Schertzman Cohen v. Islamic Republic of Iran ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ILANA SCHERTZMAN COHEN, et al.,
Plaintiffs,
v. Civil Action No. 17-1214 (JEB)
ISLAMIC REPUBLIC OF IRAN, et al.,
Defendants.
MEMORANDUM OPINION
Almost eighteen years ago, a terrorist attack on a Jerusalem bus killed two teenage
children and wounded scores more. Ten plaintiffs — injured victims of that attack and their
families — now come before this Court seeking recompense for their physical and psychological
injuries. Specifically, Plaintiffs seek to hold the Islamic Republic of Iran and the Islamic
Revolutionary Guard Corps liable for damages under the terrorism exception to the Foreign
Sovereign Immunities Act. As both Defendants failed to appear, default was entered last year. It
now falls to the Court to determine whether to award default judgment and, if so, what damages
are appropriate.
Finding the link between Defendants and the gunman plain, the first task is easy.
Determining a fair amount of damages, conversely, requires a difficult weighing of relative
injuries. The Court ultimately holds that individual sums of $400,000 to $2,500,000 are
appropriate, yielding a total of $10,050,000.
I. Background
On the afternoon of November 4, 2001, a Palestinian gunman opened fire on an Israeli
bus traveling through the French Hill neighborhood of Jerusalem. See ECF No. 21 (Declaration
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of Dr. Harel Chorev), ¶ 24. Two passengers, 14-year-old Menashe Regev and 16-year-old
Shoshana Ben Yishai, were killed; around 45 others were injured. Id. Shortly thereafter, the
Palestinian Islamic Jihad (PIJ) claimed official responsibility for the attack. Id., ¶ 25.
The ten Plaintiffs in this case are dual U.S.-Israeli citizens from the Schertzman and
Miller families. The seven Schertzman Plaintiffs consist of Ilana Schertzman Cohen — who was
aboard the bus and injured in the attack — and six of her immediate family members who were
not present. The three Miller Plaintiffs are Myriam Miller and her two children, all of whom
were passengers. As detailed below, Ilana was hit by shrapnel and the three Millers were struck
by glass and thrown around the bus. One of the Miller children, Chana Aidel, later married
Schertzman Plaintiff Yehuda Schertzman; the Court refers to two distinct families only for
descriptive clarity. In addition, for ease of distinction and with no disrespect intended, the Court
often refers to Plaintiffs by their first names.
Plaintiffs filed suit against Iran and the IRGC on June 20, 2017. See ECF No. 1
(Complaint), ¶ 1. The Clerk of the Court certified that translated copies of the summons and
Complaint were sent by DHL to both Defendants, see ECF No. 8 (Certificate of Mailing), but
both refused delivery and returned the summons unexecuted. See ECF Nos. 10 (Iran Summons
Return) and 11 (IRGC Summons Return). Undeterred, the Clerk transmitted the service
documents to the U.S. State Department on February 5, 2018, see ECF No. 13 (Certificate of
Mailing to State), which forwarded them to Iran’s Ministry of Foreign Affairs through the Swiss
Embassy in Tehran. See ECF No. 15 (Service Affidavit). Service was thereby effective under 28
U.S.C. § 1608(c)(1). True to form, both Defendants failed to answer the Complaint. As a result,
Plaintiffs on June 12, 2018, requested an entry of default. See ECF No. 16 (Affidavit for
Default). The Clerk did so on June 28. See ECF No. 17.
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Plaintiffs then moved for default judgment. See ECF No. 18. This Court held an
evidentiary hearing on June 4, 2019, where it heard testimony from all Plaintiffs, as well as from
experts Dr. Harel Chorev and Dr. Patrick L. Clawson. See June 4, 2019, Minute Entry. Having
carefully weighed Plaintiffs’ written statements and testimony, the Court now decides both
liability and damages.
II. Legal Standard
Foreign states are generally immune from suit in federal court, subject to exceptions
codified in the Foreign Sovereign Immunities Act. See 28 U.S.C. § 1604; see also Argentine
Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989) (“[T]he FSIA [is] the sole
basis for obtaining jurisdiction over a foreign state in federal court.”). Relevant here is § 1605A,
the so-called “terrorism exception” to the FSIA. See Fraenkel v. Islamic Republic of Iran, 892
F.3d 348, 352 (D.C. Cir. 2018). This section provides federal courts with jurisdiction over suits
where plaintiffs seek money damages from 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.” 28 U.S.C. § 1605A(a)(1). It also
creates a cause of action for “national[s] of the United States” to sue foreign states that are
designated by the U.S. government as sponsors of terrorism and perform or materially support
the acts described in 28 U.S.C. § 1605A(a)(1). Id., § 1605A(c). The statute specifies that, “[i]n
any such action, damages may include economic damages, solatium, pain and suffering, and
punitive damages.” Id.; accord Fraenkel, 892 F.3d at 353.
