Shmuеl Elimelech BRAUN, et al., Plaintiffs, v. ISLAMIC REPUBLIC OF IRAN, et al., Defendants.
Civil Action No. 15-cv-1136 (BAH)
United States District Court, District of Columbia.
Signed 01/09/2017
BERYL A. HOWELL, Chief Judge
MEMORANDUM OPINION
BERYL A. HOWELL, Chief Judge
Chaya Zissel Braun, an infant, was with her two parents in Jerusalem on October 22, 2014, when she was killed in a vehicular attack (the “Attack“). See Consolidated Compl. (“Compl.“) ¶¶ 1, 3, ECF No. 14. Her family members and estate initiated this action against the Islamic Republic of Iran (“Iran“), the Iranian Ministry of Information and Security (“MOIS“), and the Syrian Arab Republic (“Syria“) under the
I. BACKGROUND
The factual background surrounding the terrorist attack at issue is summarized below, followed by an overview of the procedural history of this case. The factual background is based upon allegations in the Complaint, as well as the detаiled declarations submitted by the plaintiffs in support of their motion for default.1
A. The Defendants’ Support of Hamas
“Hamas is a radical terrorist organization ... established by Islamic militants in 1987” and constitutes “the Palestinian branch of the extremist Muslim Brother-hood organization.” Compl. ¶ 11. The organization “views Israel and the United
Since 1984, Iran “has been continuously designated by the United States Department of State as a state sponsor of terrorism.” Id. ¶ 18. In the 1980s, Iran and Hamas reached an agreement, remaining in force today, under which “Hamas undertook to carry out acts of extrajudicial killing and terrorism against Jews in Israel, the West Bank and the Gaza, and in return Iran undertook to provide Hamas with financial support to carry out such extrajudicial killings and terrorist attacks.” Id. ¶ 20. In funding Hamas, Iran and MOIS intended to assist Hamas in “terrorizing the Jewish civilian population in Israel and weakening Israel‘s economy, social fabric, and military strength and preparedness” through “acts of extrajudicial killing and international terrorism” including the Attack. Id. ¶ 19.
Iran‘s support for Hamas has been well-documented in the U.S. Department of State‘s annual reports on terrorism, which noted in 2014 that “Iran has historically provided weapons, training, and funding to Hamas and other Palestinian terrorist groups,” and that while “Hamas‘s ties to Tehran have been strained due to the Syrian civil war,” Iranian and Hamas leaders have nevertheless affirmed a continuing relationship. Clawson Expert Decl. ¶ 31 (quoting the U.S. Department of State‘s 2014 annual report on terrorism). In 2003, the U.S. Department of State indicated that “Iranian state sрonsorship of Hamas is critical not only in terms of providing the material and funds with which to carry out terrorist operations, but also the rhetorical support necessary to keep up the pace of such operations.” Levitt Expert Decl. ¶ 39.
Since 1979, Syria, too, “has been continuously designated by the United States Department of State as a state sponsor of terrorism.” Id. ¶ 27. Like Iran, Syria reached an agreement with Hamas in the 1980s under which “Hamas undertook to carry out acts of extrajudicial killing and terrorism against Jews in Israel, the West Bank and Gaza, and in return Syria undertook to provide Hamas with material support and resources to carry out such extrajudicial killings and terrorist attacks.” Id. ¶ 29. In the years preceding the Attack, Syria provided, inter alia, financial support, arms, “training for the planning and execution of terrorist attacks,” and “safe haven and refuge” to Hamas and its operatives. Id. ¶¶ 30-34.
Notably, Syria served as a “planning hub” for Hamas leadership for many years, Berti Expert Decl. ¶ 37, and, while exercising “de facto control of Lebanon ... granted Hamas the ability to be present in a limited manner in both Lebanоn and Syria,” id. ¶ 39. While under Syria‘s protection, “Hamas was able to organize political events from Damascus,” id. ¶ 40, as well as to “access both [Syria‘s] military strategists and ... [another known terrorist organization‘s] resources in Lebanon, from which Hamas was able to learn terrorist strategies,” Deeb Expert Decl. ¶ 23. While Syria no longer supports Hamas because of that organization‘s support for
B. The Attack in Jerusalem, Israel, on October 22, 2014
On the afternoon of October 22, 2014, Abdel Rahman Shaludi, an “agent and operative of Hamas” and the nephew of the former head of its military wing, drove a car to a light rail station in Jerusalem and intentionally “drove onto the light rail tracks and rammed his vehicle into the crowd of pedestrians.” Id. ¶¶ 37-39. Among the crowd were Chana and Shmuel Braun, along with their infant daughter, Chaya Zissel Braun, who was in a stroller. Id. ¶ 39. The car struck the stroller, “causing [Chaya Zissel] to be thrown some ten meters into the air,” before she “landed on her head on the pavement while her mother ... screamed in horror.” Id. “[C]onnected to a ventilаtor and in critical condition,” Chaya Zissel was transported by rescue personnel to a nearby hospital, where “she was pronounced dead some two hours after her arrival.” Id. ¶ 41. In addition to killing Chaya Zissel, the Attack killed one other person and “knocked over and badly injured” Shmuel. Id. ¶¶ 1, 39. Hamas “publicly praised the [A]ttack and referred to the attacker as a ‘martyr’ and ‘hero.‘” Id. ¶ 46.
