Pennington v. Islamic Republic of Iran

District Court, District of Columbia·Decided January 19, 2022·No. Civil Action No. 2019-0796·Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DIANE PENNINGTON, et al.,

Plaintiffs, v. Civil Action No. 19-796 (JEB)

ISLAMIC REPUBLIC OF IRAN,

Defendant.

MEMORANDUM OPINION

On June 24, 2021, this Court entered a default judgment on liability against Defendant Islamic Republic of Iran for a series of sixteen terrorist attacks against members of the United States military in Iraq. Plaintiffs — the estates and families of the victims, who were either killed or wounded, and one wounded servicemember — now seek damages of over $1 billion. While the Court certainly does not minimize the pain and suffering of these Plaintiffs, the amounts they have sought here are staggering. The Court will pare back many of the requests and ultimately enter judgment in the amount of $273 million, far from an inconsiderable sum. I. Legal Standard The Foreign Sovereign Immunities Act, 28 U.S.C. § 1604, contains a “terrorism exception,” which provides federal courts with jurisdiction over suits where plaintiffs seek money damages from a foreign state for “personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act.” 28 U.S.C. § 1605A(a)(1). It also creates a cause of action for “national[s] of the United States” to sue foreign states that are designated by the U.S. government as sponsors of terrorism and perform or materially support the acts described in 28

U.S.C. § 1605A(a)(1). Id. § 1605A(c). The statute specifies that, “[i]n any such action, damages may include economic damages, solatium, pain and suffering, and punitive damages.” Id.; accord Fraenkel v. Islamic Republic of Iran, 892 F.3d 348, 353 (D.C. Cir. 2018).

Plaintiffs may recover damages by showing “that the projected consequences are reasonably certain (i.e., more likely than not) to occur, and [proving] the amount of damages by a reasonable estimate.” Fraenkel, 892 F.3d at 353 (quoting Hill v. Republic of Iraq, 328 F.3d 680, 684 (D.C. Cir. 2003)). While these requirements create “some protection against an unfounded default judgment,” plaintiffs need not produce “more or different evidence than [a court] would ordinarily receive; indeed, the quantum and quality of evidence that might satisfy a court can be less than that normally required.” Id. (citation omitted). II. Analysis While establishing liability was relatively straightforward, that is not the case with regard to the amount of damages to award. See Pennington v. Islamic Republic of Iran, No. 19-796, 2021 WL 2592910 (D.D.C. June 24, 2021). As this Court noted in a similar case, “The valuation of serious psychological injuries among different family members is an inherently delicate task, not susceptible to rote calculations.” Schertzman Cohen v. Islamic Republic of Iran, No. 17- 1214, 2019 WL 3037868, at *6 (D.D.C. July 11, 2019). Indeed, “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.” Goldstein v. Islamic Republic of Iran, 383 F. Supp. 3d 15, 19 (D.D.C. 2019).

Plaintiffs here include a wounded servicemember and the parents, stepparents, spouses, siblings, stepsiblings, and children of wounded and killed servicemembers. They seek multiple types of damages: solatium damages for family members of those wounded and killed, direct

damages and economic losses for one wounded servicemember, economic losses for estates of killed servicemembers, pain and suffering for the one surviving servicemember and the estates of two others killed, prejudgment interest, and punitive damages. See ECF No. 54-1 (DJ Mot. for Damages) at 2–17. The Court considers each in turn.

A. Solatium Damages As recently defined by the D.C. Circuit in Fraenkel, solatium damages seek to compensate victims for the “[m]ental anguish, bereavement and grief” resulting from a loved one’s death or injury. 892 F.3d at 356–57; see also Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 85 (D.D.C. 2010). To determine proper solatium awards, the Fraenkel panel recognized that “District Court judges invariably must exercise discretion in determining damages awards under the FSIA.” See 892 F.3d at 361. Appellants there had argued that the district court “broke from precedent” by awarding solatium damages “dramatically lower” than those received by similarly situated plaintiffs. Id. (citation omitted). The D.C. Circuit rejected their claim. It noted that “many FSIA decisions” followed the solatium-damage ranges summarized in Estate of Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229 (D.D.C. 2006), which recommended awarding around $2.5 million for siblings of deceased victims, $5 million for parents, and $8 to $12 million for spouses. See Fraenkel, 892 F.3d at 361. This Court, too, will follow that formula for the families of deceased victims, as Plaintiffs propose. See DJ Mot. at 3 (proposing $8 million for spouses, $5 million for parents, $2.5 million for siblings, and $3 million for children); see also Valore, 700 F. Supp. 2d at 79–80 (stepsibling and stepfather who were equivalent to immediate family eligible to bring claims).

There are also family members of wounded servicemembers (Michelle Wager, Jerral Hancock, and Adam Egli), and Plaintiffs propose half the above sums for them. Id. This is

consistent with the holdings of other courts in this district. See, e.g., Moradi v. Islamic Republic of Iran, 77 F. Supp. 3d 57, 72–73 (D.D.C. 2015) (awarding wife of injured servicemember $4 million); Owens v. Republic of Sudan, 71 F. Supp. 3d 252, 260–61 (D.D.C. 2014). The Court will thus award the two wives (Rachel Lambright and Danielle Egli) $4 million each and the parent (Melinda Igo) $2.5 million. This leaves the children of Adam Egli and three siblings of Michelle Wager.

In fashioning equitable solatium awards, the Court relies on the factors our Circuit instructed courts to consider in Fraenkel. See 892 F.3d at 359 (“On remand, the District Court should apply the considerations outlined in [Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 30–32 (D.D.C. 1998),] . . . to determine the appropriate amounts of solatium damages.”). Among those factors, the Court of Appeals highlighted two: “[h]ow the claimant learned of” the directly injured plaintiff’s injuries and the “nature of the relationship” between the claimant and the directly injured plaintiff. Id. at 357 (quoting Flatow, 999 F. Supp. at 30–31).

For the Egli children, they were infants at the time of the incident: seven months and two years old, respectively. See ECF No. 54-2 (Declaration of Daniel Alberstone), Exhibit 8(b) (Declaration of Danielle Egli) at 2. As they had no independent recollection of the attack, they cannot recover for the psychological pain they suffered from learning of the event. They obviously have to continue to live with the effects on both their parents, so the Court awards each $750,000 — viz., half of the normal amount for children of survivors. Cf. Davis v. Islamic Republic of Iran, 882 F. Supp. 2d 7, 15 (D.D.C. 2012) (children born after event not entitled to recover).

The Wager siblings are Alicia Igo, Ashley Lewis, and Devin Igo. All three submitted identical declarations stating that they were “unable to provide a written Declaration describing

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