Karcher v. Islamic Republic of Iran

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

TIMOTHY KARCHER, et al.,

Plaintiffs,
y Civil Action No. 16-00232 (CKK)
ISLAMIC REPUBLIC OF IRAN,
Defendant.

MEMORANDUM OPINION
(December 27, 2023)

I. INTRODUCTION

This Memorandum Opinion addresses the following categories of recommended damages
awards, as set forth by the Special Master in his [146, 147, 148] [sealed] Reports!: (1) the assault,
battery and intentional infliction of emotional distress claims for four Plaintiffs injured in attacks
not involving Explosively Formed Penetrators (“EFPs”); (2) conscious pain and suffering damages
for the three estate Plaintiffs; (3) economic damages; and (4) solatium damages. This
Memorandum Opinion does not address the recommended damages for pain and suffering for the
thirteen Plaintiffs injured in EFP attacks, as those damages will be addressed in a separate opinion
discussing the methodology by which those damages should be determined.” Having considered

the reports of the Special Master as well as the Plaintiffs’ [151] Objections to the Special Master’s

' Special Master Report, ECF No. 146, addresses claims related to Plaintiffs Bartlett, Baumhoer,
Canine, Haines, Karcher, Levi, Lilly, Miller, Roberts, Sabinish, Swinton, Williamson, and Wood.
Special Master Report, ECF No. 147, addresses claims related to Plaintiffs [Estates of] Delgado,
Habsieger and Hake. Special Master Report, ECF No. 148, addresses claims related to Plaintiffs
Freeman, Kirby, Millican, Thornsberry, Wallace and Washburn.

? This includes Robert Bartlett, Nicholas Habsieger, Robert Canine, David Haines, Timothy
Karcher, Christopher Levi, Scott Lilley, Christopher Miller, Erik Roberts, Ryan Sabinish, Allen
Swinton, Wesley Williamson, and Tony Wood.
Reports, the Court adopts the Special Master’s recommended damages awards, as corrected and

amended by Plaintiffs, with the exception of: (1) a damages award for solatium for Anna, Audrey,

and Abbey Karcher; (2) a 20% [as opposed to 25%] enhancement for solatium claims by Plaintiffs
Eric and Debra Levi, and Kimberly Vesey; and (3) a 20% upward departure for solatium claims
by Plaintiff Freeman’s family. Plaintiffs acknowledge that there was “No request made” on behalf
of the Karcher children [in the context of the Court’s Order, ECF No. 125] and that there was a
“computational error” in the Special Master’s Report regarding the seeonee enhancement
applied to the Levis and Ms. Vesey. Pls.’ Objections, ECF No. 151, at 11, n. 1-2.? Additionally,
as explained herein, the Court accepts the Special Master’s finding that the upward departure for
the Freeman family’s solatium claims is not supported by the record in this case.

Il. PROCEDURAL BACKGROUND

On August 26, 2019, this Court granted default judgment against Defendant Islamic
Republic of Iran (“Iran’’) as to the claims of multiple Plaintiffs injured in bellwether attacks and
the claims of Plaintiffs representing individuals killed in the bellwether attacks.4 See Order, ECF
No. 93; see August 26, 2019 Memorandum Opinion, ECF No. 94 (incorporated by reference
herein). The Court made no finding regarding damages for any of these Plaintiffs. On January 14,
2021, the Court granted default judgment against Iran as to eight Surviving Plaintiffs, and thirty-
four Plaintiffs representing the Estates of Deceased EFP Victims. See Order, ECF No. 122; see

January 14, 2021 Memorandum Opinion, ECF No. 123 (incorporated by reference herein). The

3 The page numbers cited are those assigned through the electronic case filing (“ECF”) system.

4 The Court required additional “information to establish Iran’s liability” to Plaintiffs Kirby,
Thornsberry, and Washburn. Order, ECF No. 93, at 1. Subsequently, the Court granted default
judgment against Iran as to the claims of Plaintiffs Kirby, Thornsberry, and Washburn. See
Order, ECF No. 105; see Memorandum Opinion, ECF No. 106 (incorporated by reference
herein).
Court made no finding regarding the appropriate amount of damages for any of these forty-two
Plaintiffs.

