Punitive Damages for USS Cole Bombing Upended

     WASHINGTON (CN) – A federal judge put a pin in the punitive damages awarded to relatives of a U.S. sailor who died in al-Qaida’s 2000 bombing of the USS Cole.
     Saundra Flanagan initiated the lawsuit roughly a decade after the attack, taking aim at Syria, Iran, Sudan and several of their political agents and subdivisions.
     She and other family members of Kevin Shawn Rux, electronic warfare technician first class, claimed that these entities provided al-Qaida with material support that had enabled the bombing, in violation of the Foreign Sovereign Immunities Act.
     The court considered live testimony, affidavits and documentary evidence before entering default judgment against Iran and Sudan in 2012, awarding Rux’s family $18.7 million in compensation, plus $56.2 million in punitive damages.
     Sudan had been served back in 2011 but did not enter an appearance until last year, moving to set aside the default judgment.
     U.S. District Judge Rudolph Contreras went through each of Sudan’s claims in a 66-page opinion Friday, granting it relief only on the issue of punitive damages.
     Sudan has a point, the judge said, in arguing that Section 1605A of the Foreign Sovereign Immunities Act does not provide for the retroactive application of punitive damages for events that occurred before that section’s enactment in 2008.
     Though Contreras set aside the punitive damages award, he called for further briefing on the issue before making a definitive ruling.
     Contreras otherwise dispatched of Sudan’s arguments, seeing no reason to excuse the four-year delay in making a court appearance.
     Sudan claimed that it could not prioritize the case because of turmoil back home, but Contreras found such contentions “specious in light of Sudan’s litigation of similar issues in other cases before its default here.”
     “Given that Sudan has already seen the consequences of defaulting, it is difficult to credit Sudan’s claim that it did not appreciate the gravity of its absence,” the ruling states.
     Sudan also complained about the court’s supposed failure to adjudicate all claims of all parties, specifically those against the Syrian Arab Republic.
     Contreras meanwhile highlighted the “considerable irony” of Sudan seeking relief under rule that says “a foreign state that does appear and defend on the merits will be precluded from appealing any adverse decision so long as an unserved foreign state remains in the case, unless the district court issues a Rule 54(b) certification.” (Emphasis in original)
     Syria refused mail delivery of the summons, but Sudan argued that service was effectuated anyway.
     “The court rejects this contention,” Contreras wrote. “For one thing, the statute is silent on whether a refused mailing is sufficient to effectuate service under the FSIA.”
     Contreras called “it unlikely that Congress intended a United States court’s exercise of jurisdiction over a foreign sovereign to rise and fall on whether a low-level employee at the Ministry of Foreign Affairs accepted the summons and complaint.”
     The decision also notes that future proceedings against Syria remain in the works — “plaintiffs have plainly told the court as much.”
     “As a result, the court’s default judgment was not final because it did not dispose of plaintiffs’ claims against Syria, a party against whom future proceedings are contemplated,” Contreras added.
     The ruling also looks at the death of Hassan al Turabi, the head of the National Islamic Front who gave cover to bin Laden and al-Qaida.
     “Sudan’s response that setting aside the default judgment against it would not disturb the default judgment against Iran (unless or until Iran appears, of course) … does not mitigate the fact that Plaintiffs have expended considerable effort litigating this case in Sudan’s absence,” Contreras wrote.
     As for Sudan’s argument that the USS Cole bombing falls outside the Torture Victim Protection Act, the judge said “Sudan’s reference to acts of ‘international terrorism’ is a red herring.”
     “Regardless of whether one might also label the bombing of the U.S.S. Cole an act of ‘terrorism,’ the relevant question is whether the bombing meets the FSIA’s statutory definition of ‘extrajudicial killing,'” the ruling states.
     Concluding that it does, Contreras said Sudan failed to raise a meritorious defense.
     Another section of the ruling shoots down Sudan’s challenges to expert witnesses.
     Though Sudan said the offered hearsay, with “no independent evidentiary basis for the factual assertions,” Contreras said “reliance on hearsay evidence is often critical” in the terrorism context.
     “The types of records or direct evidence available in civil litigation are unlikely to be available in FSIA cases — particularly when, as here, plaintiffs have no access to discovery,” Contreras wrote.
     Inadmissible evidence is another matter, “but the court believes the sentiment should perhaps allow some greater leeway for an expert witness in terrorism cases to rely on hearsay evidence in formulating his or her admissible expert opinion,” the opinion continues.
     “Plaintiffs’ expert testimony established that Sudan’s support not only kept al-Qaida afloat, but allowed the organization to thrive, making it reasonably foreseeable to Sudan that the organization would develop the capacity to carry out sophisticated attacks like the U.S.S. Cole bombing,” Contreras wrote.

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