To obtain a default judgment in such an action, plaintiffs must establish their claims “by
evidence satisfactory to the court.” 28 U.S.C. § 1608(e). Plaintiffs who are successful may then
recover damages by showing “that the projected consequences are reasonably certain (i.e., more
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likely than not) to occur, and [proving] the amount of damages by a reasonable estimate.”
Fraenkel, 892 F.3d at 353 (quoting Hill v. Republic of Iraq, 328 F.3d 680, 684 (D.C. Cir. 2003)).
While these requirements create “some protection against an unfounded default judgment,”
plaintiffs need not produce “more or different evidence than [a court] would ordinarily receive;
indeed, the quantum and quality of evidence that might satisfy a court can be less than that
normally required.” Id. (citation omitted).
III. Analysis
The Court’s analysis proceeds in three parts. It begins by clearing some jurisdictional
underbrush, then evaluates Defendants’ liability, and finishes with a determination of appropriate
damage awards.
A. Jurisdiction
The FSIA both gives this Court subject-matter jurisdiction and waives Defendants’
sovereign immunity, subject to conditions Plaintiffs have met. Defendants also have been
properly served under 28 U.S.C. § 1608(a). The Court, accordingly, is satisfied that it has
jurisdiction over the suit.
Subject-Matter Jurisdiction
The state-sponsored-terrorism exception to the FSIA provides federal courts with subject-
matter jurisdiction over suits against a foreign state only where (1) “money damages are sought”
(2) “against a foreign state for” (3) “personal injury or death that” (4) “was caused” (5) “by an
act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material
support or resources for such an act.” 28 U.S.C. § 1605A(a)(1); see also Oveissi v. Islamic
Republic of Iran, 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).
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All five conditions are met here. First, Plaintiffs seek only money damages. See Compl.
at 18. Second, Iran and the IRGC qualify as foreign states. Courts in this district have held on
multiple occasions that the IRGC is part of the Iranian government, and this Court agrees. See
Ben-Rafael v. Islamic Republic of Iran, 718 F. Supp. 2d 25, 32 (D.D.C. 2010) (“All of the cases
that have actually discussed the issue have found the IRGC to be part of the Iranian government,
not an agency or instrumentality thereof.”); Pl. Hrg. Exh. 14 (Declaration of Dr. Patrick L.
Clawson), ¶¶ 23–25. Third, Plaintiffs allege personal injuries including physical harm and
familial mental anguish. See Compl., ¶¶ 25–68.
As to the fourth element, Plaintiffs have met the causation showing required by the FSIA
— namely, that Defendants’ provision of material support caused their injuries. The Act requires
only that Plaintiffs show “some reasonable connection between the act or omission of the
defendant and the damages [that] the plaintiff has suffered.” Valore v. Islamic Republic of Iran,
700 F. Supp. 2d 52, 66 (D.D.C. 2010) (citation omitted). This they have done. As discussed in
detail below, Dr. Chorev testified that the PIJ carried out the attack that injured Plaintiffs, and Dr.
Clawson testified that Iran and the IRGC provided substantial material support to the PIJ during
the relevant period. See Chorev Decl., ¶ 38; Clawson Decl., ¶ 58. Courts in this district,
moreover, have repeatedly noted Iran’s support for the PIJ during and around this time. See,
e.g., Wultz, 864 F. Supp. 2d at 30 (describing Iranian funding for PIJ from 1990s through mid-
2000s); Belkin v. Islamic Republic of Iran, 667 F. Supp. 2d 8, 16 (D.D.C. 2009) (stating
scholarly consensus is that PIJ was “heavily dependent” on Iranian support through turn of this
century). The Court thus finds a reasonable connection between Defendants’ actions and the
damages Plaintiffs suffered.
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Fifth and finally, the attack constituted an “extrajudicial killing” within the meaning of
the Act. Not only were two teenagers killed on the bus, but this district’s prior rulings hold that
the FSIA terrorism exception encompasses attempted extrajudicial killings, which clearly
occurred here. See, e.g., Gill v. Islamic Republic of Iran, 249 F. Supp. 3d 88, 99 (D.D.C. 2017);
Cohen v. Islamic Republic of Iran, 238 F. Supp. 3d 71, 81 (D.D.C. 2017). Finding all five
criteria met, the Court concludes it has jurisdiction over Plaintiffs’ claims.
Waiver of Sovereign Immunity
FSIA plaintiffs face an additional hurdle. Even where a court has subject-matter
jurisdiction, FSIA defendants remain impervious to suit absent a waiver of sovereign immunity.
Fortunately for Plaintiffs, the FSIA provides such a waiver when three conditions are met: (1)
“the foreign state was designated as a state sponsor of terrorism at the time [of] the act . . . and
. . . either remains so designated when the claim is filed under this section or was so designated
within the 6-month period before the claim is filed under this section”; (2) “the claimant or the
victim was, at the time [of] the act[,] . . . a national of the United States”; and (3) “in a case in
which the act occurred in the foreign state against which the claim has been brought, the
claimant has afforded the foreign state a reasonable opportunity to arbitrate the claim.” 28
U.S.C. § 1605A(a)(2)(A)(i)-(iii); see also Wultz, 864 F. Supp. 2d at 33.
