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Estate of Hirshfeld v. Islamic Republic of Iran

United States District Court, District of Columbia

August 30, 2018

ESTATE OF YONADAV HIRSHFELD, Plaintiffs,
v.
ISLAMIC REPUBLIC OF IRAN, Defendant.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

         This case arises from the March 6, 2008 death of 18-year old Yonadav Hirshfeld, while he was at the Mercaz Harav Yeshiva in Jerusalem, Israel where he went to school. See Transcript of April 24, 2018 Bench Trial held before the Honorable Colleen Kollar-Kotelly (“Tr.”), ECF No. 38, at 4-5. Plaintiffs-the estate, heirs, and immediate family members of the deceased-allege that Yonadav Hirshfeld (“Yonadav”) was killed by a shooter affiliated with Hamas, a terrorist organization.[1] Proceeding under the Foreign Sovereign Immunities Act (“FSIA”), Plaintiffs allege that Defendant Islamic Republic of Iran (“Iran”) provided material support and resources to Hamas and accordingly should be held liable for Yonadav's death. The Court agrees with Plaintiffs' assessment.

         Defendant has not answered or otherwise participated in this litigation, and therefore, the case proceeded in a default setting, with Plaintiffs filing a [30] Motion for Default Judgment. The Court held a bench trial on April 24, 2018. Upon consideration of the pleadings, the relevant legal authorities, the demeanor of the witnesses, and the record as a whole, the Court has determined that Plaintiffs have established their claims by evidence satisfactory to the Court and accordingly will GRANT default judgment against Defendant. The Court will also consider the issue of appropriate damages for each Plaintiff.

         I. BACKGROUND

         Plaintiffs filed this lawsuit on July 10, 2015. Compl., ECF No. 1. An Amended Complaint was filed on December 8, 2015. Am. Compl., ECF No. 7. Plaintiffs then grappled for years to fulfill the requirements for service on Defendant Iran, due to the lack of diplomatic relations between the United States and Iran. On October 10, 2017, this Court issued a Memorandum Opinion and Order deeming service effective pursuant to 28 U.S.C. Section 1608(a)(4). Memo. Op. and Order, ECF No. 27. Approximately one month later, the Plaintiffs filed a Motion for a Default Judgment; a supporting Memorandum and Proposed Findings of Fact and Conclusions of Law; and sworn declarations by the Plaintiffs, two witnesses to the incident, and two experts. Mot. for Default Judg., ECF No. 30; Memo. in support of Mot. for Default Judg., ECF No. 30-2. Plaintiffs urged this Court to bypass holding a hearing and to find the sworn declarations and proposed findings of fact and conclusions of law sufficient to satisfy the requirement of the FSIA, 28 U.S.C. Section 1608(e), that a claimant must “establish[ ] [his] claim or right [to] relief by evidence that is satisfactory to the court.” Reed v Islamic Republic of Iran, 845 F.Supp.2d 204, 211 (D.D.C. 2012). In its discretion, however, this Court decided to hold a bench trial with live witnesses instead of relying solely on sworn declarations.

         The Court held a bench trial on April 24, 2018, at which time Plaintiffs offered documentary, photographic and video evidence, and they presented: (1) live testimony by Yonadav's parents, one sibling, and two expert witnesses; (2) deposition testimony of two eye witnesses and one additional expert witness; and (3) deposition testimony and/or affidavits by Yonadav's other eleven siblings. This hearing addressed both the Plaintiffs' claims on liability and the resulting damages. After the trial, Plaintiffs submitted Post-Hearing Proposed Findings of Fact and Conclusions of Law, ECF No. 39.

         II. LEGAL STANDARD

         The entry of default judgment is governed by Fed.R.Civ.P. 55. “The determination of whether a default judgment is appropriate is committed to the discretion of the trial court.” Hanley-Wood LLC v. Hanley Wood LLC, 783 F.Supp.2d 147, 150 (D.D.C. 2011) (citing Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980)). Before granting default judgment, the Court must satisfy itself of its jurisdiction, and “[t]he party seeking default judgment has the burden of establishing both subject matter jurisdiction over the claims and personal jurisdiction over the defendants.” Thuneibat v. Syrian Arab Republic, 167 F.Supp.3d 22, 33 (D.D.C. 2016).

