UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SHALOM GOLDSTEIN, et al.,

Plaintiffs,

v. Case No. 16-cv-2507 (CRC)

ISLAMIC REPUBLIC OF IRAN, et al.,

Defendant.

MEMORANDUM OPINION

Plaintiff Shalom Goldstein was one of some 130 people who were either killed or injured

in a terrorist bus bombing in Jerusalem in August 2003. Goldstein survived and brought suit for

assault and battery and, along with his relatives, emotional distress. Plaintiffs named as

defendants the Islamic Republic of Iran, the Iranian Ministry of Information and Security, and

the Iran Revolutionary Guard Corps, all of which (plaintiffs said) sponsored the terrorist group

responsible for the bombing.1 After Defendants did not appear in the action, the Court entered a

default judgment against Defendants on the question of liability. December 4, 2018 Order, ECF

No. 16. In a separate order, the Court appointed Deborah Greenspan as a special master and

requested that she prepare a report and recommendation (“R & R”) regarding the appropriate

amount of damages to be awarded to each plaintiff. December 4, 2018 Order, ECF No. 18.

Relying on the depositions, medical records, and other evidence provided by Plaintiffs, Special

Master Greenspan has produced a comprehensive R & R on the damages issue. See ECF No. 19.

In this opinion, the Court will partially adopt the R & R’s factual findings and recommendations

1 The Iranian Revolutionary Guard Corps was later dropped from the case. and will resolve the few questions—regarding punitive damages and prejudgment interest—left

open by the R & R.

I. Damages2

Plaintiffs request both compensatory and punitive damages. “[T]hose who survived an

attack may recover damages for their pain and suffering” while “family members can recover

solatium for their emotional injury.” Wultz v. Islamic Republic of Iran,

(D.D.C. 2012) (citing Valore v. Islamic Republic of Iran,

(D.D.C.

2010)). Both sets of plaintiffs are eligible for punitive damages,

subject to FSIA-specific

limitations the Court will discuss later. To establish damages, Plaintiffs “must prove the amount

of the damages by a reasonable estimate consistent with [the D.C.] Circuit’s application of the

American rule on damages.” Wultz,

(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,

(D.D.C. 2017) (internal citations omitted).

A. Compensatory Damages

Plaintiffs seek two species of compensatory relief: Shalom Goldstein seeks pain and

suffering damages for the injuries he suffered in the bombing, while his family seeks solatium

damages. The Court takes these in turn.

2 The Court recounted the factual background of the 2003 bus bombing in its opinion awarding Plaintiffs a default judgment, see Goldstein v. Islamic Republic of Iran,

(D.D.C. Dec. 4, 2018), and in another default judgment opinion concerning the same bombing, Cohen v. Islamic Republic of Iran,

(D.D.C. 2017). It incorporates those facts by reference here, and will reproduce only the facts pertinent to the question of damages.

2 1. Pain and Suffering Damages for Shalom Goldstein

The Court begins with what it said in Cohen v. Islamic Republic of Iran,

(D.D.C. 2017) (“Cohen II”): that the process of 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. 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,

-38 (citing Peterson v. Islamic

Republic of Iran,

(D.D.C. 2007), abrogated on other grounds

by Mohammadi v. Islamic Republic of Iran,

(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,

n.26; R & R at 12. 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,

. A more permanent injury or impairment, by contrast, might warrant a larger

award. Peterson,

. Shalom3 and his family have offered deposition

testimony and medical records in support of their damage claims, which the R & R and this

3 To differentiate those plaintiffs who share the same last name, the Court will sometimes refer to them by their first names.

3 Court can rely on to fix an appropriate and individualized award for each plaintiff. See Bluth v.

Islamic Republic of Iran,

, 23 (D.D.C. 2016).

The special master applied this framework to Shalom, the only plaintiff who suffered a

physical injury in the attack and the only plaintiff who was present at the site of the attack. The

R & R begins by recounting the medical and testimonial evidence of the injuries Shalom suffered

and the difficulties he continues to endure. See R & R at 17.4 The bombing injured his ear

drums and right eye and left him with several lacerations and severe pain.

