Cohen v. Islamic Republic of Iran

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ORA COHEN, et al.,
Plaintiffs,
v. Case No. 12-cv-01496 (CRC)
ISLAMIC REPUBLIC OF IRAN, et al.,
Defendants.
MEMORANDUM OPINION
Almost fourteen years ago, a Hamas operative boarded a bus travelling through
Jerusalem and detonated a bomb strapped to his body. Ora Cohen, her then-husband Shalom,
and their five children—Meirav, Shira, Daniel, Orly and Elchanan—were passengers on the bus
and all were injured in the blast. The Cohen family, along with Ora’s parents and two sisters,
brought an action against the Islamic Republic of Iran (“Iran”) and two of its instrumentalities,
the Iranian Revolutionary Guard Corps and the Iranian Ministry of Information and Security,
under the state-sponsor-of-terrorism exception to the Foreign Sovereign Immunities Act
(“FSIA”), 28 U.S.C. § 1605A(1)(a). The Court entered a default judgment against Defendants
earlier this year, finding Iran to be liable for the Cohen’s injuries based on its documented
funding and support of Hamas’s terrorist activities. March 16, 2017 Order, ECF No. 43. In the
same Order, the Court appointed Deborah Greenspan as a Special Master and requested that she
prepare “a report presenting her factual findings and recommendations on the appropriate
amount of damages to be awarded to each plaintiff.” Id. Relying on depositions, medical
records, and other documentary evidence presented by Plaintiffs, Special Master Greenspan has
produced a comprehensive report detailing the facts relevant to the damages award and analyzing
those facts under the legal framework established in prior state-sponsor-of-terrorism cases. See
Report and Recommendation of Special Master (“R. & R.”) at 27, ECF No. 44. After reviewing
Ms. Greenspan’s well-substantiated report, the Court adopts its factual findings and
recommendations, and resolves a handful of open questions that it addresses below. Having
examined all aspects of the damages calculation, the Court will award Plaintiffs a total judgment
of $208,950,000.
I. Damages1
“[T]hose who survived an attack may recover damages for their pain and suffering[;]
. . . family members can recover solatium for their emotional injury; and all plaintiffs can recover
punitive damages.” Wultz v. Islamic Republic of Iran, 864 F. Supp. 2d 24, 37 (D.D.C. 2012)
(citing Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 82–83 (D.D.C. 2010)). To
establish damages, Plaintiffs “must prove the amount of the damages by a reasonable estimate
consistent with this Circuit’s application of the American rule on damages.” Wultz, 864 F. Supp.
2d at 37 (internal quotation marks and citation omitted). “In determining the reasonable
estimate, courts may look to expert testimony and prior awards for comparable injury.” Braun v.
Islamic Republic of Iran, 2017 WL 79937, at *9 (D.D.C. Jan. 9, 2017) (internal citations
omitted).
A. Compensatory Damages
1. Pain and Suffering
At the outset, the Court acknowledges that assessing awards for pain and suffering is an
imperfect science as no amount of money can properly compensate a victim for the suffering he
1
The Court discussed the factual background of this case at length in its opinion
awarding Plaintiffs a default judgment against Defendants. See Cohen v. Islamic Republic of
Iran, 2017 WL 818208, at *1–3 (D.D.C. Mar. 1, 2017). It incorporates those facts by reference
here, and will reproduce only the facts pertinent to the question of damages.
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or she endures during and after an attack. In the interest of fairness, however, courts strive to
maintain consistency of awards as between the specific plaintiffs and among plaintiffs in
comparable situations. With that goal in mind, the District Court for the District of Columbia
has “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, 864 F. Supp. 2d at 37–38 (citing Peterson v. Islamic
Republic of Iran, 515 F. Supp. 2d 25, 54 (D.D.C. 2007), abrogated on other grounds by
Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 15 (D.C. Cir. 2015)). That baseline amount
is then adjusted based on the nature of the injury, the pain associated with it, the duration of the
hospitalization, and the degree and length of impairment. See Peterson, 515 F. Supp. 2d at 52
n.26. A downward deviation to $2–3 million, for instance, is appropriate “where victims
suffered only minor shrapnel injuries or minor injury from small-arms fire.” Wultz, 864 F. Supp.