         Under the FSIA specifically, this Court cannot enter default judgment against a foreign state “unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e); see Fraenkel v Islamic Republic of Iran, 892 F.3d 348, 353 (D.C. Cir. 2018) (To obtain a default judgment in a Section 1605A action, plaintiffs have to establish a right to relief by providing “evidence satisfactory to the court.”); Roeder v. Islamic Republic of Iran, 333 F.3d 228, 232 (D.C. Cir. 2003) (“The court . . . has an obligation to satisfy itself that plaintiffs have established a right to relief.”). “[T]he FSIA leaves it to the court to determine precisely how much and what kinds of evidence the plaintiff must provide, ” Han Kim v. Democratic People's Republic of Korea, 774 F.3d 1044, 1047 (D.C. Cir. 2014), and “[u]ncontroverted factual allegations that are supported by admissible evidence are taken as true, ” Thuneibat, 167 F.Supp.3d at 33. Section 1608(e) “does not require the court to demand more or different evidence than it would normally receive; . . . indeed, the quantum and quality of evidence that might satisfy a court can be less than that normally required.” Owens v Republic of Sudan, 864 F.3d 751, 785 (D.C. Cir. 2017) (citations omitted), petition for cert. filed, 864 F.3d 751 (Mar. 6, 2018) (No. 17-1406).

         III. FINDINGS OF FACT[2]

         The following Findings of Fact recount a tragic event. They detail the murder of Yonadav Hirshfeld, a young man attending a school in Jerusalem, Israel, where a shooter purposefully targeted Jewish students. As discussed further below, in addition to expert testimony received by the Court, three members of Yonadav's family testified at the Court's bench trial regarding the circumstances surrounding the death of their loved one. The Court appreciates that providing such testimony was extremely difficult for each witness, as it required them to revisit publicly what was likely the most tragic event in their lives. The Court also acknowledges that the current legal proceedings cannot make these family members whole again or even ease their pain.

         The Court's Findings of Fact are based on testimony presented at the bench trial held in this matter on April 24, 2018, as well as evidence submitted prior to and during that trial.[3] The Court's findings fall into three overarching categories: (1) Hamas and Iran's material support for it; (2) how that support resulted in the death of Yonadav Hirshfeld in this case; (3) facts relevant to the determination of the damages which are warranted with regard to Yonadav's parents, siblings, and his Estate.

         A. Iran's Material Support for Hamas

         The facts contained in this section are largely derived from the testimony of two experts with extensive experience studying, writing, and testifying about Iran: Dr. Patrick Clawson, the Director of Research at The Washington Institute for Near East Policy, and Dr. Matthew Levitt, a Senior Fellow and Director of the Stein Program on Counterterrorism and Intelligence at The Washington Institute for Near East Policy. Clawson Tr. 71; Levitt Tr. 81.[4] As a preliminary matter, Hamas may be characterized as a Palestinian political organization that was founded in 1987 with a purpose of carrying out militant attacks against Israel, and which has effectively controlled the Gaza Strip since 2007.[5] Clawson Tr. 74-75; Levitt Tr. 89-90 (“Hamas is a U.S., European, and other-designated terrorist organization, . . . [b]ut it is a movement and it has other components too [political and social welfare] . . . [and] these components are used to leverage its ability to wage, in its terms, jihad, or a holy war[.]”); Am. Compl. ¶¶ 13-14 (“Hamas is listed by the United States Department of State as a Foreign Terrorist Organization (“FTO”)” and has been listed as [such] since 1997.”); Am. Comp. ¶¶ 15-16 (“Hamas is listed as a Specially Designated Global Terrorist (“SDGT”) pursuant to Executive Order 13224” and has been listed like that “since October 31, 2001.”) The relationship between Hamas and Iran became close after 1993 - after the Palestine Liberation Organization reached an agreement with Israel, the Iranians turned to Hamas, a more militant organization, to sponsor terrorist attacks against Israel, and this is when Iran started providing Hamas with material support. Clawson Tr. 74-75.

         The Court finds that Iran provided substantial material support to Hamas leading up to and immediately before and including the date of the Mercaz Harav Yeshiva incident, which occurred on March 6, 2008. Clawson, Tr. 79-80. During this period, Iran lent support to Hamas by providing weaponry, munitions, training, and millions of dollars in financial support. Clawson Tr. 75-79. The fact that Iran provided substantial assistance to Hamas was acknowledged by the United States Department of State in its Country Reports on Terrorism covering the years 2007 and 2008. Clawson Tr. 76. Furthermore, Hamas operatives went to Iran for military training, and this connection between Hamas and Iran was openly acknowledged insofar as the head of Hamas, Khaled Mashal, went to Tehran and met with senior Iranian officials, including the Ayatollah Khamenei. Clawson Tr. 76. In June 2007 and again in February 2008, the Iranian foreign minister met with Khaled Mashal. Clawson Tr. 76.