His injuries

required “multiple visits to doctors and hospitals to treat the injuries.”

To this day, Shalom

continues to struggle with hearing difficulties, although the record does not reveal their extent.

In addition, although the record does not contain medical documentation of emotional or

psychological injury, Shalom and several of his family members testified that he has suffered a

long-term emotional injury that has affected his ability to function in everyday life.

For

example, Shalom sometimes “is unaware of his surroundings and his wife has to ‘bring him

back,’” his sleep continues to be negatively affected, and he regularly consults with a rabbi

regarding his ongoing emotional struggles. Id. at 4 (recounting deposition testimony).

In light of this evidence and a review of damages awards in similar cases, the R & R

recommends an award of $4.25 million, slightly lower than the $5 million baseline. This slight

downward variance is “based on a determination that Shalom experienced short-term physical

injury but continues to experience significant emotional injury.” Id. The special master also

used prior case law to contextualize her recommendation. The special master made particular

reference to this Court’s awards in Cohen II, for injuries incurred in the very same bus bombing.

4 While the Court will not recount in exhaustive detail all of the special master’s factual findings, see R & R at 3-12, it does adopt those findings in full and incorporates them herein.

4 There, to take one example, the Court awarded the $5 million baseline figure to Ora Cohen, who

suffered a broken nose, a neck injury, and eardrum damage, slightly more severe injuries than

what Shalom suffered. See Cohen II,

. The special master also explained

that her recommendation is consonant with a general trend in FSIA cases involving insignificant

short-term physical injuries and ongoing emotional trauma. See R & R at 18 (collecting cases);

see also, e.g., Wamai v. Republic of Sudan,

(D.D.C. 2014) (awarding $2.5

million to plaintiffs who suffered relatively minor physical injuries yet endure ongoing emotional

damage).

The Court agrees with the special master that a downward variance for Shalom is

warranted but concludes that the departure should be even more significant. That is primarily

because, in the Court’s view, the gap between Shalom’s injuries and Ora Cohen’s—suffered in

the same bus bombing—is wider than the R & R concluded. In addition to the fact that Ms.

Cohen suffered slightly more severe physical injuries than Shalom, her five children were also

injured in the attack. Cohen v. Islamic Republic of Iran,

(D.D.C. 2017)

(“Cohen I”). The force of the explosion ripped Cohen’s infant son from her arms, and the

family members were taken to different hospitals for treatment.

Cohen did not learn that her

younger children had survived the attack until hours later.

The family was not reunited for

over a week.

What’s more, Cohen “cared for [her children] as they recovered from

successive rounds of surgeries,” “consistently placing her own recovery behind that of her

children.” Cohen II,

. These harrowing circumstances rendered Cohen’s

emotional injury “unique” and helped explain why she was entitled to a baseline award despite

suffering physical injuries “not as severe as that of other FSIA plaintiffs.”

The record does

not reflect that Shalom experienced the same level of psychological trauma. It is also significant

5 that Cohen, unlike Shalom, was actually diagnosed with both post-traumatic stress disorder and

depression in the year following the bombing.

In light of these distinctions, the Court finds that Shalom’s injuries are closer in kind to

those suffered by others in the Cohen family—like Orly and Daniel, who suffered from shrapnel

wounds and ongoing hearing loss, in addition to emotional distress—and to some plaintiffs in

Wamai—who suffered broken bones, head trauma, hearing/vision impairment and emotional

distress—than to those endured by Ora Cohen. Those plaintiffs received $3 million and $2.5

million, respectively. Accordingly, the Court will award Shalom $2.5 million in pain-and-

suffering damages.

