed by one or both attacks), only the IIED cause of action is relevant for this
category of Smith Plaintiffs.
38
The Smith Plaintiffs’ filings and the Special Master’s findings of fact suggest that some
immediate family member Smith Plaintiffs were U.S. nationals at the time of the attack. See,
e.g., Intervenor Compl. ¶¶ 446–49. Such individuals fall within section 1605A(c)’s enumerated
categories in the manner discussed above for the directly-injured Smith Plaintiffs. However,
because—as the Court discusses next—the substantive IIED theory of relief that applies to U.S.
national immediate family members is functionally identical to the substantive IIED theory of
relief that applies to non-U.S. national immediate family members, the Court addresses these
individuals’ claims together in the following analysis.

36
foreign state shall be liable in the same manner and to the same extent as a private individual

under like circumstances”); Oveissi v. Islamic Republic of Iran (Oveissi I), 573 F.3d 835, 841

(D.C. Cir. 2009) (quoting 28 U.S.C. § 1606). Thus, the Court will first conduct a choice of law

analysis and then proceed to evaluate whether the Smith Plaintiffs have established liability

under the relevant substantive standard.

a. Choice of Law

As the Circuit explained in Oveissi I, “courts considering issues governed by state

substantive law in FSIA cases,” such as the claims at issue here, “should apply the choice-of-law

rules of the forum state.” 573 F.3d at 841. Accordingly, this Court applies the District of

Columbia’s choice-of-law rules to determine the applicable legal standard for the immediate

family members’ claims. Accord Estate of Doe I, 808 F. Supp. 2d at 20 (invoking District of

Columbia choice-of law rules in similar FSIA suit) (citing Oveissi I, 573 F.3d at 840; Dammarell

II, 2005 WL 756090, at *18).

District of Columbia choice-of-law principles set forth a two-part analysis. First, the

court is to “determine if a conflict exists between the law of the forum and the law of the

alternative jurisdictions.” Id. (citing USA Waste of Md., Inc. v. Love (Love), 954 A.2d 1027, 1032

(D.C. 2008)). “A ‘no conflict’ situation arises ‘when the laws of the different jurisdictions are

identical or would produce the identical results on the facts presented.’” Barimany v. Urban

Pace LLC, 73 A.3d 964, 967 (D.C.2013) (quoting Love, 954 A.2d at 1032); see also Thuneibat,

167 F. Supp. 3d at 41–42 (discussing standard set forth in Barimany and Love).

The second step comes into play “if a conflict is present;” in such instances, “the District

of Columbia employs a “constructive blending of the government interests analysis and the most

significant relationship test to determine which law to apply.” Id. (internal quotation marks

37
omitted) (quoting Oveissi I, 573 F.3d at 842; Dammarell II, 2005 WL 756090, at *18). The

governmental interests analysis requires a court to “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.” Oveissi I, 573 F.3d at

842 (quoting Hercules & Co., Ltd. v. Shama Rest. Corp., 566 A.2d 31, 41 (D.C. 1989)). The

most significant relationship test requires a court to “consider the factors enumerated in the

Restatement [(Second) of Conflict of Laws] § 145.” Hercules, 566 A.2d at 40. “The four

Restatement factors are: (1) ‘the place where the injury occurred’; (2) ‘the place where the

conduct causing the injury occurred’; (3) ‘the domicil[e], residence, nationality, place of

incorporation and place of business of the parties’; and (4) ‘the place where the relationship, if

any, between the parties is centered.’” Oveissi I, 573 F.3d at 842 (quoting Restatement (Second)

of Conflict of Laws § 145(2) (1971)). In addition, as the Estate of Doe I court explained, “[t]he

Restatement also references the ‘needs of the interstate and the international systems, the

relevant policies of the forum, the relevant policies of other interested states, certainty,

predictability and uniformity of result, and ease in the determination and application of the law to

be applied.’” 808 F. Supp. 2d at 20–21 (quoting Restatement (Second) of Conflict of Laws §

145) (citing Oveissi I, 573 F.3d at 842; Heiser I, 466 F. Supp. 2d at 266). “As a general rule, the

law of the forum governs, ‘unless the foreign state has a greater interest in the controversy.’”

