Force v. Islamic Republic of Iran ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TAYLOR FORCE, et al.,
Plaintiffs,
v. Civil Action No. 16-1468 (RDM)
ISLAMIC REPUBLIC OF IRAN, et al.
Defendants.
MEMORANDUM OPINION
Plaintiffs claim injuries and damages resulting from terrorist attacks in Israel between
March 6, 2008 and March 8, 2016. 1 The first of these attacks was a March 2008 shooting at
Merkaz HaRav Yeshiva, a religious high school in Jerusalem: the attacker shot to death 16-year-
old Avraham David Moses, Dkt. 33 at 87 (Spitzen Decl. ¶ 227), and left 15-year-old Naftali
Shitrit in critical condition, id. at 74 (Spitzen Decl. ¶ 193); Dkt. 76 at 2 (Shitrit Decl. ¶ 7–12).
Seven years later, in October 2015, Richard Lakin was attacked in Jerusalem by two Hamas
operatives, who boarded the bus Lakin was riding and stabbed and shot the passengers trapped
inside. Dkt. 33 at 33 (Spitzen Decl. ¶ 85). Lakin was shot in the head and stabbed in the
stomach; he succumbed to his injuries two weeks after the attack. Id. at 34 (Spitzen Decl. ¶ 87).
1
This opinion does not address damages as to Bracha Rivkin, Yehuda Glick, Shmuel Brauner, or
the plaintiffs whose claims are tied to their direct injuries. For reasons given in this Court’s July
5, 2022 memorandum opinion, Dkt. 124, the Court must first decide how to proceed with respect
to the claims of these Plaintiffs in light of the Court’s conclusion that the waiver of sovereign
immunity found in 28 U.S.C. § 1605A does not apply to acts of attempted extrajudicial killing.
See Dkt. 124 at 20. For present purposes, the Court’s references to “Plaintiffs” excludes these
individuals.
In March 2016, Taylor Force was walking with classmates in the Port of Jaffa when he was
fatally stabbed by two terrorists. Id. at 50–51 (Spitzen Decl. ¶ 129).
The estates of Taylor Force, Richard Lakin, and Avraham David Moses, as well as
Naftali Shitrit and family members of each direct victim, filed this suit against the Islamic
Republic of Iran (“Iran”), the Iranian Ministry of Information and Security (“MOIS”), and the
Syrian Arab Republic (“Syria”), alleging that their injuries were caused by Iran and Syria’s
provision of material support to the terrorist organization Hamas. Dkt. 114-1 at 6–7 (Amended
Compl. ¶¶ 33–35). Plaintiffs effected service on the Defendants, Dkts. 15, 20, but no Defendant
answered or otherwise appeared in this action, Dkts. 21–22. Plaintiffs moved for entry of default
judgment, Dkt. 91, and this Court granted that motion on May 31, 2020, Dkt. 111, concluding
that Plaintiffs properly invoked the state-sponsored terrorism exception to the Foreign Sovereign
Immunities Act (“FSIA”), 28 U.S.C. § 1605A(a), as well as the cause of action provided for by
that same statute. Dkt. 111 at 41.
For assistance in evaluating Plaintiffs’ damages, the Court referred the case to a special
master, Deborah E. Greenspan, to prepare a report and recommendation regarding compensatory,
but not punitive, damages. See Dkt. 113. The Special Master’s resulting report lays out the
effects that the attacks had on each of the victims and their families and carefully analyzes
Plaintiffs’ claims for damages under the applicable framework for state-sponsored terrorism
cases. See Dkt. 119. The Court thanks the Special Master for her excellent assistance. In
response to the Special Master’s report, Plaintiffs filed a notice indicating that they have “no
objections” to her recommendations. Dkt. 120 at 1.
2
As explained below, the Court adopts, with minor modification, the Special Master’s
proposed findings and recommendations as to the Plaintiffs whose damages the Court addresses
today and awards those Plaintiffs punitive damages.
ANALYSIS
As an initial matter, the Court agrees with and adopts the Special Master’s findings of
fact as to the estates of Taylor Force, Richard Lakin, and Avraham David Moses, as well as
Naftali Shitrit and the family members of each of the four direct victims, all of which are well-
explained and supported by the record. Tracking the Special Master’s report, the Court will first
review her conclusions with respect to the economic and non-economic damages that those
findings support and will then turn to the question of punitive damages, which (consistent with
the Court’s referral, Dkt. 113 at 1) is not addressed in the Special Master’s report. The Court
concludes with the question of prejudgment interest.
A. Economic Damages
The estate of Taylor Force and the parents of Avraham David Moses, Naftali Moses and
Rivkah Moriah, seek economic damages to account for lost income as a result of the attacks.
“Section 1605A explicitly provides that foreign state-sponsors of terrorism are liable to victims
for economic losses stemming from injuries or death sustained as a result of the foreign state’s
conduct.” Thuneibat v. Syrian Arab Republic, 167 F. Supp. 3d 22, 48 (D.D.C. 2016) (citing 28
U.S.C. § 1605A(c)). Economic damages are typically “not hard to quantify,” but must be proven
with “competent evidence.” Moradi v. Islamic Republic of Iran, 77 F. Supp. 3d 57, 71 (D.D.C.
2015).
At the outset, the Court considers the class of plaintiffs who may recover such economic
damages under Section 1605A. This Court has most frequently awarded economic damages to
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direct victims of terror attacks, as well as to their estates, to compensate for the lost earning
capacity of the direct victim herself. See, e.g., id.; Fritz v. Islamic Republic of Iran, 324 F.
Supp.3d 54, 59–60 (D.D.C. 2018). On at least one occasion, moreover, this Court has stated that
economic loss damages under Section 1605A are available exclusively to direct victims and that
such damages “are not included in the category of damages recoverable by family members of
victims.” Mwila v. Islamic Republic of Iran, 33 F. Supp. 3d 36, 41 (D.D.C. 2014); see also
Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 83 (D.D.C. 2010) (indicating that family
members can recover solatium damages for their emotional injury, while direct victims can
recover economic damages). Despite that observation, the Court is persuaded that family
members may, at least at times, recover for economic loss.
