UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHAIM WINTERNITZ et al.,

Plaintiffs,

v. Civil Action No. 17-2104 (TJK)

SYRIAN ARAB REPUBLIC,

Defendant.

MEMORANDUM OPINION

Chaim Winternitz was traveling home to Israel after attending a wedding in Brussels, Bel-

gium in March 2016. He had just stepped away from his wife Esther, and daughter, B.W., in the

Brussels Airport when suicide bombers detonated a series of explosives. One of the bombs riddled

his body with shrapnel, shattered his right leg, and left him badly burned. The Islamic State of

Iraq and the Levant—more commonly known as ISIS—took responsibility for the attack. This

case was brought by Winternitz and some of his family members against the Syrian Arab Republic

under the Foreign Sovereign Immunities Act. They assert that Syria provided material support to

ISIS such that it should be held liable for what happened to them. For the reasons explained below,

the Court agrees, and will grant the pending motion for default judgment, enter judgment against

Syria, and award damages of $108,928,124.

I. Background

A. Factual Background

On March 22, 2016, an ISIS terrorist cell carried out coordinated suicide bombings at the

Brussels Airport and a nearby metro station that killed 32 and wounded more than 300. Chaim Winternitz, his wife Esther, and their minor daughter B.W., were in the airport at the time, travel-

ling home to Israel from a wedding in Belgium. ECF No. 14-3 ¶ 10. The bombs went off when

he was separated from the two of them; the second bomb tossed him in the air, severely burned

much of his body, and riddled him with shrapnel. Id. ¶ 11. As he lay on the ground unable to

move, he recited a Jewish prayer for those approaching death. Id. ¶ 12. Eventually, he learned

that his wife and B.W. were uninjured, and he was taken to a hospital, where he underwent exten-

sive surgery. Id. ¶¶ 21–33; see also Ex. 2.

After Winternitz’s first surgery, his injuries continued to cause him severe pain and require

regular medical attention. ECF No. 14-3 ¶¶ 38, 42. He spent much of his time immobilized, which

caused pressure wounds and breathing problems, which had to be treated by painkillers and oxy-

gen. Id. ¶ 38. After a week, he was stable enough to be transferred to a hospital back in Israel,

where he remained for three more weeks. Id. ¶ 50; see also Ex. 3. Then he received two more

surgeries; and later, he needed three more to fix his injured leg and ruptured eardrum, and to ad-

dress his skin loss. Id. ¶¶ 50–51. He also required physical therapy and chiropractic treatment to

regain limited mobility in his leg. Id. ¶¶ 58–59; see also Exs. 4, 5.

Still, Winternitz has not fully regained hearing in one ear, he struggles to walk, and he

suffers from post-traumatic stress disorder. ECF No. 14-3 ¶¶ 53, 56, 77. These ongoing injuries

make it hard for him to travel, complete household activities, and climb stairs, and have caused

him to move to an apartment without stairs. Id. ¶¶ 52–57. He can no longer participate as fully in

his family or religious life, since he cannot play with his children, stand for prayers, or dance. Id.

¶¶ 66–70. He takes medication for his high blood pressure, which is attributable to the attack and

the ongoing psychological strain caused by his injuries. Id. ¶¶ 73–74.

2 Before the attack, Winternitz was a special education teacher, and he was studying to be a

therapist. ECF No. 14-3 ¶¶ 99–106. He was passionate about his work with students and was

looking forward to providing them more support and services. Id. The physical and emotional

pain caused by the attack forced him to quit his job, which in turn caused him to lose “much of

[his] livelihood and [his] sense of worth.” Id. ¶ 101. Israel’s national social security agency has

determined that he is indefinitely disabled. Id. ¶ 98.

Winternitz’s children, father, and siblings have also been profoundly affected by the Brus-

sels Airport attack and the injuries it caused him. His daughter B.W. was at the airport that day.

ECF No. 14-5 ¶¶ 9–12. She personally witnessed the frantic aftermath of the suicide bombings,

including victims with serious injuries. Id. She waited for hours before learning whether her father

had survived. Id. As a result, B.W. was severely traumatized by the attack and sees a therapist

weekly. Id. ¶¶ 17–19. Winternitz’s four other children—A.W., D.W., Mi.W., and Mo.W.—were

also traumatized by what happened to their father, and each receive counseling at their school. Id.