C. The Decedent and her Family
Chaya Zissel Braun was a three-month old United States citizen living in Israel at the time of her death. Id. ¶ 3. Her young parents had “tried to conceive a child unsuccessfully for over a year following [their] wedding” before conceiving Chaya Zissel, Chana Braun Decl. ¶ 4, and the infant was “enjoying good health, industrious and in possession of all her faculties,” Compl. ¶ 64, when the Attack occurred.
Chaya‘s mother, Chana Braun, a United States citizen, was walking with Chaya Zissel at the time of the Attack. After Chaya Zissel had been thrown from her stroller, Chana Braun “ran to pick her up ..., screaming for help,” and “could see that the baby‘s head was deformed and smashed, and that she was bleeding.” Chana Braun Decl. ¶ 12. While crying out for help, Chana “heard gunshots and thought the terrorist was shooting аt [them],” though she later realized the gunshots were directed at the terrorist by the police. Id. ¶ 13. Immediately after the Attack, Chana observed Chaya Zissel begin vomiting, which gave her hope that the infant would survive. Id. ¶ 14. Chana was with Chaya Zissel in the ambulance and at the hospital while medical professionals attempted to save the infant‘s life. Id. ¶¶ 16-27. Since the Attack, Chana “frequently feel[s] depressed” and in “overwhelming pain,” for which concerns she began to see a therapist. Id. ¶ 37. Some days she “can function adequately,” but at other times she feels “paralyzed.” Id. ¶ 38. While she and Shmuel have been “very fortunate to welcome [a] second baby,” Chaya Zissel‘s death has “somewhat affected [Chana‘s] ability to care for” the new child, and “[a]nything that triggers memories of Chaya Zissel causes [Chana] deep pain and feelings of loss.” Id. ¶¶ 41-43.
Chaya Zissel‘s father, Shmuel Braun, a United States citizen, was also walking with Chaya Zissel at the time of the Attack. When Chaya Zissel was thrown out of her stroller, Shmuel “was thrown to the ground after being pushed into the moving train.” Shmuel Braun Decl. ¶ 7. While the events immediately following the Attack are “all a blur,” Shmuel knows he “was limping and in terrible pain” and was transported to the hospital with Chaya Zissel and Chana, where he was treated while Chaya Zissel was also being treated. Id. ¶¶ 8-9. He “sustained ... several physical injuries, including broken ribs and a torn ligament in [his] knee.” Id. ¶ 31. Since
Shmuel‘s parents, Esther and Murray Braun, also United States citizens, were at home in Los Angeles, California, when the Attack occurred. See Esther Braun Decl. ¶¶ 1, 11. Chana and Chana‘s father, Shimshon Halperin, informed them of the Attack, which they also learned about from news outlets. See id. ¶¶ 7-12; Murray Braun Decl. ¶¶ 7-14. They experienced, and continue to experience, “constant pain” for themselves, Chana and Shmuel, and the loss of Chaya Zissel, as well as fear and sleeplessness. Murray Braun Decl. ¶¶ 16-26; see Esther Braun Decl. ¶¶ 14-18.
Chana‘s parents, Sara and Shimshon Halperin, also United States citizens, also were not physically present at the place of the Attack; Sara had just arrivеd home to New York after visiting Chana, Shmuel, and Chaya Zissel in Israel, and Shimshon was still in Israel. See Sara Halperin Decl. ¶¶ 4-10. Sara learned of the Attack from her sister-in-law and immediately flew back to Israel, during which flight she “cried ... and could not sleep.” Id. ¶¶ 9-12. “Seeing [her] child in so much pain made [her] feel completely helpless,” and she herself felt “excruciating” pain. Id. ¶ 15. Shimshon received a call from Chana about the Attack immediately after it occurred and arrived at the hospital before Chaya Zissel‘s death. Shimshon Halperin Decl. ¶¶ 7-9. Since the Attack, Sara “constantly feel[s] helpless because [she is] not able to relieve Chana and Shmuel of their suffering” and has found it “often difficult to connect with them.” Sara Halperin Decl. ¶ 20. She also has “constant nightmares and feel[s] depressed.” Id. ¶ 21. Shimshon has found it “difficult to communicate with Chana” and “feel[s] a sense of heaviness all the time.” Shimshon Halperin Decl. ¶¶ 12-14.
