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Goldstein v. Islamic Republic of Iran

United States District Court, District of Columbia

April 19, 2019

SHALOM GOLDSTEIN, et al., Plaintiffs,
ISLAMIC REPUBLIC OF IRAN, et al., Defendant.



         Plaintiff Shalom Goldstein was one of some 130 people who were either killed or injured in a terrorist bus bombing in Jerusalem in August 2003. Goldstein survived and brought suit for assault and battery and, along with his relatives, emotional distress. Plaintiffs named as defendants the Islamic Republic of Iran, the Iranian Ministry of Information and Security, and the Iran Revolutionary Guard Corps, all of which (plaintiffs said) sponsored the terrorist group responsible for the bombing.[1] After Defendants did not appear in the action, the Court entered a default judgment against Defendants on the question of liability. December 4, 2018 Order, ECF No. 16. In a separate order, the Court appointed Deborah Greenspan as a special master and requested that she prepare a report and recommendation (“R & R”) regarding the appropriate amount of damages to be awarded to each plaintiff. December 4, 2018 Order, ECF No. 18. Relying on the depositions, medical records, and other evidence provided by Plaintiffs, Special Master Greenspan has produced a comprehensive R & R on the damages issue. See ECF No. 19. In this opinion, the Court will partially adopt the R & R's factual findings and recommendations and will resolve the few questions-regarding punitive damages and prejudgment interest-left open by the R & R.

         I. Damages[2]

         Plaintiffs request both compensatory and punitive damages. “[T]hose who survived an attack may recover damages for their pain and suffering” while “family members can recover solatium for their emotional injury.” 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)). Both sets of plaintiffs are eligible for punitive damages, id., subject to FSIA-specific limitations the Court will discuss later. To establish damages, Plaintiffs “must prove the amount of the damages by a reasonable estimate consistent with [the D.C.] 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, 228 F.Supp.3d 64, 82 (D.D.C. 2017) (internal citations omitted).

         A. Compensatory Damages

         Plaintiffs seek two species of compensatory relief: Shalom Goldstein seeks pain and suffering damages for the injuries he suffered in the bombing, while his family seeks solatium damages. The Court takes these in turn.

         1. Pain and Suffering Damages for Shalom Goldstein

         The Court begins with what it said in Cohen v. Islamic Republic of Iran, 268 F.Supp.3d 19, 24 (D.D.C. 2017) (“Cohen II”): that the process of assessing damages 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; R & R at 12. 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. Peterson, 515 F.Supp.2d at 55-56. Shalom[3] and his family have offered deposition testimony and medical records in support of their damage claims, which the R & R and this Court can rely on to fix an appropriate and individualized award for each plaintiff. See Bluth v. Islamic Republic of Iran, 203 F.Supp.3d 1, 23 (D.D.C. 2016).

         The special master applied this framework to Shalom, the only plaintiff who suffered a physical injury in the attack and the only plaintiff who was present at the site of the attack. The R & R begins by recounting the medical and testimonial evidence of the injuries Shalom suffered and the difficulties he continues to endure. See R & R at 17.[4] The bombing injured his ear drums and right eye and left him with several lacerations and severe pain. Id. His injuries required “multiple visits to doctors and hospitals to treat the injuries.” Id. To this day, Shalom continues to struggle with hearing difficulties, although the record does not reveal their extent. Id. In addition, although the record does not contain medical documentation of emotional or psychological injury, Shalom and several of his family members testified that he has suffered a long-term emotional injury that has affected his ability to function in everyday life. Id. For example, Shalom sometimes “is unaware of his surroundings and his wife has to ‘bring him back, '” his sleep continues to be negatively affected, and he regularly consults with a rabbi regarding his ongoing emotional struggles. Id. at 4 (recounting deposition testimony).