Thuneibat, 167 F. Supp. 3d at 41–42 (quoting Kaiser–Georgetown Cmty. Health Plan v.

Stutsman, 491 A.2d 502, 509 (D.C. 1985).

This case presents three possible sources of law to apply: the law of the forum state (the

District of Columbia), the law of the state where the underlying tort occurred (Lebanon), or the

domicile of each respective plaintiff (whether foreign or domestic). For the reasons set forth

38
below, the Court finds United States domestic law to be the most appropriate source of law, and

further concludes that the District of Columbia’s law properly supplies the substantive standard

that governs the pending claims.

The first choice-of-law issue facing this Court is whether there is a conflict between the

law of the forum state and the law of the alternative jurisdictions. In answering this question, the

Court finds the Estate of Doe I court’s analysis under similar facts compelling. That court faced

an identical choice—whether to apply the law of the forum (District of Columbia) or the law that

governed the location of the tortious conduct (Lebanon) to the claims of “non-U.S. national

[FSIA] plaintiffs who worked for the U.S. Government (and their non-U.S. national family

members),” 808 F. Supp. 2d at 11—and found that there was “no clear conflict of law,” id. at 21.

Specifically, noting that “District of Columbia law parallels Lebanese law regarding the

availability of a claim for emotional distress, solatium, and/or consortium related to the wrongful

death or tortious injury of an immediate relative;” that “Lebanese law allows for the award of

compensation for moral damages, such as emotional distress, suffered as the result of the

wrongful death or tortious injury of an immediate relative,” and that Lebanese law permits “an

heir of a decedent . . [to] bring the equivalent of a ‘Survival Act’ claim under District of

Columbia law[, D.C. Code § 12–101,] on behalf of the heirs to recover damages for emotional

distress suffered by a decedent before death,” that court concluded that “the laws of the different

jurisdictions . . . would produce the identical result on the facts presented.” Id. (internal citations

and quotation marks omitted) (quoting USA Waste, 954 A.2d at 1032).

Here, the Legal Opinion on Lebanese Law provided to the Court and the Court’s own

read of District of Columbia law confirms the Estate of Doe I court’s conclusions. As stated

previously, Lebanese law “expressly provides that emotional distress may be compensated

39
provided that a legitimate kinship or marriage alliance is established between the claimant and

the initial victim.” Legal Opinion on Lebanese Law 2. This cause of action is available to

immediate family members, such as the Smith Plaintiffs. Id. Furthermore, the heirs of a

deceased individual may seek compensation for “emotional distress suffered by the decedent,”

and “any group of a decedent’s heirs” can appoint a legal representative of the heirs “for

purposes of submitting . . .[, inter alia,] a claim for compensation for emotional distress suffered

by a decedent prior to his or her death.” Id. (citing Criminal Court of Metn, decision no.

171/1987, undated, Journal Al Adl, 1987, Issue 2, p. 226). Along similar lines, District of

Columbia law provides that, for any individual “in whose favor . . . a right of action has accrued

for any cause prior to his death,” that right of action “survives in favor of . . . the legal

representative of the deceased.” D.C. Code § 12-101 (1963). Thus, where an individual (or the

legal representative of that individual) seeks compensation for emotional distress, solatium, or

loss of consortium suffered as a result of the death or injury of an immediate family member,

there is no conflict between what Lebanese law and what District of Columbia law provide. This

conclusion cuts in favor of the Court’s application of the law of the forum state.