D. Procedural History
Plaintiffs Chana and Shmuel Braun, individually and as personal representatives of the estate of Chaya Zissel Braun, filed this lawsuit against the defendants on July 15, 2015. See Compl. of July 15, 2015, ECF No. 1. Plaintiffs Shimshon Halperin, Sara Halperin, Murray Braun, and Esther Brаun filed a separate lawsuit against the same defendants on September 20, 2015, see Compl., Halperin v. Islamic Republic of Iran, No. 15-cv-1530 (D.D.C. Oct. 20, 2015), ECF No. 1, which was consolidated with this lawsuit on October 20, 2015, see Min. Order, dated Oct. 20, 2015, Halperin, No. 15-cv-1530. The plaintiffs filed affidavits attesting that the defendants were properly served, albeit after numerous attempts, in accordance with the FSIA, which provides the procedure for completing service upon a foreign state or political subdivision of a foreign state. Aff. Supp. Default, ECF No. 26; Aff. Supp. Default, ECF No. 29. The Clerk entered default against Syria on February 8, 2016, see Entry of Default, ECF No. 27, and against Iran and MOIS on March 23, 2016, see Entry of Default, ECF No. 30. The plaintiffs subsequently filed the instant motion for default judgment. See Pls.’ Mot. The plaintiffs’ briefing, with over four hundred pages in exhibits, was comprehensive, and, thus, an evidentiary hearing is unnecessary.2
Under
Notwithstanding its appropriateness in some circumstances, “entry of a default judgment is not automatic.” Mwani v. bin Laden, 417 F.3d 1, 6 (D.C. Cir. 2005) (footnote omitted). Thus, the procedural posture of a default does not relieve a federal court of its “affirmative obligation” to determine whether it has subject matter jurisdiction over the action. James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996). Additionally, “a court should satisfy itself that it has personal jurisdiction before entering judgment against an absent defendant,” but “[i]n the absence of an evidentiary hearing, although the plaintiffs retain ‘the burden of proving personal jurisdiction, they can satisfy that burden with a prima facie showing.‘” Mwani, 417 F.3d at 6-7 (quoting Edmond v. U.S. Postal Serv. Gen. Counsel, 949 F.2d 415, 424 (D.C. Cir. 1991)). In doing so, “they may rest their argument on their pleadings, bolstered by such affidavits and other written materials as they can otherwise obtain.” Id. at 7.
Finally, when default is sought under the FSIA, a claimant must “establish[] his claim or right to relief by evidence satisfactory to the court.”
With this objective in mind, the D.C. Circuit has instructed that “courts have the authority—indeed, we think, the obligation—to ‘adjust [evidentiary requirements] to ... differing situations.‘” Id. (quoting Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981)). Courts must draw their “findings of fact and conclusions of law from admissible testimony in accordance with the Federal Rules of Evidence.” Id. at 1049 (quoting Daliberti v. Republic of Iraq, 146 F.Supp.2d 19, 21 n.1 (D.D.C. 2001)). Uncontroverted factual allegations that are supported by admissible
III. DISCUSSION
A default judgment may be entered when (1) the Court has subject matter jurisdiction over the claims, (2) personal jurisdiction is properly exercised over the defendants, (3) the plaintiffs have prеsented satisfactory evidence to establish their claims against the defendants, and (4) the plaintiffs have satisfactorily proven that they are entitled to the monetary damages they seek. Each of these requirements is addressed seriatim below.
A. Subject Matter Jurisdiction Under the FSIA
This Court may exercise “original jurisdiction” over a foreign state “without regard to amount in controversy” in “nonjury civil action[s]” seeking “relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement.” See
Foreign governments are generally immunizеd from lawsuits brought against them in the United States unless an FSIA exception applies. See
With respect to the first element, both Iran and Syria have been designated as state sponsors of terrorism by the U.S. Department of State for more than two decades. See Compl. ¶¶ 18, 10; see also Anderson v. Islamic Republic of Iran, 753 F.Supp.2d 68, 76 (D.D.C. 2010) (“Iran ... has been designated a state sponsor of terrorism ... since January 19, 1984.” (internal quotation marks omitted)); Gates, 646 F.3d at 2 (“Syria has been designated a state sponsor of terrorism since 1979.“).
As to the second element, the plaintiffs have averred in sworn declarations that they and Chaya Zissel Braun were United States citizens at the time of the Attack. See Chana Braun Decl. ¶ 2 (stating “Chaya Zissel Braun ... was ... a U.S. citizen who was living in Israel at the time of her tragic death“); id. ¶ 1 (attesting to the declarant‘s U.S. citizenship); Shmuel Braun Decl. ¶ 1 (same); Esther Braun Decl. ¶ 1 (same); Murray Braun Decl. ¶ 1 (same); Sara Halperin Decl. ¶ 1 (same); Shimshon Halperin Decl. ¶ 1 (same).