Starting, as this Court must, with the language of Section 1605A itself, see Kiewit Power
Constructors Co. v. Sec’y of Lab., 959 F.3d 381, 395 (D.C. Cir. 2020), it is clear that the statute
does not distinguish between the categories of plaintiffs who may seek economic damages.
Rather, Section 1605A provides broadly that, in any action under the FSIA, “damages may
include economic damages, solatium, pain and suffering, and punitive damages.” 28 U.S.C. §
1605A(c). And solatium damages, which “are by their very nature unquantifiable,” Moradi, 77
F. Supp. 3d at 72, cannot themselves account for the quantifiable economic losses—including a
loss of personal income—that plaintiffs may suffer as a result of a family member’s injury or
death.
Consistent with this view, several decisions of this Court have concluded that family
members of victims can recover economic damages if they can establish lost income stemming
from the injury or death at issue. See, e.g., Reed v. Islamic Republic of Iran, 845 F. Supp. 2d
204, 214 (D.D.C. 2012) (awarding economic loss damages to a son whose emotional distress and
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chronic depression resulted from his father’s kidnapping); Abedini v. Islamic Republic of Iran,
422 F. Supp. 3d 118, 139 (D.D.C. 2019) (awarding economic damages to a sister for her lost
wages during her brother’s captivity); see also Selig v. Islamic Republic of Iran, No. 19-cv-
02889, 2021 WL 5446870, at *19 (D.D.C. Nov. 22, 2021) (contemplating the availability of
economic loss damages for a victim’s daughter but declining to award her damages because her
proffered calculations lacked the requisite “indicia of reliability”).
In accord with the statutory text and these decisions, the Court concludes that economic
damages are available to Force’s estate as well as to Moses’s parents—to the extent that each
Plaintiff can establish those damages through “competent evidence.” Moradi, 77 F. Supp. 3d at
71. The Court will address the claims of each Plaintiff in turn.
1. Economic Loss Damages for the Estate of Taylor Force
Taylor Force’s estate seeks economic damages to account for Force’s lost income
following his death. Dkt. 87 at 66–67 (Proposed Findings of Fact ¶ 230). To substantiate this
claim, Force’s estate proffers economic loss computations by forensic economist Michael
Soudry. See Dkt. 87 at 66–67 (Proposed Findings of Fact ¶ 230); see also Roth v. Islamic
Republic of Iran, 78 F. Supp. 3d 379, 402 (D.D.C. 2015) (stating that economic loss damages
may be proven by the submission of such an expert report). The Court, in turn, evaluates the
expert’s calculations while considering the “reasonableness and foundation of the assumptions
relied upon.” Id. (citing Reed, 845 F. Supp. 2d at 214).
As the Special Master observes, Soudry holds a Master of Business Administration with a
major in Finance from Hebrew University of Jerusalem and is employed at Eco-Stat LLC, where
he advises attorneys and insurance companies about the extent of economic loss resulting from
injury or death. Dkt. 119 at 72. The Special Master also notes that Soudry has served as an
5
expert witness in over 40 cases and that he has prepared over 150 economic loss reports for
individuals seeking compensation from the September 11 Victims Compensation Fund. Id. In
the view of the Special Master, Soudry is qualified as an expert for the purpose of determining
economic loss. Id. The Court agrees.
As to the economic loss calculation, the Special Master concludes that Soudry’s
assumptions were “appropriate” and that his analysis was “consistent with generally accepted
practices for the computation of lost earnings and [was] based on reasonable and reliable data.”
Id. at 74. Accordingly, the Special Master recommends that the Court adopt Soudry’s proposal
as the award of economic loss for Force’s estate. Id. The Court agrees and will adopt Soudry’s
recommendation and award economic loss damages to the estate of Taylor Force in the amount
of $584,230.
2. Economic Loss Damages for Naftali Moses
Naftali Moses, the father of Avraham David Moses, seeks to recover economic damages
on the grounds that his psychological injuries, resulting from his son’s murder, render him
unable to work. In assessing Moses’s request for damages, the Special Master notes that Moses
has submitted a psychiatric report prepared by Dr. Rael Strous, who concluded with a
“reasonable degree of certainty” that Moses was unable to work in his chosen profession due to
the murder and that his inability to work appears to be permanent. Dkt. 35-31 at 6 (Strous
Decl.). The Special Master determines that it is “reasonable” to conclude that Moses’s
emotional injuries render him incapable of gainful employment. Dkt. 119 at 79. The Court
again agrees.
To calculate his economic loss, Moses submits a report by Michael Soudry, the same
forensic economist who assessed the economic loss to Force’s estate, Dkt. 68, and who the Court
6
has already qualified as an expert. The Special Master concludes that Soudry’s calculation of
past and future lost income is “consistent with generally accepted practices and methodology”
and applies reasonable values, reductions, and discounts “based on reliable and verifiable source
data.” Dkt. 119 at 81. The Special Master thus recommends that the Court award economic loss
damages and adopt Soudry’s proposal as to the amount of those damages. Id. The Court agrees
and will award economic loss damages to Moses in the amount of $778,686.
3. Economic Loss Damages for Rivkah Moriah
Lastly, Rivkah Moriah, mother of Avraham David Moses, seeks an award of economic
loss damages due to her inability to perform her job after her son’s murder. In support, Moriah
submits a report prepared by Dr. Strous, explaining that Moriah suffered from immense grief due
to her son’s death, resulting in insomnia, anxiety, depression, and PTSD. Dkt. 35-28 at 9 (Strous
Decl.). Moriah avers that, after the attack, she could not continue to perform her prior job
because it required “cheerful” engagement with people. Dkt. 63 at 14–15 (Moriah Decl. ¶ 69).
As a result, she remained unemployed and unable to work from the time of her son’s death in
March 2008 until October 2018, when she reentered the work force as a part-time math teacher
and then worked as a personal assistant. Dkt. 118 at 1 (Moriah Decl. ¶¶ 2–6). She left her
personal-assistant position in September 2020, however, because her employer required her to
work full time—a task that remains too difficult due to the emotional suffering she and her
children have experienced since her son’s murder. Id. at 2 (Moriah Decl. ¶¶ 7, 11). In light of
Dr. Strous’s report and Moriah’s declarations, the Special Master finds that the effects of
Moses’s murder effectively precluded Moriah from employment between March 2008 and
September 2018. Dkt. 119 at 84–85. The Special Master further concludes that, based on Dr.
