Pescatore v. Pineda ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
OLIVIA PESCATORE, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 08-2245 (RMC)
)
JUVENAL OVIDIO RICARDO )
PALMERA PINEDA, et al., )
)
Defendants. )
__________________________________ )
MEMORANDUM OPINION
Frank Thomas Pescatore, Jr., was working as a geologist in the Republic of
Colombia in 1996 when he was kidnapped, held for ransom, killed, and eviscerated in an effort
to take “life like” photos to support ransom demands. The perpetrators were members of the
Fuerzas Armadas Revolucionarias de Colombia (FARC), a group since found to be terrorists by
the United States Department of State. In 2008, his family sued FARC and Juvenal Ovidio
Ricardo Palmera Pineda, also known as Simon Trinidad, under the Antiterrorism Act. After this
Court found Defendants liable for Mr. Pescatore’s death, this case trailed a related case in
Florida for years; that case has now settled.1 Returning to the District of Columbia, Mr.
Pescatore’s family seeks $240 million in damages. Based on the evidence provided, the Court
will grant their motion in part and award lesser sums.
I. BACKGROUND
Defendants’ liability in this case has already been established through default.
See Order [Dkt. 17]. Therefore, the facts of this case will be recounted only briefly here.
1
See In re Chiquita Brands Int’l, Inc., 284 F. Supp. 3d 1284 (S.D. Fla. 2018).
1
In December 1996, decedent Frank Pescatore was working as a geologist at the
Cerrejon coal complex in La Guajira Department, Colombia. Compl. [Dkt. 1] ¶ 28. On or about
December 19, 1996, members of FARC’s Caribbean Bloc under the command and control of
Defendant Palmera Pineda attacked the coal complex. While none of the Colombians at the site
was injured, FARC captured Mr. Pescatore and took him into the Colombian jungle. Id. ¶ 29.
FARC then attempted to obtain a ransom for Mr. Pescatore. Id. ¶ 31. When, in
February 1997, he attempted to escape, he was shot dead. Id. ¶ 32. To continue its ransom
demands, FARC had his body eviscerated and makeup applied to have the body appear alive. Id.
¶¶ 32-34. Two months later, when Mr. Pescatore’s ransom had not been paid, FARC dumped
his body, which was then discovered on or about February 23, 1997. Id. ¶ 35.
Plaintiffs are members of the Pescatore family, including: Olivia Pescatore, Mr.
Pescatore’s surviving spouse; Josh Pescatore, Jada Pescatore, Jarrod Pescatore, and Jordan
Pescatore, his children; the Estate of Frank Pescatore, Sr., his father; Carol Pescatore Harpster,
his sister; and his brothers Richard and John Pescatore.
Defendants are FARC and Mr. Pineda, a senior FARC commander who was
partially responsible for Mr. Pescatore’s kidnapping and murder. See Second Decl. of Olivia
Pescatore [Dkt. 40-8] ¶ 5; Letter from Christopher Carbonneau, Special Agent, Federal Bureau
of Investigation, to Olivia Pescatore (Apr. 21, 2004) [Dkt.40-8]. According to the U.S.
Department of State, as of September 1, 2017, FARC had agreed to a peace accord, disarmed,
and reincorporated as a political party. See U.S. Dep’t of State, Colombia 2017 Human Rights
Report 14-15 (2017) available at https://www.state.gov/documents/organization/277563.pdf.
Mr. Pineda is currently serving out a sixty-year prison term at the United States Penitentiary,
2
Administrative Maximum Facility in Florence, Colorado. See Mem. Op. [Dkt. 16] at 4. Neither
Defendant has appeared before this Court.
II. LEGAL STANDARD
A default judgment under Fed. R. Civ. P 55 establishes the defaulting party’s
liability for every well-pled allegation in the complaint. Int’l Painters & Allied Trades Indus.