         The Court finds that Iran provided most of Hamas's financing and resourcing during the period leading up the Mercaz Harav Yeshiva shooting, and this includes material support in the form of funding, weaponry, training, in-kind services, and ideological support. Levitt Tr. 89, 91, 112-113; Clawson Tr. 74 (“Iran has always provided support for Hamas . . . [a]nd during the times when the relationship was close, like that in 2007, 2008, Iran provided Hamas with very substantial material support.”) Millions of dollars were provided by Iran to Hamas, with an uptick in spending in 2003, 2004, and 2007. Levitt Tr. 110-111; Clawson Tr. 77 (“A very respected Arab newspaper published in London called Al-Sharq Al-Awsat . . . said, in May of 2008, that Iran pledged $250 million to Hamas.”) Financial support was not only being provided to the active terrorist wing of Hamas known as Qassam, but also to the rest of Hamas. Levitt Tr. 89-91 (“[T]he evidence of Iranian funding for Hamas is overwhelming, including statements from Iranian officials themselves, statements from Hamas officials themselves” as well as “U.S. officials, again, just days before this attack talking about how the majority of the financing Hamas gets it gets from Iran.”)

         In the days leading up to the March 6, 2008 shooting at the Mercaz Harav Yeshiva, Hamas had threatened attacks. Levitt Tr. 92-94 (“In the period leading up to the attack in question, we created the, kind of, environment of tension leading up to what happened in Jerusalem in March 2008.”). In an attack like the one at the Mercaz Harav Yeshiva, a shooter would likely need training to learn to quickly load and reload a weapon, and how to move around a location and fire at the same time to ensure operational success. Levitt Tr. 107. The type of training provided by Iran encompassed everything from small arms and special capabilities to sniper training, making explosives, handling/reassembling weapons, and kidnapping. Levitt Tr. 105-106. A few days after the March 6, 2008 shooting, Iranian and Hamas officials made statements whereby they noted that 300 Hamas operatives had been sent to Iran for training, and 150 of them were still there. Levitt Tr. 90-91.

         In the immediate aftermath of the attack, the assailant was identified by Israeli authorities as Alaa Abu Dhein. Levitt Tr. 94-95. At that time, there were conflicting claims of responsibility for the attack, and Hamas did not explicitly say whether it took credit for the attack or not, although an official Hamas announcement praised the attack. Levitt Tr. 95-97. There are political and operational/security reasons for a delayed claim of responsibility regarding an attack, particularly in sensitive cases such as this one involving an attack on civilian students in Jerusalem, and these reasons include concerns about preparing for reprisal against Hamas in general and Hamas infrastructure in the Gaza Strip, as well as providing time for persons who aided in the attack to escape. Levitt Tr. 99-101. Ultimately, in December of 2010, on the 23rd anniversary of Hamas's founding, the Hamas prime minister and a head of the Qassam Brigade [military terrorist wing of Hamas] made statements in an official Hamas publication called Path to Glory, whereby Hamas took responsibility for the March 6, 2008 Mercaz Harav Yeshiva attack, and this claim of responsibility has never been rescinded. Levitt Tr. 100-104.

         As primarily relevant to this case, the support described above by Iran was crucial to Hamas. The Court is satisfied by Plaintiffs' showing that Iran's support and sponsorship of Hamas was a well-known matter of Iranian policy, and further, that Iran not only provided most of Hamas's funding over the course of many years, including at the time of the attack at issue, but Iran also assisted Hamas in obtaining weaponry and providing training and other resources. In short, the Court finds that Iran provided material support to Hamas at the time of the incident underlying this case - March 6, 2008.

         B. Hamas, Materially Supported by Iran, Killed Yonadav Hirshfeld

         Next, the Court finds that Hamas, supported by Iran, is responsible for the death of Yonadav Hirshfeld. On March 6, 2008, Yonadav visited his great-grandmother at her house, and he checked in with his mother by telephone around 7:30 p.m. and told her he planned to come home that night after his evening studies at the Mercaz Harav Yeshiva because he wanted to lead some boys on a hike the following day. Elisheva Hirshfeld Tr. 15-16. Later that evening, Yonadav was standing near the entrance to Mercaz Harav talking with his fellow students, Shimon Balzam and Zvi Yehuda Kofman, when the three of them saw a man of Arab appearance carrying a large television box. See Transcript of April 10, 2018 Deposition of Shimon Balzam (“Balzam Depo.”), at 9-10; Transcript of March 19, 2018 Deposition of Zvi Yehuda Kofman (“Kofman Depo.”) at 9-10.[6] When the man was approximately two or three meters away from the boys, he put down the box and took out a Kalashnikov rifle and began firing in the boys' direction. Balzam Depo. 10; Kofman Depo. 12. The boys saw other students running, and they began running away from the man toward the building which houses the classrooms, which was between 14 and 20 meters away. Balzam Depo. 11; Kofman Depo. 13-14. Yonadav was running behind Mr. Kofman, and Mr. Kofman felt Yonadav's blood spraying onto his arm and vaguely remembered Yonadav shouting as Mr. Kofman ran toward the women's section of the building. Kofman Depo. 13-14. Mr. Kofman was not injured, but as he ran, his shirt became covered with blood that must have been Yonadav's because Mr. Balzam started running later and was farther away. Kofman Depo. 14-15, 24-25.