¶ 16. Jacob Winternitz, Chaim’s Winternitz’s father, was in synagogue when he received a pan-

icked call from his son about the attack. ECF No. 14-6 ¶ 9. He made it to the hospital that day

and was shocked by his son’s injuries. Id. ¶¶ 17–18. He continues to suffer from intense feelings

of fear and sadness over his son’s injuries and their effect on his life. Id. ¶¶ 23–25. Ester Winter-

nitz, Chaim Winternitz’s sister, suffers from ongoing anxiety and nightmares, high blood pressure,

and a fear of air travel because of what happened to her brother. ECF No. 14-7 ¶¶ 11–16. Faige

(Winternitz) Quitt, another sister, also suffers from a fear of air travel, and a fear of crowded public

spaces, which forced her to quit her job, and she has been diagnosed with vertigo “as a result of

the shock and trauma of the terror attack.” ECF No. 14-8 ¶¶ 19–24, Ex. 2. A third sister, Yitel

Winternitz, suffers from acute anxiety and a fear of airports; she also struggles with sleeping and

3 has to rely on sleeping pills. ECF No. 14-10 ¶¶ 15–18. A brother, Moshe Winternitz, is also now

afraid to travel, and has had his life disrupted by the need to accompany his brother to many of his

medical procedures. ECF No. 14-9 ¶¶ 26–28.

B. Procedural Background

In October 2017, Chaim Winternitz and his five children, father, and four siblings sued

Syria for the physical and mental injuries they suffered because of the attack on the Brussels Air-

port. See ECF No. 1. They first tried to serve Syria via DHL by mailing a copy of the Summons,

Complaint, and Notice in November 2017, but service was not completed. ECF Nos. 6 & 7. Plain-

tiffs then requested that the State Department help serve Syria by diplomatic means pursuant to

(a)(4). ECF No. 7. In March 2018, Syria was served with a copy of the Summons,

Complaint, and Notice of Suit through the embassy of the Czech Republic in Damascus, Syria.

ECF No. 11. Syria never responded to the complaint or otherwise appeared. The clerk entered

default against Syria, ECF No. 13, and Plaintiffs moved for default judgment. ECF No. 14.

II. Legal Standards

Under Federal Rule of Civil Procedure 55(b)(2), a court may consider entering a default

judgment when a party applies for that relief. See Fed. R. Civ. P. 55(b)(2). “[S]trong policies

favor resolution of disputes on their merits,” and so “‘[t]he default judgment must normally be

viewed as available only when the adversary process has been halted because of an essentially

unresponsive party.’” Jackson v. Beech,

(D.C. Cir. 1980) (quoting H.F. Liver-

more Corp. v. Aktiengesellschaft Gebruder Loepfe,

(D.C. Cir. 1970)).

Still, “entry of a default judgment is not automatic.” Mwani v. bin Laden,

(D.C. Cir. 2005) (footnote omitted). A court retains its “affirmative obligation” to determine

whether it has subject-matter jurisdiction over the action. James Madison Ltd. by Hecht v. Ludwig,

4

(D.C. Cir. 1996). Additionally, “a court should satisfy itself that it has personal

jurisdiction before entering judgment against an absent defendant.” Mwani,

. And

“plaintiffs retain ‘the burden of proving personal jurisdiction, [and] they can satisfy that burden

with a prima facie showing.’”

at 7 (quoting Edmond v. U.S. Postal Serv. Gen. Counsel,

(D.C. Cir. 1991)). In doing so, “they may rest their argument on their pleadings,

bolstered by such affidavits and other written materials as they can otherwise obtain.”

“When default judgment is sought under the FSIA, a claimant must ‘establish[] his claim

or right to relief by evidence satisfactory to the court.’” Warmbier v. Democratic People’s Repub-

lic of Korea,

(D.D.C. 2018) (quoting

(e)). And courts

must apply that standard mindful that “Congress enacted the terrorism exception expressly to bring

state sponsors of terrorism . . . to account for their repressive practices,” Kim v. Democratic Peo-

ple’s Republic of Korea,

(D.C. Cir. 2014), and to “punish foreign states who

have committed or sponsored such acts and deter them from doing so in the future,” Price v. So-

cialist People’s Libyan Arab Jamahiriya,

, 88–89 (D.C. Cir. 2002).