Pension Fund v. Newburgh Glass and Glazing, LLC, 468 F. Supp. 2d 215, 217 (D.D.C. 2007)
(citing Adkins v. Teseo, 180 F. Supp. 2d 15, 17 (D.D.C. 2001)). However, it does not
automatically establish liability in the amount claimed by the plaintiff. Id. Rather, “unless the
amount of damages is certain, the court is required to make an independent determination of the
sum to be awarded.” Adkins, 180 F. Supp. 2d at 17 (citing SEC v. Mgmt. Dynamics, Inc., 515
F.2d 814 (2d Cir. 1975)). The court has considerable latitude in determining the amount of
damages. Fanning v. Wegco, Inc., 5 F. Supp. 3d 1, 4 (D.D.C. 2013) (citing Jones v.
Winnepesaukee Realty, 990 F.2d 1, 4 (1st Cir. 1993)). The court may determine the appropriate
sum by hearing, see Fed. R. Civ. P. 55(b)(2), but it may also rely on detailed affidavits or other
documentary evidence. Fanning, 5 F. Supp. 3d at 6. Ultimately, what matters is that the court
“ensures that there is a basis for the damages specified in the default judgment.” Id. at 4.
III. ANALYSIS
The family of Mr. Pescatore now seeks “damages from the Defendants solely for
their emotional loses.” Pls.’ Mot. for Default J. Regarding Damages (Dmg. Mot.) [Dkt. 40] at 7.
Plaintiffs suggest their own figures for damages: Olivia Pescatore seeks $15 million in damages
for her loss. Cf. Estate of Bayani v. Islamic Republic of Iran, 530 F. Supp. 2d 40, 46 (D.D.C.
2007) (awarding $30 million to widow of American held captive for 2 years before his brutal
murder). She argues that a large award is justified because “larger awards are typically reserved
for cases with aggravating circumstances that appreciably worsen the surviving spouse’s pain
3
and suffering, such as cases involving torture or kidnapping,” Greenbaum v. Islamic Republic of
Iran, 451 F. Supp. 2d 90, 108 (D.D.C. 2006), and notes that here FARC not only kidnapped and
killed her husband but also eviscerated his body in order to prolong ransom negotiations with his
family.
Each of Mr. Pescatore’s children seeks $10 million for their loss. Cf. Higgins v.
Islamic Republic of Iran, No. 1:00-CV-00377, 2000 WL 33674311 at *8 (D.D.C. Sept. 21, 2000)
(awarding $12 million to the daughter of a U.S. Marine held captive and executed by Hezbollah).
They also argue that “it follows that this amount should also be awarded to his father because
parents and children are generally awarded the same amounts.” Dmg. Mot. at 10-11 (citing
Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d 24, 51 (D.D.C. 2007)). “Finally, an award
of $5 million to Mr. Pescatore’s siblings is warranted because the siblings of a terrorist attack
victim generally receive half the amount awarded to parents and children.” Id.
In addition, Plaintiffs ask that their awards be trebled pursuant to 18 U.S.C.
§ 2333(a) (“Any national of the United States injured in his or her person . . . by reason of an act
of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any
appropriate district court of the United States and shall recover threefold the damages he or she
sustains and the cost of the suit, including attorney’s fees.”).
A. Documentation of Loss
In support of the numbers they put forward, each Plaintiff submitted both personal
declarations and an expert report from Dr. Rael Strous, a board-certified psychiatrist and
professor.2 Dr. Strous is a medical doctor who specializes in psychiatry and is employed as the
2
These materials are quoted extensively in this Memorandum Opinion. Although this Court
would normally redact such statements, Plaintiffs have already filed these materials in their
entirety on the public docket. See generally Dmg. Mot.