The plaintiffs in this case need not satisfy the third element because the Attack took place in Israel, not Iran or Syria, and thus the statutory requirement of “afford[ing] the foreign state a reasonable opportunity to arbitrate the claim” before bringing this action does not apply.
Finally, the plaintiffs have produced satisfactory evidence to establish the fourth element: that their damages arise from the defendants’ “provision of material support or resources” for the extrajudicial killing of Chaya Zissel Braun.
In addition, the plaintiffs have demonstrated that the killing of Chaya Zissel was an extrajudicial one. “[E]xtrajudicial killing” has the “meaning given ... in section 3 of the
Accordingly, the defendants do not enjoy foreign sovereign immunity from the instant suit, pursuant to
B. Personal Jurisdiction
The Court next examines whether effective service has been made, as required by
The defendants have neither made a special arrangement for service with the plaintiffs nor entered into any international convention governing service, instead ultimately serving Syria in the third way and Iran and MOIS in the fourth way authorized under Section 1608. The necessary papers were mailed through DHL and delivered to Syria on November 29, 2015, see Return Serv./Aff., ECF No. 25, and to Iran and MOIS “under cover of diplomatic notes” on January 13, 2016, see Aff. Serv., ECF No. 28.
Accordingly, the plaintiffs have established that service was properly effected against the defendants and, thus, personal jurisdiction is properly exercised.
C. The Defendants’ Liability
The six plaintiffs in this action bring nine claims under
Although Section 1605A(c) provides a private right of action, it provides no guidance on the substantive bases for liability to determine plaintiffs’ entitlement to damages. Consequently, courts have applied “general principles of tort law,” such as the RESTATEMENT (SECOND) OF TORTS, to determine liability. Estate of Heiser v. Islamic Republic of Iran, 659 F.Supp.2d 20, 24 (D.D.C. 2009); see Roth, 78 F.Supp.3d at 399 (citing Oveissi v. Islamic Republic of Iran, 879 F.Supp.2d 44, 54 (D.D.C. 2012)); Worley v. Islamic Republic of Iran, 75 F.Supp.3d 311, 335 (D.D.C. 2014). The availability of these claims for each plaintiff is discussed in detail below.
1. Chaya Zissel Braun‘s Estate
Chaya Zissel Braun, represented in this action by her estate, was a United States citizen at the time of the Attack and, therefore, is expressly covered by, and en-titled
a. Wrongful Death
Chaya Zissel Braun‘s estate may recover for her wrongful death on the instant claims upon establishing that the defendants caused her death. See RESTATEMENT (SECOND) OF TORTS § 925. As discussed supra in Part III.A, the plaintiffs have submitted satisfactory evidence demonstrating that Chaya Zissel Braun‘s death was an extrajudicial killing perpetrated by Hamas, who received material support from the defendants, and, as a result, the defendants are liable to her estate for “economic losses which result from [the] decedent‘s premature death.” Valore v. Islamic Republic of Iran, 700 F.Supp.2d 52, 78 (D.D.C. 2010) (quoting Flatow v. Islamic Republic of Iran, 999 F.Supp. 1, 27 (D.D.C. 1998)); see also Worley, 75 F.Supp.3d at 335.
b. Survival
A survival action accrues upon the death of an injured person and “limits recovery for damages for loss or impairment of earning capacity, emotional distress and all other harms, to harms suffered before the death.” RESTATEMENT (SECOND) OF TORTS § 926. Courts have thus “awarded damages for the victim‘s pain and suffering that occurred between the attack and the victim‘s death shortly thereafter.” Haim v. Islamic Republic of Iran, 425 F.Supp.2d 56, 71 (D.D.C. 2006). “In the absence of evidence tending to show an attack resulted in the fatal but noninstantaneous injury of a victim and that the victim was conscious thereafter, ... an award of pain and suffering is inappropriate.” Worley v. Islamic Republic of Iran, 177 F.Supp.3d 283, 286 (D.D.C. 2016). In addition, “a court must refuse to award damages for pain and suffering if the plaintiff is unable to prove that the decedent consciously experienced the time between an attack and his or her death.” Roth, 78 F.Supp.3d at 402.
