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Case 1:01-cv-02224-JDB Document 69 Filed 08/17/06 Page 1 of 316 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ANNE DAMMARELL, et al., Plaintiffs, v. Civil Action No. 01-2224 (JDB/JMF) THE ISLAMIC REPUBLIC OF IRAN, et al., Defendants. PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW This case was referred to me, pursuant to Rule 53 of the Federal Rules of Civil Procedure and Local Rule 72.1(b)(5), to receive evidence, serving as a special master, and to prepare proposed findings and recommendations for the disposition the claims of the Phase II1 plaintiffs. BACKGROUND Plaintiffs brought this action against the Islamic Republic of Iran (“Iran”) and its Ministry of Intelligence and Security (“MOIS”), pursuant to the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602 et seq.,2 to recover for damages they sustained as a result of the April 18, 1983 car bombing of the United States Embassy in Beirut, Lebanon. Sixty-three people were killed, including seventeen United States citizens, and over one hundred others were injured in that bombing. 1 As will be explained, supra, the damages stage of this case was tried in two phases, the first before Judge Bates and the second before this magistrate. 2 All references to the Untied States Code or to state statutes are to the electronic versions available though Westlaw and Lexis. Case 1:01-cv-02224-JDB Document 69 Filed 08/17/06 Page 2 of 316 After the bombing, it was determined that a radical Lebanese group known by various names, including Hizbollah, was responsible for the attack on the United States Embassy. See Dammarell v. Islamic Republic of Iran, 404 F. Supp. 2d 261, 271-72 (D.D.C. 2005) (Judge Bates opinion regarding the Phase I plaintiffs’ claims, hereinafter “Dammarell IV”). Moreover, it was discovered that Iran, through its MOIS, materially supported Hizbollah by providing assistance such as money, military arms, training, and recruitment. See id. at 272-73. Indeed, on January 19, 1984, President Reagan designated Iran as a state sponsor of terrorism, a designation that has remained to this date. See id. at 273-74. Based on this information, plaintiffs, consisting of various individuals who were injured in the bombing or the family members or estates of individuals killed in the bombing, brought this complaint alleging that they were injured as “a direct and proximate result of the willful, wrongful, intentional, and reckless acts of Hizbollah members, whose acts were funded and directed by the Islamic Republic of Iran through its agent MOIS.” Third Amended Complaint at ¶ 190. A more detailed discussion of the events underlying plaintiffs’ claims was provided in Judge Bates’ December 14, 2005 opinion regarding the Phase I plaintiffs’ claims and, in the following discussion, I will assume familiarity with that opinion. See Dammarell IV, 404 F. Supp. 2d at 271. Defendants failed to appear in this action, and a default judgment was entered against them on September 6, 2002. The subsequent determination of damages recoverable from the defendants on that default judgment has been conducted in two phases. First, in Phase I, which consisted of twenty-nine of the eighty-two plaintiffs, a trial was held before Judge Bates in April 2003 and, on September 8, 2003, he issued extensive findings of fact and conclusions law. See Dammarell v. Islamic Republic of Iran, 281 F. Supp. 2d 105 (D.D.C. 2003) (hereinafter 2 Case 1:01-cv-02224-JDB Document 69 Filed 08/17/06 Page 3 of 316 “Dammarell I”). Second, in Phase II, which consists of the remaining fifty-two plaintiffs, a trial was held before this magistrate judge in January and February of 2004. However, due to two decisions issued by the court of appeals, Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004) and Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004),3 the determination of proposed findings and conclusions of law for the Phase II plaintiffs was stayed pending Judge Bates’ determined how to proceed in light of those decisions. After briefing from the plaintiffs, Judge Bates held that in order to succeed on their claims after Cicippio-Puleo and Acree, the plaintiffs must identify the specific state law claims which form the basis of each individual plaintiff’s claims. See Dammarell v. Islamic Republic of Iran, No. 01-2224, 2005 WL 756090, at *17 (D.D.C. Mar. 29, 2005) (hereinafter “Dammarell II”). With regard to which state’s law to apply to individual plaintiff’s claims, Judge Bates determined that the law of the each plaintiff’s domicile at the time of the bombing would provide the substantive rule of decision. Id. at *21. Specifically, for the estates of plaintiffs