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Lelchook v. Syrian Arab Republic

United States District Court, District of Columbia

September 25, 2019

ESTER LELCHOOK, et al. Plaintiffs,
v.
SYRIAN ARAB REPUBLIC, Defendant.

          MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR DEFAULT JUDGMENT RE DOCUMENT NOS. 27, 28, 29

          RUDOLPH CONTRERAS, United States District Judge.

         I. BACKGROUND

         On August 2, 2006, one of the thousands of rockets and missiles launched by Hezbollah that summer struck Kibbutz Saar in northern Israel, fatally injuring kibbutz resident David Lelchook. Compl. ¶¶ 14–15, ECF No. 1. Plaintiffs Ester Lelchook, [1] Michal Lelchook, Yael Lelchook, Alexander Lelchook, and the Estate of Doris Lelchook, [2] respectively the spouse, two daughters, brother, and mother of David Lelchook, brought suit against Defendant the Syrian Arab Republic pursuant to the Foreign Sovereign Immunity Act (“FSIA”) terrorism exception, 28 U.S.C. § 1605A(a). Alleging that Syria’s provision of “material support” to Hezbollah rendered it liable for the extrajudicial killing of David Lelchook, id. ¶ 21, Plaintiffs sought damages for extrajudicial killing and wrongful death, id. ¶¶ 23–29, and intentional infliction of emotional distress (“IIED”) and solatium, id. ¶¶ 30–36. After Defendant failed to enter an appearance, Plaintiffs moved for entry of default, see ECF No. 14, which the Clerk of Court granted on September 20, 2017, see ECF No. 15. Plaintiffs then moved for entry of default judgment. See ECF No. 17.

         In a prior ruling, this Court granted in part Plaintiffs’ motion for default judgment regarding liability. See generally Lelchook II, 2019 WL 2191177. Accepting the thoughtful and thorough report and recommendation by Magistrate Judge Meriweather, see Lelchook v. Syrian Arab Republic (“Lelchook I”), No. 16-1550 (RC/RMM), 2019 WL 2191323 (D.D.C. Jan. 31, 2019), the Court concluded that it had subject matter jurisdiction over the suit, that Plaintiffs each had a private right of action under the FSIA, and that Plaintiffs presented viable theories of liability regarding (1) Ester Lechook’s wrongful death claim on behalf of the Estate of David Lelchook and (2) Michal, Yael, Alexander, and the Estate of Doris Lelchook’s IIED claim. Lelchook II, 2019 WL 2191177, at *2–3. The question now facing the Court is the measure of damages to award for each of these claims pursuant to the FSIA’s federal cause of action. See 28 U.S.C. § 1605A(c). For the reasons set forth below, the Court will enter default judgment for economic damages and compensatory damages and deny punitive damages.

         II. LEGAL STANDARD FOR DAMAGES UNDER THE FSIA

         Under the FSIA, a plaintiff may recover “economic damages, solatium, pain and suffering, and punitive damages.” § 1605A(c)(4). “To obtain damages, the plaintiff must prove that the consequences of the defendant[’s] acts were reasonably certain to occur, and they must prove the amount of damages by a reasonable estimate.” Reed v. Islamic Republic of Iran, 845 F.Supp.2d 204, 213 (D.D.C. 2012) (citing Hill v. Republic of Iraq, 328 F.3d 680, 681 (D.C. Cir. 2003); see also Valore v. Islamic Republic of Iran, 700 F.Supp.2d 52, 83 (D.D.C. 2010). The consequences of a defendant’s acts are “reasonably certain . . . to occur” when they are “more likely than not.” Braun v. Islamic Republic of Iran, 228 F.Supp. 3d 64');">228 F.Supp. 3d 64, 82 (D.D.C. 2017) (quoting Roth v. Islamic Republic of Iran, 78 F.Supp. 3d 379, 402 (D.D.C. 2015)); see also Wultz v. Islamic Republic of Iran, 864 F.Supp.2d 24, 37 (D.D.C. 2012). To prove the amount of a damages by “a reasonable estimate consistent with this [Circuit]’s application of the American rule on damages, ” Salazar v. Islamic Republic of Iran, 370 F.Supp.2d 105, 115–16 (D.D.C. 2005) (internal quotations omitted) (quoting Hill, 328 F.3d at 681), a court may consider expert testimony as well as comparable awards in similar cases, see Braun, 228 F.Supp. 3d at 82; Reed, 845 F.Supp.2d at 214; Acosta v. Islamic Republic of Iran, 574 F.Supp.2d 15, 29 (D.D.C. 2008).

         III. ANALYSIS[3]

         The Lelchooks seek damages against Syria pursuant to the FSIA. See Pls.’ Mem. Setting Forth Damages Evid. (“Pls.’ Mem.”), ECF No. 29. More precisely, Ester Lelchook, as the representative of the Estate of David Lelchook, seeks economic damages for the wrongful death of David Lechook, id. at 2, and Michal, Yael, Alexander, and the Estate of Doris Lelchook seek compensatory damages[4] for their IIED claim, id. at 4. All five Plaintiffs also seek punitive damages, which the Court will briefly discuss before addressing the other claims for relief.