In this case, the plaintiffs assert that “Chaya Zissel Braun suffered great conscious pain, shock and physical and mental anguish” after the Attack and before her death. Compl. ¶ 69. In support of this assertion, the plaintiffs aver that Chaya Zissel was “sent flying” from her stroller by the Attack, with the subsequent impact causing her head to be “deformed and smashed” and her to “beg[i]n vomiting.” Chana Braun Decl. ¶¶ 11-12, 14. Moreover, the plaintiffs aver that Chaya Zissel “survived for approximately two hours” after the Attack before dying at а hospital, during which time “paramedics and emergency room physicians worked on her and fought to save her life,” including by resuscitating her when at one point she stopped breathing. Id. ¶¶ 20-30. These averments, which establish that Chaya Zissel was thrown into the air and then landed in an impact that, while ultimately fatal, did not kill her instantaneously, suffice to demonstrate she experienced pain and suffering resulting from the Attack and prior to her death, and thus that the defendants are liable to her estate for survival damages.
2. Chana and Shmuel Braun
Chaya Zissel Braun‘s parents, Chana and Shmuel Braun, who were present at the time of the Attack, seek to recover on their own behalf for wrongful death, assault, battery, intentional infliction of emotional distress, and negligent infliction of emotional distress. See Compl. ¶¶ 72-93. As United States citizens, they may also bring their claims under
a. Wrongful Death
In the portion of their Complaint alleging a claim of wrongful death, the plaintiffs state that the Attack “caused ... plaintiffs Shmuel Elimelech Braun and Chana Braun severe injury, including: pain and suffering; pecuniary loss and loss of income; loss of guidance, companionship
b. Assault
The defendants are liable for assault on Chana and Shmuel Braun if, when they provided material support and resources for the Attack, they acted “intending to cause a harmful or offensive contact with ... or an imminent apprehension of such a contact” with those attacked and those attacked were “thereby put in such imminent apprehension.” RESTATEMENT (SECOND) OF TORTS § 21(1). The Attack and other similar acts are intended to cause harm or, at least, fear of such harm among those targeted. Indeed, “terrorism” is defined to mean “the use of violent acts to frighten the people in an area as a way of trying to achieve a political goal.” Terrorism, Merriam-Webster Dictionary Online, http://www.merriam-webster.com/dictionary/terrorism (last visited Jan. 9, 2017). Moreover, Chana has averred that she felt and continues to feel anxiety as a result of the Attack, and Shmuel has stated that every day he “ha[s] a perpetual fear that something tragic will happen,” Shmuel Braun Decl. ¶ 21. Accordingly, the plаintiffs have demonstrated that the defendants are liable for assault.
c. Battery
The defendants are liable for battery if, when they provided material support and resources for the Attack, they acted “intending to cause a harmful or offensive contact ... or an imminent apprehension of such a contact” with those attacked and “a harmful contact with [those attacked] directly or indirectly results.” RESTATEMENT (SECOND) OF TORTS § 13. “Harmful contact” has occurred where “any physical impairment of the condition of another‘s body, or physical pain or illness” results. Id. § 15. In this case, the plaintiffs allege “severe physical injuries” only as to Shmuel, asserting that the attack caused Chana only “severe psychological injuries.” Compl. ¶¶ 73-74. Consequently, Shmuel, but not Chana, may be able to recover for battery. In his sworn declaration, Shmuel avers that, as a result of the Attack, he was “thrown to the ground after being pushed into the moving train” and “was limping and in terrible pain.” Shmuel Braun Decl. ¶¶ 7-8. Shmuel‘s examining physician, Dr. Alan Friedman, avers that Shmuel sustained a “[r]ight medial collateral ligament tear,” “[r]ight knee sprain,” “[r]ight knee contusion,” and “[r]ight rib fractures.” Fried-man
d. Intentional Infliction of Emotional Distress
The defendants are liable for intentional infliction of emotional distress if they, “by extreme and outrageous conduct[,] intentionally or recklessly cause[d] severe emotional distress to” the plaintiffs. RESTATEMENT (SECOND) OF TORTS § 46(1); see also Roth, 78 F.Supp.3d at 400 (quoting Estate of Heiser, 659 F.Supp.2d at 26). Where the claimants were not the direct recipient of the “extreme and outrageous conduct,” the Restatement permits recovery if (1) they are members of a victim‘s immediate family and (2) they are present at the time, or “the defendants’ conduct is sufficiently outrageous and intended to inflict severe emotional harm upon a person [who] is not present.” Estate of Heiser, 659 F.Supp.2d at 26-27 (quoting DAN B. DOBBS, THE LAW OF TORTS § 307, at 834 (2000)); see also RESTATEMENT (SECOND) OF TORTS § 46, cmt. l (AM. LAW INST. 1977) (leaving “open the possibility of situations in which presence at the time may not be required“).