So, too, do other considerations that might tilt towards applying the law of other

jurisdictions—whether Lebanon or the domicile of any of the Smith Plaintiffs. 39 In cases where

39
The Smith Plaintiffs have not indicated the domicile of each individual seeking relief,
nor do the Special Master’s findings of fact explicitly provide this information. Based on the
materials before it, particularly the information regarding the nationality of each deceased
plaintiff at the time of the attacks and the time of death, see Representative Information –
Estates, ECF No. 48-2, and making reasonable inferences from the Special Master’s findings of
fact, it appears that the majority of the immediate family members remain in Lebanon and that
several others either presently reside or resided at the time of their death in Florida, Michigan,
New York, or Texas. For the reasons that follow, the Court continues the emerging practice of
courts in this Circuit in the wake of the 2008 FSIA amendments and finds it appropriate to apply
the law of the forum state—the District of Columbia—in lieu of the law of the other potential
jurisdictions. The Court notes, moreover, that the two individuals whose estates are governed by

40
there is conflict between different jurisdictions whose laws might apply, the first prong of the

District of Columbia’s choice-of-law test, the “governmental interests” analysis, requires the

court to “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.” Abedini v. Gov’t of Islamic Republic of Iran, No. CV 18-588 (JEB), 2019 WL

5960545, at *8 (D.D.C. Nov. 13, 2019) (quoting Estate of Doe I, 808 F. Supp. 2d at 20).

These policy considerations, while not alone dispositive, cut strongly in favor of applying

domestic law here. In general, in a terrorism case such as this one, “[t]he United States has a

unique interest in having its domestic law — rather than the law of a foreign nation — used in

the determination of damages.” Id. (quoting Holland v. Islamic Republic of Iran, 496 F. Supp.

2d 1, 22 (D.D.C. 2005)) (citing Oveissi I, 573 F.3d at 843). And in this case in particular, the

further policy interest in “uniformity of result” makes it appropriate to apply D.C. law, “as

individual plaintiffs domiciled in different states and foreign nations will all be subject to the

same substantive law.” Estate of Doe I, 808 F. Supp. 2d at 22–23. The legislative history of the

FSIA itself indicates that these considerations are to be taken especially seriously. Although

courts in this Circuit often applied the law of individual plaintiffs’ domiciles before Congress’s

2008 amendments to the FSIA, see, e.g., Dammarell II, 2005 WL 756090, these amendments

“were directed, in part, to correct the problem of ‘disparity among the various state laws

regarding the recovery of emotional distress by immediate family members.’” Estate of Doe I,

808 F. Supp. 2d at 23 (citing 154 Cong. Rec. S54 (daily ed. Jan. 22, 2008) (statement by Sen.

Lautenberg)); see also Abedini, 2019 WL 5960545, at *8 (discussing Congress’s intent to “make

Syrian law were joint U.S. and Syrian nationals at the time of death. See id. at 3. Because the
legal opinions provided to the Court make clear that Syrian and Lebanese law are quite similar in
all relevant respects, and there is no U.S.-Lebanese conflict here, there is not a clear conflict
between domestic law and the law of any foreign jurisdiction.

41
FSIA damages more consistent” in enacting the 2008 amendments). Thus, the governmental

interests analysis favors application of D.C. law.

The “most significant relationship” portion of the choice-of-law analysis is less clear-cut.

Two of the four factors identified by the Restatement, see Oveissi I, 573 F.3d at 842 (quoting

Restatement (Second) of Conflict of Laws § 145(2) (1971)), namely the location of injury and

the location of conduct causing the injury, point to Lebanon. The third factor, which considers

the parties’ domicile, residence, or nationality, see id., also points to non-D.C. jurisdictions. The

fourth factor, “the place where the relationship, if any, between the parties is centered,” id., does

not cut clearly in any direction. However, these factors are not hard and fast rules. Especially

where, as here, an injury is “caused by distant conduct[,]. . . the Court turns to “certainty,

predictability and uniformity of result.” Abedini, 2019 WL 5960545, at *8 (quoting Estate of

Doe I, 808 F. Supp. 2d at 21). Although concerns such as uniformity “cannot prevail when

another location otherwise has ‘a significantly greater interest than does the District’ in the cause

of action,” Estate of Doe I, 808 F. Supp. 2d at 23 (quoting Dammarell II, 2005 WL 756090, at

*20), this is not such a case. To the contrary: in this case, as discussed in the governmental

interests analysis, “the 2008 FSIA amendments—and the stated goal of those amendments to

promote uniformity—serve to increase the interest in applying District of Columbia substantive

law.” Id. Thus, this Court is persuaded that the proper approach here is to apply the standards of

liability set out by D.C. law to the immediate family members’ claims.