The Court referred the case to a Special Master, Mr. Alan L. Balaran, to prepare proposed
findings of fact and recommendations on non-economic damages for the eight Plaintiffs injured in
the non-bellwether EFP attacks as well as damages for the bellwether Plaintiffs. Order, ECF No.
122 at 2; see also Order and Administrative Plan, ECF No. 102 (appointing Mr. Balaran as Special
Master to iaemine damages for bellwether Plaintiffs; i.e., “those related to the seven bellwether
attacks that were the focus of the bench trial on December 3, 4, and 6, 2018, and their family
members); Order, ECF No. 125 (appointing Mr. Balaran as Special Master to determine non-
economic damages for eight Plaintiffs).

With regard to damages encompassed by this Memorandum Opinion, Plaintiffs’ objections
were limited and asked for: (1) correction of typographical errors; (2) amended solatium damages
for Gunnar Freeman, I.F., Mackenzie Haines. Colin Haines, and G.H.; (3) amended solatium
damages for CPT Brian Freeman’s family; and (4) solatium damages for Russel York. As
previously noted, the Court agrees with the majority of the corrections and amendments proffered

by the Plaintiffs. A brief discussion follows.

III. DISCUSSION

In its prior Memorandum Opinions, this Court concluded that Iran was liable for Plaintiffs’
injuries under 28 U.S.C. § 1605A(c). Pursuant to Section 1605A(c), damages “may include
economic damages, solatium, pain and suffering, and punitive damages.” “The only remaining
questions, therefore, are what type of damages Plaintiffs are entitled to recover and in what
amounts.” Fritz v. Islamic Republic of Iran, 

 (D.D.C. 2018). “Under the

FSIA, a ‘foreign states shall be liable in the same manner and to the same extent as a private
individual under like circumstances.’ Therefore, plaintiffs are entitled to the typical array of
compensatory damages that may be awarded against tortfeasors in the plaintiffs’ respective
domiciliary states.” Peterson v. Islamic Republic of Iran, 

 (D.D.C. 2007)
(quoting 

).

Plaintiffs’ claims may be categorized as follows: (1) conscious pain and suffering brought
by the Estates of Plaintiffs Delgado, Freeman, and Hake; (2) pain and suffering damages for
assault, battery and intentional infliction of emotional distress (“ited”) for Plaintiffs Kirby,
Thornsberry, Wallace, and Washburn; (3) economic loss; and (4) solatium claims brought by
family members of the deceased and injured victims.

In the instant case, with respect to those Plaintiffs who were not injured in EFP attacks, the
Reports and Recommendations apply the damages framework derived from Valore v. Islamic
Republic of Iran, 

 (D.D.C. 2010), Peterson v. Islamic Republic of Iran, 

 (D.D.C. 2007) (“Peterson IT’), and their progeny (the “Valore/Peterson IT
framework’). “In Peterson IJ, this Court 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 v. Islamic Republic of
Iran, 

 (D.D.C. 2012). In Valore, the court departed upward from this
baseline to a range of $7.5 to $12 million “in more severe instances of physical and psychological
pain, such as where victims suffered relatively more numerous and severe injuries, were rendered
quadriplegic, partially lost vision and hearing, or were mistaken for dead...” Valore, 

. Courts employing Valore considered also “the severity of the pain immediately following
the injury, the length of hospitalization, and the extent of impairment that will remain with the

victim for the rest of his or her life.” Baker v. Socialist People’s Libyan Arab Jamahirya, 

 (D.D.C. 2011). Courts may “award greater amounts in cases ‘with aggravating
circumstances ...°” Murphy v. Islamic Republic of Iran, 

 (D.D.C. 2010)
(quoting Greenbaum v. Islamic Republic of Iran, 

 (D.D.C. 2006)).