The defendants may be liable to Chana and Shmuel for intentional infliction of emotional distress both as direct recipients of the extreme and outrageous conduct and, separately, as members of Chaya Zissel‘s immediate family. The defendants’ conduct in providing material support and resources to a known terrоrist organization is extreme and outrageous. See, e.g., Valore, 700 F.Supp.2d at 77 (“Acts of terrorism are by their very definition extreme and outrageous and intended to cause the highest degree of emotional distress.” (quoting Belkin v. Islamic Republic of Iran, 667 F.Supp.2d 8, 22 (D.D.C. 2009))). The plaintiffs have provided sworn declarations by Chana and Shmuel, see generally Chana Braun Decl.; Shmuel Braun Decl., as well as medical experts in psychiatry, see generally Strous Expert Decl. re: Chana Braun; Strous Expert Decl. re: Shmuel Braun, demonstrating that the Attack caused them extreme emotional distress, both as persons attacked and family members of Chaya Zissel Braun. Accordingly, the defendants are liable to Chana and Shmuel Braun as both victims of the Attack and the parents of Chaya Zissel Braun for intentional infliction of emotional distress.6
3. Esther and Murray Braun; Sara and Shimshon Halperin
The remaining four plaintiffs are the parents of Chana and Shmuel Braun and the grandparents of Chaya Zissel Braun. They seek to recover damages for intentional infliction of emotional distress and negligent infliction of emotional distress. See Compl. ¶¶ 84-93. As United States citizens, they may also bring their claims under
a. Intentional Infliction of Emotional Distress
Each of these four plaintiffs is an immediate family member of Chana or Shmuel Brаun, but none was present at the time of the Attack.7 In this case, how-ever,
Accordingly, the plaintiffs have established the defendants’ liability to the plaintiffs under the federal private right of action against state sponsors of terrorism,
D. Damages
The plaintiffs in this case seek to recover economic, pain and suffering, solatium, and punitive damages to compensate for their own losses and to punish the defendants for their support of known terrorists.9 The damages to which each plaintiff is entitled are described below.
1. Legal Standard for Damages under Section 1605A(c)
Congress, in creating a private right of action in
The plaintiffs have satisfactorily shown that their injuries were reasonably certain and were actually the intended consequences of the defendants’ material sup-port of Hamas. The defendants provided material support
Having concluded that the plaintiffs have proven that “the consequences of the foreign state‘s conduct were reasonably certain ... to occur,” Roth, 78 F.Supp.3d at 402, the reasonable awards as to each plaintiff for economic loss, pain and suffering, solatium, and punitive damages will be determined next.
2. Economic Losses
Chaya Zissel Braun‘s estate and Chana and Shmuel Braun seek to recover for “pecuniary loss and loss of income” related to Chaya Zissel Braun‘s wrongful death and survival claims, Compl. ¶¶ 65, 69, as well as for “severe financial loss, including loss of future income,” related to their battery claim, Compl. ¶ 74. “Unlike damages for pain and suffering, lost earnings are not hard to quantify, and the Court will not excuse plaintiffs’ failure to support the claim for lost earnings with competent evidence.” Moradi v. Islamic Republic of Iran, 77 F.Supp.3d 57, 71 (D.D.C. 2015). The рlaintiffs in this case have provided no evidence supporting any such recovery. Consequently, they have “failed to meet the minimum evidentiary threshold supporting their respective claims for economic damages,” and no economic damages may be awarded. Kaplan v. Hezbollah, Nos. 09-cv-00646, 10-cv-00483, 213 F.Supp.3d 27, 40-42, 2016 WL 5714754, at *8 (D.D.C. Sept. 30, 2016).
3. Pain and Suffering
As discussed above, the defendants are liable to Chaya Zissel Braun‘s estate for the pain and suffering she experienced after the Attack but prior to her death. The evidence demonstrates that Chaya Zissel suffered being thrown into the air and an impact that caused her head to become smashed and her to begin vomiting and that she survived for two hours after the Attack, during which time she was attended to by medical personnel. See Chana Braun Decl. ¶¶ 20-30. For periods of pain and suffering of a less than a minute to a few hours after an attack but prior to death, courts have awarded damages of $1,000,000. See, e.g., Stern v. Islamic Republic of Iran, 271 F.Supp.2d 286, 300 (D.D.C. 2003) (citing authorities awarding $1,000,000 for pain and suffering lasting between thirty seconds and several hours); cf. Thuneibat v. Syrian Arab Republic, 167 F.Supp.3d 22, 39 n.4 (D.D.C. 2016) (Howell, J.) (declining to award survival damages where the plaintiffs “submitted no evidence ... showing that either of thе [v]ictims suffered any pain and suffering prior to their deaths in the suicide bombings, but instead, given [their] proximity to the suicide bombers, their deaths were more likely instantaneous“); Mwila v. Islamic Republic of Iran, 33 F.Supp.3d 36, 42-43 (D.D.C. 2014) (declining to award survival damages where “[n]o one testified that any of the deceased victims survived the blast itself for any period of time, and the evidence indicates that they likely did not“). Accordingly, Chaya Zissel Braun‘s estate is entitled to $1,000,000 in survival damages for her pain and suffering after the Attack and prior to her death.