42
b. Liability under District of Columbia Law

The Court next applies District of Columbia law to the immediate family members’

claims for intentional infliction of emotional distress. 40 “D.C. law [for an IIED claim] enables

foreign-national family members of terrorist attack victims, including spouses, to recover

solatium damages when their allegations are reinforced by the evidence.” Cohen, 238 F. Supp.

3d at 86 (first citing Wamai v. Republic of Sudan, 60 F.Supp.3d 84, 89–90 (D.D.C. 2014), then

quoting Larijani v. Georgetown Univ., 791 A.2d 41, 44 (D.C. 2002)). The District of

Columbia’s highest state court has confirmed that the IIED elements established in the

Restatement (Second) of Torts provide the proper standard to apply. 41 Republic of Sudan v.

Owens (Owens III), 194 A.3d 38, 41 (D.C. 2018). As the Owens III court explained, the

“elements of an IIED claim arising from injury to a member of the plaintiff’s immediate family”

are established by § 46 of the Restatement, which sets out the following elements of IIED

liability:

(1) One who by extreme and outrageous conduct intentionally or recklessly
causes severe emotional distress to another is subject to liability for such
emotional distress, and if bodily harm to the other results from it, for such bodily
harm.
(2) Where such conduct is directed at a third person, the actor is subject to
liability if he intentionally or recklessly causes severe emotional distress
(a) to a member of such person’s immediate family who is present at the
time, whether or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in
bodily harm.”

40
For the reasons discussed above, this is the only theory of liability that (1) pertains to
this category of individuals and (2) is not duplicative of the underlying basis of the IIED claim
for relief.
41
In Owens III, the D.C. Court of Appeals answered a question that the Circuit certified
to it in Owens II: “Must a claimant alleging emotional distress arising from a terrorist attack that
killed or injured a family member have been present at the scene of the attack in order to state a
claim for intentional infliction of emotional distress?” 864 F.3d at 812.

43
Id. (quoting Restatement (Second) of Torts § 46 (1968)).

Affirming that it, and other District of Columbia state courts, “ha[ve] embraced the

Restatement Second’s approach to IIED liability,” id., the Owens III court went on to clarify that

a claimant who alleges emotional distress arising from a terrorist attack that injured or killed a

family member need not have been present at the scene of the attack to state a cognizable IIED

claim for relief, see id. at 42–45. In other words, the court “held that when emotional distress is

caused by conduct directed at a member of a plaintiff’s family, the plaintiff must,” as a general

rule, be “present at the time” of the conduct in order to make out an IIED claim[,]” but also

“carved out” what it called ‘the FSIA Terrorism Exception’ to the presence requirement” in the

limited context of “cases brought under § 1605A,” Owens v. Republic of Sudan (Owens IV), 924

F.3d 1256, 1259 (D.C. Cir. 2019) (quoting Owens III, 194 A.3d at 41, 42). It found this

exception to be permitted by the comments to the Restatement itself. See Owens III, 194 A.3d at

42 (citing Restatement (Second) of Torts § 46 (1968) Caveat & cmt. i). Thus, Owens III

confirms that the same general principles of tort law that govern the claims brought by the

directly-injured Smith Plaintiffs within one of 1605A’s enumerated categories also govern

claims brought by the immediate family member Smith Plaintiffs who pursue their claims via

District of Columbia law.

