CONCLUSIONS OF LAW WITH RESPECT TO DAMAGES
I. Count I — Wrongful Death
The FSIA, as amended, establishes a cause of action for wrongful death
proximately caused by an act of state sponsored terrorism — in this
case the extrajudicial killing of Cyrus Elahi. The statute provides,
inter alia, that money damages, including economic damages, solatium,
pain and suffering, and punitive damages are available in actions brought
pursuant to the FSIA. 28 U.S.C. § 1605 note. Compensation may be
awarded to a decedent's heirs-at-law for both the economic and emotional
losses that result from the decedent's premature death due to acts of
state sponsored terrorism.*fn15 See Flatow, 999 F. Supp. at 27-28;
Eisenfeld, 2000 U.S. Dist. LEXIS 9545 at *16; Alejandre v. Republic of
Cuba, 996 F. Supp. 1239, 1249-50 (S.D.Fla. 1997).
A. Economic Damages
The economic losses flowing from a person's untimely death include the
loss of accretions to his estate. The evidence established that had Cyrus
Elahi not been killed, he could have continued to pursue his work with
the Flag of Freedom Organization, or he could have returned to the
academic world to pursue a teaching career.
Which career path Cyrus Elahi would have chosen is not susceptible to
precise determination. Accordingly, the plaintiff's economic expert,
Jerome Paige, Ph.D., performed two separate calculations of lost income.
The first calculation was based upon the assumption that Cyrus Elahi
would have returned to academia had he not been assassinated. The second
calcuation assumed that Cyrus Elahi would have continued his work with
the Flag of Freedom Organization. For each of these of these
assumptions, Dr. Paige used a typical mean earnings approach for a
similarly situated 47-year old male. According to Dr. Paige's
calculations, Cyrus Elahi's lifetime earnings would have been $725,359
had he continued working for the Flag of Freedom Organization and
$967,626 had he returned to the academic world. Tr. 197-198 (Paige);
Although the evidence demonstrated that Cyrus Elahi could have returned
to his academic career, his true passion, and the one to which he fully
devoted the last four years of his life; was his work for the Flag of
Freedom Organization. Accordingly, for purposes of calculating economic
losses, the Court will assume that Dr. Elahi would have continued his
work with the Flag of Freedom Organization and that the financial loss to
his estate resulting from his untimely death is $725,359, the lower of
Dr. Paige's two calculations. An award of this amount, therefore, will be
rendered to Cyrus Elahi's estate for lost accretions.
In addition to these economic losses, Dariush Elahi, as executor of
Cyrus Elahi's estate, also incurred $14,676 in funeral expenses, which
includes the cost of the funeral in Paris, the burial plot in Maryland,
the gravestone, and the cost of travel to and from Paris. The Court finds
that these expenses were appropriately incurred and should be recovered
as part of the compensatory damage award in this case.
1. Legal Standards for Awarding Solatium Damages
The statutory provision creating the cause of action for state
sponsored terrorism also permits solatium damages. 28 U.S.C. § 1605
note. A claim for solatium
refers to the "mental anguish, bereavement and grief resulting from the
fact of decedent's death[.]" Flatow, 999 F. Supp. at 30. The loss of
decedent's society and comfort is also encompassed within solatium. Id.
at 31. Solatium may include a claim for loss of a sibling where the
claimant proves a close emotional relationship with the decedent. See
Flatow, 999 F. Supp.at 30.
The testimony in this case established that Cyrus Elahi was the eldest
of four children and that he had two brothers, Dariush (the administrator
of his estate) and a younger brother, and a sister. Cyrus Elahi's father
was born in Iran, but came to the United States in 1948 to pursue his
medical education. At the time, his wife and children remained in Iran.
Later, in 1958, the family moved to the United States. In 1961, all of
the children became naturalized U.S. citizens. Shortly thereafter, in
1962, Cyrus' mother and father divorced.
Following his parents' divorce, Cyrus, the eldest, took care of his
younger siblings and, as described by his brother, Dariush, "assumed the
role of a friend, advisor, confidante, father." Cyrus Elahi also provided
monetary support to the rest of the family, including his mother and
siblings. He helped to pay for the college education of his siblings
and, while Dariush was attending college at American University in
Washington, D.C., where Cyrus also taught, Dariush lived with his
brother, and Cyrus placed all of his money in a joint checking account
for Dariush's use.
Because Dariush and Cyrus were closest in age, a special bond developed
between them. Prior to going to Paris to join Dr. Ganji, Cyrus Elahi
discussed with Dariush the anguish that he felt. Cyrus informed his
brother that if he joined Dr. Ganji in Paris, this would be the end of
his marriage. Cyrus gave some of his personal effects to his brother for
safekeeping. After Cyrus Elahi joined Dr. Ganji in Paris, Cyrus continued
to remain in contact with his brother and would visit him in the United
State at least twice yearly. Dariush Elahi testified that his brother
"would make it a point to come and visit me" because, at the time,
Dariush was in the midst of his medical training and could not travel to
Paris. Later, when his medical training was completed, Dariush visited
his brother on several occasions in Paris and, shortly before his
assassination, in Germany.
The grief and anguish Dariush experienced as a result of the death of
his brother, Cyrus, which he relived during the hearing on this matter,
was readily apparent during his testimony. He stated, "I believe I was
closer to him than I was to my father at any time in my life." Dariush
Elahi also read into the record a statement written by his younger
brother, who presently lives in California. That statement captures the
strong, emotional feelings that the members of the Elahi family had for
Cyrus Elahi and the exceptional loss they have experienced as a result of
his death. Cyrus' younger brother wrote as follows:
As our parents were divorced when the children were
young, Cyrus being the oldest child, adopted many of
the father's responsibilities to his siblings. He
encouraged all of us to be and do better. He
financially and emotionally supported us. . . . He was
always there for us. . . . These actions, combined
with [his] optimistic nature, even in the face of
sometimes sorry circumstances, carried us forward
individually and as a family. Given all the strengths
and all he did and how he loved us . . . [one] can
only imagine what a wonderful brother, and central hub
to my family including my mother, my father, and
cousin (all of whom grew up together in the same
household), Cyrus was to us My mother . . . was
destroyed by Cyrus' assassination. . . .
Not because he was my brother, but because of who he
was, Cyrus was very special and inspiring. He left a
trail of people who live — whose life he
positively touched, and he had so much more to offer.
Testimony about the mental anguish and grief experienced as a result of
the death of a loved one is sufficient to sustain a claim for solatium.
See Flatow, 999 F. Supp. at 30. In this case, Dariush Elahi testified
about his deep feelings for his brother and the extreme sorrow he and the
Elahi family felt when they learned of their brother's violent death.
Moreover, as noted by Judge Lamberth in Flatow, the depth of a person's
suffering may not be totally manifested on the stand. As noted in
Flatow, "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.'" Flatow, 999 F. Supp. at 31 (quoting 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