The defendants are also liable to Chana and Shmuel Braun as survivors of the Attack for battery, assault, and intentional infliction of emotional distress, but in view of the bar on multiple recoveries,
In this case, Shmuel Braun suffered physical and psychological injuries that have caused him great pain. Nevertheless, his physical injuries are relatively minor compared to the “compound fractures, serious flesh wounds, and scars from shrapnel” that generally justify the baseline award of $5,000,000 and more akin to minor injuries from shrapnel or small-arms fire that warrant a downward departure. Khaliq v. Republic of Sudan, 33 F.Supp.3d 29, 33 (D.D.C. 2014). Accordingly, Shmuel Braun is entitled to an award of $2,500,000 for his own pain and suffering as a survivor of the Attack.
Chana Braun suffered psychological injuries but no physical injuries and, consequently, might presumptively be entitled to an award of only $1,500,000. See, e.g., Kaplan, 213 F.Supp.3d at 35-36. Yet, unlike Shmuel, who experienced much of what occurred after he was physically injured as a “blur,” Shmuel Braun Decl. ¶ 8, Chana endured, as part of the Attack, the horror of witnessing her only child being thrown from her care into the air, running to pick the child up only to find the child visibly and severely injured, trying to obtain medical assistance while simultaneously fearing gunfire she believed to be targeted at her and her child, and staying with her daughter while medical professionals attempted, ultimately without avail, to save her daughter‘s life, see Chana Braun Decl. ¶¶ 11-27. Accordingly, Chana Braun is entitled to an award of $2,500,000 for her pain and suffering as a survivor of the Attack. See, e.g., Acosta, 574 F.Supp.2d at 30 (awarding enhancement in view of the plaintiff‘s “own pain and suffering endured by being present during the shooting” that wounded her husband).
4. Solatium
Chana and Shmuel Braun, Esther and Murray Braun, and Sara and Shimshon Halperin seek solatium damages to compensate for the emotional distress they experienced as family members of victims of the Attack. Compl. ¶ 86. “A claim for solatium seeks compensation for the ‘mental anguish, bеreavement and grief that those with a close personal relationship to a decedent experience as a result of the decedent‘s death, as well as the harm caused by the loss of the decedent, society and comfort.‘” Baker v. Socialist People‘s Libyan Arab Jamahiriya, 775 F.Supp.2d 48, 83 (D.D.C. 2011) (quoting Belkin, 667 F.Supp.2d at 22). In determining the appropriate amount to compensate for victims’ family members’ emotional distress, “the Court may look to prior decisions awarding damages ... for solatium.” Acosta, 574 F.Supp.2d at 29. Solatium damages, by their nature, are “unquantifiable,” Moradi, 77 F.Supp.3d at 72, and, therefore, this Court has developed a commonly accepted standardized framework, known as the Heiser damages framework, for solatium damages. Estate of Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 269; see Roth, 78 F.Supp.3d at 403 (noting the “framework has been adopted by other courts as an appropriate measure of solatium damages for the family members of victims of state-sponsored terror (citing Valore, 700 F.Supp.2d at 85)). As a baseline, the framework awards “approximately $5 million to a parent whose child was killed” in a terrorist attack. Estate of Heiser, 466 F.Supp.2d at 269. “[F]amilies of victims who have died are typically awarded greater damages than families of victims who remain alive.” Id. (quoting Haim, 425 F.Supp.2d at 75). Accordingly, “in the context of distress resulting from injury to loved ones—rather than death—courts have аpplied a framework where ‘awards are valued at half of the awards to family members of the deceased,‘” i.e., $2,500,000 to parents of surviving victims. Wultz v. Islamic Republic of Iran, 864 F.Supp.2d 24, 41 (D.D.C. 2012) (citing authorities).
These numbers serve only as a baseline from which the Court may deviate in order to compensate for specific circumstances. Factors militating in favor of an award enhancement generally fall into one of three categories: “evidence establishing an especially close relationship between the plaintiff and decedent, particularly in comparison to the normal interactions to be expected given the familial relationship; medical proof of severe pain, grief or suffering on behalf of the claimant; and circumstances surrounding the terrorist attack which made the suffering particularly more acute or agonizing.” Oveissi v. Islamic Republic of Iran, 768 F.Supp.2d 16, 26-27 (D.D.C. 2011). “Decisions to deviate from the starting points provided by the Heiser framework are committed to the discretion of the particular court in each case....” Id. at 26.
a. Chana and Shmuel Braun
Without a doubt, Chana and Shmuel Braun are entitled to at least the baseline award of $5,000,000 for their solatium damages from the death of their child. The question remaining is whether, in view of their particular circumstances, they are entitled to an enhancement of that baseline amount.