Plaintiffs meet all three conditions. First, Iran has been designated as a state sponsor of
terrorism since 1984 and remains so designated today. See Dep’t of State, Bureau of
Counterterrorism and Countering Violent Extremism, State Sponsors of Terrorism,
https://www.state.gov/state-sponsors-of-terrorism (July 10, 2019, 2:50 PM). Second, all ten
Plaintiffs are United States nationals. See Compl., ¶ 17. Finally, the attack occurred in Israel,
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not Iran; the third condition thus does not apply. Congress has therefore waived Iran’s sovereign
immunity, and derivatively the immunity of the IRGC, pursuant to 28 U.S.C. § 1605A.
Service of Process
One last threshold issue remains: service of process. 28 U.S.C. § 1608(a) sets out four
methods by which service may be made, in ranked order. The summons and complaint may be
delivered, first, “in accordance with any special arrangement for service between the plaintiff and
the foreign state or political subdivision,” id., § 1608(a)(1), or, second, “in accordance with an
applicable international convention on service of judicial documents.” Id., § 1608(a)(2). If no
such agreements exist, defendants must be served through a third method, which involves
sending the requisite documents “by any form of mail requiring a signed receipt . . . to the head
of the ministry of foreign affairs of the foreign state concerned.” Id., § 1608(a)(3). And should
that fail, plaintiffs may resort to method four: the Court Clerk may send the packet to the
Secretary of State for transmittal “through diplomatic channels to the foreign state.” Id.,
§ 1608(a)(4); see also Republic of Sudan v. Harrison, 139 S. Ct. 1048, 1054 (2019).
Plaintiffs have successfully navigated this procedural thicket and effected service on both
Iran and the IRGC. The parties lack a special service arrangement and are not signatories to a
service convention, ruling out methods one and two. See Valore, 700 F. Supp. 2d at 70.
Plaintiffs tried method three, mailing the forms for both Defendants to Iran’s foreign minister in
his home country, but Defendants rejected them. See Certificate of Mailing; Certificate of
Mailing Attach. 1 (Waybill); Iran Summons Return; IRGC Summons Return; cf. Republic of
Sudan, 139 S. Ct. at 1062 (requiring mailing to home country). Undeterred, Plaintiffs turned to
method four. The State Department transmitted the documents to Iran’s Ministry of Foreign
Affairs through the Embassy of Switzerland on April 10, 2018. See Service Affidavit at 1. As a
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result, service on both Defendants was finally effective as of that date. See 28 U.S.C.
§ 1608(c)(1). Because the IRGC is part of the Iranian government, this procedure effectuated
service on it as well under 28 U.S.C. § 1608(a). Id.; see also Ben-Rafael, 718 F. Supp. 2d at 32.
Mindful that it lacks the authority “to raise the FSIA terrorism exception’s statute of
limitations on behalf of an entirely absent defendant,” Maalouf v. Islamic Republic of Iran, 923
F.3d 1095, 1112 (D.C. Cir. 2019), the Court sees no other jurisdictional hurdles and proceeds
onward to the merits.
B. Liability
The Court is satisfied that both Defendants are liable to Plaintiffs for providing material
support for the attempted extrajudicial killings that caused their injuries. Its analysis begins with
a discussion of the attack itself, then considers Defendants’ provision of support that led to the
incident, and concludes by evaluating Plaintiffs’ theories of recovery.
The Attack
There is little controversy over whether the PIJ is responsible for the November 4, 2001,
attack. The evidence is straightforward, and the Court will thus spill little ink here. Dr. Chorev,
an expert in Palestinian terror networks, offered extensive evidence on the PIJ’s role.
Specifically, he highlighted credible claims of responsibility from PIJ’s official website and in its
official weekly newspapers. See Chorev Decl., ¶¶ 26–29; id., Exhs. 3, 5. He also discussed the
Israeli government’s official attribution of the attack to the PIJ as further evidence of its
culpability. See Chorev Decl., ¶¶ 30–34; id., Exh. 8 at 2. Chorev thus “conclude[d] with a high
degree of confidence that PIJ is responsible for the Attack.” Chorev Decl., ¶ 38. The Court finds
the evidence he presented to be persuasive and concludes that Plaintiffs have proven that the PIJ
was behind the November 4 attack “by evidence satisfactory to the court.” 28 U.S.C. § 1608(e).
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Defendants’ Material Support
The Court similarly agrees that Iran and the IRGC provided material support to the PIJ in
the period leading up to the incident. Courts in this district have time and again noted Iran’s
support for the PIJ during this timeframe. See, e.g., Wultz, 864 F. Supp. 2d at 30; Belkin, 667 F.