4
Deputy Hospital Director and Director of the Ambulatory Service of the Be’er Yaakov Mental
Health Center located in Be’er Yaakov, Israel. See Expert Report of Dr. Rael Strous Re: Olivia
Pescatore (Olivia P. Report) [Dkt. 40-18] ¶ 1. He also serves as a Full Professor in the
Department of Psychiatry at the Sackler Faculty of Medicine at the Tel Aviv University and
maintains a small private practice. Id. Dr. Strous has repeatedly been accepted as an expert in
this District and others in the United States, as well as in Israel. Id. ¶ 5.
Dr. Strous’ evaluations of the Pescatore family members were “based on clinical
interview[s] and formal psychiatric evaluation[s], as well as [his] review of the relevant affidavit
and deposition materials in this case.” See, e.g., id. at 1. Because Dr. Strous concluded that each
Plaintiff suffers from essentially identical conditions, it is helpful to describe those conditions
first.
Dr. Strous identified Persistent Complex Bereavement Disorder as a “description
of the normal mourning process that leads to chronic or ongoing mourning” experienced by
“people who are unable to get over their grief despite the passage of time.” Id. ¶ 9. Post-
Traumatic Stress Disorder (PTSD) is a “condition which develops from having been exposed to,
or witnessing, life-threatening events” and may also be experienced indirectly “by hearing of a
relative or close friend . . . [whose] death must [have been] accidental or violent.” Id. ¶ 10.
Symptoms of PTSD “include avoidance, re-experiencing the event, and hyper-vigilance, . . .
[which is] a cluster of symptoms that includes exaggerated startle response, inability to fall
asleep and inability to stay asleep.” Id. Among other issues, PTSD can lead to “memory
problems and a distorted sense of blame.” Id. ¶ 11. As a result, “educational and employment
prospects for PTSD victims are often lowered.” Id. ¶ 12. Finally, Dr. Strous described Persistent
Depressive Disorder, or Dysthymic Disorder, as a “chronic (long-lasting), mild form of
5
depression” that “can last for years and . . . can be just as debilitating as a more acute episode of
major depression (clinical depression), even leading to thoughts of, or attempts at, suicide.” Id.
¶ 15.
Based on these submissions and with regards to each of the Plaintiffs, the Court
notes the following facts:
1. Olivia Pescatore
Olivia Pescatore “nearly had a complete nervous breakdown” both in 1996, when
she learned that Mr. Pescatore had been kidnapped, and again in 2005 when she learned that he
had been eviscerated by FARC to prolong hostage negotiations. First Decl. of Olivia Pescatore
[Dkt. 40-3] ¶ 25. Indeed, during and immediately after his kidnapping, Mrs. Pescatore’s mother
had to stay with the family for seven months because Mrs. Pescatore “could barely get out of bed
and could no longer care for [her] children.” Id. ¶ 20. As of 2016 she still found the subject
difficult to talk about, and continued to suffer from high blood pressure, depression, panic
attacks, and anxiety, all related to her husband’s death. Olivia P. Report at 2, 6.
In 2016, Dr. Strous determined that “Olivia Pescatore 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 husband being kidnapped
and later killed” and “many of her symptoms may even be permanent.” Id. ¶¶ 16-17. This
determination was based in part on Mrs. Pescatore’s longstanding grief and anxiety related to her
husband’s death. See id. at 3-4.
2. Josh Pescatore
Josh Pescatore is the oldest son of Mr. Pescatore and states that Mr. Pescatore
“was an ever present figure in my life who I respected and tried to honor.” Decl. of Josh
Pescatore (Josh P. Decl.) [Dkt. 40-20] ¶ 3. Josh was a senior in high school when his father was
6
kidnapped, see id. ¶ 7, and he states that “[o]vernight I went from an above average student to a
nervous wreck.” Id.; see also Expert Report of Dr. Rael Strous Re: Joshua Pescatore (Josh P.
