UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DIANE PENNINGTON, et al.,

Plaintiffs, v. Civil Action No. 19-796 (JEB) ISLAMIC REPUBLIC OF IRAN,

Defendant.

MEMORANDUM OPINION

On June 24, 2021, this Court entered a default judgment on liability against Defendant

Islamic Republic of Iran for a series of sixteen terrorist attacks against members of the United

States military in Iraq. Plaintiffs — the estates and families of the victims, who were either

killed or wounded, and one wounded servicemember — now seek damages of over $1 billion.

While the Court certainly does not minimize the pain and suffering of these Plaintiffs, the

amounts they have sought here are staggering. The Court will pare back many of the requests

and ultimately enter judgment in the amount of $273 million, far from an inconsiderable sum.

I. Legal Standard

The Foreign Sovereign Immunities Act,

, contains a “terrorism

exception,” which provides federal courts with jurisdiction over suits where plaintiffs seek

money damages from a foreign state for “personal injury or death that was caused by an act of

torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material

support or resources for such an act.” 28 U.S.C. § 1605A(a)(1). It also creates a cause of action

for “national[s] of the United States” to sue foreign states that are designated by the U.S.

government as sponsors of terrorism and perform or materially support the acts described in 28

1 U.S.C. § 1605A(a)(1). Id. § 1605A(c). The statute specifies that, “[i]n any such action, damages

may include economic damages, solatium, pain and suffering, and punitive damages.” Id.;

accord Fraenkel v. Islamic Republic of Iran,

(D.C. Cir. 2018).

Plaintiffs may recover damages by showing “that the projected consequences are

reasonably certain (i.e., more likely than not) to occur, and [proving] the amount of damages by a

reasonable estimate.” Fraenkel,

(quoting Hill v. Republic of Iraq,

(D.C. Cir. 2003)). While these requirements create “some protection against an unfounded

default judgment,” plaintiffs need not produce “more or different evidence than [a court] would

ordinarily receive; indeed, the quantum and quality of evidence that might satisfy a court can be

less than that normally required.”

(citation omitted).

II. Analysis

While establishing liability was relatively straightforward, that is not the case with regard

to the amount of damages to award. See Pennington v. Islamic Republic of Iran, No. 19-796,

(D.D.C. June 24, 2021). As this Court noted in a similar case, “The valuation

of serious psychological injuries among different family members is an inherently delicate task,

not susceptible to rote calculations.” Schertzman Cohen v. Islamic Republic of Iran, No. 17-

1214,

, at *6 (D.D.C. July 11, 2019). Indeed, “assessing damages for pain and

suffering is an imperfect science, as no amount of money can properly compensate a victim for

the suffering he or she endures during and after an attack.” Goldstein v. Islamic Republic of

Iran,

(D.D.C. 2019).

Plaintiffs here include a wounded servicemember and the parents, stepparents, spouses,

siblings, stepsiblings, and children of wounded and killed servicemembers. They seek multiple

types of damages: solatium damages for family members of those wounded and killed, direct

2 damages and economic losses for one wounded servicemember, economic losses for estates of

killed servicemembers, pain and suffering for the one surviving servicemember and the estates of

two others killed, prejudgment interest, and punitive damages. See ECF No. 54-1 (DJ Mot. for

Damages) at 2–17. The Court considers each in turn.

A. Solatium Damages

As recently defined by the D.C. Circuit in Fraenkel, solatium damages seek to

compensate victims for the “[m]ental anguish, bereavement and grief” resulting from a loved

one’s death or injury. 892 F.3d at 356–57; see also Valore v. Islamic Republic of Iran,

(D.D.C. 2010). To determine proper solatium awards, the Fraenkel panel

recognized that “District Court judges invariably must exercise discretion in determining

damages awards under the FSIA.” See

. Appellants there had argued that the

district court “broke from precedent” by awarding solatium damages “dramatically lower” than

those received by similarly situated plaintiffs.

