John Doe A-1 to A-49 v. Democratic People's Republic of Korea ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOHN DOE A-1, et al.,
Plaintiffs,
v.
No. 18-cv-0252 (DLF)
DEMOCRATIC PEOPLE’S REPUBLIC OF
KOREA Ministry of Foreign Affairs
Jungsong-Dong, Central District, Pyongyang,
Democratic People’s Republic of Korea,
Defendant.
MEMORANDUM OPINION
This case arises from the kidnapping, imprisonment, and torture of United States
servicemen aboard the USS Pueblo (“Pueblo”) by agents of the government of the Democratic
People’s Republic of Korea (“North Korea”) in 1968. The plaintiffs are the former crew
members themselves, as well as their families and estates. On October 22, 2019, the Court
granted the plaintiffs’ Motion for Partial Default Judgment on Liability. See Doe v. Democratic
People’s Republic of Korea, 414 F. Supp. 3d 109, 129 (D.D.C. 2019). Now before the Court is
the plaintiffs’ Motion for Partial Final Default Judgment for Damages as to the living crew
member plaintiffs, Dkt. 94, the plaintiffs’ Amended Motion in Support of an Award of Punitive
Damages (“Punitive Damages Mot.”), Dkt. 98, and the plaintiffs’ Motion for Final Default
Judgment as to the remaining plaintiffs, Dkt. 100. For the reasons that follow, the motions are
granted in part and denied in part.
I. BACKGROUND
The Court has previously recounted in detail the facts underlying this lawsuit. See Doe,
414 F. Supp. 3d at 116–20. To summarize the relevant legal framework, the plaintiffs assert
claims for damages against North Korea under the private cause of action against foreign state
sponsors of terrorism provided by the Foreign Sovereign Immunities Act (“FSIA”). See 28
U.S.C. § 1605A. In granting the plaintiffs’ motion for default judgment on liability, the Court
concluded that North Korea was liable to the plaintiffs under this provision and its incorporated
theories of assault, battery, false imprisonment, intentional infliction of emotional distress,
solatium, and wrongful death. See Doe, 414 F. Supp. 3d at 126–29.
For purposes of awarding damages, the plaintiffs in this case fall into three groups:
(1) living crew members; (2) the estates of deceased crew members; and (3) living family
members and the estates of deceased family members. The Court previously appointed a Special
Master to prepare reports and recommendations regarding the individual damages to be awarded
to each plaintiff. See Order of June 26, 2018, Dkt. 23. The Special Master filed his first report
and recommendation, which recommends damages for the living crew members, on September
13, 2019. See Report of Special Master, Dkt. 70. On August 10, 2020, the Special Master filed
his second report and recommendation, which recommends damages awards for the estates of
each deceased crew member, see Report of Special Master Re: Estate Claims, Dkt. 87, as well as
his third report and recommendation, which recommends damages awards for the living family
members of each crew member and the estates of the deceased family members, see Report of
Special Master Re: Solatium Claims, Dkt. 88.
On November 1, 2019, the plaintiffs filed their Motion for Partial Final Default Judgment
for Damages as to the living crew members, Dkt. 94, and on November 9, 2020, the plaintiffs
2
filed their Motion for Final Default Judgment as to the remaining plaintiffs, Dkt. 100. The Court
held a hearing on November 12, 2020 to consider the motions, and thereafter the plaintiffs filed a
supplemental brief in support of both motions on December 24, 2020, Dkt. 104; see also Minute
Order of Nov. 12, 2020.
II. LEGAL STANDARD
The FSIA allows plaintiffs to recover “money damages” for personal injury or death
caused by acts of torture and hostage taking committed by foreign sovereigns. 28 U.S.C.
§ 1605A(c). It further specifies that those “damages may include economic damages, solatium,
pain and suffering, and punitive damages.” Id. To recover for past losses, a plaintiff must
“prove the fact of injury with reasonable certainty,” Samaritan Inns, Inc. v. Dist. of Columbia,
114 F.3d 1227, 1235 (D.C. Cir. 1997), and must “reasonably prove” the amount of damages, Hill
v. Republic of Iraq, 328 F.3d 680, 684 (D.C. Cir. 2003). To recover for future losses, a plaintiff
similarly “must prove that the projected consequences are ‘reasonably certain’ (i.e., more likely
than not) to occur and must prove the amount of damages by a ‘reasonable estimate.’” Id. at
681. These standards mean that a default winner under the FSIA “must prove damages in the
same manner and to the same extent as any other default winner.” Botvin v. Islamic Republic of
Iran, 873 F. Supp. 2d 232, 243 (D.D.C. 2012) (internal quotation marks omitted). A court may
“take into account any special problems of proof arising from the defendant’s absence . . . .”
Hill, 328 F.3d at 685.
3
III. ANALYSIS
The Court adopts the Special Master’s findings of fact.1 To assess the amount of
damages that should be awarded to each class of plaintiffs, the Court will consider the Special
Master’s recommendations, the plaintiffs’ objections, and the plaintiffs’ requests for prejudgment
interest, post-judgment interest, and punitive damages.
A. Crew Members
Pain and Suffering
As compensation for the pain and suffering that the Pueblo crew members suffered while
in captivity, the Special Master recommends a baseline award of $3.35 million for each crew
member. See Report of Special Master at 11; Report of Special Master Re: Estate Claims at 11.