2. Solatium Damages for Shalom Goldstein’s Family

“The state-sponsored terrorism exception to the FSIA expressly contemplates the award

of solatium damages to the close relatives of terrorism victims.” Fritz v. Islamic Republic of

Iran,

(D.D.C. 2018) (citing 28 U.S.C. § 1605A(c)). Solatium damages

are intended to compensate for the “the mental anguish, bereavement and grief that those with a

close personal relationship to a [victim] experience[.]” Belkin v. Islamic Republic of Iran,

(D.D.C. 2009). As the special master notes, “[c]ourts may presume that those

in direct lineal relationships with victims of terrorism suffer compensable mental anguish.” Roth

v. Islamic Republic of Iran,

(D.D.C. 2015). “This presumption . . . is a

direct reaction to terrorists’ acknowledged aim of causing the highest degree of emotional

distress, literally, terror.” Kaplan v. Hezbollah,

(D.D.C. 2016) (internal

quotation marks omitted). “Solatium claims are typically brought by family members who were

not present or injured themselves.” Cohen I,

. “[T]estimony proving a

6 close emotional relationship will usually be sufficient to sustain an award of solatium damages.”

Roth,

.

Fifteen of Shalom’s relatives—thirteen siblings, two parents—seek solatium damages.

Each has provided the court with declarations testifying to their close connection with Shalom

and the harm they have suffered as a result of the bus bombing. The special master notes

“consistent testimony establishing that this family is extremely close” and that family members

“are in frequent—essentially daily—contact.” R & R at 19. She further observed that “[e]ach of

the family members is intimately familiar with the circumstances of Shalom’s injuries and the

emotional effects he has experienced” and that the family members “too have developed fear

reactions and anxiety that stem from Shalom’s experience.”

Based on that evidence, the R & R recommends awarding $1.25 million for twelve of

Shalom’s siblings, $625,000 for one sibling who was not yet born at the time of the bombing,

$2.5 million for Shalom’s father, Rabbi Simcha Goldstein, and $3 million for Shalom’s mother,

Sarah Goldstein. The special master arrived at these figures using the same baseline-and-

comparison process she used for Shalom’s pain-and-suffering damages. “For relatives of victims

physically injured by terrorist attacks, courts have applied a framework whereby 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.” Kaplan v. Hezbollah,

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

The Court agrees with the special master that each of these individuals has established

their entitlement to solatium damages but differs on the appropriate amount of damages.

Specifically, in light of the Court’s decision to reduce Shalom’s pain-and-suffering damages by

one-half of the baseline, the Court will make corresponding reductions to the recommended

7 solatium awards. As this Court indicated in Cohen II, solatium awards for relatives of victims

should be proportionate to the pain-and-suffering awards to the victims themselves. See

(capping solatium damages on behalf of particular victim “so that they do not

exceed the amount of damages [the victim] received for pain and suffering”).

Start with the $1.25 million the special master recommends for twelve of Shalom’s

siblings. The testimony provided by Shalom’s siblings establishes that they have been deeply

affected by the bombing. Shalom’s Sister, Shaina Kutten, testified that “she was and is

extremely close to Shalom.” R & R at 7.5 She vividly recalls the day her family learned that

Shalom was on the bus that was bombed and the fear they all experienced as they waited for

information on his well-being.

“To this day she is afraid of buses, people, Muslims and

whenever she is out in public she views people she sees with suspicion.”

She said that the

incident had a particularly powerful impact on her family “because they are so close” and have

all been left with “fear and anxiety.” Id. at 8. Ms. Kutten’s testimony is echoed and borne out

by that of several of her siblings. See, e.g., id. at 8 (brother Shimon Goldstein testifying that

“family as a whole was terrorized by the attack”). Based on that testimony, the R & R

recommends awarding twelve siblings the standard $1.25 million in solatium damages.

Although the Court accepts the special master’s conclusion that the Goldstein family is

particularly tight-knit and that their testimony amply establishes their right to relief, it

nevertheless concludes the reduction in Shalom’s pain-and-suffering damages logically compels

a proportionate reduction in the siblings’ solatium awards—by one-half, to $625,000 each.

5 At times, the quoted statements are the special master’s paraphrasing of the testimony, rather than the verbatim words used during the depositions.