Supp. 2d at 16–17. Judges have also recognized that Iran’s support for terrorism is conducted in
part through the IRGC. See, e.g., Belkin, 667 F. Supp. at 18 (describing IRGC as a “means by
which Iranian support for terrorism is carried out”). Testimony from Dr. Clawson, a leading
expert on Iran and Director of Research at the Washington Institute for Near East Policy,
confirms those findings. He walked the Court in detail through the relationship among Iran, the
IRGC, and the PIJ, concluding that “there is ample evidence that Iran and the IRGC have
supplied substantial material support to PIJ during the relevant period.” Clawson Decl., ¶ 58.
The Court finds such evidence, and the reasoning of this district’s prior decisions, to be
persuasive. It thus concludes that Plaintiffs have sufficiently proven that Iran and the IRGC
provided relevant material support to the PIJ.
Plaintiffs’ Theories of Liability
Although § 1605A provides a private right of action, it requires plaintiffs “to prove a
theory of liability.” Valore, 700 F. Supp. 2d at 73; see also Rimkus v. Islamic Republic of Iran,
750 F. Supp. 2d 163, 175–76 (D.D.C. 2010) (“[P]laintiffs in § 1605A actions . . . must articulate
the justification for such recovery, generally through the lens of civil tort liability.”). Consistent
with guidance from the D.C. Circuit, district courts “rely on well-established principles of law,
such as those found in Restatement (Second) of Torts,” to determine liability under the FSIA.
See In re Islamic Republic of Iran Terrorism Litig., 659 F. Supp. 2d 31, 61 (D.D.C. 2009); see
also Bettis v. Islamic Republic of Iran, 315 F.3d 325, 333 (D.C. Cir. 2003) (using Restatement
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“as a proxy for state common law” in determining FSIA liability). Here, Plaintiffs assert three
such theories: assault, battery, and intentional infliction of emotional distress. All three clear the
bar.
First, assault liability for attempted extrajudicial killing under the FSIA requires two
conditions: “(1) [defendants] acted intending to cause a harmful contact with, or an imminent
apprehension of such a contact by, those attacked[,] and (2) those attacked were thereby put in
such imminent apprehension.” Wultz, 864 F. Supp. 2d at 35 (internal punctuation omitted)
(quoting Restatement (Second) of Torts § 21(1)). Defendants acted with manifest intent to cause
harmful contact and did put at least Ilana and Myriam in imminent apprehension — indeed, such
is the entire purpose of terrorism. See ECF No. 39 (Supplemental Memorandum), Attach. 1
(Hearing Transcript) at 9:24–11:6; Valore, 700 F. Supp. 2d at 76. They are thus liable for assault.
Next, battery liability arises when defendants acted “[(1)] intending to cause a harmful or
offensive contact with, or an imminent apprehension of such a contact by, those attacked and (2)
a harmful contact with those attacked directly or indirectly resulted.” Wultz, 864 F. Supp. 2d at
36 (internal punctuation alterations omitted) (quoting Restatement (Second) of Torts § 13).
Without question, the relevant act of terrorism both intended to cause and did result in harmful
contact with Ilana, Miryam, Chana Aidel, and Tova; the Court thus finds Defendants liable for
battery.
Finally, all Plaintiffs claim intentional infliction of emotional distress. Under general
principles of tort law, “[o]ne who by extreme and outrageous conduct intentionally or recklessly
causes severe emotional distress to another is subject to liability for such emotional distress,”
both to the victim and “to a member of such person’s immediate family who is present at the
time.” Estate of Heiser v. Islamic Republic of Iran, 659 F. Supp. 2d 20, 26 (D.D.C. 2009)
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(quoting Restatement (Second) of Torts § 46). As the Heiser court explained, terrorism is
“unique among the types of tortious activities in both its extreme methods and aims,” in that it is
“intended to cause the highest degree of emotional distress, literally, terror.” Id. at 27 (internal
quotation marks and citation omitted). For that reason, immediate family members of terrorism
victims may state a claim for IIED even if they were not present at the site of the attack. See
Republic of Sudan v. Owens, 194 A.3d 38, 42 (D.C. 2018).
The Court easily concludes that the attack in question was designed to create severe
emotional distress and did cause such distress to all ten Plaintiffs. The four Plaintiffs who were
on the bus experienced intense emotional distress as a result of the attack, and Defendants are
consequently liable to them for direct-injury damages. See Valore, 700 F. Supp. 2d at 60 (noting
survivors’ IIED claims as part of direct-injury damages calculation). The six Plaintiffs who were
not present are all immediate family members of present victims and also experienced emotional
distress from the attack. Defendants are thus liable to them as well, here for solatium damages.
Id. at 78 (noting that solatium damages are “the sort of damages sought for IIED” for family
members of victims).
C. Damages
While establishing liability here is relatively straightforward, that is not the case with the
amount of damages to award. The valuation of serious psychological injuries among different
family members is an inherently delicate task, not susceptible to rote calculations. Indeed,
“assessing damages for pain and suffering is an imperfect science, as no amount of money can
properly compensate a victim for the suffering he or she endures during and after an attack.”
Goldstein v. Islamic Republic of Iran, 2019 WL 1756024, at *3 (D.D.C. Apr. 19, 2019). The
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Court begins with several general observations about damages under the FSIA before
considering each Plaintiff’s claims in turn.