2d at 38. A more permanent injury or impairment, by contrast, might warrant a larger award of
$7–12 million. Id. The Cohens have offered deposition testimony and medical records in
support of their damage claims, which courts may rely upon when determining their awards. See
Bluth v. Islamic Republic of Iran, 203 F. Supp. 3d 1, 23 (D.D.C. 2016).
Applying this framework, Special Master Greenspan reviewed Ora Cohen and her five
children’s claims for pain and suffering, analyzed the evidence they submitted, and compared
their physical injuries and emotional distress to those suffered by plaintiffs in other cases.
Finding that her analysis is justified by the supporting documentation and fits squarely within
prior case law, the Court accepts her recommendations on pain and suffering and will briefly
discuss the individual determinations.
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It is indisputable that Ora Cohen has been the lifeblood of the Cohen family for the past
thirteen years: she has shuttled her five children to appointments with doctors and therapists, has
sat with them in hospitals, and has cared for them as they recovered from successive rounds of
surgeries. She has labored almost singlehandedly, consistently placing her own recovery behind
that of her children. In the bus bombing, she “suffered a broken nose, and injury to her neck, and
significant damage to her eardrum.” R. & R. at 27. In its immediate aftermath, she spent hours
waiting for news of her family, including whether they had survived the attack. And in the year
following, she was diagnosed with PTSD and depression. Id. Her physical injuries, while
significant, are not as severe as that of other FSIA plaintiffs, but the extent of her emotional
injury is unique and “the fact that she deferred her own treatment to assure proper care for her
children warrants the ‘baseline’ award of $5 million.” Id. at 28.
The Cohen’s daughter Meirav is likewise entitled to the baseline award of $5 million
because injuries to her ears, which are frequently infected, continue to impact her daily life. She
was hospitalized for nine days after the attack and still bears daily reminders of it in the form of
scars on her face, legs, and arms. See id. at 30–31. Meirav’s sister Shira suffered the most
severe and permanent physical injuries within the family. Her eye was badly injured in the
attack, resulting in permanent disfigurement and loss of vision. The psychological impact of
such an injury on a young girl, the ongoing need for treatment, and the permanence of the
impairment warrant an upward deviation of $2 million for a total award of $7 million. See
Bluth, 203 F. Supp. 3d at 24 (awarding $6 million for a severe flesh wound, emotional distress,
and permanent hearing loss).
As to the remaining Cohen children, the Court will award $3 million in pain and suffering
to both Orly and Daniel, and $750,000 to Elchanan. Orly suffered shrapnel wounds in the attack,
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and while she still suffers from some hearing loss, her physical injuries are less severe than her
sisters, mother, and prior plaintiffs, warranting a downward departure. See Wamai v. Republic
of Sudan, 60 F. Supp. 3d 84, 92 (D.D.C. 2014) (awarding $2.5 million for plaintiffs who suffered
broken bones, head trauma, and some hearing impairment). Daniel, like Orly, suffered from
shrapnel wounds and has ongoing issues with his hearing, such as ringing in his ears, and is
similarly entitled to a $3 million pain and suffering award. Finally, Elchanan, who was a few
months old at the time of the attack, has no present memories of it apart from what he has been
told by his family. But he has suffered nonetheless: his hip was broken by the blast and he spent
hours buried under bodies waiting to be rescued. See R. & R. 32. His lack of memory does not
preclude him from recovering for the pain and suffering he endured. See Braun, 2017 WL
79937, at *8 (awarding damages to parents of an infant who was injured in a terrorist attack and
died as a result of her injuries).
