United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE
Thomas Pescatore, Jr., was working as a geologist in the
Republic of Colombia in 1996 when he was kidnapped, held for
ransom, killed, and eviscerated in an effort to take
“life like” photos to support ransom demands. The
perpetrators were members of the Fuerzas Armadas
Revolucionarias de Colombia (FARC), a group since found to be
terrorists by the United States Department of State. In 2008,
his family sued FARC and Juvenal Ovidio Ricardo Palmera
Pineda, also known as Simon Trinidad, under the Antiterrorism
Act. After this Court found Defendants liable for Mr.
Pescatore's death, this case trailed a related case in
Florida for years; that case has now settled. Returning to the
District of Columbia, Mr. Pescatore's family seeks $240
million in damages. Based on the evidence provided, the Court
will grant their motion in part and award lesser sums.
liability in this case has already been established through
default. See Order [Dkt. 17]. Therefore, the facts
of this case will be recounted only briefly here.
December 1996, decedent Frank Pescatore was working as a
geologist at the Cerrejon coal complex in La Guajira
Department, Colombia. Compl. [Dkt. 1] ¶ 28. On or about
December 19, 1996, members of FARC's Caribbean Bloc under
the command and control of Defendant Palmera Pineda attacked
the coal complex. While none of the Colombians at the site
was injured, FARC captured Mr. Pescatore and took him into
the Colombian jungle. Id. ¶ 29.
then attempted to obtain a ransom for Mr. Pescatore.
Id. ¶ 31. When, in February 1997, he attempted
to escape, he was shot dead. Id. ¶ 32. To
continue its ransom demands, FARC had his body eviscerated
and makeup applied to have the body appear alive.
Id. ¶¶ 32-34. Two months later, when Mr.
Pescatore's ransom had not been paid, FARC dumped his
body, which was then discovered on or about February 23,
1997. Id. ¶ 35.
are members of the Pescatore family, including: Olivia
Pescatore, Mr. Pescatore's surviving spouse; Josh
Pescatore, Jada Pescatore, Jarrod Pescatore, and Jordan
Pescatore, his children; the Estate of Frank Pescatore, Sr.,
his father; Carol Pescatore Harpster, his sister; and his
brothers Richard and John Pescatore.
are FARC and Mr. Pineda, a senior FARC commander who was
partially responsible for Mr. Pescatore's kidnapping and
murder. See Second Decl. of Olivia Pescatore [Dkt.
40-8] ¶ 5; Letter from Christopher Carbonneau, Special
Agent, Federal Bureau of Investigation, to Olivia Pescatore
(Apr. 21, 2004) [Dkt.40-8]. According to the U.S. Department
of State, as of September 1, 2017, FARC had agreed to a peace
accord, disarmed, and reincorporated as a political party.
See U.S. Dep't of State, Colombia 2017 Human
Rights Report 14-15 (2017) available at
Mr. Pineda is currently serving out a sixty-year prison term
at the United States Penitentiary, Administrative Maximum
Facility in Florence, Colorado. See Mem. Op. [Dkt.
16] at 4. Neither Defendant has appeared before this Court.
default judgment under Fed. R. Civ. P 55 establishes the
defaulting party's liability for every well-pled
allegation in the complaint. Int'l Painters &
Allied Trades Indus. Pension Fund v. Newburgh Glass and
Glazing, LLC, 468 F.Supp.2d 215, 217 (D.D.C. 2007)
(citing Adkins v. Teseo, 180 F.Supp.2d 15, 17
(D.D.C. 2001)). However, it does not automatically establish
liability in the amount claimed by the plaintiff.
Id. Rather, “unless the amount of damages is
certain, the court is required to make an independent
determination of the sum to be awarded.”
Adkins, 180 F.Supp.2d at 17 (citing SEC v. Mgmt.
Dynamics, Inc., 515 F.2d 814 (2d Cir. 1975)). The court
has considerable latitude in determining the amount of
damages. Fanning v. Wegco, Inc., 5 F.Supp.3d 1, 4
(D.D.C. 2013) (citing Jones v. Winnepesaukee Realty,
990 F.2d 1, 4 (1st Cir. 1993)). The court may determine the
appropriate sum by hearing, see Fed. R. Civ. P.
55(b)(2), but it may also rely on detailed affidavits or
other documentary evidence. Fanning, 5 F.Supp.3d at
6. Ultimately, what matters is that the court “ensures
that there is a basis for the damages specified in the
default judgment.” Id. at 4.
family of Mr. Pescatore now seeks “damages from the
Defendants solely for their emotional loses.” Pls.'
Mot. for Default J. Regarding Damages (Dmg. Mot.) [Dkt. 40]
at 7. Plaintiffs suggest their own figures for damages:
Olivia Pescatore seeks $15 million in damages for her loss.
Cf. Estate of Bayani v. Islamic Republic of Iran,
530 F.Supp.2d 40, 46 (D.D.C. 2007) (awarding $30 million to
widow of American held captive for 2 years before his brutal
murder). She argues that a large award is justified because
“larger awards are typically reserved for cases with
aggravating circumstances that appreciably worsen the
surviving spouse's pain and suffering, such as cases
involving torture or kidnapping, ” Greenbaum v.