Report) [Dkt 40-19] at 10-11 (“[Mrs. Pescatore] quotes that he scored a thirty-five on the ACT
test when he was a freshman.”). Josh dropped out of high school after his father’s death and
never attended college. Id. at 10-11. Instead, he resorted to heavy alcohol and drug use to
manage his emotions. See Josh P. Decl. ¶ 9. Josh “admits to a serious opiate addiction for the
past 19 years or so. He has been in a drug rehabilitation program four times and has also been in
prison as a direct result of his drug use. He adds that he has wasted ‘tens of thousands’ of dollars
on his substance abuse.” Josh P. Report at 4. Josh stated in 2015 that “[i]t’s easy to look back as
a 33 year old man and see what mistakes and wrong choices I made but for an 18 year old who
just had the most traumatic experience of his life . . . there was no help for me. . . . It was the
worst part of my life. It changed me for the worse forever and I know that.” Josh P. Decl. ¶ 9.
Dr. Strous diagnosed Josh as displaying “some form of Persistent Complex
Bereavement Disorder, Post-Traumatic Stress Disorder, Substance Use Disorder and Substance
Induced Depressive Disorder either currently or in the past.” Josh P. Report ¶ 17. Dr. Strous
explained:
Substance abuse is common among people who suffer from a
depressive disorder. Many substances trigger depression systems
like lethargy, sadness and hopelessness. In addition, many
depressed individuals reach for drugs or alcohol as a way to raise
their spirits or to numb painful thoughts and anxieties. As a result,
depression and substance abuse are often related, and one condition
will often make the other worse.
Id. ¶ 16. Dr. Strous also determined that many of Josh’s symptoms “are likely to be present in
varying degrees for a significant time to come and . . . many of the symptoms may even be
permanent.” Id. ¶ 18.
7
3. Jada Pescatore
Jada Pescatore is Mr. Pescatore’s second child and oldest daughter. See Expert
Report of Dr. Rael Strous Re: Jada Pescatore (Jada P. Report) [Dkt. 40-21] at 2. Jada states that
she had “the closest relationship [with her father] out of everyone else in the family,” and, when
she found out he had been kidnapped during her sophomore year in high school, she “felt like
someone had reached into [her] chest and ripped [her] heart out.” Decl. of Jada Pescatore (Jada
P. Decl.) [Dkt 40-7] ¶¶ 1-2; see also Jada P. Report at 2. Afterwards, she states that “the anger in
me grew and grew” and that she still has nightmares. Jada P. Decl. ¶¶ 6, 13. In 2016, she
reported to Dr. Strous that “she feels that all her relationships, even positive ones over time came
to be affected by the loss of her father.” Jada P. Report at 4. In 2011, Jada was reported “in
good health.” Pls.’ Resp. to Mar. 31, 2011 Order to Provide the Age and Health Status of Each
Pl. (Pls.’ Health Update) at 3. Notwithstanding, in 2016 Dr. Strous determined that Jada
“displays some form of Persistent Complex Bereavement Disorder and Post-traumatic Stress
Disorder either currently or in the past” and believes that “many of the symptoms may even be
permanent.” Jada P. Report ¶¶ 15-16.
4. Jarrod Pescatore
Jarrod Pescatore was eleven-and-a-half years old when he learned of the
kidnapping and murder of his father. See Decl. of Jarrod Pescatore [Dkt. 40-23] ¶ 1. The details
are vague in his mind, “mostly because [he] doe[s] not like to remember that time.” Id. ¶ 4.
Frank Pescatore was a superhero to Jarrod and his death made him angry. See id. ¶ 2. He
remembers “crippling heartache as I watched my friends converse with their fathers.” Id. ¶ 8.
Jarrod also stated that “[m]ost of all, I hate the toll it has taken on my mother.” Id. ¶ 10. In his
session with Dr. Strous, Jarrod reported that “he knows that his personality has been irreversibly
and profoundly affected by the loss of his father . . . in such a sudden and traumatic manner.”
8
Expert Report by Dr. Rael Strous Re: Jarrod Pescatore (Jarrod P. Report) [Dkt. 40-22] at 5. In
2011, at age 25, Jarrod was reported to the Court as “in good health.” Pls.’ Health Update at 4.