Plaintiffs seek three types of damages: direct-injury damages, solatium damages, and
punitive damages. Their request for punitive damages, see Compl., ¶ 131, must be dismissed
given this Circuit’s intervening holding in Owens v. Republic of Sudan, 864 F.3d 751, 812 (D.C.
Cir. 2017), cert. granted in part sub nom. Opati v. Republic of Sudan, 2019 WL 2649832 (U.S.
June 28, 2019). There, that court vacated a punitive-damages award against Sudan, holding that
“the FSIA terrorism exception does not retroactively authorize the imposition of punitive
damages against a sovereign for conduct occurring before the passage of § 1605A” in January
2008. Id.; see also Akins v. Islamic Republic of Iran, 332 F. Supp. 3d 1, 45 (D.D.C. 2018)
(applying Owens to bar punitive damages where attack preceded § 1605A). As the incident here
occurred in 2001, Plaintiffs may not recover punitive damages. In fact, they have indirectly
acknowledged as much in recent filings. See ECF No. 30 (Memorandum in Support of Motion
for Default Judgment) (failing to reiterate request for punitive damages).
That leaves direct-injury and solatium damages. The former are intended to compensate
attack survivors based on factors including “the severity of the pain immediately following the
injury, the length of hospitalization, and the extent of the impairment that will remain with the
victim for the rest of his or her life.” O’Brien v. Islamic Republic of Iran, 853 F. Supp. 2d 44, 46
(D.D.C. 2012) (citation omitted); accord Wultz, 864 F. Supp. 2d at 37. Over the years, courts
have developed a general framework for awarding direct-injury damages. They begin “with the
baseline assumption that persons suffering substantial injuries in terrorist attacks are entitled to
$5 million in compensatory damages.” Wultz, 864 F. Supp. 2d at 37–38 (emphasis added). Such
substantial injuries include “compound fractures” and “severe flesh wounds.” Valore, 700 F.
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Supp. 2d at 84; see also Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d 25, 54 (D.D.C.
2007). Courts deviate downwards and award damages between $2 and $3 million for less severe
physical injuries, such as “where victims suffered only minor shrapnel injuries or minor injury
from small-arms fire” in addition to psychological trauma. See Valore, 700 F. Supp. 2d at 84;
Peterson, 515 F. Supp. 2d at 54–55.
Most useful here is the framework for smaller-scale, direct physical injuries that our
district articulated in Wamai v. Republic of Sudan, 60 F. Supp. 3d 84 (D.D.C. 2014), aff’d in
part, vacated in part on other grounds sub nom. Owens, 864 F.3d at 825. In Wamai, the court
awarded damages to victims of the 1998 bombings of the U.S. Embassies in Kenya and
Tanzania. Recognizing that “[a] great number of plaintiffs were injured in the bombings” and
that plaintiffs’ injuries “span[ned] a broad range,” the court identified six general categories of
plaintiffs. Id. at 92. For those who suffered little to no physical injury, the court awarded $1.5
million. Id. The court increased that award to $2 million for plaintiffs who suffered injuries
“such as lacerations and contusions caused by shrapnel, accompanied by severe emotional
damages,” id. (internal punctuation omitted), and to $2.5 million for people “who suffered more
serious physical injuries, such as broken bones, head trauma, some hearing or vision impairment,
or impotence.” Id. Moving upward, those “with even more serious injuries,” such as “spinal
injuries not resulting in paralysis, more serious shrapnel injuries, head trauma, or serious hearing
impairment,” received $3 million. Id. Victims who suffered injuries similar to those for which
other courts had awarded the “baseline” of $5 million — including “vision impairment, many
broken bones, severe shrapnel wounds or burns, lengthy hospital stays . . . and permanent
injuries” — received that baseline amount. Id. at 92–93. Finally, people with “even more
grievous wounds such as lost eyes, extreme burns . . . or [who] endured months of recovery in
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hospitals” received awards of $7.5 million. Id. at 93. These categories all assume severe
psychological injuries. Id. at 92–93. That framework aids this Court in its determinations of
direct damages.
Solatium damages, by contrast, serve a different purpose. As defined by the D.C. Circuit
last year in Fraenkel v. Islamic Republic of Iran, 892 F.3d 348 (D.C. Cir. 2018), these damages
seek to compensate victims for the “[m]ental anguish, bereavement and grief” resulting from a
loved one’s death or injury. Id. at 356–57; see also Valore, 700 F. Supp. 2d at 85. To determine
proper solatium awards, the Fraenkel panel recognized that “District Court judges invariably
must exercise discretion in determining damages awards under the FSIA.” Fraenkel, 892 F.3d at
361. Appellants there had argued that the district court “broke from precedent” by awarding
solatium damages “dramatically lower” than those received by similarly situated plaintiffs. Id.
The D.C. Circuit rejected their claim. It noted that “many FSIA decisions” followed the
solatium-damage ranges summarized in Estate of Heiser v. Islamic Republic of Iran, 466 F.