Applying these principles to the family member Smith Plaintiffs, the Court finds entry of

default concerning liability appropriate with respect to their IIED claims for the same reasons

identified previously with respect to the directly-injured Smith Plaintiffs. Here, it is again

abundantly clear from the facts available to the Court that Iran’s role in the 1983 and 1984

bombings was “intended to cause the highest degree of emotional distress[:]” “terror,” Heiser II,

659 F. Supp. 2d at 26, and the Special Master’s findings of fact again detail how one or both

44
attacks created immediate and ongoing pain and suffering for the family member Smith

Plaintiffs. See generally Special Master’s R. & R. Thus, based on the undisputed record before

it, the Court finds that these materials “establish . . . [the family member Smith Plaintiffs’] claim

or right to relief by evidence satisfactory to the court,” 28 U.S.C. § 1608(e), and concludes that

the family member Smith Plaintiffs have established liability for their IIED claims. 42

D. Damages

Having entered default liability, the remaining issue facing the Court is the proper

measure of damages to award. “The FSIA’s private cause of action permits plaintiffs to seek

‘economic damages, solatium, pain and suffering, and punitive damages.’” Barry I, 410 F. Supp.

3d at 179 (quoting 28 U.S.C. § 1605A(c)). 43 Here, all of the Smith Plaintiffs seek compensatory

damages for “severe emotional distress” under an IIED cause of action, see Intervenor Compl. ¶¶

496–501, and the personal representatives of the individuals who were fatally wounded in one of

the attacks also seek economic damages under a wrongful death cause of action, id. ¶¶ 502–06. 44

42
There are three exceptions, discussed previously: John Brother6 NNNSmith, the
deceased claimant for whom no legal representative has been identified, and Jane Sister2 ZSmith
as well as Jane Sister1 KKSmith, both of whom have voluntarily dismissed their claims.
43
The FSIA requires plaintiffs to make an adequate evidentiary showing before a court
may award damages: “To obtain damages against defendants in a FSIA action, the plaintiff must
prove that the consequences of the defendants’ conduct were ‘reasonably certain (i.e., more
likely than not) to occur, and must prove the amount of the damages by a reasonable estimate
consistent with this [Circuit’s] application of the American rule on damages.’” Salazar v.
Islamic Republic of Iran, 370 F. Supp. 2d 105, 115–16 (D.D.C. 2005) (internal quotations
omitted) (quoting Hill, 328 F.3d at 681); see also Wultz, 864 F. Supp. 2d at 37. For the reasons
discussed previously, the Smith Plaintiffs have established that Iran’s provision of material
support and resources for an act of extrajudicial killing was intended to injure individuals at the
Annex. Thus, they have discharged their burden of proof to show that the consequences of Iran’s
act were reasonably certain, and the sole question for this Court is the damages amount.
44
Again, the Smith Plaintiffs also move under two other theories: count I directly invokes
§ 1605A(c)’s private right of action, Intervenor Compl. ¶¶ 489–95, and count IV seeks relief
under a solatium/loss of consortium theory of relief, id. ¶¶ 507–11. Because these theories
overlap with the IIED and wrongful death claims, and because, “[w]here there has been only one
injury, the law confers only one recovery, irrespective of the multiplicity of ... theories which the

45
In addition, the Smith Plaintiffs seek an award of prejudgment interest on all damages. Id. at

137. Special Master Griffin has appraised the material submitted by all of the Smith Plaintiffs,

including signed, sworn affidavits, publicly available information, and an expert report regarding

economic damages. See Supplement to Special Master’s Report and Recommendation in

Response to October 21, 2019 Order (“Special Master’s Supplement”) 2–6, ECF No. 52. Using

this information to “independently and holistically evaluate each claim for damages based on

the” contemporary statutory framework and associated body of caselaw, id. at 23, Special Master

Griffin has recommended damages awards for each of the Smith Plaintiffs’ claims for relief, see

generally Special Master’s R. & R., Appendix C (“Suggested Award Amounts”), ECF No. 39-3.