         Yonadav ran to the entrance where there were stairs that went down on the left side, and he made it to the bottom of the stairs before falling, and it was estimated that running to that point would have taken him approximately 15 seconds, as it is 20-25 meters from where they were standing when the shooting began. Kofman Depo. 14, 16-17. When Mr. Balzam entered the building and started going down the stairs, he observed Yonadav lying on the landing between the two stairwells, so he concluded that Yonadav must have run ahead of him, but Mr. Balzam kept going past Yonadav because Mr. Balzam had been shot and was in shock. Balzam Depo. 11-12. Neither Mr. Balzam nor Mr. Kofman could say exactly when Yonadav died, but they both indicated that Yonadav was alive immediately after he was shot because he ran into the building until he reached the stair landing where he fell, which is about 4 meters from where he entered the building. Balzam Depo. 15-16; Kofman Depo. 17-18. Medical help arrived approximately 20 minutes after the attack commenced, and Yonadav's lifeless body was found on the staircase at that time. Balzam Depo. 13-15, 29; Kofman Depo. 15-17.[7]

         C. Yonadav Hirshfeld

         1. Background

         Yonadav was the fifth of thirteen siblings born to Elisheva Hirshfeld (“E. Hirshfeld”) and her husband Zemach Hirshfeld (“Z. Hirshfeld”). E. Hirshfeld Tr. 7, 9, 10. When Yonadav was one year old, his parents, who resided in Israel, registered him as a United States citizen. E. Hirshfeld Tr. 9; see Ex. 2 (Certification of Birth Abroad of a Citizen of the United States). As a child, Yonadav was full of life and mischievous; he liked challenges and was “quick on his feet” during arguments, and he was also friendly and loved to read and play with balls. E. Hirshfeld Tr. 10; Z. Hirshfeld Tr. 40-41. Yonadav's father recalled that Yonadav liked school and enjoyed trips, particularly those that involved a bit of a risk. Z. Hirshfeld Tr. 41. Yonadav always did well in school but it was not until high school that he developed discipline in his studies, particularly his religious studies. E. Hirshfeld Tr. 12-13, Z. Hirshfeld Tr. 41-42. In high school, Yonadav was a talented student who scored high grades, and he liked to learn, write poems and stories, play the recorder, dance and hike. E. Hirshfeld Tr. 12-13. He was also a counselor for a community youth group. E. Hirshfeld Tr. 13-14. Upon completing high school, Yonadav began his studies in 2008 at the Mercaz Harav Yeshiva in Jerusalem, which offered religious studies. E. Hirshfeld Tr. 14- 15. He was 18 years old and in his first year at the Mercaz Harav Yeshiva at the time the shooting incident occurred. Tr. 4; E. Hirshfeld Tr. 15.

         Elisheva Hirshfeld described Yonadav's relationships with his siblings as follows: “[e]verybody thought [Yonadav] liked them the best” and “he loved to play with them, he loved to talk to them, he loved to have fun.” E. Hirshfeld Tr. 10, 12. Yonadav loved to play with and talk to all his siblings as well as playing ball and other games with his nieces and nephews. E. Hirshfeld Tr. 11-12. Yonadav was also very thoughtful about spending time with his grandparents. E. Hirshfeld Tr. 14. In Yonadav's family “everybody felt close” and Yonadav was “very much” liked by his brothers and sisters, but because of the age spread among the siblings, some of whom were adults, they saw each other mostly on the weekends. E. Hirshfeld Tr. 10, 12.

         2. The Incident and Immediate Aftermath

         At approximately 8:30 p.m. on March 6, 2008, Elisheva Hirshfeld received a call from one of Yonadav's friends, inquiring if she had been in touch with Yonadav and informing her that there was a terrorist attack at the Mercaz Harav Yeshiva. E. Hirshfeld Tr. 15-16. Zemach Hirshfeld was volunteering on ambulance duty that evening, when he heard that something had happened at Mercaz Harav Yeshiva, and he returned home to await further news. Z. Hirshfeld Tr. 42. Yonadav's brother Shalom Hirshfeld (“S. Hirshfeld”), who was 14 years old, was on his way back from a visit to the Old City in Jerusalem with some friends, in a car operated by his neighbors, when one of his friends heard about the attack on the radio and conveyed that information to Shalom, who started trembling uncontrollably. S. Hirshfeld Tr. 50. By the time Shalom got home, everyone in the family was very nervous and people began coming to their house to await news of Yonadav. S. Hirshfeld Tr. 52-53.