As a result, the D.C. Circuit has instructed that “courts have the authority—indeed . . . the

obligation—to ‘adjust evidentiary requirements to . . . differing situations.’” Kim,

(quoting Bundy v. Jackson,

(D.C. Cir. 1981)). To be sure, courts must

draw their “findings of fact and conclusions of law from admissible testimony in accordance with

the Federal Rules of Evidence.”

at 1049 (quoting Daliberti v. Republic of Iraq,

, 21 n.1 (D.D.C. 2001)). But uncontroverted factual allegations supported by admissible

evidence may be taken as true. See Roth v. Islamic Republic of Iran,

(D.D.C. 2015). And § 1608(e) “does not require a court to step into the shoes of the defaulting

party and pursue every possible evidentiary challenge.” Owens v. Republic of Sudan,

(D.C. Cir. 2017), vacated & remanded on other grounds sub nom. Opati v. Republic of

Sudan,

(2020).

In a FSIA default proceeding, a court can find that the evidence presented is satisfactory

“when the plaintiff shows ‘her claim has some factual basis,’ . . . even if she might not have pre-

vailed in a contested proceeding.” Owens,

. “This lenient standard is particularly

appropriate for a FSIA terrorism case, for which firsthand evidence and eyewitness testimony is

difficult or impossible to obtain from an absent and likely hostile sovereign.”

Thus, courts are

given “an unusual degree of discretion over evidentiary rulings in a FSIA case against a defaulting

state sponsor of terrorism.”

And this discretion extends to the admission of expert testimony,

often “of crucial importance in terrorism cases . . . because firsthand evidence of terrorist activities

is difficult, if not impossible, to obtain,” “[v]ictims of terrorist attacks . . . are often . . . unable to

testify about their experiences,” and “[p]erpetrators of terrorism typically lie beyond the reach of

the courts and go to great lengths to avoid detection.” Id. at 787 (citations omitted). Moreover,

“[e]yewitnesses in a state that sponsors terrorism are similarly difficult to locate” and “[t]he sov-

ereigns themselves often fail to appear and to participate in discovery.” Id. For these reasons, the

Circuit has recognized that “reliance upon secondary materials and the opinions of experts is often

critical in order to establish the factual basis of a claim under the FSIA terrorism exception.” Id.

III. Analysis

In an FSIA case, “[a] default judgment may be entered when (1) the Court has subject

matter jurisdiction over the claims, (2) personal jurisdiction is properly exercised over the defend-

ants, (3) the plaintiffs have presented satisfactory evidence to establish their claims against the

defendants, and (4) the plaintiffs have satisfactorily proven that they are entitled to the monetary

damages they seek.” Braun v. Islamic Republic of Iran,

(D.D.C. 2017);

6 accord Akins v. Islamic Republic of Iran,

(D.D.C. 2018). The Court takes

up each in turn.

A. Subject-Matter Jurisdiction

The Court may exercise “original jurisdiction” over a foreign state “without regard to

amount in controversy” in “nonjury civil action[s]” seeking “relief in personam with respect to

which the foreign state is not entitled to immunity either under sections 1605–1607 of this title or

under any applicable international agreement.”

(a). The first three prerequisites

are easily met here. First, Plaintiffs have brought a nonjury civil action. See ECF No. 1-2 at 2.

Second, this is an action seeking relief in personam, rather than in rem. See Thuneibat v. Syrian

Arab Republic,

(D.D.C. 2016) (holding that a lawsuit seeking damages

from Syria to compensate for a suicide bombing is seeking in personam relief). Third, Syria is a

foreign sovereign.

. The remaining question is whether Syria is entitled to immunity

under the FSIA or another international agreement.