The Smith Plaintiffs have moved the Court pursuant to Federal Rule of Civil Procedure 53(f) to

adopt these recommendations, as supplemented. 45 See ECF No. 53. For the forthcoming

reasons, the Court adopts many, but not all, of the recommendations, and enters judgment

concerning damages with the adjusted amounts discussed in line and enumerated in the attached

appendix.

plaintiff pursues,” Kassman, 546 F.2d at 1034, the Court considers only the IIED and wrongful
death theories of relief in its assessment of damages.
45
Federal Rule of Civil Procedure 53(f) requires the Court to provide the parties with
notice and the opportunity to be heard before acting on a special master’s report and states that a
party may file objections “no later than 21 days after a copy is served.” Fed. R. Civ. P. 53(f)(1),
(2). Here, the Smith Plaintiffs did not object and have in fact moved this Court to adopt the
Special Master’s report, and Defendant Iran has continued to decline to participate since Special
Master Griffin filed his initial report in August 2019. Thus, this requirement is satisfied.
Pursuant to Rule 53(f), the Court has “authority to “adopt or affirm, modify, wholly or partly
reject or reverse, or resubmit to the master with instructions” and must “decide de novo all
objections to conclusions of law made or recommended by a master.” Fed. R. Civ. P. 53(f). The
Court applies this standard in the following analysis.

46
1. Compensatory Damages 46

a. Legal Standard for Compensatory Damages under the FSIA

As other courts addressing similar suits under the FSIA have observed, “it is undeniably

difficult to assess the amount of compensatory damages for the pain and suffering of surviving

victims of terrorist attacks, especially where severe mental anguish is involved.” Valencia v.

Islamic Republic of Iran, 774 F. Supp. 2d 1, 14 (D.D.C. 2010) (internal quotation marks and

citation omitted) (quoting Brewer, 664 F.Supp.2d at 57). Because of the importance of ensuring

“that individuals with similar injuries receive similar awards,” Peterson, 515 F. Supp. 2d at 54,

courts in this jurisdiction confronting FSIA claims have developed a framework for the

calculation of compensatory damages, see Valore, 700 F. Supp. 2d at 84. Although the so-called

Heiser framework, first set forth in Heiser I, 466 F. Supp. 2d 229, is non-binding, it provides

baseline figures and a basic methodology by which to ascertain the “appropriate measure of

damages” both for directly-injured victims and for “the family members of victims who died” or

were injured in a terrorist attack. Lelchook III, 2019 WL 4673849, at *4–5 (quoting Peterson,

515 F. Supp. 2d at 51, 54) (internal citations omitted)); see also, e.g, Valore, 700 F. Supp. 2d at

85–86 (noting “strong precedential support” for framework); Brewer v. Islamic Republic of Iran,

664 F. Supp. 2d 43, 57–58 (D.D.C. 2009); Heiser II, 659 F. Supp. 2d at 27 n.4. “Decisions to

46
Again, “courts in this Circuit” addressing claims under the FSIA “have found IIED and
solatium claims to be ‘indistinguishable.’” Lelchook III, 2019 WL 4673849, at *4 (quoting
Heiser II, 659 F. Supp. 2d at 27 n.4). Technically speaking, the FSIA authorizes the award of
solatium damages to redress IIED claims for relief. See 28 U.S.C. § 1605A(c)(4)
(“[D]amages may include economic damages, solatium, pain and suffering, and punitive
damages.”). The Court’s analysis of IIED damages thus takes into account “prior decisions
awarding damages for intentional infliction of emotional distress as well as decisions regarding
solatium.” Valore, 700 F. Supp. 2d at 85 (citing Acosta, 574 F. Supp. 2d at 29); see also Haim v.
Islamic Republic of Iran, 425 F. Supp. 2d 56, 71 (D.D.C. 2006).

47
deviate from the starting points provided by the Heiser framework are committed to the

discretion of the particular court in each case.” Oveissi II, 768 F. Supp. 2d at 26.

Under the Heiser framework, a court begins with baseline amounts and may adjust

upward or downward to account for individual circumstances. For a directly-injured claimant,

“[c]ourts generally ‘begin[] with the baseline assumption that persons suffering substantial

injuries in terrorist attacks are entitled to $5 million in compensatory damages.’” Barry I, 410 F.