         That evening, Elisheva Hirshfeld tried to contact Yonadav, who did not have a cell phone, by calling his friends at the Mercaz Harav Yeshiva. E. Hirshfeld Tr. 16-17. At some point, Elisheva Hirshfeld or her son-in-law spoke to someone at the Mercaz Harav Yeshiva office who said that they had seen Yonadav and would tell him to call home. E. Hirshfeld Tr. 16-17; Z. Hirshfeld Tr. 42-43. Hours passed with no phone call from Yonadav as the family grew increasingly more worried; finally, at around 11:45 p.m., their community rabbi came by to inform the family that Yonadav had died. E. Hirshfeld Tr. 18; Z. Hirshfeld Tr. 43.

         In the early morning hours of March 7, 2008, Zemach Hirshfeld had to go to Jerusalem to identify his son's body. E Hirshfeld Tr. 19; Z. Hirshfeld Tr. 44. The atmosphere in the house later that day was “very, very heavy” and “[e]verybody was confused, [with] very mixed feelings” and “there was no room for anything else but the feelings and thoughts about what ha[d] happened.” S. Hirshfeld Tr. 54, 56. Yonadav's first funeral service was combined with a service for the other 7 boys who died because of the shooting, and there was also a second, smaller, private service at Kochar Hashachar, where he was buried. E. Hirshfeld Tr. 20-21; Z. Hirshfeld Tr. 44-45. Yonadav's death certificate lists the “reason for death” as “terrorist attack.” See Ex. 3 (Death Certificate).

         3. Testimony of Family Members

         a. Elisheva Hirshfeld, Yonadav's mother[8]

         Elisheva Hirshfeld's description of the events of March 6, 2008 follows. When Elisheva Hirshfeld (“Elisheva”) found out that there was an attack in progress at the Mercaz Harav Yeshiva and she could not get in contact with Yonadav, she began to have a feeling of dread and imagined Yonadav hiding in a closet and being afraid to come out.[9] E. Hirshfeld Tr. 16-17. Elisheva suggested to her husband that they drive to Jerusalem and go look for Yonadav, but her husband told her that the roads were closed anyhow. E. Hirshfeld Tr. 17. Her first thought upon learning that Yonadav was dead was disbelief because “[h]e was such a special boy, [this] can't happen to him, ” and later she felt “dried out and empty.” E. Hirshfeld Tr. 18. Discussing the funeral, Elisheva noted that the first service was for all 8 boys that had been killed at the Mercaz Harav Yeshiva and it was “something very big, ” and broadcast over television and the radio. E. Hirshfeld Tr. 20. The second service was a private ceremony for Yonadav, but it drew a crowd of hundreds of people. E. Hirshfeld Tr. 21. Elisheva stated that “[i]t was like nothing real, ” and her family members were “crying and hysterical.” Id.

         Elisheva and her husband attended a support group comprised of other families dealing with similar attacks, for a period of two years after the incident, which was helpful, and several of her children went to a psychologist, and some went to art therapy for a month or two. E. Hirshfeld Tr. 21-23. The family has memorials every year to remember Yonadav - one sponsored by the Mercaz Harav Yeshiva and a more private memorial at the cemetery - and it makes her feel good that Yonadav is not forgotten. E. Hirshfeld Tr. 23.

         Elisheva testified that she and her husband opened an estate for Yonadav in New York State, with Dr. Michael Engleberg as the administrator. E. Hirshfeld Tr. 23. See Ex. 4 (2/5/2016 Decree granting Limited Letters of Administration issued by New York County Surrogate's Court).

         b. Zemach Hirshfeld, Yonadav's father[10]

         Zemach Hirshfeld's recollection of the events of March 6, 2008 follows. Zemach Hirshfeld (“Zemach”) is a circumciser by trade but he also volunteers with an ambulance service. Z. Hirshfeld Tr. 39, 42. While on an ambulance call on March 6, 2008, he heard a communication regarding something happening at the Mercaz Harav Yeshiva and the news that many people had been injured. Z. Hirshfeld Tr. 42. Zemach headed back home and waited with his wife and family; he remembers calling the Mercaz Harav Yeshiva and hoping to hear from Yonadav and further, that people were gathering at their family home. Z. Hirshfeld Tr. 42-43. Zemach assumed that Yonadav was safe until the rabbi and social worker arrived, and then he understood that Yonadav was dead. Z. Hirshfeld Tr. 43. Zemach was asked to come to identify the body, and he said that while he seemed strong because he was focusing on what he needed to do, he later had a feeling like he “could not contain or grasp what [was] happening.” Z. Hirshfeld Tr. 43-44. He described his feeling at the funeral as follows:

In the first funeral I had no function or position, just to be - - to fe[el] torn. In the second funeral, I was able to speak for - - or, to give the - - give the - - I cried, I yelled continuously. I prepared ahead of time the headlines of what I was going to say. I felt like I had help from the All Mighty to do it in a good way.