7
Strous’s expert report, it would be reasonable to consider an award of lost future wages. Id. at
86.
Unlike Force’s estate and Naftali Moses, Moriah does not proffer a report from a forensic
expert to support her claim for economic loss. Instead, she submits a declaration calculating her
own past and future projected economic loss. Dkt. 63 at 15 (Moriah Decl. ¶ 70). As to her past
losses, Moriah multiplies her former monthly wage by her months of unemployment, a “simple
calculation” that the Special Master concludes was “based on reliable documentation” and
“provides reasonable grounds upon which to award economic loss for the period of past loss.”
Dkt. 119 at 84–85. As to her future wage loss, the Special Master notes that Moriah’s
calculation is “not unreasonable” in this circumstance, especially because the Special Master
herself “tested the calculations applying adjustments including wage growth, reduction for
unemployment risk, and tax obligations.” Id. at 87. The Special Master accordingly
recommends that the Court award Moriah $108,300 in past loss damages and $31,580 in future
loss damages. Id. at 84–87. Given the Special Master’s careful scrutiny of Moriah’s
calculations, the Court agrees and will award economic loss damages to Moriah in the amount of
$139,880.
B. Non-Economic Damages
Shitrit and the estates of Force, Lakin, and Moses each seek non-economic damages for
the pain and suffering that resulted from the respective terrorist attacks, while family members of
all four victims seek solatium damages. The Court considers each request in turn.
1. Non-Economic Damages for Naftali Shitrit
Plaintiff Naftali Shitrit seeks $12 million in non-economic damages for his pain and
suffering resulting from the March 2008 attack. Dkt. 87 at 55–56 (Proposed Findings of Fact ¶
8
188). In assessing this request, the Special Master notes that Shitrit—who was 15 years old at
the time of the shooting—suffered severe injuries that led to two years of rehabilitation and
recovery as well as numerous permanent physical impairments that “limit his employment
options” and “could deteriorate and cause more significant disability.” Dkt. 119 at 96. The
Special Master also explains that Shitrit “experienced the terror and anguish” of being trapped
while his classmates were murdered, leaving him with “psychological injuries that are unlikely to
resolve.” Id. In light of Shitrit’s young age and the severity and duration of his physical and
psychological injuries, the Special Master recommends a non-economic award of $8 million. Id.
The Court agrees. “Pain and suffering awards for surviving victims are determined 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.” Estate of Doe v. Islamic Republic of Iran, 943 F. Supp. 2d 180, 186 (D.D.C.
2013) (quotation marks omitted). In calculating the amount of damages, the Court must “ensure
that individuals with similar injuries receive similar awards.” Id. (quotation marks omitted). In
the interest of uniformity, judges in this district have developed a general framework for
assessing pain and suffering damages for victims of terror attacks, “awarding a baseline of $5
million to individuals suffering severe physical injuries, such as compound fractures, serious
flesh wounds, and scars from shrapnel, as well as lasting and severe psychological pain.” Id.(citing Valore, 700 F. Supp. 2d at 84). “An upward adjustment to the $7 to $12 million range
may be appropriate ‘in more severe instances of physical and psychological pain, such as where
victims suffered relatively more numerous and severe injuries, were rendered quadriplegic,
partially lost vision and hearing, or were mistaken for dead.’” Barry v. Islamic Republic of Iran,
437 F. Supp. 3d 15, 53 (D.D.C. 2020) (quoting Valore, 700 F. Supp. 2d at 84). This Court, for
9
example, awarded $7.5 million to Terrance Valore, a soldier who survived a bombing with
“burns cover[ing] 90% of his body,” “severe hole-like wounds passing through his chest; pieces
of metal, concrete, and glass embedded in his body; and his leg split open.” Valore, F. Supp. 2d
at 84. The Court awarded $9 million to Jeffrey Nashton, the survivor of a Beirut suicide
bombing who suffered “a skull fracture,” numerous other shattered and broken bones, “two
collapsed lungs,” “internal bleeding,” and continued to live with “lasting and severe
psychological problems from the attack.” Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d
25, 56 (D.D.C. 2007); cf. id. at 55 (awarding $12 million to a victim whose injuries resulted in
permanent quadriplegia).
An upward departure from the $5 million baseline is similarly warranted here. Shitrit
suffered six gunshot wounds that lacerated his liver, colon, left ureter, and femoral artery; was
intubated and required to use an ostomy bag for several months; underwent numerous surgeries;
and suffered seizures and a stroke. Dkt. 77-1 at 1 (Friedman Decl.). Even after the conclusion of
his acute rehabilitation, Shitrit has suffered from the severe psychological effects of the attack as
well as a “permanent limp and balance problems,” a loss of feeling in his right leg, “constant
back pain,” scars throughout his body, and urological and intestinal problems. Dkt. 76 at 5–6
(Shitrit Decl. ¶ 49). Given the similarities between the nature of Shitrit’s injuries and those of
Valore and Nashton, the $8 million award recommended by the Special Master here is
appropriate. The Court will, accordingly, award $8 million in non-economic damages to Shitrit.
2. Pain and Suffering for the Estate of Taylor Force
As to the estate of Taylor Force, the Special Master recommends an award of $1 million
to compensate for Force’s pain and suffering. Dkt. 119 at 90. Victims who die instantaneously
in a terrorist attack typically cannot recover damages for pain and suffering, Roth, 78 F. Supp. at
402, but this Court has awarded such damages to victims who live for a short period of time after
10
sustaining injuries. “The Court typically awards $1 million to a victim who survives a few
minutes to a few hours after the bombing.” Wultz v. Islamic Republic of Iran, 864 F. Supp. 2d
24, 38 (D.D.C. 2012). Substantially more damages may be warranted in circumstances where
the victim survives for days to months after the attack and continues to suffer throughout. See,
e.g., Peterson, 515 F. Supp. 2d at 53 (awarding $7.5 million in pain and suffering damages to the
estate of a serviceman who endured eight days of pain and suffering).