(citation omitted). The D.C. Circuit rejected

their claim. It noted that “many FSIA decisions” followed the solatium-damage ranges

summarized in Estate of Heiser v. Islamic Republic of Iran,

(D.D.C. 2006),

which recommended awarding around $2.5 million for siblings of deceased victims, $5 million

for parents, and $8 to $12 million for spouses. See Fraenkel,

. This Court, too,

will follow that formula for the families of deceased victims, as Plaintiffs propose. See DJ Mot.

at 3 (proposing $8 million for spouses, $5 million for parents, $2.5 million for siblings, and $3

million for children); see also Valore, 700 F. Supp. 2d at 79–80 (stepsibling and stepfather who

were equivalent to immediate family eligible to bring claims).

There are also family members of wounded servicemembers (Michelle Wager, Jerral

Hancock, and Adam Egli), and Plaintiffs propose half the above sums for them.

This is

3 consistent with the holdings of other courts in this district. See, e.g., Moradi v. Islamic Republic

of Iran,

, 72–73 (D.D.C. 2015) (awarding wife of injured servicemember $4

million); Owens v. Republic of Sudan,

, 260–61 (D.D.C. 2014). The Court

will thus award the two wives (Rachel Lambright and Danielle Egli) $4 million each and the

parent (Melinda Igo) $2.5 million. This leaves the children of Adam Egli and three siblings of

Michelle Wager.

In fashioning equitable solatium awards, the Court relies on the factors our Circuit

instructed courts to consider in Fraenkel. See

(“On remand, the District Court

should apply the considerations outlined in [Flatow v. Islamic Republic of Iran,

,

30–32 (D.D.C. 1998),] . . . to determine the appropriate amounts of solatium damages.”).

Among those factors, the Court of Appeals highlighted two: “[h]ow the claimant learned of” the

directly injured plaintiff’s injuries and the “nature of the relationship” between the claimant and

the directly injured plaintiff.

at 357 (quoting Flatow, 999 F. Supp. at 30–31).

For the Egli children, they were infants at the time of the incident: seven months and two

years old, respectively. See ECF No. 54-2 (Declaration of Daniel Alberstone), Exhibit 8(b)

(Declaration of Danielle Egli) at 2. As they had no independent recollection of the attack, they

cannot recover for the psychological pain they suffered from learning of the event. They

obviously have to continue to live with the effects on both their parents, so the Court awards

each $750,000 — viz., half of the normal amount for children of survivors. Cf. Davis v. Islamic

Republic of Iran,

(D.D.C. 2012) (children born after event not entitled to

recover).

The Wager siblings are Alicia Igo, Ashley Lewis, and Devin Igo. All three submitted

identical declarations stating that they were “unable to provide a written Declaration describing

4 [their] experience” because they understandably do “not want to revisit” the memories of the

attack on their sister. See Alberstone Decl., Exhs. 17(b) (Declaration of Alicia Igo) at 1, 17(c)

(Declaration of Ashley Lewis) at 1, 17(d) (Declaration of Devin Igo) at 1. In such a

circumstance and with little else to go on regarding even the siblings’ relationship to Wager, the

Court will award each $500,000, as opposed to the $1.25 million that can be available to siblings.

Cf. Roth v. Islamic Republic of Iran,

(D.D.C. 2015) (“As for siblings,

testimony proving a close emotional relationship will usually be sufficient to sustain an award

of solatium damages.”).

The last item in this category is a request for an upward adjustment of between $500,000

and $2 million for eight of the family members — four spouses, two parents, and two children.

“When courts award upward departures, they usually do so because of an unusual circumstance

beyond the ordinary anguish that results from losing a family member.” Selig v. Islamic

Republic of Iran, No. 19-2889,

, at *15 (D.D.C. Nov. 22, 2021). Plaintiffs

contend that such a departure is merited for three spouses because they “have suffered not only

the loss of their husbands, but also the loss of being able to have children due to the Defendant’s

wrongful conduct.” DJ Mot. at 4. The opportunity to have children is a principal boon for many

married couples, which is precisely why the spousal amounts are so high. These wives,

furthermore, do not aver that they are unable to have children at all, just not with their husbands.

No adjustment on this basis is warranted. See Heiser,

(awarding

standard $8 million to spouses who had not been able to have children with deceased

servicemembers).