Z. Hirshfeld Tr. 45.

         Zemach testified that he had a strong faith that allowed him to have sorrow without frustration and helped him get through the difficulties of dealing with Yonadav's death. Id. Zemach participates in the annual memorials for Yonadav, as do some members of the community, and every year when Zemach speaks at the memorials, he tries to take “Yonadav's stories or poems [ ] to build what [he] ha[s] to say around [them].” Z. Hirshfeld Tr. 46. Zemach misses the “future that will never be” in terms of not seeing who Yonadav would have married or knowing Yonadav's children or “how would be his future.” Z. Hirshfeld Tr. 47.

         c. Shalom Hirshfeld, Yonadav's brother[11]

         Shalom Hirshfeld (“Shalom”) testified live before the Court at the April 24, 2018 bench trial. At the time of Yonadav's death, Shalom was 14 years old. S. Hirshfeld Tr. 54. On the evening of the incident, Shalom was traveling back from a visit to the old city in Jerusalem with his friends and some neighbors when he heard a report on the radio that there was an attack at the Mercaz Harav Yeshiva. S. Hirshfeld Tr. 50, 52. Shalom started trembling uncontrollably as he contemplated whether Yonadav was safe. S. Hirschfeld Tr. 50-51. The neighbors operating the car had a son who also studied at the Mercaz Harav Yeshiva, and the mother was able to contact her son, but she was crying in the car, which added to the “heavy and intense” atmosphere in the car. S. Hirshfeld Tr. 52. When Shalom got home, the atmosphere was “very, very stressed” for several hours. S. Hirshfeld Tr. 52-53. Shalom sat around and drank water to try to deal with his stress, while more and more people began arriving at his family's home. S. Hirshfeld Tr. 53. Finally, the rabbi arrived and Shalom overheard the rabbi's voice along with a loud cry from his mother, and his father asking for verification, and that's when he knew Yonadav had been killed. S. Hirshfeld Tr. 53-54. Shalom slept that night and when he woke up, the “atmosphere at home was very, very heavy.” S. Hirshfeld Tr. 54, Shalom testified that Yonadav's death did not seem real until he got off the bus going to the place where Yonadav's funeral service was being held and he saw the death announcement with Yonadav's name on it, and then he started to cry. S. Hirshfeld Tr. 55. The funeral service was crowded with people, and many people from inside and outside of the community came to the family's home to show their respect. S. Hirshfeld Tr. 55. For a period after Yonadav's death, Shalom felt like there “was no room for anything else but the feelings and thoughts about what had happened” and everyone in the family “was confused, [with] very mixed feelings” and family members were laughing and crying over stories about Yonadav. S. Hirshfeld Tr. 56.

         Shalom was “very, very close” to Yonadav - he and Yonadav and their brother Elyashiv shared a room. S. Hirshfeld Tr. 54, 58. He and Yonadav had an arrangement whereby they would bike over together or take turns biking over to clean the area around the synagogue. S. Hirshfeld Tr. 58. Shalom looked up to Yonadav as a “perfect person” and recollected his “great sense of humor” and “well-developed imagination” which Yonadav used to make up stories to humor his siblings. S. Hirshfeld Tr. 58-59. Shalom also recalled that Yonadav was a serious student, especially when it came to religious studies. S. Hirshfeld Tr. 59.