As to Taylor Force, the Special Master notes that Force “would have been aware and
conscious of the attack” as it occurred and that, even after suffering his final wounds, it is likely
that he suffered from “extremely uncomfortable shortness of breath prior to losing
consciousness.” Dkt. 119 at 90; see also Dkt. 46-1 at 2 (Friedman Decl.) But because the period
between the initial attack and unconsciousness was “only a matter of seconds or perhaps a
minute or two,” the Special Master does not recommend an upward departure from the $1
million this Court typically awards to the estates of plaintiffs who suffer briefly before death.
Dkt. 119 at 90. The Court agrees and awards Force’s estate $1 million in non-economic
damages.
3. Pain and Suffering for the Estate of Richard Lakin
Richard Lakin’s Estate seeks non-economic damages in the amount of $8 million. Dkt.
119 at 91. As the Special Master notes, Lakin died two weeks after his attack, after undergoing
multiple invasive surgeries and other procedures. Id. at 91–92. The declarations submitted by
Lakin’s estate indicate that he remained conscious throughout the attack and until he arrived at
the hospital—likely about one hour—but that he never regained consciousness after his initial
surgery. Id. at 92; see also Dkt. 54 at 4 (Manya Lakin Decl. ¶ 16); Dkt. 55 at 2 (Micah Lakin
Decl. ¶ 8). The affidavits of his children confirm that Lakin died after two weeks on life support,
during which he remained “comatose.” Dkt. 54 at 3–4 (Manya Lakin Decl. ¶ 14). In light of
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Lakin’s relatively brief period of conscious suffering, the Court agrees with the Special Master
that the appropriate baseline is $1 million, rather than the $5 million baseline that this Court
employs for victims who survive terrorist attacks and continue to suffer long thereafter. See,
e.g., Fritz, 324 F. Supp. 3d at 60. While awards of up to $8 million have been awarded to a
victim who remained “fully alert” to his pain and suffering for 27 days before his ultimate death,
for example, Wultz, 864 F. Supp. 2d at 38, the record does not establish that Lakin suffered a
similar fate before his ultimate death.
There is perhaps a closer question as to whether the Special Master’s recommended
$500,000 enhancement above the $1 million baseline is warranted, given the Special Master’s
acknowledgement that Lakin was only conscious for “up to an hour” after the attack. Dkt. 119 at
93. The Special Master indicates that “the record does not establish that Mr. Lakin experienced
conscious pain and suffering during the two weeks of hospitalization,” but recommends an award
of $1.5 million on the basis that “Mr. Lakin was unquestionably in horrific pain” for one hour
before his descent into unconsciousness. Id. Although this Court has most frequently awarded
$1 million in damages to victims who “endure[] extreme pain and suffering for a period of
several hours or less,” Owens v. Republic of Sudan, 71 F. Supp. 3d 252, 260 (D.D.C. 2014)
(emphasis in original) (quoting Haim v. Islamic Republic of Iran, 425 F. Supp. 2d 56, 71 (D.D.C.
2006)), the Court agrees that an upward departure to $1.5 million is warranted here, given the
especially horrific circumstances of Lakin’s death. Lakin was trapped inside a bus with two
terrorists who systematically attacked the passengers therein, Dkt. 33 at 33 (Spitzen Decl. ¶ 85);
was both shot in the head and stabbed in the stomach, id. at 34 (Spitzen Decl. ¶ 87); and
continued to suffer at least until his hospitalization, Dkt. 54 at 4 (Manya Lakin Decl. ¶ 16); Dkt.
55 at 2 (Micah Lakin Decl. ¶ 8). See, e.g., Estate of Doe, 943 F. Supp. 2d at 186 (indicating that
12
“the severity of the pain immediately following the injury” is relevant to the amount of pain and
suffering awarded); Hamen v. Islamic Republic of Iran, 407 F. Supp. 3d 1, 7 (D.D.C. 2019)
(concluding that the fear of imminent death is “a reasonable component of damages”). In light
of Lakin’s immense pain and suffering during and after the attack, the Court awards $1.5 million
in non-economic damages to Lakin’s estate.
4. Pain and Suffering for the Estate of Avraham David Moses
As to Avraham David Moses’s estate, the Special Master recommends an upward
adjustment of $500,000 from the “baseline award of $1 million in for pain and suffering for
victims who live for a very short period of time after sustaining injuries in a terrorist attack.”
Dkt. 119 at 90. The Court notes that, unlike for Lakin and Force, the record lacks any evidence
that Moses was conscious after the initial shooting. Nevertheless, the record indicates that
Moses was alerted to the attack before his death, when he heard shouts and bursts of gunfire
outside the building and sought to hide under a “table/shelf” near the library entrance. Dkt. 111
at 38 (citing Dkt. 33 at 87 (Spitzen Decl. ¶ 227)). As this Court previously determined, Moses
and his friend were likely in their hiding space for seven to eight minutes before they were killed
at close range while huddled together. Id.“This court has repeatedly recognized that the fear and distress caused by knowing that
one’s death is imminent is a reasonable component of damages, as is the physical pain associated
with a brutal murder.” Hamen, 407 F. Supp. 3d at 7. But it is less clear “how to best measure
that extraordinary form of injury,” id., especially where the record is devoid of evidence of post-
injury “conscious pain,” Owens, 71 F. Supp. 3d at 259 (denying a victim any pain-and-suffering
damages given the evidence of relatively immediate death). In cases where hostages have been
held in advance of certain death, the Court has awarded $1 million in pain-and-suffering
damages “for the portion of . . . time that [the victim] faced certain death alone.” Surette v.
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Islamic Republic of Iran, 231 F. Supp. 2d 260, 269 (D.D.C. 2002). Drawing on such analogous
cases, and departing from the Special Master’s recommendation on this question, this Court
awards Moses’s estate $1 million in non-economic damages for the pain and suffering Moses
experienced before he was shot.
5. Solatium for Family Members
Family members of each of the four victims seek solatium damages in various amounts.