8 The one sibling for whom the R & R recommends a downward variance presents an

interesting question. Y.G. was born two days after the bombing. Id. at 6. The bulk of authority

in FSIA cases adopts the view that children born after a terrorist incident are not entitled to

solatium damages. See R & R at 20 (collecting cases); see also, e.g., Wamai,

(denying solatium damages for child born one month after the bombings); Davis v. Islamic

Republic of Iran,

(D.D.C. 2012) (denying recovery to “after-born

plaintiffs”). The reasoning of those cases is not without force. In Davis, for instance, the court

granted that while it is fair to assume that an attack on a victim is also an attack on the victims’

families, it is less obvious that such an attack is “directed at unborn family members.”

. Plus, Davis reasoned, a rule permitting recovery for after-born plaintiffs would

mean the class of eligible claimants is “potentially unlimited” and the window for recovery

“could remain open for decades after a terrorist attack.”

Still, while the Court agrees that “some lines must be drawn,”

it agrees with the R &

R that special circumstances here justify an award of solatium damages to Y.G. For one thing,

Y.G. was born just two days after the bus bombing. As the special master notes, “[t]here is little

difference between a child born two days after the attack and a child who was only month old at

the time of the attack.” R & R at 20-21. “In both situations, the child’s feelings of loss of

society and comfort stem from the family dynamic and the condition of the victim and his or her

relationship with the child.”

. Furthermore, there is evidence that Y.G. was born

prematurely as a result of his mother’s emotional shock and distress after she learned that her

son Shalom was on the bus that had been bombed. As the R & R reasons, “a premature birth in

itself is an event that creates fear and anxiety” and therefore “[i]t is reasonable to conclude that

this child’s life experience was and is affected not only by the experience of his brother that

9 occurred before his birth but also by the circumstances of his birth.”

That fact alone makes

this an exceptional case justifying a solatium award to Y.G., despite the prevailing approach in

this district to deny such awards for after-born plaintiffs. The special master nevertheless

accounted for Y.G.’s after-born status, by reducing her recommend award by one-half. The

Court adopts that same approach, but will halve that amount once more in light of Shalom’s

reduced pain-and-suffering award. The Court will therefore award $312,500, or half of the

amount the other siblings are to receive, to Y.G.

That leaves only the parents. As an initial matter, both parents established their

entitlement to solatium damages through extensive testimony about how devastating the attack

was on them specifically and the family generally. See id. at 4-6 (summarizing Rabbi Simcha

Goldstein and Sarah Goldstein’s testimony). The R & R thus recommended beginning both

parents at the $2.5 million baseline. However, the special master reasoned that Sarah’s “well-

advanced pregnancy at the time of the bombing and the fact that she gave premature birth to her

youngest child [Y.G.] within two days of the bombing” makes this a rather extraordinary case

that justifies a $500,000 upward variance from the $2.5 million solatium-award baseline for

parents of victims. Id. at 21. The Court concurs with the special master that Sarah is entitled to

an upward adjustment for this reason—although it will again halve the special master’s

recommendation, consistent with its 50 percent reduction of her son’s award. Accordingly, the

Court will award $1.25 million to Rabbi Simcha Goldstein and $1.5 million to Sarah Goldstein.

3. Prejudgment Interest

Plaintiffs also demand prejudgment interest, and the R & R reaches only an equivocal

conclusion on the subject. R & R at 22 (“In general, it seems that the reasoning of cases that

have declined prejudgment interest is reasonable.”). “The decision to award prejudgment

10 interest, as well as how to compute that interest, rests within the discretion of the court, subject to

equitable considerations.” Baker v. Socialist People’s Libyan Arab Jamahirya,

(D.D.C. 2011). As the R & R recalls, this Court previously expressed doubt that it would

be proper to tack prejudgment interest onto a compensatory damages award for nonpecuniary

injuries, the sort of injuries at issue here. Cohen II,

n.2. In Cohen II, the

Court reasoned that, because nonpecuniary damages, which include pain and suffering and

solatium damages, are “designed to be fully compensatory,” they are “complete and prejudgment

interest is not necessary to make the plaintiffs whole.”

(quoting Thuneibat v. Syrian Arab

Republic,

(D.D.C. 2016); accord Wyatt v. Syrian Arab Republic,

(D.D.C. 2012) (denying prejudgment interest because “pain and suffering and

solatium damages are both designed to be fully compensatory”).