2. Solatium
In its default judgment opinion, the Court found that Defendants were liable to Ora
Cohen, Shalom Cohen, their children, and Ora’s immediate family in the United States on their
solatium claims. See Cohen, 2017 WL 818208, at *7–8. Each Plaintiff here brings multiple
solatium claims, seeking to recover “additive” damages for every Cohen family member injured
in the attack, for an award totaling $60 million. The Court reserved judgment, however, “on the
number of solatium claims that can be sustained by a family member who witnesses every other
member of her family experience an injury” and awaited the special master’s report before ruling
definitively on the issue. Cohen, 2017 WL 818208, n.8. While the report acknowledges the
unique circumstances of having a whole family injured in an attack, it ultimately rejects the
“additive” damages approach because it results in awards far higher than individual awards for
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pain and suffering and is inconsistent with solatium damages in other cases. See R. & R. 34–35
(citing Wamai, 60 F. Supp. 3d at 91). Instead, Special Master Greenspan recommends an
“enhancement” approach, where the Court starts with a baseline amount and then enhances it by
a specific percentage for additional family members injured in the attack. See Wultz, 864 F.
Supp. 2d at 39–40. The baseline amount would be determined by the victim with whom the
Plaintiff has the closest relationship, i.e. the largest individual solatium award, and would follow
the framework set forth in prior cases:
For relatives of victims physically injured by terrorist attacks, . . . awards are
valued at half of the awards to family members of the deceased—$4 million, $2.5
million and $1.25 million to spouses, parents, and siblings, respectively, and $1.5
million for children. Courts similarly have held that relatives of surviving victims
presenting with emotional trauma and no physical injury receive amounts
proportionally less than those with physical injuries, namely, $1 million for
spouses; $850,000 for parents; $750,000 for children, and $500,000 for siblings.
Kaplan v. Hezbollah, 213 F. Supp. 3d 27, 38 (D.D.C. 2016) (internal citations omitted). The
Court agrees with the suggested approach and finds that it adequately compensates Plaintiffs for
the mental anguish suffered for their loved ones’ injuries without resulting in exorbitant awards.
Applying that approach, Ora and Shalom Cohen are each entitled to $7,950,000 in
solatium damages. To start, each of them suffered from having a spouse injured in the attack,
which warrants $4 million as a baseline amount. That figure is then enhanced by 20%, or
$800,000 each, for Meirav, Shira, Daniel, and Orly’s injuries. An additional $750,000 is added
to that sum for Elchanan’s injury. Solatium damages that can be recovered on behalf of
Elchanan are capped at $750,000 so that they do not exceed the amount of damages he receives
for pain and suffering. See R. & R. 35–36, 39 (citing Wultz, 864 F. Sup. 2d at 39–40). The
Cohen children will each be awarded $4,500,000 in solatium damages—a baseline amount of
$2.5 million for the injuries to their mother enhanced by 40% ($1 million) for injuries to their
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father and another 40% ($1 million) for the injuries to their four siblings. These awards are
supported by the Special Master’s findings, which recount how difficult it was for the Cohen
children to not only see their siblings suffer but also witness the disintegration of their family as
their father became “detached” from the rest of them. See id. at 36–39.
As to Ora Cohen’s parents and sisters living in the United States, the assessment is more
straightforward and consistent with the baseline amounts set forth above. The Court credits the
unrebutted testimony of Ora’s sisters—Ronit Mohabber and Orly Mohaber—describing how
deeply they were affected by the attack on their sister and nephew and nieces and will grant them
the standard $1.25 million award for injuries suffered by a sibling. See id. at 40. The Court also
relies on the affidavit of Ora’s mother, Shokat Sadian, and the corroborating testimony of Ronit
and Orly Mohaber to find that Shokat and Neria Mohaber, Ora’s father, experienced significant
grief and distress upon learning of the attack and injuries to their daughter and grandchildren.