Supp. 2d 229 (D.D.C. 2006), which recommended awarding around $2.5 million for siblings of
deceased victims, $5 million for parents, and $8 to $12 million for spouses. See Fraenkel, 892
F.3d at 361. But the Circuit “decline[d] to impose Heiser’s framework as a mandatory scheme,”
id., holding that “[t]he decision in Heiser . . . is not binding precedent” and that, subject to abuse-
of-discretion review, district courts have wide latitude to craft damage awards “based on the
particular facts of each case.” Id. at 351.
As instructed, this Court will exercise its discretion in fashioning equitable solatium
awards. It will do so based on the factors our Circuit instructed courts to consider in Fraenkel.
See 892 F.3d at 359 (“On remand, the District Court should apply the considerations outlined in
[Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 30–32 (D.D.C. 1998),] . . . to determine the
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appropriate amounts of solatium damages.”). Among those factors, the Court of Appeals
highlighted two: “[h]ow the claimant learned of” the directly injured plaintiff’s injuries and the
“nature of the relationship” between the claimant and the directly injured plaintiff. Id. at 357
(quoting Flatow, 999 F. Supp. at 30–31). The Court will first consider the seven Schertzman
Plaintiffs and then separately assess the three Miller Plaintiffs.
Schertzman Plaintiffs
Ilana Schertzman Cohen suffered direct injuries in the attack. By way of physical injury,
she sustained a shrapnel wound for which she received medical care, and she testified that the
attack left her with some continuing neck pain. See Tr. at 15:8–16; id. at 18:9–11. She also
experienced significant psychological trauma, including watching her close friend Shoshana
Ben-Yishai, who was sitting right next to her on the bus, suffer a fatal gunshot wound. Id. at
9:5–13:16. After a brief hospital visit, Ilana attended Shoshana’s funeral and then returned
home, where she continued to experience significant trauma as a result of the attack. Id. at 17:8–
23; id. at 18:2–20:22.
These physical injuries place her towards the lower end of the Wamai framework. Her
wounds are more similar to the “lacerations and contusions caused by shrapnel” that merit an
award of $2 million than they are to more severe physical injuries such as “broken bones, head
trauma, [or] some hearing or vision impairment” that merit $2.5 million. See 60 F. Supp. 3d at
92; see also Goldstein, 2019 WL 1756024, at *2–3 (awarding $2.5 million to bus-attack terror
victim whose injuries required “multiple visits to doctors and hospitals” and continue to present).
The Court recognizes, however, the heightened emotional trauma of watching her best friend
shot before her eyes. While courts do not typically award damages for the death of close friends,
cf. Supplemental Memorandum at 4–5 (showing courts’ consideration of injury and death of non-
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immediate family members), the Court will nonetheless recognize the emotional trauma of
Shoshana’s death as one factor in its holistic analysis for Ilana. All told, it will deviate upward
and award her $2.5 million in direct-injury damages.
The remaining Schertzman Plaintiffs were not present for the attack, but claim solatium
damages based on the mental anguish it caused them in relation to Ilana. The Court begins with
her parents, Leslie and Donald Schertzman. Although both quickly learned that Ilana was
injured but safe, see Tr. at 25:7–10 (Leslie); id. at 36:6–37:4 (Donald, noting initial confusion but
soon hearing Ilana was safe), the Court understands that they suffered as a result of the attack.
Their testimony and written declarations make plain that they are loving parents and were deeply
shaken by the incident itself and the toll it took on their daughter.
In determining a proper solatium award, the Court is mindful that prior courts have
awarded around $2.5 million each to parents of plaintiffs who suffered direct injuries that
merited $5 million in damages. See, e.g., Valore, 700 F. Supp. 2d at 85; Peterson, 515 F. Supp.
2d at 52. The Court follows other district courts’ prudent approach of scaling solatium awards in
proportion to direct-injury awards and, because it awards Ilana 50% of the $5 million baseline,
thus begins its analysis around the range of $1.25 million — i.e., 50% of $2.5 million. See
Goldstein, 2019 WL 1756024, at *4 (“[S]olatium awards for relatives of victims should be
proportionate to the pain-and-suffering awards to the victims themselves.”); Spencer v. Islamic
Republic of Iran, 71 F. Supp. 3d 23, 28 (D.D.C. 2014) (observing the “general approach of
reducing the solatium awards of family members in rough proportion” to the victim’s direct-
injury award). Starting with that range, the Court must next exercise its “discretion in
determining solatium damages.” Fraenkel, 892 F.3d at 361. It must independently analyze what
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award would most fairly compensate Leslie and Donald for their “[m]ental anguish,
bereavement, and grief.” Flatow, 999 F. Supp. at 30; see also Fraenkel, 892 F.3d at 359.
Here, the Court believes awards of $800,000 to each parent — $1.6 million in total — is
just compensation. That award is less than some past awards to parents of terrorism survivors.