A. Damages for Conscious Pain and Suffering

There are several factors to consider when assessing damages for pain and suffering. There
is “no recovery” where “death was instantaneous.” Elahi v. Islamic Republic of Iran, 

 (D.D.C. 2000). Victims who survived a few minutes to a few hours after the bombing
typically receive an award of $1 million. /d. at 113. “[E]states of direct victims can also recover
for the pain and suffering endured” by the victim. Fritz, 

. In this case,
Plaintiffs requested, and the Special Master recommended, an award of $1 million for the Estate
of George Delgado and $1 million for the Estate of Christopher Hake, and the Court agrees with
these awards.

Plaintiffs requested, and the Special Master recommended, an award of $5 million for the
Estate of Brian Freeman. In analyzing Freeman’s pain and suffering damages claim, the Special
Master indicated that he was:

(1) informed by prior decisions awarding compensatory damages to victims of terrorist

attacks, Murphy v. Islamic Republic of Iran, 

 (D.D.C. 2010); (2)

mindful both of the “challenge aris[ing] in assigning a dollar value to such pain and

suffering,” Hekmati v. Islamic Republic of Iran, 

 (D.D.C. 2017);

(3) cautioned that “strict application of precedent could lead to conflicting conclusions

about an appropriate award,” Brewer v. Islamic Republic of Iran, 

(D.D.C. 2009); and (4) constrained to “not simply [recommend] what [he] abstractly finds

to be fair,” Weinstein, 184 F. Supp. 2d at 34.
Report and Recommendation, ECF No. 148, at 23. The Special Master noted that courts have
embraced “the baseline assumption that persons suffering substantial injuries in terrorist attacks

are entitled to $5 million in compensatory damages.” Davis v. Islamic Republic of Iran, 

 (D.D.C. 2012) (citation omitted). Report and Recommendation, ECF No. 148, at
23. This award may be adjusted upward or downward depending on the injuries and pain
sustained. See 

 (citing cases). The Special Master then explained the circumstances preceding
and resulting in Plaintiff Freeman’s death and why an award of $5 million was warranted. As
such, the Court agrees with an award of $5 million to the Estate of Brian Freeman, for conscious
pain and suffering.

B. Damages for Pain and Suffering - Assault, Battery, and ITED

Plaintiffs do not object . any of the sSomnmieatied pain and suffering damages (assault,
battery, iied) for the four Plaintiffs injured in non-EFP attacks: Kirby; Thornsberry; Wallace; and
Washburn. The amounts requested by Plaintiffs with regard to Thornsberry and Washburn [$1.5
million] are the same as the recommended amounts, and they are a downward departure from the
$5 million baseline. The amount requested for Plaintiff Kirby was greater than the amount
recommended, but it was a downward departure in both cases. The amount requested for Plaintiff
Wallace is greater than the recommended amount, but in both cases, it is an upward departure, and
the Special Master’s analysis explains adequately why such upward departure is warranted. As
such, the amounts recommended by the Special Master for damages for pain and suffering (assault,
battery, and iied) for Plaintiffs Kirby, Thornsberry, Wallace, and Washburn are approved by this
Court.

C. Economic Loss Damages

The Court notes that “[s]ection 1605A explicitly provides that foreign state-sponsors of
terrorism are liable to victims for economic losses stemming from injuries or death sustained as a
result of the foreign state’s enue Thuneibat v. Syrian Arab Republic. 

(D.D.C. 2016) (citing 28 U.S.C. § 1605A)(c)). Plaintiffs may prove economic losses through

“submission of a forensic expert’s report.” Jd. at 59, see Reed v. Islamic Republic of Iran, 

 (D.D.C. 2012) (“The report of a forensic economist may provide a reasonable
basis for determining the amount of economic damages in an FSIA case.”) The Special Master
first must examine the methodological soundness of the calculations, with the idea that
“mathematical exactitude is often impossible,” Bova v. Islamic Republic of Iran, No. 15-cv-1074
(RCL), 

, at *11 (D.D.C. May 31, 2020). Then, the Special Master may examine

steasonableness and foundation of the assumptions ened upon by the experts, Roth v. Islamic
Republic of Iran, 

 (D.D.C. 2015), to protect against “speculation,
contingency, or conjecture.” Bova, 

, at *11.