Dkt. 87 at 68–81. Such damages are expressly provided for under Section 1605A(c) and are
intended to compensate for “the mental anguish, bereavement[,] and grief that those with a close
personal relationship to a decedent experience as the result of the decedent’s death, as well as the
harm caused by the loss of the decedent.” Belkin v. Islamic Republic of Iran, 667 F. Supp. 2d 8,
22 (D.D.C. 2009); see also 28 U.S.C. § 1605A(c). “Solatium claims are typically brought by
family members who were not present or injured themselves.” Cohen v. Islamic Republic of
Iran, 238 F. Supp. 3d 71, 84 (D.D.C. 2017) (“Cohen I”). There exists a “‘presumption’ that
family members in direct lineal relationship ‘suffer compensable mental anguish[,] and
testimony proving a close emotional relationship will usually be sufficient to sustain an award of
solatium damages.’” Kaplan v. Hezbollah, 213 F. Supp. 3d 27, 38 (D.D.C. 2016) (alterations
omitted) (quoting Kim v. Democratic People’s Republic of Korea, 87 F. Supp. 3d 286, 290
(D.D.C. 2015)).
“Solatium damages, like damages for pain and suffering, are by their very nature
unquantifiable.” Moradi, 77 F. Supp. 3d at 72. But, as with the latter, courts have identified
certain baselines that help ensure that similarly situated victims receive comparable awards.
Specifically, courts in this district have followed the framework set out in Heiser I, which
concluded that “courts typically award between $8 million and $12 million for pain and suffering
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resulting from the death of a spouse[,] approximately $5 million to a parent whose child was
killed[,] and approximately $2.5 million to a plaintiff whose sibling was killed.” Estate of Heiser
v. Islamic Republic of Iran, 466 F. Supp. 2d 229, 269 (D.D.C. 2006) (“Heiser I”) (footnotes
omitted). These amounts, however, are merely guideposts, and the Court may deviate depending
on the specific circumstances of a given case. See Fraenkel v. Islamic Republic of Iran, 892 F.2d
348, 361–62 (D.C. Cir. 2018). Solatium damages are also available to family members of
injured victims. As the Special Master observes, solatium damages where the victim is still
living typically range from $4 million for a spouse of the victim, $2.5 million for parents of the
victim, and $1.25 million for siblings of the victim. Dkt. 119 at 101–02 (citing Anderson v.
Islamic Republic of Iran, 839 F. Supp. 2d 263, 266 (D.D.C. 2012)). For children of victims, this
Court has previously concluded that they “should receive awards akin to those given to parents
(i.e., $5 million where the victim died, and $2.5 million where the victim suffered injury).”
Owens, 71 F. Supp. 3d at 260.
At the threshold, the Court notes that six of the plaintiffs seeking solatium damages are
Israeli citizens, whose claims for compensatory damages are, as the Court has already
determined, governed by Israeli tort law rather than by Section 1605A. See Dkt. 111 at 72.
Typically, “damages would be calculated pursuant to the law under which liability was found,”
Thuneibat, 167 F. Supp. 3d at 47, which—for these plaintiffs—would be Israeli law. However,
the non-U.S. nationals, including Moses’s step-siblings and Shitrit’s father, did not submit
evidence or analysis regarding the calculation of solatium damages under Israeli law. Plaintiffs’
Israeli law expert proffered his opinion solely as to whether Plaintiffs are entitled to recover
damages, and not as to how much Plaintiffs should be awarded. See Dkt. 34 (Schnoor Decl.).
Where this Court lacks information regarding the “proper calculation” of solatium damages
15
under foreign law, it will “default to the application of federal law.” Fraenkel, 892 F.3d at 358;
see also Thuneibat, 167 F. Supp. 3d at 47 (applying the Section 1605A framework to damages
where liability was established under Jordanian law); Oveissi v. Islamic Republic of Iran, 768 F.
Supp. 2d 16, 25–26 (D.D.C. 2011) (applying the federal standard for solatium damages where
liability was established under French law). The Court will, accordingly, apply the same Heisler
I framework to the Israeli citizens that it applies to the United States nationals.
Turning to the case at hand, each family member of the four victims has presented
evidence to the Court and the Special Master demonstrating his or her close relationship to the
respective direct victims and the grave loss he or she continues to bear. See Dkt. 119 at 104–
117. The record demonstrates that the three terrorist attacks at issue here, the resulting deaths of
Moses, Lakin, and Force, and the injuries to Shitrit have all inflicted profound emotional,
physical, and financial harm on the victim’s families. The Special Master has considered the
individual circumstances of each Plaintiff and has recommended an amount for each. See Id.Given the comprehensive evidence of devastating individualized grief and loss in the record, the
Court agrees with and will adopt the Special Master’s recommendations regarding each of these
family members. 2
2
The Court furthermore notes its agreement with the Special Master’s recommendation, Dkt.
119 at 116, that H.S., who was born nearly four months after the March 2008 attack, Dkt. 35-41
at 3 (Strous Decl.), should not be awarded solatium damages. This Court has concluded that “a
plaintiff bringing an action under § 1605A must have been alive at the time of the attack in order
to collect solatium damages,” Davis v. Islamic Republic of Iran, 882 F. Supp. 2d 7, 15 (D.D.C.
2012), and has made exceptions only for “special circumstances,” including for a case where the
child was born prematurely two days after the attack due to his mother’s emotional shock,
Goldstein v. Islamic Republic of Iran, 383 F. Supp. 3d 15, 23 (D.D.C. 2019). Because the record
indicates no such special circumstances here, the Court concludes that H.S. is not entitled to
compensatory damages. The Court further notes that Plaintiffs do not object to the Special
Master’s recommendation as to H.S. See Dkt. 120 at 1.