Foreign governments are generally immunized from lawsuits brought against them in the

United States unless an FSIA exception applies. See

; Mohammadi v. Islamic

Republic of Iran,

, 13–14 (D.C. Cir. 2015). Plaintiffs invoke the FSIA terrorism excep-

tion, which provides federal courts with subject-matter jurisdiction over cases “in which money

damages are sought against a foreign state for personal injury or death that was caused by” an

enumerated terrorist act. 28 U.S.C. § 1605A(a)(1); see also

. Plaintiffs must

prove three elements relevant here to establish subject-matter jurisdiction under the terrorism ex-

ception: (1) the foreign state was designated a state sponsor of terrorism when the act of terrorism

occurred and when this action was filed; (2) the claimant or victim was a national of the United

States at the time of the act; and (3) the damages sought are for personal injury or death caused by

7 the act of terrorism.1 See Akins,

; 28 U.S.C. § 1605A. Plaintiffs, like those

in another case brought against Syria for the same Brussels Airport attack, have met their burden

at this stage on all these elements. See Doe v. Syrian Arab Republic, No. 18-cv-66 (KBJ),

(D.D.C. Sept. 10, 2020).

1. Syria Was Timely Designated a State Sponsor of Terrorism

The State Department designated Syria a state sponsor of terrorism on December 29, 1979,

and Syria has remained so designated since. See Revision of Foreign Policy Controls on Exports

to Syria, Iraq, Libya, and the People’s Democratic Republic of Yemen,

,956–57

(May 21, 1980).

2. Plaintiffs Are U.S. Nationals

Plaintiffs are and were at all relevant times United States citizens. See ECF No. 14-3 ¶ 2;

ECF No. 14-5 ¶ 2, 4–7; ECF No. 14-6 ¶ 2; ECF No. 14-8 ¶ 2; ECF No. 14-9 ¶ 2; ECF No. 14-10

¶ 2. And United States citizens are nationals for FSIA purposes. 28 U.S.C. § 1605A(h)(5);

(a)(22).

3. Syria’s Actions Qualify for the Terrorism Exception

The last element requires that Plaintiffs seek damages for personal injury or death caused

by the foreign state’s commission of at least one terrorist act enumerated in the statute, including

“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). As described below, Plaintiffs have met

1 The statute also requires a plaintiff to offer to arbitrate a claim against a foreign state in that foreign state when the acts causing injury occurred there. But here, the acts occurred in Brussels, Belgium, not Syria. Thus, Plaintiffs need not have offered arbitration to establish subject-matter jurisdiction. See 28 U.S.C. § 1605A(a)(2)(A)(iii); see also ECF No. 1 ¶¶ 25–33.

8 their burden by showing that they were injured by ISIS’s extrajudicial killing at the Brussels Air-

port, and that Syria’s provision of material support to ISIS caused the attack.2 See ECF No. 14-1

at 12–24.

a. The Brussels Airport Attack Was an Extrajudicial Killing

An “[e]xtrajudicial killing” is defined for purposes of the FSIA—by means of the Torture

Victim Protection Act of 1991—as “a deliberated killing not authorized by a previous judgment

pronounced by a regularly constituted court affording all the judicial guarantees which are recog-

nized as indispensable by civilized peoples. Such term, however, does not include any killing that,

under international law, is lawfully carried out under the authority of a foreign nation.” Torture

Victim Protection Act,

(a),

, 73 (1991) (codified at

note);

(3)(a); see also 28 U.S.C. § 1605A(h)(7). The D.C. Circuit has

interpreted this text to include three elements: “(1) a killing; (2) that is deliberated; and (3) is not

authorized by a previous judgment pronounced by a constituted court.” Owens,

.

And as the Doe court already concluded, a “suicide bombing in a crowded airport that resulted in

many deaths would plainly meet those requirements.” Doe,

, at *8.3 The Court

notes that Plaintiffs “need only establish that the bombing here was authorized, deliberate, and that

there were casualties. It is not necessary, however, for one of the plaintiffs to have died in the

2 Plaintiffs suggest at times that Chaim Winternitz was also a victim of torture as defined by the Torture Victim Prevention Act, see Coml. at 3 & ECF No. 14-1 at 7, but “mere reference to an issue does not present it properly for review,” Williams v. Romarm, SA,

, 783 n.2 (D.C. Cir. 2014). Thus, the Court will not consider this argument. 3 See U.S. Dep’t of State, Country Reports on Terrorism 2016, https://www.state.gov/wp-con- tent/uploads/2019/04/crt_2016.pdf (last visited March 28, 2022). This report, which includes a basic description of the attack, is admissible as a public record under Federal Rule of Evidence 803(8). The D.C. Circuit found a similar report admissible because it “fit[s] squarely within the public records exception” provided in Federal Rule of Evidence 803(8)(A)(iii). Owens,

.