The plaintiffs urge the Court to adopt this recommended award, which would amount to $10,000
for each of the 335 days that the crew members were held in captivity by the North Koreans.
The Court accepts this baseline recommendation. As outlined in detail in the Special
Master’s reports, the crew member plaintiffs have proven the fact of their captivity—and the
pain and suffering they experienced during it—with reasonable certainty. See Report of Special
Master at 8; Report of Special Master Re: Estate Claims at 7–8. An award of $3.35 million for
1
The Court recognizes the Special Master for his dedicated efforts and notes his extensive
experience in similar cases. See, e.g., Allan v. Islamic Republic of Iran, No. 17-cv-338, 2019
WL 2185037, at *7 (D.D.C. May 21, 2019) (accepting Special Master’s damages
recommendations in TWA terrorist hijacking case without modification); Relvas v. Islamic
Republic of Iran, No. 14-cv-1752, 2018 WL 1092445, at *1, 3 (D.D.C. Feb. 28, 2018) (accepting
Special Master’s damages recommendations in Beirut Marine barracks bombing case without
modification, noting that they “conform to the well-established damages frameworks” in FSIA
terrorism cases); Kaplan v. Hezbollah, 213 F. Supp. 3d 27, 46 (D.D.C. 2016) (accepting Special
Master’s damages recommendations in suit against Iran and North Korea relating to their
participation in 2006 rocket attacks in northern Israel); Murphy v. Islamic Republic of Iran, 740
F. Supp. 2d 51, 78 (D.D.C. 2010) (adopting Special Master’s recommended awards on pain and
suffering, including an upward adjustment to one victim, in their entirety).
4
each crew member plaintiff aligns with this district’s “formula for awarding damages” to victims
of terrorist attacks held for prolonged periods. Surette v. Islamic Republic of Iran, 231 F. Supp.
2d 260, 268 (D.D.C. 2002). Under this formula, courts in this district award roughly $10,000
“for each day of captivity for the intense suffering experienced by a hostage during captivity.”
Regier v. Islamic Republic of Iran, 281 F. Supp. 2d 87, 100 (D.D.C. 2003); see also Hekmati v.
Islamic Republic of Iran, 278 F. Supp. 3d 145, 164 (D.D.C. 2017) (collecting cases). This award
is identical to the per diem amount awarded to the plaintiffs in Massie v. Government of the
Democratic People’s Republic of Korea, an earlier case in this district also involving the Pueblo
attack. See 592 F. Supp. 2d 57, 66, 77 (D.D.C. 2008) (awarding $10,000 per day for each of the
335 days spent imprisoned).
As compensation for the crew members’ many years of pain and suffering after their
release, the Special Master recommends an additional baseline award of $16.75 million for each
living crew member plaintiff. See Report of Special Master at 13–14. The Special Master also
recommends a prorated version of that baseline for the estates of deceased crew members. See
Report of Special Master Re: Estate Claims at 13.
The Court agrees with the Special Master’s conclusion that an additional lump sum
award is appropriate here. When “the per diem award amount fails to account for their pain and
suffering,” plaintiffs may receive “an additional lump sum.” Stansell v. Republic of Cuba, 217 F.
Supp. 3d 320, 346 (D.D.C. 2016). In calculating this additional lump sum, courts account for the
physical and psychological trauma that plaintiffs experience after release. See, e.g., Hekmati,
278 F. Supp. 3d at 165 (awarding $10 million for “post-release pain and suffering”); Moradi v.
Islamic Republic of Iran, 77 F. Supp. 3d 57, 70 (D.D.C. 2015) (awarding $5 million for “post-
release pain and suffering”); Price v. Socialist People’s Libyan Arab Jamahiriya, 384 F. Supp.
5
2d 120, 135–36 (D.D.C. 2005) (awarding $7 million to compensate for damages that would
“likely continue to endure throughout the rest of their lives”); Acree v. Republic of Iraq, 271 F.
Supp. 2d 179, 219 (D.D.C. 2003), vacated on other grounds, 370 F.3d 41 (D.C. Cir. 2004)
(awarding $2 million to $9 million for post-captivity pain and suffering).
Here, the Special Master reviewed thousands of pages of documentary evidence that
included “at least two sworn declarations” submitted on behalf of each crew member plaintiff,
which were “supplemented by medical records, testimony of family members, excerpts from
published accounts, diaries, newspaper articles, and other written material.” Report of Special
Master at 8. He concluded:
[A]lthough each survivor presents with an individualized set of
post-release effects, a common strand runs through their narratives.
As a result of the barbarity inflicted by the North Koreans, almost
all required medical and/or psychiatric intervention. The majority
have suffered, and continue to suffer, from post-traumatic stress
disorder, impaired memory, intrusive flashbacks, nightmares,
hypervigilance, anxiety, anger, depression, guilt, and withdrawal
from others. Many have undergone invasive surgical procedures to
ameliorate the physical damage resulting from the relentless torture
they underwent as prisoners. Several have attempted to numb their
pain through alcohol and drugs, and most have seen their domestic
and/or professional lives deteriorate. A few have contemplated
suicide.
Id. at 13. The court in Massie reached similar findings, concluding that the crew member
plaintiffs in that case experienced “severe and permanent” physical and psychological trauma.
Massie, 592 F. Supp. 2d at 71. The Court accepts these findings as proven with reasonable
certainty and agrees with both the Special Master and the court in Massie that the per diem
award of $3.35 million fails to adequately compensate the crew members for the pain and
suffering they endured following their release.