Supp. 3d at 180 (quoting Wultz, 864 F. Supp. 2d at 37–38). An upward adjustment to the $7 to

$12 million range may be appropriate “in more severe instances of physical and psychological

pain, such as where victims suffered relatively more numerous and severe injuries, were

rendered quadriplegic, partially lost vision and hearing, or were mistaken for dead.” Valore, 700

F. Supp. 2d at 84. Conversely, a downward departure to the $1.5 million to $3 million range

may be appropriate “where victims suffered relatively more minor injuries, such as ‘minor

shrapnel injuries,’ or ‘severe emotional injury accompanied by relatively minor physical

injuries.’” Barry I, 410 F. Supp. 3d at 180 (first quoting Valore, 700 F. Supp. 2d at 84, then

quoting Estate of Doe v. Islamic Republic of Iran (Estate of Doe II), 943 F. Supp. 2d 180, 186

(D.D.C. 2013)). Such awards for physical injuries “assume severe psychological

injuries.” Schertzman Cohen, 2019 WL 3037868, at *6 (citing Wamai, 60 F. Supp. 3d at 92–93).

For family member claimants, the relationship between the victim and the family member

who seeks relief determines the baseline amount of the award. See Peterson, 515 F. Supp. 2d at

51. As a starting point, the family of a deceased victim typically receives damages in the amount

of $8 million for a spouse, $5 million for a child or parent, and $2.5 million for a sibling.

Schooley, 2019 WL 2717888, at *74. These amounts are halved for the family of an injured

48
victim, with courts generally awarding $4 million to a spouse, $2.5 million to a child or parent,

and $1.25 million to a sibling. Id.

In either situation, an upward adjustment may be appropriate “in cases ‘with aggravating

circumstances,’ indicated by such things as ‘[t]estimony which describes a general feeling of

permanent loss or change caused by decedent’s absence’ or ‘[m]edical treatment for depression

and related affective disorders.’” Valore, 700 F. Supp. 2d at 85–86 (first quoting Greenbaum,

451 F. Supp. 2d at 108, then quoting Flatow, 999 F. Supp. at 31). Whether such an adjustment is

in order is a fact-specific inquiry that “cannot be defined through models and variables.”

Fraenkel v. Islamic Republic of Iran, Ministry of Foreign Affairs, et al., 892 F.3d 348, 356–57

(D.C. Cir. 2018) (quoting Flatow, 999 F. Supp. at 29–30). For instance, for a claim made by the

family member of a decedent victim, a court may take into account, inter alia, “[h]ow the

claimant learned of [the] decedent’s death, and whether there was an opportunity to say good-

bye or view the body;” “[t]he nature of the relationship between the claimant and the decedent,”

particularly if it was “strong and close;” and the “decedent's position in the family birth order

relative to the claimant.” Id. (quoting Flatow, 999 F. Supp. at 31–32). In parsing the relevant

facts, a district court is to bear in mind that “past solatium awards from comparable cases are

appropriate sources of guidance,” but “different plaintiffs (even under FSIA) will prove different

facts that may well (and should) result in different damage awards.” Id. at 362; see also

Schooley, 2019 WL 2717888, at *77 (citing Fraenkel, 892 F.3d at 362).

b. The Special Master’s Damages Analysis

The Special Master’s supplementary filing makes clear that he engaged in the analysis

contemplated by the Heiser framework. Specifically, Special Master Griffin states that he began

with the guideline figures set forth above with respect to all of the Smith Plaintiffs. See Special

49
Master’s Supplement 7–8. He has, moreover, now clarified that each upward departure is based

on “factors identified by courts in this district[,] . . . including: (1) an especially close

relationship between the plaintiff and decedent; (2) proof of severe pain, grief, or suffering; and

(3) circumstances surrounding the terrorist attack which made the suffering particularly more

acute or agonizing.” Id. at 9 (internal citations omitted). And for each of the forty recommended

upward departures, Special Master Griffin has augmented his original report with a description

of the factual basis underlying the proposed increase. 47 Id. at 9–18. In addition, Special Master

Griffin has now clarified that each Smith Plaintiff who received a lower proposed award amount

suffered exclusively emotional injuries, and that, for such individuals, he recommended an award

of $3 million to each victim, $2.5 million to each spouse, $1.5 million to each parent, and $1

million to each sibling, with no recommended individualized departures indicated. Id. at 19.