See, e.g., Akins, 332 F. Supp. 3d at 44 (awarding parents of bombing victims half their childrens’
awards); Wamai, 60 F. Supp. 3d at 94–96 (awarding parents damages of $2.5 million, except
where those awards exceeded victims’ direct-injury damages). But it is greater than others
recently given to parents whose suffering may well have been greater than that of the Schertzman
parents. As an example, in Allan v. Islamic Republic of Iran, 2019 WL 2185037 (D.D.C. May
21, 2019), plaintiffs were survivors (and their families) of the “dramatic and terrifying” terrorist
hijacking of TWA Flight 847. Id. at *1. The Allan court gave the lowest damage awards to what
it deemed the “Group I” plaintiffs. Those were survivors who were released on the first day of
the hostage crisis, but during that day were denied food and water, forced into painful positions
for extended periods, and “subject[ed] to or forced to watch mock executions.” Id. at *7.
Parents of Group I survivors received solatium damages of $560,000 each. Id.
The Court believes it inappropriate to award the Schertzman parents much more than this
district awarded those parents. Those parents were stuck with no information about their
children for a full day, while the Schertzmans quickly learned that Ilana had survived the attack.
See Tr. at 25:7–10; id. at 36:6–37:4; see also Fraenkel, 892 F.3d at 357 (noting importance of
how claimant learns of attack). Though it is treacherous to try to compare personal suffering, the
uncertainty in a protracted hostage standoff seems at least comparable to the ordeal the
Schertzman parents endured, with comparable long-term trauma for the family unit. And the
Schertzman parents’ suffering, moreover, may not be quite as harrowing as that of the parents
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whose children were “subjected to 35 additional hours of the same abuse,” Allan, 2019 WL
2185037, at *7, who received just over a million dollars each. Id. This Court thus finds that the
circumstances of this case and recent rulings in this district warrant solatium damages of
$800,000 each for Leslie and Donald Schertzman.
The remaining four Schertzman Plaintiffs are Ilana’s four siblings: Daniel, Abraham, and
Yehuda Schertzman, and Arielle Schertzman Fisher. The Court is persuaded by their testimony
and by Dr. Strous’s sealed declaration that all four suffered significant emotional trauma as a
result of their sister’s involvement in the attack. See Tr. at 45:10–49:10 (Daniel); id. at 60:25–
67:6 (Abraham); id. at 70:13–74:23 (Yehuda); id. at 52:21–57:5 (Ariella). Courts in this district
have long awarded siblings of terrorism victims half the solatium damages awarded to their
parents, and this Court sees no reason for deviating upward for any of the four siblings. See,
e.g., Valore, 700 F. Supp. 2d at 85; Peterson, 515 F. Supp. 2d at 51. Based on the analysis for
Leslie and Donald Schertzman, accordingly, the Court will award Daniel, Abraham, and Yehuda
Schertzman, and Ariella Schertzman Fisher $400,000 each in solatium damages.
Miller Plaintiffs
Myriam Miller was on the bus at the time of the attack with her two children, Chana
Aidel Schertzman Miller (then five) and Tova Miller (then two). All three seek direct-injury and
solatium damages based on each other’s presence on the bus.
The Court elects to craft one award for each Plaintiff that encompasses the mental
anguish each suffered for her own and her family members’ injuries — in other words, it declines
to disaggregate its direct-injury and solatium awards. Where multiple family members are all
injured in the same attack, the Court finds it more prudent to calculate one global award for each
Plaintiff, rather than to distinguish emotional suffering caused to an individual by the attack from
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emotional suffering caused by having family present in the same attack. The Court sees nothing
in § 1605A or in this Circuit’s precedent that requires it to separate the direct-injury and solatium
damages. The statute specifies that “damages may include economic damages, solatium, pain
and suffering, and punitive damages,” but does not require separate calculations for each
category. See 28 U.S.C. § 1605A(c)(4) (emphasis added). In calculating these separately, past
courts have arrived at total resulting compensation that seems rather inflated, perhaps as a result
of double-counting. See, e.g., Cohen v. Islamic Republic of Iran, 268 F. Supp. 3d 19, 29 (D.D.C.
2017) (awarding heightened $5 million direct damages to mother who suffered minor physical
injuries but mental anguish at her children’s injuries, before also awarding solatium damages for
that same mental anguish, leading to almost $13 million compensatory award). Exercising its
equitable discretion under Fraenkel, the Court declines to perform its calculus in that way and
crafts its awards as total compensation for Plaintiffs’ losses.
Starting with the mother, Myriam Miller offered powerful testimony about the harm the
attack has caused her. See Tr. at 84:3–88:21. Although she suffered little by way of physical
injury, her emotional trauma was significant and lasting. Exacerbated significantly by the
presence of her two daughters on the bus, whom she believes she did not adequately protect, the
attack destabilized Myriam’s life. Once a confident professional, the attack left her with intense,
long-term psychological harm. See Tr. at 78:1–6; id. at 84:3–88:21.
In line with our district’s precedent for determining direct-injury and solatium damages,
this Court will award Myriam $2.5 million. That award is designed to compensate her for the
mental anguish she suffered in the attack in regard to her own safety and that of her daughters.