Other relatives of wounded and killed servicemembers seek an upward adjustment on the

ground that their lives spiraled downward after the attack, leading to divorce and addiction in one

5 case and other mental-health issues in other cases. See DJ Mot. at 5–7. Once again, the Court

does not see a basis to deviate from the already-substantial awards, which take into consideration

the likelihood of serious detrimental effects from these events on families. See, e.g., Acosta v.

Islamic Republic of Iran,

(D.D.C. 2008) (awarding standard $8 million to

spouse of terrorism victim “to compensate her for emotional distress and loss of consortium

caused by the death of her husband”); Selig,

, at *15 (not deviating from

baseline parental damages despite “terrible suffering and the close relationship that” parent had

with deceased child); cf. Belkin v. Islamic Republic of Iran,

, 23–24 (D.D.C.

2009) (providing $2 million enhancement in extreme circumstance where spouse had to view

deceased “wife’s severely disfigured body shortly after the bombing occurred”). Two other

family members learned that “the person who detonated the EFP device was dancing as the bomb

went off.” DJ Mot. at 6. While another’s glee in their suffering is no doubt painful, it hardly

justifies an upward departure from the significant amount already awarded. The Court,

accordingly, will not award any upward adjustments.

B. Egli Damages

Next up are the direct damages and economic losses for one surviving servicemember,

Adam Egli. The former type of damages is intended to compensate attack survivors based on

factors including “the severity of the pain immediately following the injury, the length of

hospitalization, and the extent of the impairment that will remain with the victim for the rest of

his or her life.” O’Brien v. Islamic Republic of Iran,

(D.D.C. 2012)

(citations omitted); accord Wultz v. Islamic Republic of Iran,

(D.D.C.

2012). Over the years, courts have developed a general framework for awarding direct-injury

damages. They begin “with the baseline assumption that persons suffering substantial injuries in

6 terrorist attacks are entitled to $5 million in compensatory damages.” Wultz, 864 F. Supp. 2d at

37–38 (emphasis added).

Plaintiffs seek no less than $30 million for Egli for direct injuries and almost $1.5 million

in economic losses. Egli certainly suffered serious injuries: he has required six to seven

surgeries on his left knee, including a reconstruction; he has shrapnel in his back; and he

sustained a concussion, hearing loss, and tinnitus. See Alberstone Decl., Exh. 8(a) (Declaration

of Adam Egli) at 3–4. These have also caused emotional and psychological damage from which

he still suffers. Such harms are precisely in line with the $5 million awarded for substantial

direct injuries, and the Court will award that amount. Wamai v. Republic of Sudan,

, 92–93 (D.D.C. 2014), aff’d in part, vacated in part on other grounds sub nom Owens v.

Republic of Sudan,

(D.C. Cir. 2017) (victims who suffered injuries similar to

those for which other courts had awarded the “baseline” of $5 million — including “vision

impairment, many broken bones, severe shrapnel wounds or burns, lengthy hospital stays . . . and

permanent injuries” — received that baseline amount).

As to economic loss, which is recoverable, see Murphy v. Islamic Republic of Iran,

(D.D.C. 2010), the Court has insufficient evidence to make an award.

Economic-loss damages “may be proven by the submission of a forensic economist’s expert

report.” Roth, 78 F. Supp. at 402. In determining the amount of such damages based on lost

future earnings and other benefits, “the Court shall take account of the reasonableness and

foundation of the assumptions relied upon by the expert.” Id. A forensic economist, Donald L.

Frankenfeld, has submitted an estimate of economic loss for Egli of $1,463,428. See Alberstone

Decl., Exh. 1(b) (Expert Report of Donald L. Frankenfeld) at 1–7 & Appendix J. This analysis is

based on 1) the earnings, fringe benefits, and retirement benefits from the military that Egli

7 would have received had he completed 20 years of service, plus 2) his non-military earning

capacity and fringe benefits subsequent to military service, but less 3) his mitigation capacity

based on current employment. Id. This methodology generally comports with how economic

loss has been calculated in similar cases. See, e.g., Murphy, No. 06-596, ECF No. 55-1 (D.D.C.