         d. Zimrat Bracha Zuckerman (nee Hirshfeld), Yonadav's sister

         Zimrat Bracha Zuckerman (“Zimrat”) is the oldest sibling in the Hirshfeld family, and she was 25 years old when Yonadav died. See Transcript of Zimrat Bracha (Hirshfeld) Zuckerman's April 10, 2018 Deposition (“Zimrat Depo.”), at 7. Zimrat thinks that she heard about the terrorist attack at Mercaz Harav Yeshiva on an Israeli news website. Zimrat Depo. 8. She contacted her parents, who said that they could not reach Yonadav, but someone had seen him, and Zimrat waited for further information. Zimrat Depo. 9. Zimrat's brother Yedidya later called Zimrat's husband, and from the exchange on the telephone, that's when she realized that Yonadav had been killed even though no one explicitly said so. Zimrat Depo. 10 -11. Zimrat and her husband drove to her family's house, and it was a “very difficult atmosphere” in the car. Zimrat Depo. 11. There were many people at the house and Zimrat stayed there that night with her parents. Zimrat Depo. 12. Zimrat described the Shiva as a “very funny week” when the family kept talking about Yonadav and his jokes and pranks. Zimrat Tr. 14. She indicated that she “[didn't] think [she] had a more special relationship [with Yonadav] than any of the other siblings” although she did “run after him when he was very naughty, when he was younger” and she babysat for him. Zimrat Depo. 14-15. When Yonadav was older, he would show her poems and stories he wrote, and she thought they were funny. Zimrat Depo. 15. To this day, she thinks of Yonadav and the kind of life he might have and the jokes he would have shared with the family, and she remembers the funny stories he would tell during family car rides. Zimrat Depo. 15-16. Zimrat stated that “[b]eyond the loss and the sorrow and the pain, ” Yonadav's death affected her health insofar as she was pregnant at the time he was murdered, and she developed diabetes. Zimrat Depo. 16. Zimrat never sought any counseling after Yonadav's death. Zimrat Depo. 16-17.

         e. Haya Hamital Novik (nee Hirshfeld), Yonadav's sister

         Haya Hamital Novik (“Haya”) was 24 years old when Yonadav was killed. See Transcript of April 10, 2018 Deposition of Haya Hamital (Hirshfeld) Novik (“Haya Depo.”), at 7. She learned about the attack at the Mercaz Harav Yeshiva from a neighbor who told her. Haya Depo. 8. Haya called her parents, and they did not have information, so she started praying for Yonadav and others at the Mercaz Harav Yeshiva. Haya Depo. 12. Haya realized that Yonadav had been killed when her husband's rabbi asked to come and see them, and she “couldn't quite comprehend what was happening.” Haya Depo. 13.

         Haya described her relationship with Yonadav as her being on “good terms with all [her] siblings” in contrast to having “an unusually special relationship with him.” Haya Depo. 9. She remembered Yonadav playing the recorder with his friend and always having a joke to tell when he answered the phone. Haya Depo. 11. She described Yonadav as “very popular” in their family. Id. Haya thinks about Yonadav on the anniversary of his death and every time there is a family wedding or celebration. Haya Depo. 13-14. Haya speculates that her brother would have been a rabbi considering his “talents and capabilities.” Haya Depo. 17. Haya talked about going to the annual memorials for Yonadav and visiting his gravesite. Haya Depo. 14. Haya's husband has started a non-profit religious organization called “Close to Me” in Yonadav's memory, and its purpose is “to increase the study of Torah among Jewish people.” Haya Depo. 17.

         f. Yedidya Hirshfeld, Yonadav's brother

         Yedidya Hirshfeld (“Yedidya”) was 22 years old when Yonadav was killed. See Transcript of April 10, 2018 Deposition of Yedidya Hirshfeld (“Yedidya Depo.”), at 6. On the evening that Yonadav was killed, Yedidya was at the Mitzpe Yericho Yeshiva, where he was a student, when he heard about the attack at the Mercaz Harav Yeshiva. Yedidya Depo. 8. Yedidya called home and was told that Yonadav had been seen outside the library but that he had not been heard from, so Yedidya should check back in a half hour. Yedidya Depo. 8-9. Yedidya called repeatedly, and a neighbor who answered the phone told him to come home, so he understood that Yonadav had been killed, and he then informed his brother and sister who lived in the same town and were unaware of what had happened. Yedidya Depo. 9-10.

         Yedidya described his relationship with Yonadav as good; they were “always very, very happy to meet one another, to be together[, ] [a]nd [they] had [their] family jokes that [they] shared[, ]” and they studied the Mishna (basis for Jewish law) together. Yedidya Depo. 10-11. Yedidya was very impressed with Yonadav's knowledge of the Mishna, and he indicated that Yonadav studied seriously and was unusually talented in his knowledge of the Mishna. Yedidya Depo. 11-14. Yedidya misses Yonadav's sense of humor, and he noted that Yonadav was “dominant” within the family in a positive way because he was pleasant and made people laugh, and he was interesting. Yedidya Depo. 13 -14. Yedidya especially misses Yonadav at family celebrations, and he finds it difficult to talk about Yonadav. Yedidya Depo. 14 -15.

         g. Hana Shandorfy (nee Hirshfeld), Yonadav's sister

         Hana Shandorfy (“Hana”) was 20 years old when Yonadav died. See Declaration of Hana Shandorfy (“Hana Decl.”), at ¶3. Because of their proximity in age, she and Yonadav were very close and had a strong connection; they used to help each other with schoolwork and they were both camp counselors. Hana Decl. ¶¶ 4, 6. Hana described Yonadav as very happy, always laughing, helpful and giving to others, and energetic. Hana Decl. ¶ 5. Hana and Yonadav were confidants who had many conversations, both about serious subjects and day-to-day matters. Hana Decl. ¶ 6. They enjoyed each other's company and had a lot in common. Hana Decl. ¶¶ 4, 6. Hana's mother testified that Hana and Yonadav were “soulmate[s].” E. Hirshfeld Tr. 30.