Myriam suffered no notable physical injuries in the attack; as a default, she would be entitled to
direct-injury damages of around $1.5 million. See Wamai, 60 F. Supp. 3d at 92; Valore, 700 F.
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Supp. 2d at 84–85. In recognition of the intense emotional trauma she has experienced from her
children’s presence on the bus with her, and the seriously deleterious effects the attack has had
on her career, the Court finds an upward departure to $2.5 million appropriate in total for both
direct-injury and solatium damages.
Chana Aidel was five years old at the time of the attack and remembers most of the
events of that day. See Tr. at 93:25–94:3. Aside from minor knee pain, she suffered no physical
injuries. She also testified that, at her age, she did not understand the events and thus did not feel
fear. See Tr. at 95:11; id. at 14–15. Yet the attack was a formative moment in her childhood and
left her with lasting psychological trauma. See Tr. at 96:9–100:23. Balancing Chana Aidel’s
lack of immediate physical injuries or emotional trauma with the longer-term impacts the attack
has had on her family life, the Court finds a $1 million damage award appropriate in total for
both direct-injury and solatium damages.
Tova was two years old at the time of the attack and, not surprisingly, has no independent
recollection of what happened. See Tr. at 102:1–5. As a consequence, her damages should fall
somewhat below those awarded to Chana Aidel, and this Court believes $850,000 a fitting sum.
That award is slightly greater than the direct damages awarded to Elchanan Cohen in a prior case
in this district, who was “a few months old at the time of the attack” but suffered a broken hip
and “spent hours buried under bodies waiting to be rescued.” Cohen, 268 F. Supp. 3d at 25.
While Tova suffered no such ordeal, the attack did take a lasting toll on her family. See Tr. at
102:9–105:17. Rather than recognize that toll with a separate award (as the Cohen court did),
this Court believes the proper approach is to award Tova $850,000 in total for direct-injury and
solatium damages.
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Interest
One final bit of housekeeping is in order. Plaintiffs request prejudgment interest on top
of their solatium and damage awards. The decision to award such interest “is subject to the
discretion of the court and equitable considerations.” Oldham v. Korean Air Lines Co., 127 F.3d
43, 54 (D.C. Cir. 1997) (citation omitted); see also Forman v. Korean Air Lines, Co., 84 F.3d
446, 450 (D.C. Cir. 1996). “When an award without prejudgment interest fully compensates a
plaintiff, an award of prejudgment interest no longer has the intended compensatory purpose and
should be denied.” Wyatt v. Syrian Arab Republic, 908 F. Supp. 2d 216, 232 (D.D.C. 2012)
(quoting Price v. Socialist People’s Libyan Arab Jamahiriya, 384 F. Supp. 2d 120, 135 (D.D.C.
2005)). As have many courts before it, this Court calculates its direct-injury and solatium awards
to be fully compensatory. See Wultz, 864 F. Supp. 2d at 43 (finding direct-injury damages fully
compensatory and declining to award prejudgment interest); Thuneibat v. Syrian Arab Republic,
167 F. Supp. 3d 22, 54 (D.D.C. 2016) (noting solatium damages “do not typically require
prejudgment interest because they are ‘designed to be fully compensatory’”) (quoting Wyatt, 908
F. Supp. 2d at 232); see also Akins, 332 F. Supp. 3d at 45–46 (denying prejudgment interest in
FSIA terrorism case on same reasoning). This makes particular sense where the injuries are
psychological and thus ongoing, and the compensation assumes suffering beyond the timeframe
of the incident itself. See Oveissi, 768 F. Supp. 2d at 30 n.12 (noting solatium damages are
awarded regardless of when attack occurred). Prejudgment interest, consequently, is not
appropriate and will be denied.
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In total, the Court will award $10,050,000 in damages to Plaintiffs, distributed as follows:
Plaintiff Direct Injuries Solatium Total
Ilana Schertzman Cohen $2,500,000 $2,500,000
Leslie Schertzman $800,000 $800,000
Donald Schertzman $800,000 $800,000
Daniel Schertzman $400,000 $400,000
Abraham Schertzman $400,000 $400,000
Yehuda Schertzman $400,000 $400,000
Ariella Schertzman Fisher $400,000 $400,000
Myriam Miller $2,500,000 $2,500,000
Chana Aidel Schertzman $1,000,000 $1,000,000
Miller
Tova Miller $850,000 $850,000
Totals $6,850,000 $3,200,000 $10,050,000
(including
Miller awards)
The Court recognizes, as have others before it, that “no amount of money can alleviate
the emotional impact of” the attack. See Fraenkel, 892 F.3d at 357 (quoting Flatow, 999 F. Supp.
at 32). But it sincerely hopes that the compensatory damages it awards today will in some small
part help Plaintiffs heal from this heartbreaking chapter in their lives.
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IV. Conclusion
For these reasons, the Court will enter default judgment for Plaintiffs in the amounts
listed above. A separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: July 11, 2019
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