Although the Special Master’s findings support an additional—and substantial—lump
sum award, the Court will not adopt the Special Master’s recommended baseline of $16.75
6
million. The Special Master arrived at this recommendation after observing that the Massie
court’s $13.4 million post-captivity pain and suffering award for three living crew member
plaintiffs represented “$335,000 for every year the three Pueblo survivors suffered following
their release.” Report of Special Master at 11. In keeping with “the Massie framework,” the
Special Master recommended that each crew member “receive a baseline award of $335,000 per
year,” for their post-captivity pain and suffering, which would total $16.75 million for each
living crew member. Id. at 13. The Court declines to adopt this recommended baseline award
for three primary reasons.
To start, courts in this district have declined to embrace Massie’s post-captivity pain and
suffering award as a baseline award in recent years. See, e.g., Azadeh v. Gov’t of Islamic
Republic of Iran, No. 16-cv-1467, 2018 WL 4232913, at *19–20 (D.D.C. Sept. 5, 2018);
Hekmati, 278 F. Supp. 3d at 164. This is due, in part, to the fact that the Massie court did not
explain the methodology it used to calculate the post-captivity pain and suffering damages it
awarded.2 Hekmati, 278 F. Supp. 3d at 164; see also Moradi, 77 F. Supp. 3d at 70 (noting “it is
apparent that the Court’s post-captivity pain and suffering award in Massie was exactly four
times the award for pain and suffering during captivity”). Though the Massie court did take into
account that one of the plaintiffs, Commander Lloyd Bucher, died thirty-five years after his
release, it did not appear to consider whether any departures from the baseline award were
2
The Massie plaintiffs’ proposed findings of fact and conclusions of law provide little insight
into the Massie court’s methodology. The plaintiffs in Massie initially sought $7 million in post-
release damages on the grounds that this was the amount awarded to the plaintiff in Acree, 271 F.
Supp. 2d at 220–21. See Pl.’s Initial Proposed Findings of Fact and Conclusions of Law, Dkt. 9,
No. 06-cv-749 (D.D.C. Apr. 9, 2008). Following an evidentiary hearing, they later requested
$21 million in post-release damages because they had been held in captivity for “more than three
times as long” as plaintiffs in earlier cases, like Acree, in which $7 million in post-release
damages was awarded. See Pl.’s Proposed Findings of Fact and Conclusions of Law, Dkt. 13,
No. 06-cv-749 (D.D.C. June 16, 2008).
7
justified in light of the nature and extent of the plaintiffs’ post-release injuries. See Massie, 592
F. Supp. 2d at 77. Compare Relvas, 2018 WL 1092445, at *2 (departing upward from baseline
pain and suffering award based on the extent of the victims’ post-release injuries). Indeed, the
Special Master recommends, see Report of Special Master at 14, and the plaintiffs agree, see
Pls.’ Mot. for Partial Final Default Judgment for Damages at 10, that the Court should depart
upwards or downwards from the baseline by $2 million to $7.5 million for certain crew members
in order to take into account the varying nature of the plaintiffs’ injuries.3
Second, adopting Massie’s post-captivity pain and suffering award as a baseline here
would lead to an award that is out-of-step with more recent cases. Though it is difficult, if not
impossible, to quantify post-captivity damages, courts use awards in similar FSIA lawsuits to
“help guide the Court through this delicate terrain.” Abedini v. Gov't of Islamic Republic of Iran,
422 F. Supp. 3d 118, 137 (D.D.C. 2019). The “primary consideration” in fashioning an
appropriate award is that “individuals with similar injuries receive similar awards.” Moradi, 77
F. Supp. 3d at 70. In recent years, courts in this district have applied Hekmati’s post-captivity
pain and suffering award as a baseline in cases involving post-release injuries “consistent with
those at issue in Massie,” Azadeh, 2018 WL 4232913, at *19–20 (D.D.C. Sept. 5, 2018), making
appropriate adjustments for differences in plaintiffs’ “age[s] at release, life expectanc[ies], and
time in captivity,” Abedini, 422 F. Supp. 3d at 137; see also, e.g., id. at 127, 137 (adopting
Hekmati’s award, adjusted for life expectancy, for a plaintiff who “present[ed] extensive and
shocking evidence of the mental and physical torture he endured” during his 1,268 days in
3
As noted infra at 14, however, in its recent filing, the plaintiffs ask the Court to consider “less
severe” downward departures than the Special Master recommends. See Pls.’ Mot. for Final
Default Judgment at 16.
8
captivity and suffered from both PTSD and clinical depression as a result). These recent awards
weigh against adopting a $16.75 million baseline here.
And separately, simply awarding a fixed amount for each year of post-release pain and
suffering would compensate the living crew members exclusively for their past pain and
suffering. Yet, it is clear that post-captivity pain and suffering awards also are designed to
compensate victims for anticipated future pain and suffering. See, e.g., Hekmati, 278 F. Supp. 3d
at 164; Price, 384 F. Supp. 2d at 136. Indeed, the plaintiffs concede that the award in Massie
itself was intended to compensate surviving crew members “for both past and future pain and
suffering.” Pls.’ Supplemental Br. at 7, Dkt. 104 (emphasis in original). Further, an historically-
based, pro-rated award would lead to anomalous results. Victims of the same attack who incur
similar injuries but file suits years apart would receive substantially different awards based solely
on the date of their judgments. It is therefore unsurprising that the Court is unaware of a
decision in which a court has awarded a fixed amount for each year following a victim’s release.