         A. Punitive Damages

         As established in this Court’s prior judgment in this case, see Lelchook II, 2019 WL 2191177, and as discussed in depth in Magistrate Judge Meriweather’s Report and Recommendation, see Lelchook I, 2019 WL 2191323, at *5–6, entry of liability against Syria, a foreign sovereign, was authorized pursuant to the FSIA’s “terrorism exception, ” as codified at 28 U.S.C. § 1605A. This Circuit has made clear that “the FSIA terrorism exception does not retroactively authorize the imposition of punitive damages against a sovereign for conduct occurring before the passage of § 1605A” in 2008. Owens v. Republic of Sudan, 864 F.3d 751, 812 (D.C. Cir. 2017). Because Defendant’s conduct occurred on August 2, 2006, before the passage of section 1605A, the FSIA does not retroactively authorize the imposition of punitive damages here. Thus, the Court denies Plaintiffs’ motion for entry of default judgment regarding punitive damages.

         B. Economic Damages for Wrongful Death Claim

         Ester Lelchook, acting as the legal representative of the Estate of David Lelchook, seeks to recover for economic loss caused by the death of David Lelchook in Defendant’s missile attack.[5] See Pls.’ Mem. 2. The FSIA permits “[a] wrongful-death action” to be “brought through the estate of the decedent[] ‘for economic losses which result from a decedent’s premature death.’” Valore, 700 F.Supp.2d at 78 (quoting Flatow v. Islamic Republic of Iran, 999 F.Supp. 1, 27 (D.D.C. 1998), abrogated on other grounds); see also Murphy v. Islamic Republic of Iran, 740 F.Supp.2d 51, 74 (D.D.C. 2010). In a suit under the FSIA, “the report of a forensic economist may provide a reasonable basis for determining the amount of economic damages.” Reed, 845 F.Supp.2d at 214; see also Belkin v. Islamic Republic of Iran, 667 F.Supp.2d 8, 24 (D.D.C. 2009) (relying on forensic economist’s report in calculation of economic damages). Where a court relies upon such a report, it is to consider the “reasonableness and foundation of the assumptions relied upon by the expert.” Roth, 78 F.Supp. 3d at 402 (citing Reed, 845 F.Supp.2d at 214).

         In this case, Plaintiffs offer an expert report compiled by Chad Staller and Stephen Dripps, who serve as president and senior economist at the Center for Forensic Economic Studies, as evidence of economic loss sustained by the Estate of David Lelchook. See Pls.’ Mem., Expert Report of Chad Staller and Stephen Dripps (“Staller & Dripps Expert Report”), ECF No. 29-1. This report establishes that, based on the average retirement age of 67 for an Israeli male, David Lelchook would have worked 15.3 more years, id. at 2, and accrued 1, 889, 909₪ in earnings, id. at 7.[6] Upon retirement, he would have been eligible for pension benefits until age 84.5, his projected age at death based on statistical averages, id. at 2, 4, and received 727, 200₪ in pension benefits, id. at 7. The report also describes the value of lost household services that David Lelchook would have performed between the privatization of Kibbutz Saar in 2008 and the expected loss of his functional capacity at age 70 in the year 2024, id. at 4, amounting to a predicted value of 315, 478₪, id. at 7. Based on this forensic evidence, after accounting for personal maintenance expenses, the net economic loss amounts to 1, 014, 790₪, which converts to $285, 665.[7] Id. at 7. Finding these predictions to be based upon reasonable assumptions and associated calculations, the Court awards $285, 655 in economic damages for Ester Lelchook’s wrongful death claim on behalf of David Lelchook’s Estate.[8]

         C. Compensatory Damages for IIED Claims

         The remaining four Plaintiffs-Michal Lelchook, Yael Lelchook, Alexander Lelchook, and the Estate of Doris Lelchook-seek compensatory damages for Defendant’s intentional infliction of emotional distress. In the context of a suit under the FSIA, courts in this Circuit have found IIED and solatium claims to be “indistinguishable.” Estate of Heiser v. Islamic Republic of Iran (“Heiser II”), 659 F.Supp.2d 20, 27 n.4 (D.D.C. 2009) (quoting Surette v. Islamic Republic of Iran, 231 F.Supp.2d 260, 267 (D.D.C. 2002) (quoting Black’s Law Dictionary 1397 (7th ed. 1999))); see also Flanagan v. Islamic Republic of Iran, 87 F.Supp. 3d 93, 115 (D.D.C. 2015). Thus, in calculating the appropriate amount of compensatory damages, the Court considers only the IIED theory of relief, although its analysis takes into account ‚Äúprior decisions awarding damages for ...


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