         On the day of the terrorist attack, Hana was at home with her husband and child; when she heard from her brother-in-law about the terrorist attack at the Mercaz Harav Yeshiva, she called her parents. Hana Decl. ¶ 7. Hana's father asked if Hana's husband could try to obtain information about the shooting since he was also a student at the Mercaz Harav Yeshiva and knew a lot of people, and so Hana's husband made many calls to the Mercaz Harav Yeshiva to get reports of where Yonadav was last seen. Id. Hana was worried, and she felt like she was “hanging between hope and despair” and she started to get stomach pains and worried she was going into early labor. Id. When she heard that Yonadav had been killed, Hana was in shock and “couldn't digest it.” Hana Decl. ¶ 8. Even today, Hana still feels Yonadav's loss and she misses him, dreams about him, and wishes her children could know him. Hana Decl. ¶ 9. Hana indicated that “[a]t every family event there is a strong feeling of something lacking, because Yonadav isn't with us” and she laments that she did not get to see him get married and raise a family. Hana Decl. ¶ 10. Hana's mother testified that Hana was traumatized by Yonadav's death and she was very sad and couldn't accept that someone “so full of life” was gone. E. Hirshfeld Tr. 29. Hana attends the memorials for Yonadav, and she talks to her children about Yonadav. E. Hirshfeld Tr. 30.

         h. David Yinon Hirshfeld, Yonadav's brother

         David Hirshfeld (“David“) was 17 years old when Yonadav was killed. See Transcript of April 10, 2018 Deposition of David Yinon Hirshfeld (“David Depo.”), at 7. He was in the classroom at the Mitzpe Yericho Yeshiva when he heard about the terror attack at the Mercaz Harav Yeshiva, and he started to worry about his brother Yonadav and his bother-in-law, who also studied there. David Depo. 8. David and his classmates gathered in the hall to recite prayers and David remembers that he was crying for hours because he was so worried. David Depo. 9. Someone said that Yonadav had been seen and that he was okay, so David went to sleep in his dormitory, but it was a “sorrowful atmosphere and a lot of crying.” David Depo. 10. David was lying in bed when his brother Yedidya arrived and said they needed to go home. Id. They went to Hana's house and David overheard his brother-in-law talking about Yonadav in the past tense and knew for certain he had been killed, although he felt like he “basically knew it the whole time.” David Depo. 10. When he got home, “the dam burst” and they “all burst into tears [and] were crying the whole night, basically all of us together.” David Depo. 11. David slept for an hour or two, and he woke up crying. Id. At the funeral, he was surrounded by friends, and he alternated between weeping and talking about Yonadav. David Depo. 12. Afterward, David could not eat, and he had a hard time returning to the Mercaz Harav Yeshiva. Id. He felt “disconnected” from what was going on, and while he did not seek counseling officially, his friends helped him after Yonadav's death. David Depo. 13-14.

         David had difficulty putting his relationship with Yonadav into words, saying that it went ”beyond just a relationship with brothers, ” and it was more of a friendship where David would wait expectantly for Yonadav to return from the Mercaz Harav Yeshiva. David Depo. 14. David described Yonadav as “fun to be with” and “full of life” and “full of humor and joy.” Id. He noted that he and Yonadav did “silly things together” and Yonadav was a “wonderful person to be with.” David Depo. 14-15. David and Yonadav went on hikes and talked and laughed together. David Depo. 15. They had a very close relationship - a strong bond - and they enjoyed spending time together. David Depo. 15-16. David misses seeing Yonadav at family events and he cried at his own wedding when someone mentioned that Yonadav was not there. David Depo. 16. Even today, David still experiences a sense of sorrow, and he feels like he is a more sensitive, empathetic person after the loss of Yonadav. David Depo. 17.

         i. Aviya Freedman (nee Hirshfeld), Yonadav's sister

         Aviya Freedman (“Aviya”) was 15 years old when Yonadav died. See Declaration of Aviya Freedman (“Aviya Decl.”), ¶ 3. Aviya recalled spending many evenings filled with fun and laughter with Yonadav, who was “always telling jokes and speaking funny nonsense, ” Aviya Decl. ¶ 4. She characterized Yonadav as “witty and happy” but she also remembered him studying the Mishna late at night. Aviya Decl. ¶ 4-5. Yonadav was generous to his friends and family and he treated them well. Aviya Decl. ¶¶ ...


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