In their supplemental brief, the plaintiffs propose an alternative time-based damages
benchmark of $313,390 per year, which they derive from the post-captivity pain and suffering
award given to Commander Bucher’s estate in Massie.4 See Pls.’ Supplemental Br. at 7–8. But
this approach employs essentially the same methodology that the Special Master recommends,
see id. at 7, and the reasons for declining to adopt the Special Master’s recommended baseline
apply almost as forcefully to the proposed alternative. The proposed award would still be out-of-
step with recent awards in this district, see, e.g., Azadeh, 2018 WL 4232913, at *19–20 (D.D.C.
4
The plaintiffs arrived at this figure by dividing Massie’s $11 million damages award to the
Estate of Commander Bucher by the 35.1 years that Commander Bucher lived after the Pueblo
crew members’ release. See Pls.’ Supplemental Br. at 8.
9
Sept. 5, 2018), and disproportionately affected by the date on which final judgment is entered,
see supra at 9. The Court therefore declines to adopt the plaintiffs’ proposed alternative.
Recognizing the inherent difficulty in “putting a number on” pain and suffering, Moradi,
77 F. Supp. 3d at 70, this Court will weigh two factors that courts routinely consider when
calculating post-captivity awards: (1) the “length and severity” of the plaintiff’s torture and
detention and (2) the “extent of the plaintiff’s lasting physical and mental injuries.” Azadeh,
2018 WL 4232913, at *19; see also Hekmati, 278 F. Supp. 3d at 164. In this case, however, a
third factor courts typically consider—the ages and life expectancies of the plaintiffs at the time
of release—has little bearing on the crew members’ post-release awards. Although their ages
varied at the time of release,5 most crew members lived more than fifty years after their captivity.
The Court will nonetheless differentiate their awards by considering each crew member’s actual
and anticipated years of suffering.
The Court will also adopt the Hekmati post-captivity pain and suffering award as a
baseline, as other courts have done in cases involving post-release injuries like Massie. See
Azadeh, 2018 WL 4232913, at *19–20; Abedini, 422 F. Supp. 3d at 137. The Pueblo crew
members were detained for less than a year (335 days), see Massie, 592 F. Supp. 2d at 77, and
just one-fifth as long as the Hekmati plaintiff, who spent 1,602 days of captivity in Iran’s Evin
prison. 278 F. Supp. 3d at 149, 163–64. But they endured similar conditions and abuse. See
Doe, 414 F. Supp. 3d at 119. And they too sustained severe and pervasive long-term injuries.
See, e.g., Report of Special Master at 3–5, 13.
5
The vast majority of the Pueblo crew members were in their twenties at the time of their
release, see, e.g., Report of Special Master Ex. A at 34, Dkt. 70-2 (twenty years old); id. at 57
(twenty-one years old), though several of the crew members were older, ranging from thirty, see
Report of Special Master Ex. B at 10, Dkt. 70-3, to forty-one years of age, see Report of Special
Master Ex. A at 49.
10
Report of Special Master at 13.
The Court will therefore adopt Hekmati’s $10 million award for two Pueblo crew
members who endured five decades (fifty years) of post-release pain and suffering. Though they
spent significantly less time in captivity than the Hekmati plaintiff, their 50-year life span
exceeded his 45-year life expectancy. And the nature and extent of their post-release injuries
are, on balance, sufficiently similar to award $10 million in post-release pain and suffering
damages. See Rezaian v. Islamic Republic of Iran, 422 F. Supp. 3d 164, 180 (D.D.C. 2019).
Consistent with the Special Master’s recommendations, see Report of Special Master at
4, 13–14, however, the Court will depart from this $10 million baseline award for several crew
member plaintiffs based on the nature and extent of their post-release injuries. See supra at 7–8;
see also Relvas, 2018 WL 1092445, at *2. The Court will also deviate from the $10 million
baseline to take into account the years of suffering that each crew member has actually endured,
and the years of future pain and suffering that each living crew member is expected to endure.