June 10, 2010) (calculating economic loss for injured servicemember).

Frankenfeld’s analysis, however, does not address how the relevant earnings estimates

were reached beyond noting that they were “based upon authoritative government statistical

sources” and Egli’s individual circumstances. See Frankenfeld Rep., Appendix J at 1. In

particular, it is unclear whether Egli’s earnings are calculated pre- or post-tax and what factors

the estimates of his non-military earnings are based on (e.g., his age, education, experience). See

No. 06-596, ECF No. 55-1 (calculating injured servicemember’s lost earnings after federal, state,

local, and social-security taxes). The Court will give leave to file an amended motion clarifying

these points.

C. Estates’ Economic Losses

Plaintiffs’ next category of damages encompasses economic losses to the estates of killed

servicemembers. Here, there are nine estates, which each seek between $787,809 and

$2,516,046 in damages. Estates may also recover damages for the “loss of accretions to the

estate resulting from the wrongful death of decedent in the attack.” Murphy,

. Again, the Court finds that additional information is required to assess the expert’s estimates.

First, clarification is needed as to whether lost earnings are calculated pre- or post-tax, and, if the

former, whether taxes are factored into the estimates for personal consumption. See, e.g., No.

06-596, ECF No. 57-1 (D.D.C. July 22, 2010) (economic-loss report for estate of victim of 1983

Beirut bombing providing estimates of earning losses after taxes and personal consumption); see

8 also Heiser, No. 00-2329, ECF No. 74 (Apr. 1, 2004) at 288 (calculating economic loss of

decedents by subtracting both amount of personal maintenance and federal and state taxes).

Second, there is considerable unexplained variation in estimates of personal consumption

both among the decedents in this case and in comparison to estimates in other similar cases. For

example, the share of personal consumption for Jason Merrill, who was a 22-year-old, unmarried

E-5 sergeant when he died, is 68.03%, while the share for Joseph Richard III, a 27-year-old,

married E-5 sergeant is 26.68%. Compare Frankenfeld Rep., Appendix F at 2, with

Appendix

I at 2; see also

at Appendix B at 2 (personal consumption of 11.0% for 28-year-old E-6 staff

sergeant with wife and children); Roth, No. 11-1377, ECF No. 34-5 (Oct. 2, 2014) (economic-

loss report placing personal-consumption expenditure share at 44.4% to 73.4%).

Finally, the economic losses for the estate of Rudy Guerrero Mesa “are largely a function

of diminished pension payments to his surviving widow, which in turn depends upon which

payment option Mr. Mesa choose [sic] prior to his death.” Frankenfeld Rep., Appendix D at 1.

Frankenfeld’s analysis was “based upon a reasonable estimate,”

but given that Mesa’s estate

should have access to information on which plan was actually chosen, the Court requires that

information. If Plaintiffs resubmit this material, the Court will look again at the appropriate

economic losses for the estates.

D. Pain and Suffering

Plaintiffs also seek an award to two estates for pain and suffering in the amount of $18

million each. More specifically, Joseph Richard survived for 75 minutes following the EFP

attack, and Jason Merrill survived for several minutes after the blast that killed him. See DJ Mot.

at 14. There is no evidence that either man was conscious during the time between the attack and

his death. In addition, Plaintiffs argue that “[a]vailable scientific data indicates trauma victims

9 experience pain and psychological trauma following clinical death for a period of time between

two and 10 minutes.”

at 14 (citing Alberstone Decl., Exh. 3(b) (Independent Medical Report)

at 1–2). Yet, given that fact, it is unclear why Plaintiffs would not also be seeking pain-and-

suffering damages for all of the estates of individuals who were killed instantaneously, unlike

Richard and Merrill.

In addition, the only case Plaintiffs cite is Pugh v. Socialist People’s Libyan Arab

Jamahiriya,

(D.D.C. 2008), in which the victims of an aircraft bomb

suffered grievous physical and psychological injuries from the time the bomb exploded until

impact on the ground, during which period they were fully conscious.

. They cite

no other case for the award of such damages.