9 attack in order for the state-sponsor-of-terrorism exception to apply.” Cohen v. Islamic Republic

of Iran,

(D.D.C. 2017); see also Karcher v. Islamic Republic of Iran,

, 58 (D.D.C. 2019) (collecting cases).

b. Syria’s Material Support for ISIS Caused the Brussels Airport Attack

To “establish the court’s jurisdiction, the plaintiffs in this case must show (1) [Syria] pro-

vided material support to [ISIS] and (2) its material support was a legally sufficient cause of the []

bombings.” Owens,

; see, e.g., W.A. v. Islamic Republic of Iran,

, 135–36 (D.D.C. 2019). Under the relevant statute, material support or resources is “any

property, tangible or intangible, or service, including currency or monetary instruments or finan-

cial securities, financial services, lodging, training, expert advice or assistance, safehouses, false

documentation or identification, communications equipment, facilities, weapons, lethal sub-

stances, explosives, personnel . . . and transportation, except medicine or religious materials.” 18

U.S.C. § 2339A(b)(1); see 28 U.S.C. § 1605A(h)(3) (defining “material support or resources” un-

der the FSIA to have the “meaning given that term in section 2339A of title 18.”).

To begin with, Plaintiffs have presented sufficient evidence that ISIS was responsible for

the Brussels Airport attack. ISIS issued several claims of responsibility for the attack, including

10 in its English-language publication, as Plaintiffs’ expert Dr. Matthew Levitt describes in his re-

port.4 See ECF No. 14-2 at 7–8. The State Department determined that ISIS was responsible.5

Dr. Levitt reached the same conclusion, in part based on ISIS publications and government reports

that link the bombers who carried out the attack to ISIS and Syria and that identify the ISIS com-

manders in Syria who oversaw the attack. Id. at 2, 7–11. The Doe Court also determined that ISIS

executed the bombings, based on largely the same evidence. Doe,

, at *9.

Plaintiffs have also provided enough proof, at the default stage, that Syria provided mate-

rial support and resources to ISIS. They rely on the opinion of Dr. Levitt, who in turn relies in

part on information from the State and Treasury Departments, foreign state reports, and interviews

with those having expertise in ISIS’ organizational tactics. Dr. Levitt describes Syria’s earlier

support for ISIS’s predecessor organizations, including AQI, in part to facilitate the passage of

jihadist fighters into Iraq. See ECF No. 14-2 at 25–34. Evidence like that on which he relies has

been found sufficient in FSIA cases to show Syria’s material support for AQI. See Thuneibat,

(finding that Syria materially supported AQI through establishing a transit pipe-

line for foreign fighters and allowing AQI to operate unmolested within Syria); Gates v. Syrian

Arab Republic,

(D.D.C. 2008) (finding that Syria materially supported AQI

4 Dr. Levitt is a “noted expert in international terrorism” who has served as an expert witness in several FSIA cases. ECF No. 14-2 at 3, 38–39. Given his skill, knowledge, education, experience, and training, this Court finds—as it did in another case—that he is qualified as “an expert on the Syrian government’s relationship with ISIS’s predecessor organizations and ISIS itself.” Sotloff v. Syrian Arab Republic,

, 133 (D.D.C. 2021). 5 U.S. Dep’t of State, Country Reports on Terrorism 2016, https://www.state.gov/wp-content/up- loads/2019/04/crt_2016.pdf (last visited March 28, 2022).

11 by providing a logistical hub for its operations and supporting its recruitment efforts by including

the aforementioned AQI recruiter Abu Qaqa on the Syrian payroll).6

Then, as the Arab Spring pro-democracy protests in 2011 led to civil war in Syria,

Dr. Levitt opines that the Syrian regime made the strategic decision to facilitate the continued

survival of ISIS, in part to portray all the regime’s opponents as terrorists. See ECF No. 14-2 at

14–25. He relies in part on first-hand interviews with regime defectors, statements from U.S.

officials, and other government reports and official government designations.