Islamic Republic of Iran, 451 F.Supp.2d 90, 108 (D.D.C.
2006), and notes that here FARC not only kidnapped and killed
her husband but also eviscerated his body in order to prolong
ransom negotiations with his family.
Mr. Pescatore's children seeks $10 million for their
loss. Cf. Higgins v. Islamic Republic of Iran, No.
1:00-CV-00377, 2000 WL 33674311 at *8 (D.D.C. Sept. 21, 2000)
(awarding $12 million to the daughter of a U.S. Marine held
captive and executed by Hezbollah). They also argue that
“it follows that this amount should also be awarded to
his father because parents and children are generally awarded
the same amounts.” Dmg. Mot. at 10-11 (citing
Peterson v. Islamic Republic of Iran, 515 F.Supp.2d
24, 51 (D.D.C. 2007)). “Finally, an award of $5 million
to Mr. Pescatore's siblings is warranted because the
siblings of a terrorist attack victim generally receive half
the amount awarded to parents and children.”
addition, Plaintiffs ask that their awards be trebled
pursuant to 18 U.S.C. § 2333(a) (“Any national of
the United States injured in his or her person . . . by
reason of an act of international terrorism, or his or her
estate, survivors, or heirs, may sue therefor in any
appropriate district court of the United States and shall
recover threefold the damages he or she sustains and the cost
of the suit, including attorney's fees.”).
Documentation of Loss
support of the numbers they put forward, each Plaintiff
submitted both personal declarations and an expert report
from Dr. Rael Strous, a board-certified psychiatrist and
professor. Dr. Strous is a medical doctor who
specializes in psychiatry and is employed as the Deputy
Hospital Director and Director of the Ambulatory Service of
the Be'er Yaakov Mental Health Center located in
Be'er Yaakov, Israel. See Expert Report of Dr.
Rael Strous Re: Olivia Pescatore (Olivia P. Report) [Dkt.
40-18] ¶ 1. He also serves as a Full Professor in the
Department of Psychiatry at the Sackler Faculty of Medicine
at the Tel Aviv University and maintains a small private
practice. Id. Dr. Strous has repeatedly been
accepted as an expert in this District and others in the
United States, as well as in Israel. Id. ¶ 5.
Strous' evaluations of the Pescatore family members were
“based on clinical interview[s] and formal psychiatric
evaluation[s], as well as [his] review of the relevant
affidavit and deposition materials in this case.”
See, e.g., id. at 1. Because Dr. Strous
concluded that each Plaintiff suffers from essentially
identical conditions, it is helpful to describe those
Strous identified Persistent Complex Bereavement Disorder as
a “description of the normal mourning process that
leads to chronic or ongoing mourning” experienced by
“people who are unable to get over their grief despite
the passage of time.” Id. ¶ 9.
Post-Traumatic Stress Disorder (PTSD) is a “condition
which develops from having been exposed to, or witnessing,
life-threatening events” and may also be experienced
indirectly “by hearing of a relative or close friend .
. . [whose] death must [have been] accidental or
violent.” Id. ¶ 10. Symptoms of PTSD
“include avoidance, re-experiencing the event, and
hyper-vigilance, . . . [which is] a cluster of symptoms that
includes exaggerated startle response, inability to fall
asleep and inability to stay asleep.” Id.
Among other issues, PTSD can lead to “memory problems
and a distorted sense of blame.” Id. ¶
11. As a result, “educational and employment prospects
for PTSD victims are often lowered.” Id.
¶ 12. Finally, Dr. Strous described Persistent
Depressive Disorder, or Dysthymic Disorder, as a
“chronic (long-lasting), mild form of depression”
that “can last for years and . . . can be just as
debilitating as a more acute episode of major depression
(clinical depression), even leading to thoughts of, or
attempts at, suicide.” Id. ¶ 15.
on these submissions and with regards to each of the
Plaintiffs, the Court notes the following facts:
Pescatore “nearly had a complete nervous
breakdown” both in 1996, when she learned that Mr.
Pescatore had been kidnapped, and again in 2005 when she
learned that he had been eviscerated by FARC to prolong
hostage negotiations. First Decl. of Olivia Pescatore [Dkt.
40-3] ¶ 25. Indeed, during and immediately after his
kidnapping, Mrs. Pescatore's mother had to stay with the
family for seven months because Mrs. Pescatore “could
barely get out of bed and could no longer care for [her]
children.” Id. ¶ 20. As of 2016 she still
found the subject difficult to talk about, and continued to
suffer from high blood pressure, depression, panic attacks,
and anxiety, all related to her husband's death. Olivia
P. Report at 2, 6.
2016, Dr. Strous determined that “Olivia Pescatore
displays some form of Persistent Complex Bereavement
Disorder, Post-traumatic Stress Disorder and Persistent
Depressive Disorder either currently or in the past as a
result of her husband being kidnapped and later killed”
and “many of her symptoms may even be permanent.”
Id. ¶¶ 16-17. This determination was based