Having reviewed these materials, the Court adopts the Special Master’s findings of fact with

respect to these claimants. 48

47
The Special Master’s findings of fact rely on signed, sworn affidavits that provide
information about each of the victims. Special Master’s Supplement 2. Although Special Master
Griffin did not “review[] any medical records regarding each victim’s injuries or otherwise
independently verified any specific medical diagnosis,” he based his recommendations for
upward departures on “the uncontroverted sworn testimony” and “publicly available information,
including medical articles and literature, discussing the possible causal link between severe
trauma such as the victims’ experience in and as a result of the Beirut Embassy Attacks and the
referenced medical conditions.” Id. at 2–3. His proposed damages are based on a “holistic
review of each victim’s (and the victim’s family members’) testimony regarding” the impact of
the attacks. Id. at 3.
48
Whether the evidence provided is adequate to support a plaintiff’s claim for relief is
left to the Court’s discretion. Han Kim, 774 F.3d at 1047–48 (“[The] FSIA leaves it to the court
to determine precisely how much and what kinds of evidence [] plaintiff[s] must provide,
requiring only that it be ‘satisfactory to the court.’” (quoting 28 U.S.C. § 1608(e))). In this case,
the Court is mindful that Congress intended, in providing a private right of action under section
1605A of the FSIA, to “compensate[] the victims of terrorism [and thereby] punish foreign states
who have committed or sponsored such acts and deter them from doing so in the future.” Id. at
1048 (quoting Price, 294 F.3d at 88–89). An overly stringent evidentiary standard would not
support this objective, particularly where, as here, the events at issue occurred nearly thirty years

50
But the Court declines to adopt all of the Special Master’s specific award amounts.

Because Special Master Griffin’s supplementary discussion confirms that each proposed upward

departure reflects one or more of the factors that warrant such increases, the Court does agree

that an upward departure in the proposed amount is appropriate for the specified individuals and,

unless specifically identified in the forthcoming discussion, grants the Smith Plaintiffs’ motion to

adopt his proposed compensatory damages recommendations. However, for the following

reasons, the Court declines to accept his recommended compensatory damages awards for (1) the

two Smith Plaintiffs who had the misfortune of being associated with more than one directly-

injured individual in a given year or (2) the family member Smith Plaintiffs who suffered

exclusively emotional injuries. 49

c. Award Adjustments

As the Court just indicated, there are two points at which the Court departs from the

Special Master’s compensatory damages recommendations. The first area concerns the

ago. See Fraenkel, 892 F.3d at 353 (“[T]he quantum and quality of evidence that might satisfy a
court [and allow a plaintiff to obtain default judgment in an action under the FSIA] can be less
than that normally required.”). This Circuit has directed district courts to exercise the “broad
discretion” available to them “to determine what degree and kind of evidence is satisfactory,”
Maalouf v. Islamic Republic of Iran, 923 F.3d 1095, 1114 (D.C. Cir. 2019) (citing Han Kim, 774
F.3d at 1047; Owens, 864 F.3d at 785), “[s]o [that] the burden imposed on district courts is
moderated,” id. Thus, the Court is satisfied by the forms of evidence upon which the Special
Master has relied and adopts his findings of fact. Accord Roth, 78 F. Supp. 3d at 386 (stating
that a court resolving a suit brought under the FSIA may “rely on uncontroverted factual
allegations that are supported by affidavits); Rimkus, 750 F. Supp. 2d at 171.
49
The Court makes one other adjustment for family member claimant Jane Daughter
EEESmith. See Intervenor Compl. ¶ 342; Special Master’s R. & R. 843–44. Although the
recommended award amount is $5 million, see Special Master’s R. & R., Suggested Award
Amounts 12, the Heiser framework baseline amount for an individual in Jane Daughter
EEESmith’s position (child of a directly-injured victim) is $2.5 million. Because Jane Daughter
EEESmith is not among the claimants identified in the Special Master’s Supplement as an
individual who received an upward departure based on a holistic review of the victim and family
member affidavits, and because the original report itself does not identify her as such, the Court
adju

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4504352. Public record. Not legal advice.