According to Dr. Strous, Jarrod “displays some form of Persistent Complex Bereavement
Disorder, Post-traumatic Stress Disorder and Persistent Depressive Disorder either currently or in
the past” and “many of the symptoms may even be permanent.” Jarrod P. Report ¶¶ 16-17.
5. Jordan Pescatore
Jordan Pescatore was “a 10 year old little girl” when her father was kidnapped,
and reported that “[n]othing has been the same since that day” when she heard he was dead.
Decl. of Jordan Pescatore [Dkt 40-9] ¶¶ 1-2. She states that she has been through “mental
struggles, addictions, pain, loneliness, and grief. And it will never end.” Id. ¶ 6. In her session
with Dr. Strous, Jordan reported that even though she has a degree in social work, she “found it
hard in general to help others when she was still dealing with her own demons” and that “even
though she enjoyed social work, she found it too overwhelming and painful with memories of
her own issues returning.” Expert Report of Dr. Rael Strous Re: Jordan Pescatore [Dkt. 40-24]
at 5. She has struggled with low self-esteem and “experiences much guilt over not being there
for her family due to her problems confronting the loss.” Id. She further reported that “she feels
that her grieving shaped her personality to what it is today.” Id. Dr. Strous determined that
Jordan “displays some form of Persistent Complex Bereavement Disorder, Post-traumatic Stress
Disorder and Persistent Depressive Disorder either currently or in the past” and “many of the
symptoms may even be permanent.” Id. ¶¶ 16-17.
6. Frank T. Pescatore, Sr.
Frank Pescatore, Sr., died on March 4, 2016, at the age of 89 and twenty years
after his oldest son was killed by FARC. His estate is represented by his daughter, Carol
9
Harpster.3 Dr. Strous interviewed Frank Sr.’s sons Richard and John, his daughter, Carol, and
his son-in-law, Greg Sparrow, and, from those sources, prepared a psychiatric evaluation of
Frank Sr. See Fed. R. Evid. 803(3) (permitting hearsay testimony regarding the declarant’s then-
existing emotional and physical conditions). Dr. Strous states that the family’s descriptions of
Frank Sr.’s intense grief suggest that he suffered from Persistent Complex Bereavement Disorder
and Persistent Depressive Disorder, which may have been a Major Depressive Disorder for the
last years of his life. Expert Report of Dr. Rael Strous Re: Frank Pescatore Sr [Dkt 40-12] at 6.
He also notes “the prevalence of complicated grief after violent death is much higher than after
other forms of death such as illness.” Id.
7. Carol Pescatore Harpster
Carol Pescatore Harpster, Mr. Pescatore’s older sister, says that “[l]osing a sibling
to murder causes an indescribable pain that never completely goes away” and that “Frank’s
murder tore a hole in the fabric of our family.” First Decl. of Carol Pescatore Harpster [Dkt. 40-
1] ¶ 3. Carol was reported “in good health” in 2011, when she was in her mid-fifties. Pls.’
Health Update at 4. Dr. Strous reports that Carol “displays some form of Persistent Complex
Bereavement Disorder and Post-traumatic Stress Disorder either currently or in the past” and
“many of the symptoms may even be permanent.” Expert Report of Dr. Rael Strous Re: Carol
Pescatore Harpster [Dkt. 40-13] ¶¶ 15-16.
3
See Mot. for Substitution on Behalf of the Estate of Frank Pescatore, Sr. [Dkt. 32] ¶ 5. Carolyn
Pescatore, Frank Sr.’s widow, was authorized to act as the representative of his estate, and was
substituted for Frank Sr. See Minute Order 2/03/17. Carolyn Pescatore is not a plaintiff on her
own behalf. See Compl. Carol, Frank Sr.’s daughter, was appointed executrix of his estate. See
Second Decl. of Carol Pescatore Harpster [Dkt 40-2] ¶ 14. The death of Frank Sr. does not
extinguish his claims. See 18 U.S.C. § 2333(a).