Throughout his Special Master Reports and Recommendations, Mr. Balaran documents the
forensic economist expert reports that he utilized in support of calculating Plaintiffs’ economic
loss claims. Based on a review of the record, the Court finds these calculations and assumptions
made by the forensic economist experts to be reasonable. Furthermore, in the instant case,
Plaintiffs do not object to any of the economic loss damages recommended by the Special Master
with the exception of a typographical error regarding economic damages for Robert Canine, whose
award of economic loss damages is corrected (downward) to $755,355.00. The remaining
economic loss damages recommended by the Special Master in his Reports and Recommendations

are approved as is.

D. Solatium Damages

A claim for solatium is “a claim for the mental anguish, bereavement 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.” Belkin v. Islamic
Republic of Iran, 

 (D.D.C. 2009) (citation omitted). Under the state-

sponsored terrorism exception to the FSIA, “the award of solatium damages to the close relatives
of terrorism victims” is expressly contemplated. Fritz, 

-62 (citing 28 U.S.C.
§ 1605A(c)). Itis presumed that “family members in direct lineal relationship suffer compensable
mental anguish[.]” Kaplan v. Hezbollah, 

 (D.D.C. 2016) (internal quotation
marks omitted).

Judges in this District Court have employed “a general framework for the calculation of
proper damage awards in FSIA cases” based on principles articulated in the Heiser case. Oveissi
v. Islamic Republic of Iran, 

 (D.D.C. 2011) (citing Heiser v. Republic of
Iran, 466 F. Supp. 2d at 269-270). Under this general framework, spouses of deceased victims
receive $8 million; parents and children receive $5 million; and siblings receive $2.5 million. Jd.
“Spouses typically receive greater damage awards than parents, who, in turn, receive greater
awards than siblings,” and “families of victims who have died are typically awarded greater
damages than families of victims who remain alive.” Heiser, 466 F. Supp. 2d at 269 (internal
quotation marks omitted). “Relatives of surviving servicemen receive[ ] awards valued at half of
the awards to family members of th[ose] deceased].]” Murphy v. Islamic Republic of Iran, 

 (D.D.C. 2010); see also Davis v. Islamic Republic of Iran, 

(D.D.C. 2014) (finding that, for the immediate family members of a victim injured by terrorists,
courts typically adhere to the following scale: “$4 million, $2.5 million, $1.5 million, and $1.25
million to spouses, parents, children and siblings, respectively.” (quotation omitted)).°

The Court notes that “[t]hese numbers . . . are not “set in stone,” Murphy, 

, but instead are “goalposts,” and “courts should deviate depending on the circumstances.”

Fritz, 

 (citation omitted). Such decisions to deviate are committed to the

> The inconsistencies in the amounts awarded to children of service members in this case are
addressed below in subsection 2.
court’s discretion. Oveissi, 

. “A court’s job in a solatium case is to account
for various facts and circumstances, and to use those factors to arrive at an appropriate numerical
expression of total pain and grief —encapsulated in the solatium award.” Oveissi, 

. Upward departures may be warranted if there is “evidence establishing a particularly close
relationship between the plaintiff and the decedent, particularly in comparison to the normal
interactions to be expected given the familial relationship” or with “medical proof of severe pain,
grief or suffering on behalf of the claimant” or if the “circumstances surrounding the terrorist attack
[rendered] the suffering particularly more acute or agonizing.” Oveissi, 

.
Downward departures are also possible where the relationship between the victim and family
members is attenuated. Valore, 

.
1. Correction of Typographical Errors
As previously mentioned herein, Plaintiffs indicated that:
Mr. Karcher’s family members were not part of this Court’s remit to the Special Master.
See Order, ECF No. 125 (Jan. 14, 2021) (“T]he Court appoints Mr. Alan L. Balaran as a
special master to make recommended findings of fact and conclusions of law regarding the
non-economic damages for the following eight Plaintiffs, injured in a non-bellwether EFP
attack”: Timothy Karcher .... Mr. Balaran shall include his findings about the non-
economic damages for these eight Plaintiffs with his forthcoming damages report for the
bellwether Plaintiffs.”) Plaintiffs submitted declarations from family members as part of
their PFFCL Regarding Damages for Eight Plaintiffs Identified in the Court’s Jan. 5, 2021
Minute Order, ECF No. 120-1 (Jan. 11, 2021) (filed under seal) to bolster Mr. Karcher’s
claims for psychological injuries, . . ., but not in support of their own claims. . .
Pls’ Objections, ECF No. 151, at 11 n.2. Accordingly, because the Karcher family member claims
were not encompassed within the scope of this Court’s Order [ECF No. 125] to the Special Master,
no award is granted at this point on behalf of Anna, Audrey, and Abbey Karcher.