Given that Richard survived for 75 minutes, certainly in great pain to the extent he was

conscious of it, the Court will award his estate $1 million. See Selig,

, at *13

(“a $1 million pain-and-suffering award is typically given to the estates of victims who quickly

succumb to their injuries”); Eisenfeld v. Islamic Republic of Iran,

(D.D.C.

2000) (awarding $1 million to victims for pain and suffering between explosion and death). No

further award is justified for Merrill’s estate.

E. Prejudgment Interest

Plaintiffs request prejudgment interest on top of their solatium and damage awards. The

decision to award such interest “is subject to the discretion of the court and equitable

considerations.” Oldham v. Korean Air Lines Co. Ltd.,

(D.C. Cir. 1997) (citation

omitted); see also Forman v. Korean Air Lines Co., Ltd.,

(D.C. Cir. 1996).

“When an award without prejudgment interest fully compensates a plaintiff, an award of

prejudgment interest no longer has the intended compensatory purpose and should be denied.”

10 Wyatt v. Syrian Arab Republic,

(D.D.C. 2012) (quoting Price v.

Socialist People’s Libyan Arab Jamahiriya,

(D.D.C. 2005)). As have

many courts before it, this Court calculates its direct-injury and solatium awards to be fully

compensatory. See Wultz,

(finding direct-injury damages fully

compensatory and declining to award prejudgment interest); Thuneibat v. Syrian Arab Republic,

(D.D.C. 2016) (noting solatium damages “do not typically require

prejudgment interest because they are ‘designed to be fully compensatory’”) (quoting Wyatt,

); see also Akins v. Islamic Republic of Iran,

, 45–46 (D.D.C.

2018) (denying prejudgment interest in FSIA terrorism case on same reasoning). This makes

particular sense where the injuries are psychological and thus ongoing, and the compensation

assumes suffering beyond the timeframe of the incident itself. See Oveissi, 768 F. Supp. 2d at 30

n.12 (noting solatium damages are awarded regardless of when attack occurred). Prejudgment

interest, consequently, is not appropriate and will be denied.

F. Punitive Damages

The last item Plaintiffs request is punitive damages, and they seek $3.44 for every dollar

of compensatory damages awarded. See DJ Mot. at 16–17. “[P]unitives are aimed not at

compensation but principally at retribution and deterring harmful conduct.” Exxon Shipping Co.

v. Baker,

(2008). The Supreme Court has laid out three “guideposts” for

“reviewing punitive damages” awards: “(1) the degree of reprehensibility of the defendant’s

misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and

the punitive damages award; and (3) the difference between the punitive damages awarded by

the jury and the civil penalties authorized or imposed in comparable cases.” State Farm Mut.

Auto. Ins. Co. v. Campbell,

(2003). There is no doubt that Defendant’s

11 misconduct is severe, and the injuries suffered grave, making punitive damages appropriate. See,

e.g., Blank v. Islamic Republic of Iran, No. 19-3645,

, at *10 (D.D.C. July 17,

2021) (punitive damages appropriate where Iranian-backed terrorist group carried out violent

attack killing and injuring U.S. servicemembers).

Following this guidance, different courts in this district have employed different methods

in calculating punitive damages. See, e.g., Selig,

, at *23–24 (comparing

methods that include flat rates, multipliers of compensatory damages, and equivalent awards).

Having reviewed these alternatives, this Court believes that the most sensible amount is a sum

equivalent to compensatory damages.

(awarding same); accord Christie v. Islamic

Republic of Iran, No. 19-1289,

, at *28 (D.D.C. July 2, 2020); Doe A-1 v.

Democratic People’s Republic of Korea, No. 18-252,

, at *10 (D.D.C. Feb. 24,

2021). The Court, accordingly, will award $136.5 million in punitive damages.

G. Final Calculation

Given all of the above discussion, the calculation of damages is reflected in the below

table. Should any supplemental documents clarifying the calculation of economic losses be

submitted, the Court may revise these figures.