10
8. Richard Pescatore
Richard Pescatore “loved [his] brother more than anything in the world. We were
extremely close . . . and only a year and a half apart.” Decl. of Richard Pescatore [Dkt. 40-15]
¶ 2. Richard was the one who told his parents that Frank was dead, which “was one of the
hardest things I ever did in my life. My father made a sound I had never heard before and never
want to hear again.” Id. ¶ 4. Richard states that the “hardest thing of all is living with my failure
to get Frank home” after he was kidnapped. Id. ¶ 12. In 2011, Richard, in his early fifties, was
reported to be “in good health.” Pls.’ Health Update at 4. Dr. Strous opined in 2016 that
Richard Pescatore “displays some form of Persistent Complex Bereavement Disorder, Post-
traumatic Stress Disorder and Persistent Depressive Disorder either currently or in the past” and
“many of the symptoms may even be permanent.” Expert Report of Dr. Rael Strous Re: Richard
Pescatore [Dkt. 40-14] ¶¶ 16-17.
9. John Pescatore
John Pescatore was born eight years after his oldest brother, Mr. Pescatore. See
Decl. of John Pescatore [Dkt 40-17] ¶ 1. John received a letter from Mr. Pescatore in 1996
which he keeps framed and hanging in his office to this day. See id. ¶ 4. He stated further that
“[t]his letter to me is like having all the gold in the world.” Id. As with his siblings, John, in his
mid-forties, was reported to be “in good health” in 2011. Pls.’ Health Update at 4. Dr. Strous
determined in 2016 that “John Pescatore displays some form of Persistent Complex Bereavement
Disorder and Post-traumatic Stress Disorder either currently or in the past” and “many of the
symptoms may even be permanent.” Expert Report of Dr. Rael Strous Re: John Pescatore [Dkt.
40-16] ¶¶ 16-17.
11
B. Solatium Damages
Although Plaintiffs allude at various times to financial difficulties, they do not
provide the Court with any “hard data” to, for instance, calculate the financial losses to the
immediate family caused by Mr. Pescatore’s missing income; he was, after all, only 41when he
was killed. No Plaintiff has submitted reports or bills from attending psychiatrists or
psychologists, to whom they might have turned for help in the aftermath of Mr. Pescatore’s
death. No Plaintiff has described any struggle with paying for college or other education.
Indeed, the Court earlier expressed concern about the lack of support for Plaintiffs’ damages.
See Mem. Op. at 13 (granting default judgment on liability but finding that “[b]ased upon the
evidence submitted, the requested amounts for damages are not adequately established”).
Instead, Plaintiffs seek compensation only for their “mental anguish, bereavement
and grief resulting from the fact of decedent’s death.” Flatow v. Islamic Republic of Iran, 999 F.
Supp. 1, 30 (D.D.C. 1998). The legal term for such compensation is “solatium,” which is
defined as “[c]ompensation; esp. damages for hurt feelings or grief, as distinguished from
damages for physical injury.” Black’s Law Dictionary 1426 (10th ed. 2014). Flatow, the first
case decided against the Islamic Republic of Iran under the Foreign Sovereign Immunities Act,
identified a series of factors to consider when awarding solatium dangers. See Fraenkel v.
Islamic Republic of Iran, 892 F.3d 348, 356-57 (D.C. Cir. 2018) (remanding for consideration of
Flatow factors). Inasmuch as its analysis undergirds an award for the loss by family members of
a decedent’s society and their anguish, the Court will apply Flatow here. See Flatow, 999 F.