Plaintiffs note further that while the Reports and Recommendations recommended that

Plaintiffs Eric and Debra Levi, and Kimberly Vesey — the parents and sister of Plaintiff Christopher
Levi — receive a “20% enhancement in addition to the baseline solatium awards of $2.5 million for
parents and 1.25 million for siblings of injured service members,” the Special Master’s
calculations “reflect a 25% enhancement (which the Plaintiffs had requested).” Pls.’ Objections,
ECF No. 151, at 11 n.1. Reading the Special Master’s Report and Recommendation, ECF No.
146-6, at 39-40, the Court notes that Mr. Balaran relied upon a case where a 20% enhancement
was awarded, and he explained why a 20% enhancement was warranted. The Court adopts the
Special Master’s reasoning and, as such, the calculations for Eric and Debra Levi and Kimberly
Vesey have been adjusted to reflect the intended 20% enhancement.

2. Freeman and Haines Children

Before assessing the solatium awards to children of the servicemen Plaintiffs, the Court
notes that there is some inconsistency in the amounts awarded to children of deceased victims with
$3 million indicated as the amount to be awarded in cases such as Anderson v. Islamic Republic of
Tran, 

 (D.D.C. 2012) (based on the same amount awarded in Stern v.
Islamic Republic of Iran, 

 (D.D.C. 2003)); see also Spencer v. Islamic
Republic of Iran, 

 (D.D.C. 2014) (‘Awards of $3 million to the children
of deceased victims are typical... Children of a surviving victim receive $1.5 million on average.”)
(citing Anderson, 

). In contrast, $5 million was awarded for children of a
deceased service member in Heisner, 466 F. Supp. 2d at 318 and Oveissi, 

;
and in Peterson II, 

, $2.5 million was established as the award for children
of a surviving service member.

In Mwila v. Islamic Republic of Iran, 

 (D.D.C. 2014), the court
recognized this inconsistency and stated that:

Courts in this district have differed somewhat on the proper amount awarded to children of
victims. Compare Peterson II, 

 ($2.5 million to child of injured

10
victim), with Davis v. Islamic Republic of Iran, 

 (D.D.C. 2012) ($1.5

million to child of injured victim). The Court finds the Peterson II approach to be more

appropriate to the extent such suffering can be quantified, children who lose parents are

likely to suffer as much as parents who lose children.
Pls.’ Objections, ECF No. 151, at 13. Plaintiffs notes that there are inconsistencies in the Reports _
and Recommendations insofar as some of the children of servicemen wounded in action (“WIA”)
received oe 5 million —half of the $5 million for children of servicemen killed in action (“KIA”).
Id, at 13-14. Plaintiffs note further that other children of WIAs and KIAs received $1.5 million
[Mackenzie and Colin Haines] and $3 million [Plaintiff Hake’s minor son G.H., and Gunnar and
I. Freeman], respectively.

Having reviewed the Special Master’s Reports and Recommendations, the Court agrees
that there is an internal inconsistency in the amount awarded to children of those KIA and WIA,
and furthermore, there is no discussion of circumstances or departures that would justify these
inconsistencies. Accordingly, the Court adopts the Heiser/Peterson I award of $5 million solatium
awards for children of deceased victims and $2.5 million for children of surviving victims. With
regard to the Haines and Hake children, the Court finds that an award of $2.5 million each is
appropriate. The Court notes that Plaintiffs initially requested a 20% upward departure for the
Haines children, but they “do not object to the R&Rs’ recommendations against granting the
upward departures.” Pls.’ Objections, ECF No. 151, at 14, n.7. With regard to the Freeman
children, the Court finds that an award of $5 million each is appropriate.