16
This includes the Special Master’s recommendation to award damages to Plaintiffs who
were step- or half-siblings of a victim or, in the case of David Moriah, the step-parent of a direct
victim. As the record shows, the murder of Avraham David Moses inflicted extraordinary
suffering on all of his family members, including his step- and half-siblings and his step-father
Id. at 110–13. The Court acknowledges that the elements of a solatium claim are
“indistinguishable from an IIED claim,” Valore, 700 F. Supp. 2d at 85, and, as such, are
traditionally limited to a victim’s “immediate family,” Bettis v. Islamic Republic of Iran, 315
F.3d 325, 335 (D.C. Cir. 2003). Although decisions in this district have “adopted the strict
meaning of ‘immediate family,’ defined as one’s spouse, parents, siblings, and children,” Estate
of Heiser v. Islamic Republic of Iran, 659 F. Supp. 2d 20, 28 (D.D.C. 2009) (“Heiser II”)
(internal citations omitted), the D.C. Circuit has recognized that “immediate family members”
can include “members of the victim’s household” who are “viewed as the functional equivalents
of immediate family members,” Bettis, 315 F.3d at 337. Accordingly, this Court has awarded
half-siblings, step-siblings, and step-parents solatium damages to the extent they were “treated
like” a sibling or parent or acted as the “functional equivalent” thereof. Fritz, 324 F. Supp. 3d at
63; see also Cabrera v. Islamic Republic of Iran, No. 19-cv-3835, 2022 WL 2817730, at *42
(D.D.C. July 19, 2022) (applying the same “functional equivalent” test).
In this case, Moses’s step-father and his step- and half-siblings have each established that
they met the “functional equivalent” test. David Moriah attests that Moses spent half of each
week living with Moriah, Dkt. 60 at 5 (Moriah Decl. ¶ 21), and that, during those days of the
week, Moriah prepared dinner for Moses, put him to bed at night, guided him on his schoolwork,
cared for him when he was ill, and helped him process his parents’ divorce, id. at 3–4 (Moriah
Decl. ¶¶ 7–11); see also Dkt. 35-23 at 3–4 (Strous Decl.) (describing Moriah’s time parenting
17
Moses over “six and a half years”). The record further indicates that Moses lived, for half of
each week, with his four younger half-siblings, N.M., C.M., A.M., and O.D.M—with N.M. and
C.M. at his mother’s house and A.M. and O.D.M. at his father’s. See Dkt. 60 at 5 (Moriah Decl.
¶ 21) (stating that Moses split his weeks between the homes of his two parents and that Moses
was “very attached” to N.M. and C.M. and “contributed significantly to taking care of them and
raising them”); Dkt. 66 at 8 (Naftali Moses Decl. ¶¶ 47–48) (detailing the effect that Moses’s
death had on A.M. and O.D.M. and indicating that O.D.M. “would always eagerly await
[Moses’s] arrival from school”). The record also shows that Moses’s six step-siblings spent
substantial time with Moses throughout his mother’s marriage to David Moriah and that each
step-sibling was the functional equivalent of his siblings. 3 See, e.g., Fritz, 324 F. Supp. 3d at 63
n.1 (concluding that a half-brother met the “functional equivalent” test even though they never
3
It is not entirely clear from the step-siblings’ declarations whether each step-sibling in fact
resided in the same household as Moses. Some of his step-siblings do attest to living with David
Moriah, Moses, and Moses’s mother. See, e.g., Dkt. 59 at 1 (Chagit Moriah Decl. ¶ 6) (stating
that Chagit chose to live with her father after her parents’ divorce); Dkt. 61 at 1–2 (Eytan Moriah
Decl. ¶ 6, 10, 12) (recounting that Eytan returned “home” to find “commotion in [his] house”
when his father and step-mother heard about the attack at Mercaz HaRav; that he and Moses
“grew up as typical brothers, playing and fighting together;” that he “supported and guided
Avraham,” “gave him advice,” and would do “riddles and puzzles” with him for hours). But
even those step-siblings whose declarations do not make explicit whether they lived with Moses
appear to have spent substantial time at their father’s house, where they played with Moses,
mentored him, and otherwise took on the role of siblings. See Dkt. 62 at 3 (Ifat Moriah Decl. ¶
13) (recounting that Ifat and Moses would “play together and talk to each other” after their
parents first married, and that they maintained a “deep and real connection of understanding”);
Dkt. 57 at 2 (Atara Moriah Decl. ¶ 8–11) (indicating that Atara and Moses became part of a
“stable family unit” after their parents married, that she “felt like his older sister” and “watched
as he grew and eagerly read every book,” and that she was at her father’s house the night of
Moses’s murder); Dkt. 64 at 2 (Tzur Moriah Decl. ¶ 9–10) (describing the time Tzur spent at his
father’s house both before and after Moses’s murder and the changes that resulted from his
death); Dkt. 58 at 1 (Aviad Moriah Decl. ¶ 3) (stating that Moses was “closer in age to [Aviad]
than all [his] other siblings” and that his “primary relationship” at his father’s house was with
Moses); Dkt. 60 at 2 (David Moriah Decl.) (stating that Moses’s step-siblings “accepted . . .
[Moses] as [a] brother[] and treated [him] with a lot of affection”). The Court, accordingly,
concludes that each step-sibling satisfied the “functional equivalent” test.
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lived in the same household because their relationship was “sufficiently close” where the older
half-brother picked up the victim from school, assisted with his homework, attended his sporting
events, and was “profoundly affected by [his] death and was personally involved in the
aftermath”). The Court, accordingly, will adopt the Special Master’s recommendation to award
solatium damages to each member of Moses’s family.
C. Punitive Damages
Plaintiffs also seek punitive damages for each Plaintiff. Dkt. 115 at 27, 29 (Amended
Compl. ¶¶ 131, 145); Dkt. 121 at 4–5 (Proposed Order and Judgment). 4 Punitive damages
“serve to punish and deter the actions for which they [are] awarded,” Valore, 700 F. Supp. 2d at
87, and are expressly contemplated by the FSIA, see 28 U.S.C. § 1605A(c). Pursuant to this
Court’s order, see Dkt. 113 at 1, the Special Master did not consider, and did not recommend, an
award of punitive damages. Rather, the Court reserved this task for itself, which it takes up now.
