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Cohen v. Islamic Republic of Iran

United States District Court, District of Columbia

July 27, 2017

ORA COHEN, et al., Plaintiffs,
v.
ISLAMIC REPUBLIC OF IRAN, et al., Defendants.

          MEMORANDUM OPINION

          CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE.

         Almost fourteen years ago, a Hamas operative boarded a bus travelling through Jerusalem and detonated a bomb strapped to his body. Ora Cohen, her then-husband Shalom, and their five children-Meirav, Shira, Daniel, Orly and Elchanan-were passengers on the bus and all were injured in the blast. The Cohen family, along with Ora's parents and two sisters, brought an action against the Islamic Republic of Iran (“Iran”) and two of its instrumentalities, the Iranian Revolutionary Guard Corps and the Iranian Ministry of Information and Security, under the state-sponsor-of-terrorism exception to the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1605A(1)(a). The Court entered a default judgment against Defendants earlier this year, finding Iran to be liable for the Cohen's injuries based on its documented funding and support of Hamas's terrorist activities. March 16, 2017 Order, ECF No. 43. In the same Order, the Court appointed Deborah Greenspan as a Special Master and requested that she prepare “a report presenting her factual findings and recommendations on the appropriate amount of damages to be awarded to each plaintiff.” Id. Relying on depositions, medical records, and other documentary evidence presented by Plaintiffs, Special Master Greenspan has produced a comprehensive report detailing the facts relevant to the damages award and analyzing those facts under the legal framework established in prior state-sponsor-of-terrorism cases. See Report and Recommendation of Special Master (“R. & R.”) at 27, ECF No. 44. After reviewing Ms. Greenspan's well-substantiated report, the Court adopts its factual findings and recommendations, and resolves a handful of open questions that it addresses below. Having examined all aspects of the damages calculation, the Court will award Plaintiffs a total judgment of $208, 950, 000.

         I. Damages[1]

         “[T]hose who survived an attack may recover damages for their pain and suffering[;] . . . family members can recover solatium for their emotional injury; and all plaintiffs can recover punitive damages.” Wultz v. Islamic Republic of Iran, 864 F.Supp.2d 24, 37 (D.D.C. 2012) (citing Valore v. Islamic Republic of Iran, 700 F.Supp.2d 52, 82-83 (D.D.C. 2010)). To establish damages, Plaintiffs “must prove the amount of the damages by a reasonable estimate consistent with this Circuit's application of the American rule on damages.” Wultz, 864 F.Supp.2d at 37 (internal quotation marks and citation omitted). “In determining the reasonable estimate, courts may look to expert testimony and prior awards for comparable injury.” Braun v. Islamic Republic of Iran, 2017 WL 79937, at *9 (D.D.C. Jan. 9, 2017) (internal citations omitted).

         A. Compensatory Damages

         1. Pain and Suffering

         At the outset, the Court acknowledges that assessing awards for pain and suffering is an imperfect science as no amount of money can properly compensate a victim for the suffering he or she endures during and after an attack. In the interest of fairness, however, courts strive to maintain consistency of awards as between the specific plaintiffs and among plaintiffs in comparable situations. With that goal in mind, the District Court for the District of Columbia has “adopted a general procedure for the calculation of damages that begins with the baseline assumption that persons suffering substantial injuries in terrorist attacks are entitled to $5 million in compensatory damages.” Wultz, 864 F.Supp.2d at 37-38 (citing Peterson v. Islamic Republic of Iran, 515 F.Supp.2d 25, 54 (D.D.C. 2007), abrogated on other grounds by Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 15 (D.C. Cir. 2015)). That baseline amount is then adjusted based on the nature of the injury, the pain associated with it, the duration of the hospitalization, and the degree and length of impairment. See Peterson, 515 F.Supp.2d at 52 n.26. A downward deviation to $2-3 million, for instance, is appropriate “where victims suffered only minor shrapnel injuries or minor injury from small-arms fire.” Wultz, 864 F.Supp.2d at 38. A more permanent injury or impairment, by contrast, might warrant a larger award of $7-12 million. Id. The Cohens have offered deposition testimony and medical records in support of their damage claims, which courts may rely upon when determining their awards. See Bluth v. Islamic Republic of Iran, 203 F.Supp.3d 1, 23 (D.D.C. 2016).

         Applying this framework, Special Master Greenspan reviewed Ora Cohen and her five children's claims for pain and suffering, analyzed the evidence they submitted, and compared their physical injuries and emotional distress to those suffered by plaintiffs in other cases. Finding that her analysis is justified by the supporting documentation and fits squarely within prior case law, the Court accepts her recommendations on pain and suffering and will briefly discuss the individual determinations.