Dr. Levitt fo-

cuses on three specific ways that Syria did so.

at 17–25. First, it provided a haven for ISIS’s

operations in Syria by refraining from attacking their positions. Second, Syria released key ISIS

members from its prisons with the specific purpose of strengthening ISIS, and many of these ter-

rorists later assumed leadership roles in the organization. Third, Syria provided key financial as-

sistance to ISIS by the purchasing oil from ISIS and wheat from ISIS-controlled areas, as well as

by allowing Syrian banks to provide ISIS financial services. Again, other courts have relied on

6 Syria has provided safe haven and support to terrorist organizations within its borders for dec- ades. See

(May 21, 1980). In the early 2000s, ISIS’s predecessors operated from Syria and received funding and resources from Syria. See Sotloff, 525 F. Supp. 3d at 127; Foley v. Syrian Arab Republic,

, 193–95 (D.D.C. 2017); Thuneibat,

; Gates, 580 F. Supp. 2d at 59–63. The Court takes judicial notice of the facts found in these opinions relating to Syria’s support for ISIS’s predecessors, which it may do under Federal Rule of Evidence 201(b). See Rimkus v. Islamic Republic of Iran,

(D.D.C. 2010) (citing cases). “Because of the multiplicity of FSIA-related litigation in this juris- diction, Courts in this District have thus frequently taken judicial notice of earlier, related proceed- ings.”

And “when a court has found facts relevant to a FSIA case involving material support to terrorist groups, courts in subsequent, related cases may ‘rely upon the evidence presented in earlier litigation . . . without necessitating the formality of having that evidence reproduced.’” Harrison v. Republic of Sudan,

(D.D.C. 2012) (citation omitted). That said, the Court, as it must, reviews the evidence and reaches its own, independent findings of these facts here. Rimkus,

.

12 essentially the same evidence to conclude that Syria provided material support to ISIS. See Sotloff,

525 F. Supp. 3d at 127–132; Doe,

, at *9–12.7

Plaintiffs have also shown that Syria's material support for ISIS was a legally sufficient

cause of the Brussels Airport attack. See Owens,

(requiring plaintiffs to show that

the foreign sovereign’s material support is a legally sufficient cause of the terrorist attack at issue).

Plaintiffs need not show that Syria specifically intended to cause the attack; they need only demon-

strate proximate cause. That is, they must show “some reasonable connection between the act or

omission of the defendant and the damage which the plaintiff has suffered.” Kilburn v. Socialist

People’s Libyan Arab Jamahiriya,

(D.C. Cir. 2004) (quoting Prosser &

Keeton on the Law of Torts 263 (5th ed. 1984)). To establish this causal connection, a defendant’s

actions need only have been “substantial factor” in the sequence of events that caused the plaintiff's

injury and the injury must be a “reasonably foreseeable consequence” of defendant’s conduct.

Owens,

. In other FSIA cases, evidence found to meet this standard included

financial support for the terrorist organization, logistical support for insurgent training, the provi-

sion of weapons, and the bolstering of operational capacity. See, e.g., Frost v. Islamic Republic of

Iran,

(D.D.C. 2019). Plaintiffs have shown all the above. In Dr. Levitt’s

opinion, “[w]ithout the support and tolerance of the Syrian regime, [ISIS] could not have evolved

. . . into the powerful terrorist group it became, controlling large swaths of territory and engaging

in truly barbaric acts of terrorism . . . including the March 22, 2016 attack on Brussels Airport.”

ECF No. 14-2 at 2. The Doe court also reached this conclusion.

, at *11.

7 The Court also takes judicial notice of the detailed facts found in these opinions relating to Syria’s material support for ISIS.