Plaintiff Relationship to Solatium Pain & Punitive Total Name Servicemember Suffering Damages Dianne Sibling of $2,500,000 $2,500,000 $5,000,000 Pennington Howard Allen

D. Allen Son of Howard $3,000,000 $3,000,000 $6,000,000 Allen

Melissa Kay Spouse of Daniel $8,000,000 $8,000,000 $16,000,000 Cuka Cuka

Abigail Daughter of $3,000,000 $3,000,000 $6,000,000 Rose Cuka Daniel Cuka

12 A.M. Cuka Son of Daniel $3,000,000 $3,000,000 $6,000,000 Cuka Colleen Parent of $5,000,000 $5,000,000 $10,000,000 Schlid Richard Schlid

LaNita Spouse of Bryant $8,000,000 $8,000,000 $16,000,000 Herlem Anthony Herlem

Velia F. Spouse of Rudy $8,000,000 $8,000,000 $16,000,000 Mesa Guerrero Mesa Velia A. Daughter of $3,000,000 $3,000,000 $6,000,000 Mesa Rudy Guerrero Mesa

Lucy Rigby Daughter of $3,000,000 $3,000,000 $6,000,000 Rudy Guerrero Mesa

Luis Aguilar Step-Son of $3,000,000 $3,000,000 $6,000,000 Rudy Guerrero Mesa

Manuel Step-Son of $3,000,000 $3,000,000 $6,000,000 Aguilar Rudy Guerrero Mesa

Corey Spouse of $8,000,000 $8,000,000 $16,000,000 Schlenker William Thorne

Timothy Parent of Jason $5,000,000 $5,000,000 $10,000,000 Merrill L. Merrill

Wanda Sue Parent of Jason $5,000,000 $5,000,000 $10,000,000 Merrill L. Merrill

Alyssa Sibling of Jason $2,500,000 $2,500,000 $5,000,0000 Merrill L. Merrill

Amber Sibling of Jason $2,500,000 $2,500,000 $5,000,0000 Piraneo L. Merrill

Ashlea Sibling of Jason $2,500,000 $2,500,000 $5,000,0000 Lewis L. Merrill

Lyle Brooks Parent of Lucas $5,000,000 $5,000,000 $10,000,0000 T. White

13 Tamara Step-Parent of $5,000,000 $5,000,000 $10,000,0000 Stout Brandon Stout

Melinda Igo Parent of $2,500,000 $2,500,000 $5,000,0000 Michelle Wager

Alicia Igo Sibling of $500,000 $500,000 $1,000,000 Michelle Wager

Ashley Sibling of $500,000 $500,000 $1,000,000 Lewis Michelle Wager

Devin Igo Sibling of $500,000 $500,000 $1,000,000 Michelle Wager

Gina Wright Parent of $5,000,000 $5,000,000 $10,000,000 Christopher D. Young

Kimberly Parent of Barry $5,000,000 $5,000,000 $10,000,000 Yarbrough Mayo

Taylor Son of Scott $3,000,000 $3,000,000 $6,000,000 Brown Brown

Rachel Spouse of Jerral $4,000,000 $4,000,000 $8,000,000 Lambright Steele Hancock

Danielle Spouse of Adam $4,000,000 $4,000,000 $8,000,000 Egli Egli

K. Egli Child of Adam $750,000 $750,000 $1,500,000 Egli

B. Egli Child of Adam $750,000 $750,000 $1,500,000 Egli

Adam Egli Servicemember $5,000,000 $5,000,000 $10,000,000

Laura Spouse of $8,000,000 $8,000,000 $16,000,000 Russell Jonathan Edds Kennedy

Monique Spouse of Joseph $8,000,000 $8,000,000 $16,000,000 Shantel Richard III

14 Green Richard

Estate of $1,000,000 $1,000,000 $2,000,000 Joseph Avie Richard III

Total $130,500,000 $6,000,000 $136,500,000 $273,000,000 The Court recognizes, as have others before it, that “no amount of money can alleviate

the emotional impact of” the attacks. See Fraenkel,

(quoting Flatow,

). It nonetheless hopes that the damages it awards today will assist Plaintiffs heal

from this heartbreaking chapter in their lives.

III. Conclusion

For these reasons, the Court will enter default judgment for Plaintiffs in the amounts

listed above. A separate Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: January 19, 2022

15