While the Court is aware of well-reasoned decisions in this district that have gone the

other way, see, e.g., Fritz,

, it continues to believe that prejudgment

interest is not appropriate for nonpecuniary damages already designed to provide complete

compensation. That is especially true here, because the special master calculated what she

believed an appropriate award would be while knowing this Court’s reluctance to tack on

prejudgment interest. See R & R at 22. The Court also finds inapplicable here a premise that

Fritz and other decisions have used to justify a contrary result. Fritz noted that “[a]wards for

pain and suffering and solatium are calculated without reference to the time elapsed since the

attacks,” which means such awards are “best viewed as fixed at the time of the loss” and that

prejudgment interest should therefore be awarded “to account for the time that they have not had

access to that full amount.”

. Here, however, the special master quite

clearly took into account the long-lasting, ongoing nature of the victims’ injuries in determining

11 an appropriate compensatory award. After finding that each of the plaintiffs “continues to suffer

fear and anxiety” and “suffers from ongoing and significant emotional injuries,” the special

master explained that “[i]n determining an appropriate award, it is necessary to consider the

nature and duration of the injury” and its “long-terms effects (emotionally and physically).” R &

R at 12. Thus, whatever the usual rule is for calculating pain and suffering damages, it is evident

the special master here accounted for the passage of time—and the persistence of the plaintiffs’

trauma—in determining an appropriate compensatory award.6

B. Punitive Damages

The R & R did not make a recommendation on a punitive damages award. See R & R at

26. The special master noted that this Court in Cohen II awarded punitive damages in the FSIA

context,

(citing Cohen,

), but Cohen II was decided before the D.C.

Circuit’s conclusion in Owens v. Republic of Sudan,

(D.C. Cir. 2017), that the

FSIA terrorism exception “does not retroactively authorize the imposition of punitive damages

against a sovereign for conduct occurring before the [2008] passage of § 1605A.” Because the

complained-of conduct here occurred in 2003, five years before § 1605(A)’s enactment, the rule

announced in Owens precludes an award of punitive damages. See Fritz,

(“Because the Karbala attacks occurred in 2007, and because this Court is bound by Owens, the

families of Fritz, Falter, and Chism have withdrawn their request for punitive damages.”).

6 Another way of looking at the matter: while prejudgment interest is designed to account for the time value of money—and perhaps to punish defendants for having the opportunity to profit from the money that was rightfully plaintiffs’—had the plaintiffs in this case obtained a verdict closer in time to the 2003 bombing, the special master may well have recommended a lesser compensatory award. For example, without evidence of the longstanding injuries the Shalom Goldstein and his family have had to endure, a special master may well have concluded that lesser solatium damages were sufficient.

12 II. Conclusion

In total, the Court will award $13,062,500 in damages to Plaintiffs, distributed as follows:

Pain and Solatium Damages Total Damages Suffering Damages Shalom Goldstein $2,500,000 $0 $2,500,000 Rabbi Simcha Goldstein $0 $1,250,000 $1,250,000

Sarah B. Goldstein $0 $1,500,000 $1,500,000

Y.G., a minor $0 $312,500 $312,500

P.G., a minor $0 $625,000 $625,000

T.G., a minor $0 $625,000 $625,000

Shaina Kutten $0 $625,000 $625,000

Shimon Goldstein $0 $625,000 $625,000

Yechezkal Shraga Goldstein $0 $625,000 $625,000

Avrohom David Goldstein $0 $625,000 $625,000

Hendel Lezer $0 $625,000 $625,000

Dovy Goldstein $0 $625,000 $625,000

Chaya Chana Hoffman $0 $625,000 $625,000

Yaakov Yosef Goldstein $0 $625,000 $625,000

Bas-Sheva Goldstein $0 $625,000 $625,000

Moishe Goldstein $0 $625,000 $625,000

A separate Order accompanies this Memorandum Opinion.

CHRISTOPHER R. COOPER United States District Judge

Date: April 19, 2019

13