3. Freeman Family’s Requested Upward Departure

Plaintiffs requested an eanancemen? of 20% oF solatium claims by the Freeman
children/other Freeman family members “commensurate with the damages awarded to the family

members of service members killed in the same attack by Judge Randolph Moss in Fritz, 

Supp. 3d at 62.” Pls.” Objections, ECF No. 151, at 14, n.5. The Court notes that the Special Master
awarded $5 million to the Estate of Brian Freeman, “following the lead established in Fritz,” and
“Tijn deference to the principle that ‘individuals with similar injuries received similar awards[.]’”
Report and Recommendation, ECF No. 148, at 23 (quoting Atkins v, Islamic Republic of Iran, 

 (D.D.C. 2018) (citation omitted)). However, when addressing the solatium
claims by Plaintiff Freeman’s family members, the Special Master proffered a reasonable basis —a
lack of “appravating circumstances — to conclude that an upward departure in solatium damages
was unwarranted. Report and Recommendation, ECF No. 148, at 27-28 (citing Oveissi, 

). The Court adopts the Special Master’s analysis and conclusion that a 20%
upward departure for the Freeman family members is not supported by the record in this case.

4. Plaintiff Hake’s Stepfather Russel York

The Special Master denied the solatium claim of Plaintiff Christopher Hake’s stepfather,
Russel York, finding that he did not meet the “functional equivalent of immediate family members”
test. Report and Recommendation, ECF No. 147-2, at 34-37. Plaintiffs point out however that the
evidence does reflect that Russel York acted as the functional equivalent of Plaintiff Hake’s father
insofar as his declaration provides supports thereof. See Decl. of Russel York {ff 32, 35 (indicating
that York “did not think of Chris as a stepson but rather a son about whom [he] cared very much.
.. and [nJot having Chris around is like having a hole inside’’) (“although he may have technically
been my ‘stepson,’ I have always been proud to call him my son [as] [h]e was a fine young man
and I continue to miss him very much.”)

Plaintiffs discuss os in which court has granted solatium awards to stepchildren and
stepparents even when the victim had a relationship with a biological parent whose role was taken

on or supplemented by a step-relative. See e.g. Fritz v. Islamic Republic of Iran, Civil Action No

12
15-456 (RDM), 

 at *22 (D.D.C. Aug. 13, 2018) (awarding $1.5 million to a
stepmother who lived in the same household as the victim for portions of a three-year period and
indicated she felt a loss but also that her focus of concern was with the effect the loss had on her
husband). In the instant case, Plaintiff Hake’s mother Denice York married Russell York when
Plaintiff was seven years old. Decl. of Denise York 4 5; Decl. of Russell York § 5. Although Hake’s
biological father had sole custody, “Denise and Russel York nevertheless spent many weekends,
school breaks, summer TaCRHIORE, ...” together, and Hake and Russell York went camping and
fixed cars together. Decl. of Denise York 9 5;, 9, 13-15; Decl. of Russel York 4§ 6-11; Report and
Recommendation, ECF No. 147-2, at 37 (indicating that Russel bought Hake a motorcycle and
taught him how to drive a truck and was “distraught” over Hake’s death). Furthermore, Hake and
Russel York kept in touch through emails and telephone calls when Hake was in the Army. Decl.
of Denise York {| 20, 26; Decl. of Russell York § 12. Considering the nature of the relationship
between Russel York and Hake, in the context of the case law cited, this Court disagrees with the
Special Master and finds that Russel York should be considered a functional equivalent of a family
member and awarded $1.5 million in solatium damages.

IV. CONCLUSION

The Court acknowledges Plaintiffs’ efforts to hold Iran responsible for the acts of terror
that resulted in injury and/or death to persons serving in the military and appreciates that there is
no amount of money that can truly compensate the servicemembers and members of their family.
Based on the explanation set forth herein, the Court finds Defendant responsible for the injuries
saseained by Plaintiffs and liable under the FSIA’s state-sponsored femorism exception for

$173,882,276.47 in damages.

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A separate Order and Judgment consistent with these findings shall be entered this date.

‘” {
Cho K ds Khu
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE

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