Huge ‘Bellweather’|Verdict in Embassy Case

     (CN) – Six of the hundreds injured by the al-Qaida bombing of the U.S. Embassy in Nairobi, Kenya, will receive a combined $985.9 million, a federal magistrate ruled Thursday.
     The 31-page decision by U.S. Magistrate Judge John Facciola in Washington promises that other victims of the attack will receive their damages calculations in the near future. Al-Qaida coordinated the attack in Nairobi with the bombing of another U.S. Embassy in Dar es Salaam, Tanzania. The attacks killed 224.
     It has been over 3 ½ years since Facciola’s court held a bellweather trial to determine damages. Such trials involve a court taking a random sample of related cases large enough to achieve reliable results. The bellweather jury’s verdicts serve to resolve the remaining cases.
     The six plaintiffs in this case, all Kenyan, brought their claims under the Alien Tort Claims Act. In finding that the plaintiffs could pursue federal tort claims against al-Qaida because the bombing specifically targeted the United States, Facciola relied on the Supreme Court ruling last year in another ATS case, Kiobel v. Royal Dutch Petroleum.
     At trial, the six Kenyans presented evidence of assault and battery, including permanent scarring from flying glass, blindness and psychological trauma.
     Facciola did dismiss wrongful-death claims brought by the families of two other men because he found that federal common law does not recognize it as a claim.
     An expert also testified that victims of the bombing are referred to disparagingly as “bomb people.” Kenyans view them as bad omens who bring misfortune to those who come in contact with them, the expert said.
     While Facciola said that the plaintiffs could not prove past and future economic damages because of the bombing, he added that they “suffered post-traumatic stress disorder and a unique social stigma attached to these Kenyan victims, a stigma that remains today.”
     Facciola also found that prior cases against terrorists have resulted in $150 million per plaintiff in punitive damages, although he indicated he would have awarded more if he had been able.
     “The instant action, the bombing of the United States Embassy in Nairobi, Kenya, like the bombing of the Marine barracks, is one of the most grotesque and depraved acts imaginable,” Facciola wrote. “While it caused injury, death, and irreparable emotional harm to hundreds of Kenyan citizens, Al Qaeda’s wealth is unknown. Furthermore, it is unclear to this court whether any award of punitive damages is likely to have any deterrent effect whatsoever. Thus, although this incident is similar to the bombing in Valore, the court will follow the per-victim standard utilized in Gates and award each of the six plaintiffs identified above $150 million in punitive damages. The court simply cannot, in keeping with requirements of due process, make any greater award without additional expert testimony as to Al Qaeda’s wealth and the multiplier necessary to affect Al Qaeda’s future conduct.”
     Facciola dismissed Osama bin Laden as a defendant in the action just a few weeks ago, based on the terrorist’s 2011 assassination in Pakistan.
     Adel Abdel Bary, 54, pleaded guilty just a week ago to passing on threats from Osama bin Laden and Ayman al-Zawahiri to the press regarding the Embassy bombings. A federal judge in Manhattan has indicated that he might not accept the plea because it would let Bary off with a short stint in a UK prison.

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