         In light of this evidence and a review of damages awards in similar cases, the R & R recommends an award of $4.25 million, slightly lower than the $5 million baseline. This slight downward variance is “based on a determination that Shalom experienced short-term physical injury but continues to experience significant emotional injury.” Id. The special master also used prior case law to contextualize her recommendation. The special master made particular reference to this Court's awards in Cohen II, for injuries incurred in the very same bus bombing. There, to take one example, the Court awarded the $5 million baseline figure to Ora Cohen, who suffered a broken nose, a neck injury, and eardrum damage, slightly more severe injuries than what Shalom suffered. See Cohen II 268 F.Supp.3d at 25. The special master also explained that her recommendation is consonant with a general trend in FSIA cases involving insignificant short-term physical injuries and ongoing emotional trauma. See R & R at 18 (collecting cases); see also, e.g., Wamai v. Republic of Sudan, 60 F.Supp.3d 84, 92 (D.D.C. 2014) (awarding $2.5 million to plaintiffs who suffered relatively minor physical injuries yet endure ongoing emotional damage).

         The Court agrees with the special master that a downward variance for Shalom is warranted but concludes that the departure should be even more significant. That is primarily because, in the Court's view, the gap between Shalom's injuries and Ora Cohen's-suffered in the same bus bombing-is wider than the R & R concluded. In addition to the fact that Ms. Cohen suffered slightly more severe physical injuries than Shalom, her five children were also injured in the attack. Cohen v. Islamic Republic of Iran, 238 F.Supp.3d 71, 76 (D.D.C. 2017) (“Cohen I”). The force of the explosion ripped Cohen's infant son from her arms, and the family members were taken to different hospitals for treatment. Id Cohen did not learn that her younger children had survived the attack until hours later. Id The family was not reunited for over a week. Id What's more, Cohen “cared for [her children] as they recovered from successive rounds of surgeries, ” “consistently placing her own recovery behind that of her children.” Cohen II, 268 F.Supp.3d at 25. These harrowing circumstances rendered Cohen's emotional injury “unique” and helped explain why she was entitled to a baseline award despite suffering physical injuries “not as severe as that of other FSIA plaintiffs.” Id The record does not reflect that Shalom experienced the same level of psychological trauma. It is also significant that Cohen, unlike Shalom, was actually diagnosed with both post-traumatic stress disorder and depression in the year following the bombing. Id.

         In light of these distinctions, the Court finds that Shalom's injuries are closer in kind to those suffered by others in the Cohen family-like Orly and Daniel, who suffered from shrapnel wounds and ongoing hearing loss, in addition to emotional distress-and to some plaintiffs in Wamai-who suffered broken bones, head trauma, hearing/vision impairment and emotional distress-than to those endured by Ora Cohen. Those plaintiffs received $3 million and $2.5 million, respectively. Accordingly, the Court will award Shalom $2.5 million in pain-and-suffering damages.

         2. Solatium Damages for Shalom Goldstein's Family

         “The state-sponsored terrorism exception to the FSIA expressly contemplates the award of solatium damages to the close relatives of terrorism victims.” Fritz v. Islamic Republic of Iran, 324 F.Supp.3d 54, 61-62 (D.D.C. 2018) (citing 28 U.S.C. § 1605A(c)). Solatium damages are intended to compensate for the “the mental anguish, bereavement and grief that those with a close personal relationship to a [victim] experience[.]” Belkin v. Islamic Republic of Iran, 667 F.Supp.2d 8, 22 (D.D.C. 2009). As the special master notes, “[c]ourts may presume that those in direct lineal relationships with victims of terrorism suffer compensable mental anguish.” Roth v. Islamic Republic of Iran, 78 F.Supp.3d 379, 403 (D.D.C. 2015). “This presumption . . . is a direct reaction to terrorists' acknowledged aim of causing the highest degree of emotional distress, literally, terror.” Kaplan v. Hezbollah, 213 F.Supp.3d 27, 38 (D.D.C. 2016) (internal quotation marks omitted). ‚ÄúSolatium claims are ...

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