Therefore, it will award Shokat and Neria’s estate $2.5 million each in solatium damages. See
id.2
2
Plaintiffs also seek prejudgment interest on their compensatory damages award. This
request for relief, however, appears only in their Proposed Findings of Fact and Conclusions of
Law, see Pls.’ Proposed Findings of Fact and Conclusions of Law Supp. Mot. Default J. 31–32,
and not in the initial Complaint. See generally Compl. Because “a default judgment must not
differ in kind from, or exceed in amount, what is demanded in the pleadings,” Fed. R. Civ. P.
54(c), the Court will consider only the relief requested in the Complaint and will not award
prejudgment interest on the compensatory damages award. See Gill v. Islamic Republic of Iran,
2017 WL 1289938, at *10 (D.D.C. Apr. 6, 2017). In any event, prejudgment interest is likely
not warranted because “nonpecuniary damages, such as solatium damages, . . . are designed to be
fully compensatory. . . . Therefore, the [compensatory] damages awarded are complete and
prejudgment interest is not necessary to make the plaintiffs whole.” Thuneibat v. Syrian Arab
Republic, 167 F. Supp. 3d 22, 55 (D.D.C. 2016) (citing cases that declined to award prejudgment
interest). But see Wamai, 60 F. Supp. 3d at 98 (awarding prejudgment interest to reimburse
plaintiffs for the time value of their money).
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B. Punitive Damages
Section 1605A authorizes punitive damages to be assessed against foreign state sponsors
of terrorism. 28 U.S.C. §1605A(c). Punitive damages, unlike compensatory damages, are
intended to “punish and deter” defendants for their bad acts. Valore, 700 F. Supp. 2d at 87.
Courts calculate punitive damages by considering the following four factors: “(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.”
Wamai, 60 F. Supp. 3d at 96–97 (quoting Oveissi v. Islamic Republic of Iran, 879 F. Supp. 2d
44, 56 (D.D.C. 2012)).
All four factors weigh in favor of awarding punitive damages against Defendants. As to
the first factor, the targeted bombing of a bus full of innocent civilians—resulting in 23 fatalities
and over a hundred injured—was a truly heinous and unconscionable act. And “[t]he
defendants’ demonstrated policy of encouraging, supporting and directing a campaign of deadly
terrorism is evidence of the monstrous character of the bombing that inflicted maximum pain and
suffering on innocent people.” Bodoff v. Islamic Republic of Iran, 424 F. Supp. 2d 74, 88–89
(D.D.C. 2006) (awarding punitive damages against Iranian officials and instrumentalities for the
1996 bombing of a bus in Jerusalem). Secondly, the harm to Plaintiffs was significant: each
family member suffered injuries—some resulting in permanent impairments—and the entire
family continues to experience the effects of the bombing. Third, as courts of this district have
held repeatedly, “only a large amount of punitive damages can serve as an effective deterrent
against future terrorist acts.” Bodoff, 424 F. Supp. 2d at 88 (citing Campuzano v. Islamic
Republic of Iran, 281 F. Supp. 2d 258, 278 (D.D.C. 2003)). “Fourth, Iran is a sovereign and has
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substantial wealth.” Bluth, 203 F. Supp. 3d 1, 25 (D.D.C. 2016) (citing Weinstein v. Islamic
Republic of Iran, 184 F. Supp. 2d 13, 25 (D.D.C. 2002) and Oveissi, 879 F. Supp. 2d at 56).
Courts have taken varying approaches to determining punitive damages, from imposing a
fixed amount, see Flanagan v. Islamic Republic of Iran, 87 F. Supp. 3d 93, 122 (D.D.C. 2015); to
multiplying the defendant state’s annual expenditure on terrorism by a factor of three to five, see
id. at 122; to calculating the total award based on a ratio between punitive and compensatory
damages, see Gill v. Islamic Republic of Iran, 2017 WL 1289938, at *13 (D.D.C. Apr. 6, 2017).
