videotape taken at the scene depicts witness David Shaenbaum assisting with the administration of fluids as a part of treatment on the scene, at which time no breathing assistance or resuscitation efforts were necessary. The records of the Soroka Medical Center indicate that upon arrival Alisa Michelle Flatow demonstrated a strong pulse and independent respiration. Indeed, breathing assistance was initiated only as a part of the surgical procedures which followed. Alisa Michelle Flatow was responsive to external pain stimuli and her pupils reacted to light until the early evening hours. These facts are demonstrated both by the medical records and by the testimony of Dr. Allen Fisher, the attending physician. Further, the testimony of Dr. Gregory Threatte included his opinion as a pathologist that conscious pain and suffering continued for at least three to five hours.
This Court finds that the above-referenced testimony is credible and convincing. This Court further finds that an appropriate amount of compensatory damages for Alisa Michelle Flatow's pain and suffering is $ 1,000,000.00.
The 1996 amendments to the Foreign Sovereign Immunities Act of 1976 ["FSIA"] included solatium as an element of compensatory damages where physical injury or death results from state sponsored terrorism. See 28 U.S.C. § 1605(a)(7) and 28 U.S.C.A. § 1605 note. Although almost all civil law jurisdictions, including Louisiana and Puerto Rico, have long included solatium in wrongful death actions, this concept has not been accepted by the local Courts of this jurisdiction. See e.g., Runyon, 150 U.S. App. D.C. 228, 463 F.2d 1319; Joy v. Bell Helicopter Textron, Inc., 303 U.S. App. D.C. 1, 999 F.2d 549 (D.C. Cir. 1993); Saunders v. Air Florida, Inc., 558 F. Supp. 1233 (D.D.C. 1983). To date, only one Court has issued a judgment pursuant to these new provisions, and that Court did not enumerate the bases for its calculation of damages. See, e.g., Alejandre at 20-22. As this Court considers claims for solatium only in rare cases involving the law of other jurisdictions, it is appropriate to review practice in other jurisdictions with respect to solatium in order to determine the appropriate scope of this new federal cause of action pursuant to 28 U.S.C. § 1605(a)(7) and 28 U.S.C.A. § 1605 note.
The first wrongful death statute at common law, Lord Campbell's Act, 9 and 10 Vict. C.93 § 1 (1846), limited recoveries to economic losses. The expansion of wrongful death damages to include sentimental as well as economic losses did not take hold until after the Industrial Revolution, at approximately the same time the concept of children as chattel whose labor was owned by their parents waned. See Damages - Death of Child, 45 ALR4th 234 § 2(a). The result of this gradual and relatively recent shift is that the scope of solatium varies tremendously from state to state. See generally, id.; Death: Damages for Wrongful Death, 22A AmJur2d §§ 215-385; Relationship Between Victim and Plaintiff-Witness as Affecting Right to Recover Damages in Negligence for Shock or Mental Anguish at Witnessing Victim's Injury of Death, 94 ALR3d 486; Recovery of Damages for Loss of Consortium Resulting from Death of Child - Modern Status, 77 ALR4th 411; Excessiveness and Adequacy of Damages for Personal Injuries Resulting in Death of Minor, 49 ALR4th 1076; Damages - Child's Death or Injury, 61 ALR4th 413.
This action has been brought for the benefit of decedent Alisa Michelle Flatow's parents, sisters and brother. Under 28 U.S.C.A. § 1605 note, United States nationals or their legal representatives have standing to bring a cause of action for damages including solatium where personal injury or death results from state sponsored terrorism. The statute does not, however, define the range of individuals who may be entitled to solatium. Solatium is traditionally a compensatory damage which belongs to the individual heir personally for injury to the feelings and loss of decedent's comfort and society. It began as a remedy for the loss of a spouse or a parent. It has since expanded to include the loss of a child, including in some states the loss of an emancipated or adult child. Reiser v. United States, 786 F. Supp. 1334 (N.D. Ill. 1992).
Where the claim is based upon the loss of a sibling, the claimant must prove a close emotional relationship with the decedent. Miles v. Apex Marine Corp., 498 U.S. 19, 112 L. Ed. 2d 275, 111 S. Ct. 317 (1990); Reiser, 786 F. Supp. 1334.