13 Plaintiffs’ injuries were also a reasonably foreseeable consequence of Syria’s actions sup-

porting ISIS. See Roth,

(stating that the FSIA sets a relatively low bar for

proximate cause). In other cases, sufficient evidence of foreseeability included backing the organ-

ization despite knowledge of its violent tactics and encouragement of an escalation of terrorist

behavior. See

(finding injuries stemming from a bombing were a foreseeable result of Iran's

material support of a terrorist organization because Iran encouraged an increase in terrorist activi-

ties); Wyatt v. Syrian Arab Republic,

(D.D.C. 2012) (finding injuries

because of a kidnapping were a foreseeable result of Syria’s support of PKK because Syria bank-

rolled the organization, knowing that they used violent tactics). Syria’s longtime support of AQI

facilitated violence in Jordan, Iraq and elsewhere. ECF No. 14-2 at 25–34. And Syria continued

to support ISIS for strategic reasons. Courts have found that Syria’s continued support for ISIS’s

predecessors, despite their violent conduct, is enough to prove that future attacks by ISIS were

reasonably foreseeable. See Sotloff, 525 F. Supp. 3d at 139–140. And again, the Doe court reached

this conclusion about the Brussels Airport attack. Doe,

, at *12.

* * *

For these reasons, the Court finds that it has subject-matter jurisdiction.

B. Personal Jurisdiction

To impose judgment on a foreign state under the FSIA, this Court must also have personal

jurisdiction over Syria. Personal jurisdiction over a foreign government turns on a showing of (1)

subject-matter jurisdiction under the FSIA; and (2) proper service under the FSIA.

(b). As Plaintiffs have already satisfied the first requirement, the Court turns to the second.

(a) lists four methods of serving a foreign government, in the order in

which plaintiffs must attempt them:

14 (1) by delivery of a copy of the summons and complaint in accordance with any special arrangement for service between the plaintiff and the foreign state or political subdivision; or

(2) if no special arrangement exists, by delivery of a copy of the summons and complaint in accordance with an applicable international convention on service of judicial documents; or

(3) if service cannot be made under paragraphs (1) or (2), by sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned, or

(4) if service cannot be made within 30 days under paragraph (3), by sending two copies of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the Secretary of State in Washington, District of Columbia, to the attention of the Director of Special Consular Services—and the Secretary shall transmit one copy of the papers through diplomatic channels to the foreign state and shall send to the clerk of the court a certified copy of the diplomatic note indicating when the papers were transmitted.

(a); see also Fritz v. Islamic Republic of Iran,

(D.D.C

2018) (“Section 1608(a) provides four methods of service in descending order of preference” (in-

ternal quotation marks omitted)).

Taking Section 1608(a)’s methods of service in order, because Syria does not have a spe-

cial arrangement for service with Plaintiffs, and it is not party to an international convention on

service, Plaintiffs did not need to attempt service in accordance with § 1608(a)(1) or (a)(2). See

Colvin v. Syrian Arab Republic,

(D.D.C. 2019) (holding that Syria is not

a party to any international convention on service of legal documents). Plaintiffs tried to serve

Syria under Section 1608(a)(3) on November 6, 2017. ECF Nos. 6 & 7. When the courier could

not deliver the package and it was returned to them, they pursued service through diplomatic chan-

15 nels under Section 1608(a)(4), by diplomatic note forwarded by the State Department to the For-

eign Interests Section of the Embassy of the Czech Republic. ECF No. 11. Although Syria refused

to accept delivery, service was still proper. See Fritz,

; Ben-Rafael v. Islamic

Republic of Iran,

, 52–53 (D.D.C. 2008).

Thus, because the Court has subject-matter jurisdiction over Plaintiffs claims and Syria

was properly served under

(a)(4), the Court has personal jurisdiction over Syria.

C. Liability

Having already concluded that the Court possesses subject-matter jurisdiction, little else is

needed to show that Syria is liable to Plaintiffs for their injuries. 28 U.S.C. § 605A(c). The private

right of action in the FSIA terrorism exception provides that a foreign government is liable to a

U.S. citizen “for personal injury or death 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), (c). As a result, “a plaintiff that offers proof sufficient to establish a waiver

of foreign sovereign immunity under § 1605A(a) has also established entitlement to relief as a

matter of federal law” if the plaintiff is a citizen of the United States. Fritz, 320 F. Supp. 3d at 86–

87; see Hekmati v. Islamic Republic of Iran,

(D.D.C. 2017) (“Essentially,

liability under § 1605A(c) will exist whenever the jurisdictional requirements of § 1605A(a)(1)

are met.”).

As already mentioned, Plaintiffs are U.S. citizens. 28 U.S.C. § 1605A(h)(5);

(a)(22). As a result, and for all the reasons already explained, they may rely on the cause

of action in the terrorism exception to establish Syria’s liability.8 See Owens,

.