         It is indisputable that Ora Cohen has been the lifeblood of the Cohen family for the past thirteen years: she has shuttled her five children to appointments with doctors and therapists, has sat with them in hospitals, and has cared for them as they recovered from successive rounds of surgeries. She has labored almost singlehandedly, consistently placing her own recovery behind that of her children. In the bus bombing, she “suffered a broken nose, and injury to her neck, and significant damage to her eardrum.” R. & R. at 27. In its immediate aftermath, she spent hours waiting for news of her family, including whether they had survived the attack. And in the year following, she was diagnosed with PTSD and depression. Id. Her physical injuries, while significant, are not as severe as that of other FSIA plaintiffs, but the extent of her emotional injury is unique and “the fact that she deferred her own treatment to assure proper care for her children warrants the ‘baseline' award of $5 million.” Id. at 28.

         The Cohen's daughter Meirav is likewise entitled to the baseline award of $5 million because injuries to her ears, which are frequently infected, continue to impact her daily life. She was hospitalized for nine days after the attack and still bears daily reminders of it in the form of scars on her face, legs, and arms. See id. at 30-31. Meirav's sister Shira suffered the most severe and permanent physical injuries within the family. Her eye was badly injured in the attack, resulting in permanent disfigurement and loss of vision. The psychological impact of such an injury on a young girl, the ongoing need for treatment, and the permanence of the impairment warrant an upward deviation of $2 million for a total award of $7 million. See Bluth, 203 F.Supp.3d at 24 (awarding $6 million for a severe flesh wound, emotional distress, and permanent hearing loss).

         As to the remaining Cohen children, the Court will award $3 million in pain and suffering to both Orly and Daniel, and $750, 000 to Elchanan. Orly suffered shrapnel wounds in the attack, and while she still suffers from some hearing loss, her physical injuries are less severe than her sisters, mother, and prior plaintiffs, warranting a downward departure. See Wamai v. Republic of Sudan, 60 F.Supp.3d 84, 92 (D.D.C. 2014) (awarding $2.5 million for plaintiffs who suffered broken bones, head trauma, and some hearing impairment). Daniel, like Orly, suffered from shrapnel wounds and has ongoing issues with his hearing, such as ringing in his ears, and is similarly entitled to a $3 million pain and suffering award. Finally, Elchanan, who was a few months old at the time of the attack, has no present memories of it apart from what he has been told by his family. But he has suffered nonetheless: his hip was broken by the blast and he spent hours buried under bodies waiting to be rescued. See R. & R. 32. His lack of memory does not preclude him from recovering for the pain and suffering he endured. See Braun, 2017 WL 79937, at *8 (awarding damages to parents of an infant who was injured in a terrorist attack and died as a result of her injuries).

         2. Solatium

         In its default judgment opinion, the Court found that Defendants were liable to Ora Cohen, Shalom Cohen, their children, and Ora's immediate family in the United States on their solatium claims. See Cohen, 2017 WL 818208, at *7-8. Each Plaintiff here brings multiple solatium claims, seeking to recover “additive” damages for every Cohen family member injured in the attack, for an award totaling $60 million. The Court reserved judgment, however, “on the number of solatium claims that can be sustained by a family member who witnesses every other member of her family experience an injury” and awaited the special master's report before ruling definitively on the issue. Cohen, 2017 WL 818208, n.8. While the report acknowledges the unique circumstances of having a whole family injured in an attack, it ultimately rejects the “additive” damages approach because it results in awards far higher than individual awards for pain and suffering and is inconsistent with solatium damages in other cases. See R. & R. 34-35 (citing Wamai, 60 F.Supp.3d at 91). Instead, Special Master Greenspan recommends an “enhancement” approach, where the Court starts with a baseline amount and then enhances it by a specific percentage for additional family members injured in the attack. See Wultz, 864 F.Supp.2d at 39-40. The baseline amount would be determined by the victim with whom the Plaintiff has the closest relationship, i.e. the largest individual solatium award, and would follow the framework set forth in prior cases:

For relatives of victims physically injured by terrorist attacks, . . . awards are valued at half of the awards to family members of the deceased-$4 million, $2.5 million and $1.25 million to spouses, parents, and siblings, respectively, and $1.5 million for children. Courts similarly have held that relatives of surviving victims presenting with emotional trauma and no physical injury receive amounts proportionally less than those with physical ...

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