The Court is persuaded by the reasoning in Gill, which found that the annual-expenditure-on-
terrorism multiple was more appropriate for “exceptionally deadly attacks, such as the 1983
bombing of the Marine barracks in Beirut, which killed 241 American military servicemen.” Id.Additionally, determining Iran’s annual expenditures is imprecise because there is a lack of
credible evidence supporting the numerical estimates and when the funding occurred. It is a
rough approximation at best. An outsized punitive damage award is also less justified when the
perpetrator funded the terrorist activities rather than carried them out himself. See Bluth, 203 F.
Supp. 3d at 26. Therefore, “[g]iven the frequency of these attacks and the lack of any evidence
that high awards have successfully deterred them, the Court finds that neither the large sum of
$500 million requested by Plaintiffs nor the sum resulting from the expenditure-times-multiplier
method is appropriate.” Id.
It is more fitting here to anchor punitive damages to compensatory damages by
multiplying the total award of compensatory damages by a factor between one and five—a
method approved by various courts. See Gill, 2017 WL 1289938, at *13 (using a factor of three
because five is reserved for “exceptional cases”); Moradi v. Islamic Republic of Iran, 77 F. Supp.
3d 57, 73 (D.D.C. 2015) (awarding a punitive damage award equal to the total compensatory
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damage award); Opati v. Republic of Sudan, 60 F. Supp. 3d 68, 82 (D.D.C. 2014) (same);
Harrison v. Republic of Sudan, 882 F. Supp. 2d 23, 50 (D.D.C. 2012) (using a factor of three).
The Court concludes that a multiple of two is appropriate here because the “Defendants in this
case did not directly carry out the attack, but funded Hamas, [and] it is doubtful whether a large
amount . . . would have the deterrent effect that it might have had in times past.” Bluth, 203 F.
Supp. 3d at 26. Doubling the amount of compensatory damages, $69,650,000, equals a total
punitive damages award of $139,300,000, which will be apportioned among the Plaintiffs
relative to their individual compensatory awards. See id.
II. Conclusion
For the foregoing reasons, the Court will award Plaintiffs the following amounts for their
claims:
Total
Pain and Total Punitive
Solatium Compensatory Total Damages
Suffering Damages
Damages
Ora Cohen $ 5,000,000 $ 7,950,000 $ 12,950,000 $ 25,900,000 $ 38,850,000
Meirav Cohen $ 5,000,000 $ 4,500,000 $ 9,500,000 $ 19,000,000 $ 28,500,000
Shira Cohen $ 7,000,000 $ 4,500,000 $ 11,500,000 $ 23,000,000 $ 34,500,000
Daniel Cohen $ 3,000,000 $ 4,500,000 $ 7,500,000 $ 15,000,000 $ 22,500,000
Orly Cohen $ 3,000,000 $ 4,500,000 $ 7,500,000 $ 15,000,000 $ 22,500,000
Elchanan Cohen $ 750,000 $ 4,500,000 $ 5,250,000 $ 10,500,000 $ 15,750,000
Shalom Cohen $ - $ 7,950,000 $ 7,950,000 $ 15,900,000 $ 23,850,000
Shokat Sadion $ - $ 2,500,000 $ 2,500,000 $ 5,000,000 $ 7,500,000
Neria Mohaber $ - $ 2,500,000 $ 2,500,000 $ 5,000,000 $ 7,500,000
Ronit Mohaber $ - $ 1,250,000 $ 1,250,000 $ 2,500,000 $ 3,750,000
Orly Mohaber $ - $ 1,250,000 $ 1,250,000 $ 2,500,000 $ 3,750,000
TOTAL $ 23,750,000 $ 45,900,000 $ 69,650,000 $ 139,300,000 $ 208,950,000
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Therefore, the Court will award $208,950,000 in total damages. A separate Order accompanies
this Memorandum Opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: July 27, 2017
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