For the deceased crew member plaintiffs, the Court will adjust the $10 million post-
release pain and suffering award upwards and downwards by $200,000 for the actual number of
years of suffering each endured. The chart below reflects these baseline awards:
Deceased Crew Members' Baseline Awards
Years of Post-Release Baseline Award for Post-
Plaintiff Pain and Suffering Release Pain and Suffering
A-03 50 $10,000,000
A-04 52 $10,400,000
A-16 51 $10,200,000
A-18 51 $10,200,000
A-23 51 $10,200,000
A-35 49 $9,800,000
A-37 50 $10,000,000
C-01 25 $5,000,000
11
C-04 51 $10,200,000
C-08 44 $8,800,000
C-10 24 $4,800,000
C-14 20 $4,000,000
C-16 45 $9,000,000
C-20 44 $8,800,000
C-24 25 $5,000,000
C-25 46 $9,200,000
C-29 1 $200,000
C-30 45 $9,000,000
Similarly, for the living crew member plaintiffs, the Court will deviate from the baseline
to take into account the total number of years each living crew member is expected to suffer, as
well as the number of years that each has suffered already. See Azadeh, 2018 WL 4232913, at
*19–20; Abedini, 422 F. Supp. 3d at 127, 137. To estimate each living crew member’s life
expectancy, the Court relies on a CDC National Vital Statistics Report that the plaintiffs
recommend for their economic damages calculations. See Appraisal of Value of Economic Life
on at 4, 18–20, Dkt. 99-1; Appraisal of Value of Economic Life on
at 4, 16–18, Dkt. 99-2; see also United States Life Tables 2014, 66 Nat’l Vital
Stats. Reps., no. 4 (2017); Abedini, 422 F. Supp. 3d at 137 (relying on National Vital Statistics
Reports to adjust plaintiff’s post-captivity pain and suffering award based on estimated life
expectancy). The total number of years each living crew member is estimated to suffer and the
resulting baseline award are reflected in the following chart:
Living Crew Members' Baseline Awards
Baseline
Years Since Estimated Total Award for
Release Estimated Life Number of Years of Post-Release
from Expectancy Post-Release Pain Pain and
Plaintiff Age Captivity (Current Day) and Suffering Suffering
A-01 83 52 7 59 $11,800,000
A-02 81 52 8 60 $12,000,000
A-05 73 52 13 65 $13,000,000
A-06 72 52 13 65 $13,000,000
12
A-07 75 52 11 63 $12,600,000
A-08 93 52 3 55 $11,000,000
A-09 73 52 13 65 $13,000,000
A-10 75 52 11 63 $12,600,000
A-11 77 52 10 62 $12,400,000
A-12 76 52 11 63 $12,600,000
A-13 73 52 13 65 $13,000,000
A-14 78 52 10 62 $12,400,000
A-15 78 52 10 62 $12,400,000
A-17 76 52 11 63 $12,600,000
A-19 72 52 13 65 $13,000,000
A-20 77 52 10 62 $12,400,000
A-21 84 52 6 58 $11,600,000
A-22 74 52 12 64 $12,800,000
A-24 79 52 9 61 $12,200,000
A-25 76 52 11 63 $12,600,000
A-26 73 52 13 65 $13,000,000
A-27 83 52 7 59 $11,800,000
A-28 74 52 12 64 $12,800,000
A-29 72 52 13 65 $13,000,000
A-30 74 52 12 64 $12,800,000
A-31 82 52 7 59 $11,800,000
A-32 76 52 11 63 $12,600,000
A-33 73 52 13 65 $13,000,000
A-34 77 52 10 62 $12,400,000
A-36 80 52 8 60 $12,000,000
A-38 75 52 11 63 $12,600,000
A-39 73 52 13 65 $13,000,000
A-40 72 52 13 65 $13,000,000
A-41 74 52 12 64 $12,800,000
A-42 74 52 12 64 $12,800,000
A-43 87 52 5 57 $11,400,000
A-44 86 52 6 58 $11,600,000
A-45 75 52 11 63 $12,600,000
A-46 90 52 4 56 $11,200,000
A-47 74 52 12 64 $12,800,000
A-48 75 52 11 63 $12,600,000
A-49 72 52 13 65 $13,000,000
As noted, the Special Master identified ten crew members who underwent particularly
brutal treatment, including barbaric surgical procedures, that caused exceptional post-captivity
pain and suffering. See Report of Special Master at 4, 13–14. In such “severe instances of
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physical and psychological pain,” upward adjustments from the baseline lump sum award are
appropriate. Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 84 (D.D.C. 2010); see
Relvas, 2018 WL 1092445, at *2; see also Pls.’ Mot. for Partial Final Default Judgment for
Damages at 10–11 (expressing no objection to Special Master’s recommended departures); Pls.’
Mot. for Final Default Judgment at 15–16 (same). The Court therefore finds that these ten crew
members are entitled to the upward departures specified in the Special Master’s reports.6
The Special Master also recommends a downward departure for three crew members who
“admitted suffering from fewer post-release complications.” Report of Special Master at 14.
Such downward departures have been deemed appropriate in other FSIA terrorism cases. See,
e.g., Valore, 700 F. Supp. 2d at 84; O’Brien v. Islamic Republic of Iran, 853 F. Supp. 2d 44, 47
(D.D.C. 2012); see also Pls.’ Mot. for Partial Final Default Judgment for Damages at 10–11
(expressing no objection to Special Master’s recommended departures); Pls.’ Mot. for Final
Default Judgment at 16 (same). But see id. (noting the lack of objection but, “after further
consideration,” urging the Court to exercise its discretion and adopt a less severe downward
departure). Based on their admissions, the Court agrees with the Special Master that a
downward departure is appropriate for these crew members’ post-release pain and suffering
awards.7
6
The upward departures for the ten crew members are as follows: Doe A-11 ($5 million); Doe
A-18 ($5 million); Doe A-20 ($2 million); Doe A-22 ($2 million); Doe A-34 ($2 million); Doe
A-40 ($7.5 million); Doe C-8 ($2 million); Doe C-10 ($2 million); Doe C-20 ($2 million); and
Doe C-25 ($2 million). See Group A Pueblo Survivors–Recommended Damages, Dkt. 70-1;
Group B Pueblo Crewmember Estates’ – Recommended Damages, Dkt. 87-2.
7
The downward departures for the three crew members are as follows: Doe A-32 ($2 million);
Doe A-38 ($5 million); and Doe C-04 ($5 million). See Report of Special Master Ex. B at 121–
22; see also Report of Special Master Re: Estate Claims Ex. A at 47–48, Dkt. 87-1.