Supp. at 30-32. Other district courts have described those factors as including:
(1) whether the decedent’s death was sudden and unexpected; (2)
whether the death was attributable to negligence or malice; (3)
whether the claimants have sought medical treatment for depression
and related disorders resulting from the decedent’s death; (4) the
nature (i.e., the closeness) of the relationship between the claimant
12
and the decedent; and (5) the duration of the claimants’ mental
anguish in excess of that which would have been experienced
following the decedent’s natural death.
Stethem v. Islamic Republic of Iran, 201 F. Supp. 2d 78, 89-90 (D.D.C. 2002) (citing Flatow,
999 F. Supp. at 30-31).
In this case, factor one applies in three separate ways for all Plaintiffs: first, there
was the sudden and unexpected nature of Mr. Pescatore’s kidnapping, which caused great
anxiety for two months; then there was the notice that he had been killed; and, some years later,
the notice that he had been eviscerated and made to appear alive in photos after his death. These
events were unexpected and had an immense effect on each member of Mr. Pescatore’s family.
Twice, Olivia was unable to care for her family for months after her husband’s kidnapping and
almost had nervous breakdowns; Josh dropped out of high school and turned to drugs; Jada felt
as if “someone had reached into my chest and ripped my heart out”; Jarrod felt “cripple[d]” when
he saw friends with their fathers; Jordan experienced “mental struggles, addictions, pain,
loneliness and grief”; Frank Sr. collapsed emotionally and never regained full health; Carol
experienced “an indescribable pain that never completely goes away”; Richard felt guilt for not
having done more to help Frank; and John felt the immediate and long-term loss of a beloved
older brother.
As to factor two, Mr. Pescatore’s kidnapping and murder was clearly the result of
intentional malice, not negligence. Indeed, as the only non-Colombian in his group, he was the
only one taken so that his captors could extort a ransom.
Facts related to the third factor, medical treatment, are not well substantiated in
the record. The Court has only hints that one or more of the family members sought treatment
for depression or other disorders.
13
In a factor that is difficult upon examination, Flatow suggests that the “closeness”
of plaintiff to the decedent should contribute to an award for solatium damages. Flatow, 999 F.
Supp. at 31-32. The parties’ declarations show that Olivia and Frank Sr. were very close to Mr.
Pescatore and that all of Mr. Pescatore’s children felt an immense and wrenching loss at his
death. While his siblings were also deeply affected by Mr. Pescatore’s death, they were all
adults and lived separate lives.
The last Flatow factor seeks to identify the duration of each person’s excessive
grief and to compensate for that. Again, Olivia and Frank Sr. clearly suffered until at least 2016.
Josh turned away from the family and to alcohol and drugs for his pain and guilt, recovered,
relapsed in 2011, and has basically had a serious drug addiction since his father’s death. His
status after 2016 is not known. Jada, Jarrod, Jordan, Richard, and John Pescatore and Carol
Harpster all were reported to be in good health in 2011. This statement is not meant to suggest
that their grief had ended or that they no longer thought about or missed Frank Pescatore; that
result may never come. On a comparative scale, however, their grief seems to have materially
abated over the years.4
4
The Court acknowledges, but does not find especially informative, Dr. Strous’ expert findings.
Having sat with each Plaintiff for one day some 20 years after the underlying events, Dr. Strous
reaches essentially the same clinical diagnosis for each Plaintiff: Persistent Complex
Bereavement Disorder (moderate); PTSD (partial); and sometimes Persistent Depressive
Disorder (moderate). Different Plaintiffs report suffering from a wide range of effects over
various durations and yet have the same diagnoses. Dr. Strous formulaically repeats that each
Plaintiff displays “some form” of these conditions “either currently or in the past” and that these
conditions “may even be permanent,” even though when and for how long each Plaintiff was
affected weighs on the Court’s judgment; indeed, Dr. Strous does not explain how a condition
present only in the past, but not currently, could be permanent. The Court appreciates the
expertise Dr. Strous brings to his psychiatric evaluations and the passage of time with which he
was dealing but, as indicated, relies more on Plaintiffs’ (very helpful) statements to him, the
health update they provided in 2011 (i.e., Pls.’ Health Update), and their declarations here.