In cases brought under the FSIA, courts have concluded that “[p]unitive damages are
warranted where defendants supported, protected, harbored, aided, abetted, enabled, sponsored,
conspired with, and subsidized a known terrorist organization whose modus operandi included
the targeting, brutalization, and murder of American citizens and others.” Braun v. Islamic
4
Although Plaintiffs request punitive damages for every plaintiff, Dkt. 121 at 4–5 (Proposed
Order and Judgment), and generally allege that, “[u]nder Israeli case law[,] a plaintiff harmed by
an act of Negligence caused by intentional conduct is entitled to punitive damages,” Dkt. 115 at
29 (Amended Compl. ¶ 145), they do not offer any evidence substantiating the availability of
punitive damages under Israeli law. Notwithstanding this omission, the Court takes judicial
notice of declarations submitted in similar cases, which have supported the availability of
punitive damages under Israeli law for “immoral and outrageous act[s].” See Henkin v. Islamic
Republic of Iran, No. 19-cv-1184, 2021 WL 2914036, at *10 (D.D.C. July 12, 2021) (quoting
19-cv-1184, Dkt. 56-2 at 22 (Gilead Decl. ¶ 64)); see also Borochov v. Islamic Republic of Iran,
No. 19-cv-2855, 2022 WL 656168, at *21 (D.D.C. 2022) (describing Plaintiffs’ Show Cause
Response on the issue). Accordingly, the Court awards punitive damages to both the U.S.-
citizen plaintiffs and the Israeli-citizen plaintiffs in this case, to the extent they are awarded
compensatory damages.
19
Republic of Iran, 228 F. Supp. 3d 64, 86 (D.D.C. 2017) (internal citations omitted). Here, the
Court has already concluded that “Iran provided Hamas . . . with significant support in the form
of arms and financial assistance, as well as training and technical expertise” and that Syria
similarly provided the group “with a safe operational base from which to run [its]
organization[].” Dkt. 111 at 6. From their bases in Syria, Hamas raised funds, trained
operatives, smuggled arms, and conducted their political and foreign relations activities. Id. at
16. The Court is, accordingly, persuaded that Plaintiffs are entitled to punitive damages.
In determining the amount of punitive damages to award, this Court typically considers
four factors: “(1) the character of the defendants’ act, (2) the nature and extent of harm to the
plaintiffs that the defendants caused or intended to cause, (3) the need for deterrence, and (4) the
wealth of the defendants.” Fritz, 324 F. Supp. 3d at 65 (quotation marks and citations omitted).
These factors militate in favor of a sizable award here. As to the first two factors, Iran and
Syria’s actions enabled Hamas to carry out lethal acts of terror as part of a sustained effort to
instill fear in the people of Israel. Dkt. 111 at 6, 12–13. As to the third factor, “the need for
deterrence [is] clear,” given the policies of both countries to provide material support to militant
groups for the purpose of harming Americans. See Hekmati v. Islamic Republic of Iran, 278 F.
Supp. 3d 145, 166 (D.D.C. 2017); see also Thuneibat, 167 F. Supp. 3d at 53 (describing Syria’s
sponsorship of “known terrorists whose stated mission is to devastate those who support
Americans”); Borochov v. Islamic Republic of Iran, --- F. Supp. 3d --- , 2022 WL 656168, at *22
(D.D.C. Mar. 4, 2022) (“Deterrence is necessary because, time and again, courts in this district
have been confronted with families shattered by Iran- and Syria-backed terrorists.”). Finally,
both Syria and Iran are sovereigns that have “substantial wealth.” See, e.g., Colvin v. Syrian
20
Arab Republic, 363 F. Supp. 3d 141, 163 (D.D.C. 2019); Bluth v. Islamic Republic of Iran, 203
F. Supp. 3d 1, 25 (D.D.C. 2016).
Plaintiffs ask for a fixed amount of $50 million in punitive damages for each family
affected by the attacks. Dkt. 87 at 82–83. Their request has some basis in precedent, as judges
in this district have at times awarded flat sums of up to $150 or $300 million in punitive damages
to the families of each affected victim in a particular attack. See, e.g., Thuneibat, 167 F. Supp.
3d at 54 (collecting cases). Yet notwithstanding the advantages of uniformity that such a flat-
award method provides, the method also “limits a judge’s discretion to tailor a punitive award
appropriate to the magnitude of the underlying injury,” Borochov, 2022 WL 656168, at *22
(quoting Abedini v. Gov’t of Islamic Republic of Iran, 422 F. Supp. 3d 118, 142 (D.D.C. 2019)),
especially where, as here, the Plaintiffs have suffered in distinct ways from multiple different
terrorist attacks.
The Court therefore concludes that it is more appropriate to calculate punitive damages
by applying, as this Court has in similar cases, a multiplier to a base amount (referred to as the
“multiplicand”). See Schwartz v. Islamic Republic of Iran, No. 18-cv-1349, 2022 WL 1567358,
at *4 (D.D.C. May 18, 2022). As to the multiplicand, some decisions have utilized the
defendant’s annual expenditures on terrorist activities, see, e.g., Valore, 700 F. Supp. 2d at 88,
while others have used the amount of compensatory damages already awarded, see, e.g., Gill v.
Islamic Republic of Iran, 249 F. Supp. 3d 88, 105–06 (D.D.C. 2017), and still others have
considered both these factors together, see, e.g., Hekmati, 278 F. Supp. 3d at 166–67. But where,
as here, “Plaintiffs have not provided sufficient evidence as to [the countries’] expenditures” and
the underlying acts are not “as ‘exceptionally’ deadly or substantial as those in cases where the
total-expenditures multiplicand has been used,” “the appropriate multiplicand is the total
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compensatory damages already awarded.” Hamen, 407 F. Supp. 3d at 10; cf. Valore, 700 F.
Supp. 2d at 57, 88 (using the total-expenditures multiplicand for claims arising from the Beirut
bombing where 241 Americans were killed).
This leaves, then, the question of the appropriate multiplier. Courts in this jurisdiction
have frequently used a multiplier between one and five depending on various factors, including,
among other things, whether the case involved exceptional circumstances, the perceived
deterrence effect, and the nexus between the defendant and the injurious acts. See, e.g., Moradi,
77 F. Supp. 3d at 73 (multiplier of one where Iranian authorities directly detained and tortured,
but did not kill, plaintiff); Hekmati, 278 F. Supp. 3d at 167 (same); Fritz, 324 F. Supp. 3d at 65
(multiplier of two for a case involving hostage-taking and killing by terror organization the
defendant supported); Harrison v. Republic of Sudan, 882 F. Supp. 2d 23, 26, 50 (D.D.C. 2012)
(multiplier of three for the bombing of the U.S.S. Cole where plaintiffs presented no evidence
relating to defendant’s expenditures on terrorist activities); Haim, 784 F. Supp. 2d at 3, 14
(multiplier of three for a suicide bombing that killed eight); Valore, 700 F. Supp. 2d at 88(multiplier of five for victims of the Beirut bombing where plaintiffs presented expert testimony
on the deterrence effect of punitive damages).