14
Finally, the Special Master recommends that the Court award $1 million in compensatory
damages to
See
Report of Special Master Re: Estate Claims Ex. A at 67; see also Pls.’ Motion for Final Default
Judgment at 17–18 (expressing no objection to Special Master’s recommended award). The
Court adopts the Special Master’s recommended award, which is consistent with awards for
comparable periods of pain and suffering prior to death. See, e.g., Braun v. Islamic Republic of
Iran, 228 F. Supp. 3d 64, 83 (D.D.C. 2017) (“For periods of pain and suffering of [] less than a
minute to a few hours after an attack but prior to death, courts have awarded damages of
$1,000,000.”).
In reaching these conclusions, the Court recognizes that the pain and suffering the
Pueblo’s crew members endured following their release was “nightmarish.” Pls.’ Supplemental
Br. at 5. Indeed, “[t]here is no monetary award that could adequately compensate them” for that
hardship. Acree, 271 F. Supp. 2d at 219. Nevertheless, the Court “is charged with providing
compensatory damages even where no award can truly compensate.” Id. In calculating the
amount of post-release pain and suffering damages, the Court has carefully considered the
awards in Massie and recent similar cases. Based on this authority and the facts as found by the
Special Master, the Court will award the Pueblo crew member plaintiffs and their estates post-
release pain and suffering damages as explained above and reflected in the accompanying order.
Economic Damages
The Court also accepts the Special Master’s recommended economic damages award of
$987,798.10 to Doe A-49 and $2,938,375.49 to . Report of Special
Master Ex. C at 105–06, Dkt. 70-4; Report of Special Master Re: Estate Claims Ex. A at 69, Dkt.
87-1; see also Pls.’ Mot. for Partial Final Default Judgment for Damages at 11–12 (expressing no
15
objection to Special Master’s recommended award); Pls.’ Mot. for Final Default Judgment at 18–
19 (same).
As mentioned, FSIA damages “may include economic damages,” 28 U.S.C. § 1605A(c),
and Doe A-49 has proven with reasonable certainty that his treatment at North Korea’s hands
caused severe health problems that prevented him from securing employment post-release, see
Report of Special Master Ex. C at 104–06, Dkt. 70-4. The Court also finds that
See Report of Special Master Re: Estate Claims Ex. A at 67–69. Both Doe
A-49 and the have reasonably proven the amount of lost earnings (or
“loss of accretions”) damages through the expert report of economist Dr. L. Wayne Plumly, who
applied an appropriate methodology and reasonable assumptions in calculating the net present
value of their economic losses. See Appraisal of Value of Economic Life on ;
Appraisal of Value of Economic Life on .
B. Family Members
Turning to the families of the crew members, the Court “may presume that spouses and
those in direct lineal relationships with victims of terrorism suffer compensable mental anguish.”
Moradi, 77 F. Supp. 3d at 72. Each family member plaintiff has established both a relationship
to a Pueblo crew member and that their emotional distress was reasonably certain to occur as a
consequence of the North Koreans’ actions. See Report of Special Master Re: Solatium Claims
at 12. Thus, they are entitled to solatium damages, which are “intended to compensate persons
for mental anguish, bereavement and grief that those with a close personal relationship to a
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decedent experience as well as the harm caused by the loss of the decedent’s society and
comfort.” Moradi, 77 F. Supp. 3d at 72 (internal quotation marks omitted).
Though solatium damages are “by their very nature unquantifiable,” id., the Special
Master recommends hewing to the Heiser framework, which a majority of courts in this district
have adopted. See Report of Special Master Re: Solatium Claims at 11. Under that framework,
“a spouse, child, or sibling may receive $4 million, $2.5 million and $1.25 million, respectively,
for valid claims in which the family member survived the terrorist act,” Reed v. Islamic Republic
of Iran, 845 F. Supp. 2d 204, 214 (D.D.C. 2012), and “the family of a deceased victim typically
receives damages in the amount of $8 million for a spouse, $5 million for a child or parent, and
$2.5 million for a sibling,” Barry v. Islamic Republic of Iran, 437 F. Supp. 3d 15, 53–54 (D.D.C.
2020).
The plaintiffs object to the Special Master’s recommendation and “request that the Court
increase the Special Master’s recommended baseline solatium damages by 20-25% for all
spouses, parents, and siblings” of the Pueblo crew members. See Pls.’ Mot. to Modify Special
Master’s Third Report at 2, 6–7, Dkt. 101. This request appears to be based, at least in part, on
the Special Master’s recommendation to award the children of the Pueblo crew members $2.5
million in solatium damages as opposed to $1.5 million. See id. at 3 (noting that their proposed
increase is “less than the 66% increase… recommended for the children of Pueblo crew
members”). But the Special Master’s recommendation of $2.5 million in solatium damages for
the children of Pueblo crew members was not a departure from Heiser. See Barry, 437 F. Supp.
3d at 54 (noting that under the Heiser framework “amounts are halved for the family of an
injured victim, with courts generally awarding $4 million to a spouse, $2.5 million to a child or
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parent, and $1.25 million to a sibling.”); see also Oveissi v. Islamic Republic of Iran, 768 F.
Supp. 2d 16, 26 n.10 (D.D.C. 2011).