14
In addition to consideration of the factors identified in Flatow, “[c]ompensatory
damages awards to family members of the victim of a terrorist attack are generally determined
by the nature of the relationship. Spouses typically receive greater damage awards than parents,
who, in turn, receive greater awards than siblings.” Prevatt v. Islamic Republic of Iran, 421 F.
Supp. 2d 152, 161 (D.D.C. 2006). “Parents of victims typically receive awards similar in
amount to those awarded to children of the victim.” Peterson, 515 F. Supp. 2d at 51 (D.D.C.
2007). “[F]amilies of hostage or captivity victims are also typically awarded greater damages
than are the families of victims of a single attack . . . [and] families of victims who have died are
typically awarded greater damages than families of victims who remain alive.” Haim v. Islamic
Republic of Iran, 425 F. Supp. 2d 56, 75 (D.D.C. 2006).
In cases brought under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C.
§ 1605A, many district courts have followed the solatium damages model established in Estate
of Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229 (D.D.C. 2006). See Fraenkel, 892
F.3d at 361. This Court has not. Heiser’s framework is not a mandatory scheme and district
courts have “wide discretion . . . to determine the damages that are due under the FSIA.” Id. at
361-62. To the extent that this Court assesses damages under the Antiterrorism Act (ATA), 18
U.S.C. § 2333 et seq., in a manner similar to how it assesses damages under the FSIA, this Court
continues to exercise its judgment and discretion based on the facts before it.
Accordingly, the Court awards the following amounts in compensation for the
loss suffered by each member of Mr. Pescatore’s family:
Olivia Pescatore (widow): $5,000,000
Josh Pescatore (son): $3,000,000
Jada Pescatore (daughter): $3,000,000
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Jarrod Pescatore (son): $3,000,000
Jordan Pescatore (daughter): $3,000,000
Frank T. Pescatore, Sr. (father): $3,000,000
Carol Pescatore Harpster (sister): $1,000,000
Richard Pescatore (brother): $1,000,000
John Pescatore (brother): $1,000,000
These damages shall be trebled. See 18 U.S.C. § 2333(a). This Court has previously awarded
solatium damages in two FSIA cases: Fraenkel v. Islamic Republic of Iran, 316 F. Supp. 3d 284
(D.D.C. 2018), and Gates v. Syrian Arab Republic, 580 F. Supp. 2d 53 (D.D.C. 2008). Without
directly comparing these cases—the award of solatium being so fact specific—the Court merely
notes that the above amounts (less trebling) are consistent with amounts previously awarded.5
5
Plaintiffs also ask the Court to deem them “crime victim judgment creditors with perfected
liens on proceeds derived from drug trafficking criminal activities.” Dmg. Mot. at 21 (citing
United States v. BCCI Holdings (Luxembourg), S.A., 46 F.3d 1185, 1191 (D.C. Cir. 1995)). The
Court declines to do so here. Plaintiffs cite no sources explaining the Court’s authority to make
such a determination. Cf. BCCI Holdings, 46 F.3d at 1192 (finding that general creditors “can
never have an interest in specific forfeited property” because that result “appears patently at odds
with the statutory scheme, which directs parties without an interest in specific property to seek
relief from the Attorney General, not the court adjudging the forfeiture.”). Although Plaintiffs’
motions are unopposed, “[i]t is not enough merely to mention a possible argument in the most
skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and
put flesh on its bones.” United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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IV. CONCLUSION
FARC as it existed in 1996 is gone; Mr. Pineda will be imprisoned for other
murders for decades to come; there is no one left to punish. Whether any monetary award so
long after the terrorizing events can otherwise bring further solace, the law attempts to perform
that function. A memorializing Order accompanies this Memorandum Opinion.
Date: November 1, 2018
ROSEMARY M. COLLYER
United States District Judge
17