Solatium is defined as "Compensation. Damages allowed for injury to feelings." BLACK'S LAW DICTIONARY 1391 (6th ed. 1990). Thus mental anguish, bereavement and grief resulting from the fact of decedent's death constitutes the preponderant element of a claim for solatium. Although most courts have not enumerated the bases for their calculations, some courts have indicated what factors entered into the judgment. As damages for mental anguish are extremely fact-dependent, claims require careful analysis on a case-by-case basis.
It is entirely possible to come to terms with the fact of death, and yet be unable to resolve the sense of anguish regarding the circumstances of death. This is particularly true where the death was sudden and violent.
See, e.g., Dugal v. Commercial Standard Ins. Co., 456 F. Supp. 290 (W.D. Ark. 1978); St. Louis S.R. Co. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1977); Scoville v. Missouri P.R. Co., 458 F.2d 639 (8th Cir. 1972). How the claimant learned of decedent's death, and whether there was an opportunity to say good-bye or view the body can be a significant factor contributing to the claimant's anguish. In one case a decedent's father saw the plane crash into the building in which his 15-year-old son was working, as well as the resulting fireball which thwarted rescue attempts. The boy's mother was speaking with him on the telephone at the time of impact and heard him die. Compania Dominicana de Aviacion v. Knapp, 251 So. 2d 18 (Fla. App. D3 1971). Similarly, when advanced medical technology permits the victim's body to survive the event, but without hope of recovery, the decision whether to continue such extraordinary measures or to terminate life support will to some degree always haunt the decision-makers, particularly where, as here, the decision to terminate life support must be implemented by a claimant.
Knapp and similar cases, however, spring almost exclusively from negligence. Even where the death results from the most extreme forms of negligence, the primary visceral reaction is to the tragedy. This is not the case with deaths resulting from terrorist attacks, in which the tragedy itself is amplified by the malice which inspired the event. The malice associated with terrorist attacks transcends even that of premeditated murder. The intended audience of a terrorist attack is not limited to the families of those killed and wounded or even just Israelis, but in this case, the American public, for the purpose of affecting United States government support for Israel and the peace process. The terrorist's intent is to strike fear not only for one's own safety, but also for that of friends and family, and to manipulate that fear in order to achieve political objectives. Thus the character of the wrongful act itself increases the magnitude of the injury. It thus demands a corresponding increase in compensation for increased injury.
Spouses and relatives in direct lineal relationships are presumed to suffer damages for mental anguish. The testimony of sisters or brothers is ordinarily sufficient to sustain their claims for solatium. See Reiser, 786 F. Supp. 1334. Proof relies predominantly on the testimony of claimants, their close friends, and treating medical professionals, as appropriate. See Alejandre at 20-22; 61 ALR4th 413 at § 13. Obvious distress during testimony, or the claimant's inability to testify due to intense anguish is usually considered in fixing the amount for solatium. See, e.g., Jeffery v. United States, 381 F. Supp. 505 (D. Ariz. 1974). Testimony which describes a general feeling of permanent loss or change caused by decedent's absence has been considered a factor to be taken into account in awarding damages for solatium. See Wheat v. United States, 630 F. Supp. 699 (W.D. Tex. 1986); Brownsville Med. Center v. Gracia, 704 S.W.2d 68 (Tex. App. Corpus Christi 1985). Medical treatment for depression and related affective disorders is another strong indicator of mental anguish. The body may also react to the stress of anguish with pain or illness, particularly stomach and chest pain, and documentation of such disorders are germane to the calculation of solatium.
Courts have also recognized that in the long term, the sudden death of a loved one may manifest itself as "a deep inner feeling of pain and anguish often borne in silence." Connell v. Steel Haulers, Inc., 455 F.2d 688 (8th Cir. 1972). Individuals can react very differently even under similar circumstances; while some sink into clinical depression and bitterness, others attempt to salvage something constructive from their personal tragedy. Such constructive behavior should not be considered as mitigating solatium, but rather as an equally compensable reaction, one in which courage to face their own mental anguish prevails in order to survive, and in some circumstances, to benefit another.
A separate loss which is encompassed within solatium is the loss of decedent's society and comfort. Originally, wrongful death acts provided compensation only for the decedent's lost cash income stream. The next evolutionary stage was to recognize the economic value of decedent's personal services to claimant, such as household maintenance and nursing care.