To be sure, the Heiser framework’s suggested awards are neither mandatory nor “set in
stone,” Valore, 700 F. Supp. 2d at 85; see Fraenkel v. Islamic Republic of Iran, 892 F.3d 348,
361 (D.C. Cir. 2018). Although courts previously granted higher awards for family members in
hostage-taking cases, see Pls.’ Supplemental Br. at 15–16; see also, e.g., Acree, 271 F. Supp. 2d
at 222–23 (awarding $10 million to the spouses of surviving hostage victims); Cicippio v.
Islamic Republic of Iran, 18 F. Supp. 2d 62, 70 (1998) (same), those awards largely predated the
emergence of the Heiser framework. And in recent years, the Heiser framework has “gained
strong precedential support.” Reed, 845 F. Supp. 2d at 214. “[C]ourts have commonly adopted
the Heiser framework,” without enhancing its proposed baseline awards, even when victims
experienced torture during their captivity and had serious post-release injuries as a result. See,
e.g., Abedini, 422 F. Supp. 3d at 127, 133, 140 (no deviation from Heiser’s baseline for sibling
of a victim that was held hostage for 1,268 days, repeatedly endured severe torture at the hands
of his captors, and suffered from PTSD and clinical depression as a result); Reed, 845 F. Supp.
2d at 208, 213 (D.D.C. 2012) (no deviation from Heiser’s baseline for child of a victim that was
“held hostage for 1,330 days,” subjected to “electrocution, arsenic poisoning, and countless
beatings,” during his captivity, and had severe physical and psychological complications
following his release).
“[B]earing in mind the general precept that similar awards should be given in similar
cases,” Oveissi, 768 F. Supp. 2d at 26, the Court will adopt the Special Master’s recommended
baseline figures “as an anchor from which the Court should deviate to compensate for specific
circumstances,” Christie v. Islamic Republic of Iran, 19-cv-1289, 2020 WL 3606273, at *26
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(D.D.C. July 2, 2020). Here, the Special Master has recommended upward departures from the
solatium damages baseline for two family members. One was subjected to “beatings and
emotional abuse” by her husband who, after returning home from North Korea, struggled with
anger issues, drank excessively, and suffered from PTSD. Report of Special Master Re:
Solatium Claims Ex. A at 23, Dkt. 88-1. The other had a “unique bond with her son,” a Pueblo
crew member, who provided her physical and emotional support, and lived with her both before
and after his time in North Korea. See Report of Special Master Re: Solatium Claims Ex. C at
48–49. In this district, courts have imposed higher solatium awards where: (1) a victim
“survives with severe physical and emotional conditions that continue to cause severe suffering
by the spouse,” Greenbaum v. Islamic Republic of Iran, 451 F. Supp. 2d 90, 108 (D.D.C. 2006);
(2) “a parent can demonstrate a particularly close connection with their child vis-à-vis other
parent-child relationships”), Oveissi, 768 F. Supp. 2d at 28 (emphasis in original); or (3) “the
circumstances of the attack made the suffering particularly agonizing for the family,” Abedini,
422 F. Supp. 3d at 140. Based on the Special Master’s detailed assessments and this authority,
the Court concludes that these two family members are entitled to the upward departures
specified in the Special Master’s report.8
C. Interest Awards
Prejudgment Interest
Each surviving crew member seeks prejudgment interest of nearly $131 million on the
$3.35 million award they each will receive for their time in captivity. Whether to award
prejudgment interest “is subject to the discretion of the court and equitable considerations.”
8
The two family members and their upward departures are Doe C-07 ($800,000) and Doe C-26
($625,000). See Report of Special Master Re: Solatium Claims Ex. D at 1, 6 Dkt. 88-4.
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Oldham v. Korean Air Lines Co., 127 F.3d 43, 54 (D.C. Cir. 1997) (internal citation omitted).
“Prejudgment interest is ‘not awarded as a penalty.’” Maupin v. Syrian Arab Republic, 405 F.
Supp. 3d 75, 89 (D.D.C. 2019) (quoting City of Milwaukee v. Cement Div., Nat. Gypsum Co.,
515 U.S. 189, 197 (1995)). Rather, “[i]t is more aptly defined as delay damages and properly
viewed through the lens of unjust enrichment.” Id. (internal quotation marks and citation
omitted). The Special Master did not address the surviving crew members’ claims for
prejudgment interest.
Courts in this district have taken varying approaches to requests for prejudgment interest.
See Pls.’ Mot. for Partial Final Default Judgment for Damages at 14–15 (cataloging the
approaches of various judges in this district). Most courts use prejudgment interest to
compensate the plaintiff for the time value of money and thus seem to award it as a matter of
course. See, e.g., Fritz v. Islamic Republic of Iran, 324 F. Supp. 3d 54, 64 (D.D.C. 2018)
(explaining that “prejudgment interest is appropriate to account for the time that [the plaintiffs]
have not had access to [the] full amount” of their award). Others calculate their awards to be
“fully compensatory” and generally decline to award prejudgment interest. Schertzman Cohen v.
Islamic Republic of Iran, No. 17-cv-1214, 2019 WL 3037868, at *10 (D.D.C. July 11, 2019); see
also Wultz v. Islamic Republic of Iran, 864 F. Supp. 2d 24, 42–43 (D.D.C. 2012); Maupin, 405 F.
Supp. 3d at 97–98 (collecting cases where courts have denied prejudgment interest “in the
absence of any obstructive conduct”). In Massie, 592 F. Supp. 2d 57, the plaintiffs did not
request, and the Court did not award, prejudgment interest.