Although Chana and Shmuel Braun experienced some difficulty in conceiving Chaya Zissel Braun, such difficulty does not warrant a finding that their relationship with their daughter differed from “the normal interactions to be expected given the familial relationship.” Id. at 26-27. On the other hand, with respect to the severity of these plaintiffs’ grief, the evidence reflects that an enhancement is appropriate. According to a psychiatrist who examined Chana, she “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 daughter being killed in a terror attack in 2014” and “many of her symptoms with which she has been diagnosed are likely to be present in varying degrees for a significant time to come and while it is impossible to state for any absolute certainty, many of the symptoms may even be permanent.” Strous Expert Decl. Re: Chana Braun ¶¶ 16-17. The same psychiatrist gave Shmuel a similar diаgnosis and prognosis, although Shmuel, by contrast, “dis-plays
b. Esther and Murray Braun; Sara and Shimshon Halperin
Esther and Murray Braun and Sara and Shimshon Halperin have each suffered greatly from seeing the effects of the Attack and the resulting death of their granddaughter on their respective children. See Strous Expert Decl. Re: Esther Braun ¶¶ 16-17 (explaining that Esther Braun displays symptoms of persistent psychological disorders related to grief and “that many of her symptoms ... are likely to be present in varying degrees for a significant time to come and ... may even be permanent“); Strous Expert Decl. Re: Murray Braun ¶¶ 16-17 (same); Strous Expert Decl. Re: Sara Halperin ¶¶ 15-16 (same); Strous Expert Decl. Re: Sara Halperin ¶¶ 15-16 (same). Yet, Chana and Shmuel, fortunately, remain alive. Accordingly, each of these four plaintiffs is entitled to an award of $2,500,000. See, e.g., Wultz, 864 F.Supp.2d at 41.
5. Punitive Damages
The plaintiffs also seek punitive damages, which are awarded not to compensate the victims, but to “punish outrageous behavior and detеr such outrageous conduct in the future.” Kim, 87 F.Supp.3d at 290 (quoting Bodoff v. Islamic Republic of Iran, 907 F.Supp.2d 93, 105 (D.D.C. 2012) (internal quotation marks omitted)); see also RESTATEMENT (SECOND) OF TORTS § 908(1) (1977). Punitive damages are warranted where “defendants supported, protected, harbored, aided, abetted, enabled, sponsored, conspired with, and subsidized a known terrorist organization whose modus operandi included the targeting, brutalization, and murder of American citizens and others.” Baker, 775 F.Supp.2d at 85. The defendants’ conduct in supporting Hamas justifies the imposition of punitive damages here.
In determining the appropriate amount of punitive damages, courts consider “(1) the character of the defendants’ act, (2) the nature and extent of harm to the plaintiffs that the defendants caused or intended to cause, (3) the need for deterrence, and (4) the wealth of the defendants.” Wultz, 864 F.Supp.2d at 41 (quoting Acosta, 574 F.Supp.2d at 30). Taking into account these factors, several approaches have been articulated for calculation of the appropriate amount of punitive
The defendants’ conduct in providing material support to the terrorist group that perpetrated the attacks here is indeed outrageous, and the results are indisputably tragic. The conduct here, however, is more akin to the conduct in cases awarding $150,000,000 per family than the cases in which a multiple of a foreign state‘s entire sponsorship of terrorism is used. In Gates, for example, where $150,000,000 in punitive damages per family was awarded, two American civilians working in Iraq were brutally decapitated and their deaths videotaped to be broadcast to the world, id. at 55, and in Baker, terrorists, who hijacked a Cairo-bound plane, shot “execution-style” three Americans on board the flight, 775 F.Supp.2d at 55. Mindful of these precedents, this Court will award $150,000,000 in punitive damages against the defendants in this case.
IV. CONCLUSION
For the reasons outlined above, the plaintiffs’ motion for default judgment is granted. The defendants are jointly and severally liable for the death of Chaya Zissel Braun and the injuries to the family member plaintiffs. The plaintiffs are awarded monetary damages in the following amounts: the plaintiffs are entitled to $150,000,000 in punitive damages; Chaya Zissel Braun‘s estate is entitled to $1,000,000 in survival damages; Chaya Zissel‘s parents, Chana and Shmuel Braun, are each entitled to $2,500,000 in pain and suffering and $6,250,000 in solatium damages; Esther Braun is entitled to $2,500,000 in solatium damages; Murray Braun is entitled to $2,500,000 in solatium damages; Sara Halperin is entitled to $2,500,000 in solatium damages; and Shimshon Halperin is entitled to $2,500,000 in solatium damages. Thus, the total damages award is $178,500,000.
An appropriate order accompanies this Memorandum Opinion.
BERYL A. HOWELL
Chief Judge