killed in the bombing, the law of the decedent’s residence at the time of his death shall apply. Id. at *21-22. For plaintiffs who were injured in the bombing and plaintiffs who are surviving family members of plaintiffs killed in the bombing, the law of the state of the domicile of the individual plaintiff shall apply. Id. In circumstances where a plaintiff has changed his or her domicile since the embassy attack, the state of domicile will be assessed as of the date of the attack. Id. at *22. To 3 In Cicippio-Puleo, the court of appeals held that the FSIA does not create a private right of action against a foreign government. Cicippio-Puleo, 353 F.3d at 1033. In Acree, the court of appeals held that a plaintiff asserting claims pursuant to FSIA “cannot state a right of action under the ‘generic common law’ or merely ‘allude [ ] to the traditional torts . in their generic form’ but instead ‘must identify a particular cause of action arising out of a specific source of law.’” Dammarell v. Islamic Republic of Iran, No. 01-2224, 2005 WL 756090, at *1 (quoting Acree, 379 F.3d at 58-59). 3 Case 1:01-cv-02224-JDB Document 69 Filed 08/17/06 Page 4 of 316 that end, plaintiffs were ordered to amend their complaint and submit further briefing regarding the proper choice-of-law determination for each individual plaintiff. See Dammarell v. Islamic Republic of Iran, 370 F. Supp. 2d 218 (D.D. C. 2005) (hereinafter “Dammarell III”). On May 23, 2005, plaintiffs filed their Third Amended Complaint and, on August 3, 2005, they filed a memorandum of law explaining which state’s law applies to each plaintiff’s claims and the specific claims they were raising under such state’s common and statutory law. Plaintiffs’ Memorandum in Support of State Law Claims (“Pls. Mem. in Supp. of State Law Claims”). Based on these updated submissions, on December 14, 2005, Judge Bates issued revised findings of fact and conclusions law for the Phase I plaintiffs, which supplemented the findings of fact as stated in his earlier opinion, but superseded his legal conclusions. Judgment was entered in the Phase I plaintiffs’ favor, and they were awarded compensatory damages totaling $126,061,657. Dammarell VI, 404 F. Supp. 2d at 271, 274. Now, based on the principles set for in Dammarell VI, I propose the following findings of fact, conclusions of law, and damage awards. SPECIFIC FINDINGS AND CONCLUSIONS The Phase II plaintiffs’ claims involve consideration of the law of eleven different states. Plaintiffs who were injured in the bombing have asserted battery and intentional infliction of emotional distress claims. The estates and surviving family members of persons killed in the bombing have asserted wrongful death claims and, in some circumstances, intentional infliction of emotional distress claims and claims under survival statutes. In order to avoid repetition, the following discussion is organized by state, first providing an overview of that state’s law and then discussing the claims of each plaintiff who is asserting claims under those laws. 4 Case 1:01-cv-02224-JDB Document 69 Filed 08/17/06 Page 5 of 316 I. CALIFORNIA A. Causes of Action 1. Battery Under California law, “[a] battery is any intentional, unlawful and harmful contact by one person with the person of another.” Fluharty v. Fluharty, 69 Cal. Rptr. 2d 244, 497 (Ct. App. 1997) (quoting Ashcraft v. King, 228 Cal. App. 3d 604, 611 (1991)). Specifically, the tort of civil battery consists of the following three elements: (1) the defendant intentionally did an act that resulted in a harmful or offensive contact with the plaintiff; (2) the plaintiff did not consent to the contact; (3) the contact caused injury, damage, loss or harm to the plaintiff. Id. (quoting Barouth v. Haberman, 26 Cal. App. 4th 40, 46 n.4 (1994)). “Under California law, when a person is injured by the tortious acts of another, she is entitled to recover from the tortfeasor an amount that will compensate for all the detriment proximately caused by the tortious acts.” Priest v. Rotary, 634 F. Supp. 571, 584 (N.D. Cal. 1986). Damages recoverable by the victim of a tortious act are not limited to damages resulting from physical injury, but may also include recovery for “the grief, anxiety, worry, mortification, and humiliation which one suffers by reason of physical injuries.” Merrill v. Los Angeles Gas & Elec. Co., 158 Cal. 499, 512 (1910). 2. Intentional Infliction of Emotional Distress To state a claim for intentional infliction of emotional distress under California law, a plaintiff must show “(1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation of the emotional distress.” Agarwal v.

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