Cole Punitive Suit Hits Legal Shoals

NORFOLK, Va. -- A federal judge appeared skeptical that the families of the 17 Sailors killed in the 2000 attack on the destroyer Cole can recoup more money from Sudan, which was found liable for assisting the bombers.

"I'm having some problems with it," U.S. District Judge Robert G. Doumar told the lawyers for the families at a status hearing in the case Monday.

The families are seeking to reopen their lawsuit against Sudan based on an amendment passed last year by Congress that allows for retroactive payments in terrorism-related wrongful death actions.

Miami attorney Andrew Hall, representing the families, told the judge the statute was designed for victims such as the Cole families and should take precedence over the law Doumar followed, the Death on the High Seas Act, which limits damages against state sponsors of terrorism.

"You must follow the statute," Hall told the judge.

Doumar in 2007 awarded $8 million to 33 immediate survivors of the attack. That swelled, with interest, to $13.4 million, which Sudan paid this year. Each survivor received between $200,000 and $1.2 million from Sudanese assets frozen by the U.S. government.

But Doumar limited the families to actual damages, based on lost income, and refused to award punitive damages, ruling that the law did not allow for that. The families had sought additional damages for pain and suffering. In sum, they asked for more than $100 million.

Doumar said the congressional action might not help the families overcome constitutional issues, adding that he was concerned about allowing the case to be reopened when a final judgment had already been issued.

"It strikes me as a little odd," Doumar told the lawyers. "How is that constitutional?"

Doumar went on to say that he was "very concerned" and that he might have "very limited ability here."

On Oct. 12, 2000, two terrorists pulled up in a small boat next to the Norfolk-based Cole while it was docked in Yemen and detonated a suicide bomb that killed themselves and 17 Sailors. Dozens more were injured.

The families of the 17 Sailors sued Sudan, claiming that the North African nation provided support and logistics that allowed the bombers to carry out the attack. Doumar ruled in favor of the families, but Sudan never really defended itself.

Norfolk attorney Brent Lee VanNorman, representing Sudan at the hearing, had little to offer. He told the judge his instructions from Sudan were to argue that the court did not have jurisdiction.

"Beyond that, we really have no comment," VanNorman said.

Hall and two other attorneys for the families said they hope to overcome the judge's issues. Hall said he believes there are cases from the federal district court in Washington that will back his argument. He said the solution might be simply to file an entirely new lawsuit against Sudan.

Doumar gave the parties another week to file case law and motions.

No family members attended the hearing.