See, e.g., Umphrey v. Deery, 78 N.D. 211, 48 N.W.2d 897 (1951). Many jurisdictions have now expanded recovery for loss of comfort and society to include all benefits which the claimant would have received had decedent lived. Schaefer v. American Family Mut. Ins. Co., 182 Wis. 2d 380, 514 N.W.2d 16 (1994 App). "Society" has evolved to include "a broad range of mutual benefits which 'each family member' receives from the other's continued existence, including love, affection, care, attention, companionship, comfort and protection."
Apex Marine Corp., 498 U.S. 19, 112 L. Ed. 2d 275, 111 S. Ct. 317.
The calculations for mental anguish and loss of society share some common considerations. First, the calculation should be based upon the anticipated duration of the injury. Claims for mental anguish belong to the claimants and should reflect anticipated persistence of mental anguish in excess of that which would have been experienced following decedent's natural death. When death results from terrorism, the fact of death and the cause of death can become inextricably intertwined, thus interfering with the prospects for anguish to diminish over time. Cf. Larrumbide v. Doctors Health Facilities, 734 S.W.2d 685 (Tex. App. Dallas 1987).
The nature of the relationship between the claimant and the decedent is another critical factor in the solatium analysis. If the relationship is strong and close, the likelihood that the claimant will suffer mental anguish and loss of society is substantially increased, particularly for intangibles such as companionship, love, affection, protection, and guidance. Numerous factors enter into this analysis, including: strong emotional ties between the claimant and the decedent; decedent's position in the family birth order relative to the claimant; the relative maturity or immaturity of the claimants; whether decedent habitually provided advice and solace to claimants; whether the claimant shared interests and pursuits with decedent; as well as decedent's achievements and plans for the future which would have affected claimants.
Finally, unlike lost wages, which can be calculated with a fair degree of mathematical certainty, solatium cannot be defined through models and variables. Courts have therefore refused to even attempt to factor in the present value of future mental anguish and loss of society. While economic losses can be reduced to present value with simple equations to establish the amount of an annuity established today which would have matched the decedent's ostensible income stream, the scope and uncertainty of human emotion renders such a calculation wholly inappropriate. Drews v. Gobel Freight Lines, Inc. 144 Ill. 2d 84, 578 N.E.2d 970, 161 Ill. Dec. 324 (1991); United States v. Hayashi, 282 F.2d 599 (9th Cir. 1960). This is the paradox of solatium; although no amount of money can alleviate the emotional impact of a child's or sibling's death, dollars are the only means available to do so. See, e.g., Walker v. St. Paul Ins. Co., 343 So. 2d 251, cert. denied 345 So. 2d 61 (La. 1977).
The testimony before the Court described a closely-knit family in which the decedent, Alisa Michelle Flatow, occupied a special niche. The testimony of family, friends and her professor described a person of unique talents with an unusual sensitivity for other family members. Much of the religious orientation of the family seemed to spring from Alisa. To an extent and in a manner which is unique, the slaughter of Alisa Michelle Flatow inflicted pain upon the surviving members of that family. The magnitude of that suffering is demonstrated by the actions of the Flatow family in founding, administering and maintaining the Alisa Michelle Flatow Foundation, which has to date raised in excess of $ 200,000 for scholarships. The resort to this avenue as an expression of their feelings is, in the opinion of the Court, unique, praiseworthy, and of necessity, provides a basis for awards to the surviving family members in substantial amounts in recognition of their profound loss.
This action has been brought by Plaintiff on behalf of Alisa Michelle Flatow's parents, Rosalyn and Stephen M. Flatow, sisters Gail, Francine and Ilana Flatow, and brother Etan Flatow. Based upon all of the testimony referred to above, the Court finds that awards in the following amounts are appropriate in compensation for the loss suffered by each individual member of the Flatow family:
Stephen M. Flatow (father): $ 5,000,000.00
Rosalyn Flatow (mother): $ 5,000,000.00
Gail Flatow (sister): $ 2,500,000.00
Francine Flatow (sister): $ 2,500,000.00
Ilana Flatow (sister): $ 2,500,000.00
Etan Flatow (brother): $ 2,500,000.00
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