The Court follows those courts that have declined to award prejudgment interest.
Because the Court has determined that $3.35 million in today’s dollars fully compensates the
crew members and their estates for their time spent in captivity, prejudgment interest is
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unnecessary to compensate victims for the lost time value of money. See Price, 384 F. Supp. 2d
at 135 (declining to award prejudgment interest on damages award for plaintiffs’ pain and
suffering in captivity, even though “the wrongful acts took place decades before the litigation,”
because the award, calculated pursuant to this district’s per diem formula, was “fully
compensatory”). In addition, North Korea, “having never even appeared in this case, [has] not
prolonged the litigation.” Wultz, 864 F. Supp. 2d at 43. The Court thus declines to award
prejudgment interest.
Post-Judgment Interest
The plaintiffs’ amended complaint also seeks an award of post-judgment interest. Am.
Compl. ¶ 57, Dkt. 14. The federal post-judgment interest statute provides that “[i]nterest shall be
allowed on any money judgment in a civil case recovered in a district court” and that such
interest “shall be calculated from the date of the entry of the judgment, at a rate equal to the
weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors
of the Federal Reserve System, for the calendar week preceding the date of judgment.” 28
U.S.C. § 1961(a). The statute further provides that “[i]nterest shall be computed daily to the date
of payment . . . and shall be compounded annually.” Id. § 1961(b). As the use of the word
“shall” suggests, an award of post-judgment interest under this statute is mandatory, not
discretionary. Lanny J. Davis & Assocs. LLC v. Republic of Equatorial Guinea, 962 F. Supp. 2d
152, 165 (D.D.C. 2013); Cont’l Transfert Technique Ltd. v. Fed. Gov’t of Nigeria, 850 F. Supp.
2d 277, 287 (D.D.C. 2012). The Court will therefore grant this portion of the plaintiffs’ motions
and award post-judgment interest at the statutory rate.
D. Punitive Damages
Finally, the plaintiffs’ amended complaint seeks an award of “punitive damages . . . in the
amount the Court may determine to be just.” Am. Compl. ¶ 57. At the time that the plaintiffs
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filed their motion for partial default judgment on damages with respect to the living crew
member plaintiffs, an award of punitive damages for conduct occurring prior to the enactment of
Section 1605A in 2008 was foreclosed by the D.C. Circuit’s decision in Owens v. Republic of
Sudan, 864 F.3d 751 (D.C. Cir. 2017). But the Supreme Court recently held in Opati v. Republic
of Sudan, 140 S. Ct. 1601 (2020), that plaintiffs can recover punitive damages under § 1605A for
unlawful conduct occurring prior to 2008. See id. at 1608 (“Congress was as clear as it could
have been when it authorized plaintiffs to seek and win punitive damages for past conduct using
§ 1605A(c)’s new federal cause of action.”).
“Punitive damages, made available under the revised FSIA terrorism exception, serve to
punish and deter the actions for which they are awarded.” Oveissi, 879 F. Supp. 2d at 55–56.
They are not intended to compensate victims, but rather to award “an amount of money that will
punish outrageous behavior and deter such outrageous conduct in the future.” Id. at 56. “Courts
routinely award punitive damages in cases brought under the terrorism exception to the Foreign
Sovereign Immunities Act.” Frost v. Islamic Republic of Iran, 419 F. Supp. 3d 112, 116 (D.D.C.
2020). In light of the North Koreans’ heinous treatment of the Pueblo crew members, the Court
has no trouble concluding that punitive damages are warranted in this case.
Courts consider four factors to determine the amount of a punitive damages award: “(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.” Warmbier v. Democratic People's Republic of Korea, 356 F. Supp. 3d 30, 59
(D.D.C. 2018). “Taking these factors into account,” courts in this district have generally taken
three approaches in calculating appropriate punitive damages awards in state-sponsored terrorism
cases. See id. at 59–60 (discussing each approach and collecting cases). The first approach,
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often used in exceptionally deadly attacks, is to multiply the foreign state’s yearly expenditures
on terrorism by a factor between three and five. Id. A second approach ties punitive damages to
the compensatory damages award, using a ratio set forth in earlier cases involving similar
conduct. Id. And the final approach awards $150 million to each affected family. Id.The first approach is not appropriate here because it “requires knowing how much North
Korea spends on terrorist activities, and that information is not available.” Id. at 60. And while
the plaintiffs urge the Court to adopt the third approach and award $150 million in punitive
damages to each plaintiff, that method “is more typically employed when similar conduct has
never been litigated or in cases of terrorist attacks more deadly than what happened here.” Frost,
419 F. Supp. 3d at 117. The Court will therefore tie the punitive damages in this case to
compensatory damages. Recent decisions involving plaintiffs who were held captive and
tortured awarded punitive damages in an amount equal to compensatory damages. See Abedini,
422 F. Supp. 3d at 142 (collecting cases); see also id. (observing that only in “special
circumstance[s]” have courts multiplied compensatory damages under this approach). The Court
will do the same here and award each plaintiff a punitive damages award equal to their
compensatory damages.
CONCLUSION
For the foregoing reasons, the plaintiffs’ motions are granted in part and denied in part.
A separate order consistent with this decision accompanies this memorandum opinion.
________________________
DABNEY L. FRIEDRICH
February 16, 2021 United States District Judge
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