Turning to the case at hand, the Court concludes that a multiplier of two is appropriate.
This Court has applied that multiplier in similar cases, where nations such as Iran or Syria have
provided material support to a terrorist organization that later engaged in violent attacks and
hostage-taking that injured or killed multiple people. See, e.g., Fritz, 324 F. Supp. 3d at 58
(killing of four servicemembers); see also Hamen, 407 F. Supp. 3d at 4, 11 (killing of a private
contractor and holding another hostage for over six months). The Court recognizes that it has, at
times, applied a multiplier of three to shooting attacks, including to attacks that have resulted in
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fewer fatalities than those at issue here. See, e.g., Gill, 249 F. Supp. 3d at 106. However, at
least one of those cases has begun from the premise that the range of multipliers spans “between
three and, in exceptional cases, five,” id. (quoting Harrison, 882 F. Supp. 2d at 50), rather than
the appropriate range of one to five, Fritz, 324 F. Supp. 3d at 58. To be sure, the underlying acts
here are indisputably tragic and horrific. But so too were the acts at issue in prior cases in which
the Court has concluded a multiplier of two is appropriate. See, e.g., id.; Hamen, 407 F. Supp.
3d at 11. Plaintiffs, moreover, have presented little evidence regarding the potential deterrence
effect of a larger multiplier, see Bluth, 203 F. Supp. 3d at 26, particularly given the many billions
of dollars in damages already awarded against Iran in similar cases.
The Court will, accordingly, award Plaintiffs punitive damages in an amount equal to two
times their compensatory damages. Consistent with other decisions in this circuit, the award of
punitive damages will be apportioned among the estate and each individual Plaintiff “relative to
their individual compensatory awards.” Cohen v. Islamic Republic of Iran, 268 F. Supp. 3d 19,
28 (D.D.C. 2017) (“Cohen II”).
D. Prejudgment Interest
The final issue before the Court involves prejudgment interest. Plaintiffs have requested,
and the Special Master recommends, that the Court award Plaintiffs prejudgment interest on at
least some portions of their economic and compensatory damages awards. See Dkt. 119 at 119;
Dkt. 115 at 31. “The decision to award prejudgment interest, as well as how to compute that
interest, rests within the discretion of the court, subject to equitable considerations.” Baker v.
Socialist People’s Libyan Arab Jamahirya, 775 F. Supp. 2d 48, 86 (D.D.C. 2011). “The purpose
of such awards is to compensate the plaintiff for any delay in payment resulting from the
litigation.” Oldham v. Korean Air Lines Co., 127 F.3d 43, 54 (D.C. Cir. 1997). Accordingly,
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“[p]rejudgment interest is an element of complete compensation.” Oveissi v. Islamic Republic of
Iran, 879 F. Supp. 2d 44, 59 (D.D.C. 2012) (quoting West Virginia v. United States, 479 U.S.
305, 311–12 (1987)).
Although prejudgment interest has not always been uniformly awarded for noneconomic
damages under FSIA, this Court has already considered this very issue in Fritz v. Islamic
Republic of Iran, 324 F. Supp. 3d 54 (D.D.C. 2018) and in Schwartz v. Islamic Republic of Iran,
No. 18-cv-1349, 2022 WL 1567358 (D.D.C. May 18, 2022), and concluded that prejudgment
interest was appropriate on both “past economic loss” and on the “non-economic pain and
suffering and solatium damages suffered by the victims’ estates and families.” Fritz, 324 F.
Supp. 3d at 64; Schwartz, No. 18-cv-1349, 2022 WL 1567358, at *5; see also Sheikh v. Republic
of Sudan, 485 F. Supp. 3d 255, 274 (D.D.C. 2020) (adopting the same approach); Ewan v.
Islamic Republic of Iran, 466 F. Supp. 3d 236, 250 (D.D.C. 2020) (same). The Court sees no
reason to revisit that conclusion here and will, accordingly, award prejudgment interest on
Plaintiffs’ past economic loss and their non-economic pain and suffering and solatium damages.
As for how the Court will calculate that interest, “[t]he D.C. Circuit has explained that
the prime rate—the rate banks charge for short-term unsecured loans to creditworthy
customers—is the most appropriate measure of prejudgment interest.” Fritz, 324 F. Supp. 3d at
64 n.2; see also Forman v. Korean Air Lines Co., Ltd., 84 F.3d 446, 450–51 (D.C. Cir. 1996).
Applying this rule, the Special Master calculates prejudgment interest at the average annual
prime rate in each year from the date of the various attacks. Dkt. 119 at 119. The Court adopts
the Special Master’s methodology, as it has done in prior cases using this same approach, see
Fritz, 324 F. Supp. 3d at 64 n.2, and updates the resulting prejudgment interest figures to account
for the time that has passed since she issued her report in April 2021.
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Lastly, the Court considers whether it should apply its punitive-damages multiplier before
or after incorporating prejudgment interest into Plaintiffs’ compensatory damages awards. As
this Court explained in Schwartz, the better approach is to apply the punitive-damages multiplier
after completing the prejudgment interest calculation because, in the Court’s view, prejudgment
interest is necessary to provide complete recompense for Plaintiffs’ compensatory damages, and
because “the total compensatory damages already awarded” provides the basis for Plaintiffs’
punitive damages. Hamen, 407 F. Supp. 3d at 10 (emphasis added); see, e.g., Schwartz, 2022
WL 1567358 at *6; Ewan, 466 F. Supp. 3d at 252 n.4 (indicating that “the starting figure for the
Court’s punitive damages calculation” already “includes prejudgment interest where
applicable”). Most importantly, by proceeding in this manner, the Court can ensure that the
punitive-damage multiplier applies to the entire compensatory loss and that the happenstance of
when judgment is entered does not have a material effect on the ultimate value of the judgment.
CONCLUSION
The Court will enter a separate order awarding damages to Plaintiffs as described above.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: July 27, 2022
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