8 Some courts in this district have held that § 1605(A)(c) provides a cause of action but “does not

16 IV. Damages

Under the FSIA, a foreign state is liable to victims of state-sponsored terrorism for money

damages including “economic damages, solatium, pain and suffering, and punitive damages.” 28

U.S.C.A. § 1605A(c). “To obtain damages against a non-immune foreign state under the FSIA, a

plaintiff must prove that the consequences of the foreign state’s conduct were ‘reasonably certain’

(i.e., more likely than not) to occur, and must prove the amount of damages by a ‘reasonable esti-

mate’ consistent with this [Circuit]’s application of the American rule on damages.” Roth,

(D.D.C. 2015) (some internal quotation marks omitted) (alteration in original)

(quoting Salazar v. Islamic Republic of Iran,

,115–16 (D.D.C. 2005)); accord

Kim v. Democratic People’s Republic of Korea,

(D.D.C. 2015). In deter-

mining the “reasonable estimate,” courts may look to expert testimony and prior awards for com-

parable injuries. See Reed v. Islamic Republic of Iran,

(D.D.C. 2012).

But in a default case, the Court may not exceed the amount demanded by the plaintiff. See Fed.

R. Civ. P. 54(c). As discussed below, Plaintiffs request and the Court will award both compensa-

tory and punitive damages. The Court will also award post-judgment interest, but it will not award

prejudgment interest, costs, or attorneys’ fees.

itself provide the ‘substantive basis’ for claims brought under the FSIA.” Force v. Islamic Repub- lic of Iran,

, 361 (D.D.C. 2020). Thus, FSIA plaintiffs must “prove a [specific] theory of liability.” Valore v. Islamic Republic of Iran,

(D.D.C. 2010). Such theories of liability are based on “well-established principles of law, such as those found in the Restatement (Second) of Torts and other leading treatises.” Maalouf v. Islamic Republic of Iran, No. 16-0280,

, at *5 (D.D.C. Feb. 18, 2020). Plaintiffs mention “sola- tium/intentional infliction of emotional distress” in the context of damages but do not otherwise articulate a “theory” of liability. “The Court, however, will not exalt form over substance to dis- miss [their] action.” Rimkus,

. The facts Plaintiffs have pled and established show liability under the theories of battery, assault, and intentional infliction of emotional distress. See Doe,

, at *13–14.

17 A. Compensatory Damages

1. Chaim Winternitz

As the record reflects, Winternitz was physically and psychologically injured in the Brus-

sels Airport attack. He still suffers from these injuries, and because of them, he cannot work. He

seeks damages to compensate him for both his pain and suffering and economic losses.

As for pain and suffering, damages “for surviving victims are determined based upon an

assessment of such factors as 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.” Valore, 700 F. Supp. 2d at 83–84. For the pain and suffering of individuals who

survive terrorist attacks, courts have adopted a baseline award of $5 million.

. This base-

line amount has been found appropriate for a victim of terrorism who suffered a broken leg and

shrapnel wounds, as well as lasting and severe psychological harm. Peterson, 515 F. Supp. 2d at

54. Winternitz’s injuries are very similar. Thus, the Court will award him $5 million for his pain

and suffering.

“The report of a forensic economist may provide a reasonable basis for determining the

amount of economic damages in an FSIA case.” Reed,

(citing Belkin v.

Islamic Republic of Iran,

(D.D.C. 2009)). Dr. Chad Staller of the Center for

Forensic Economic Studies has estimated Winternitz’s total economic loss, including but not lim-

ited to his loss of income, as between $5,516,294 and $5,732,031. See ECF No. 14-4 at 11. The

difference between the two figures results from a lack of certainty over when Winternitz would

have retired—with the smaller number assuming retirement at the point of eligibility for retirement

benefits and the larger number assuming retirement at the average age an Israeli man leaves the

18 workforce. Id. at 4, 14. The Court finds that, because the record shows that Winternitz was dedi-

cated to and passionate about his work, he is entitled to the presumption that he would have worked

for at least as long as the average Israeli man. See ECF No. 14-3 ¶¶ 99–106. Thus, the Court

awards him economic damages of $5,732,031.

2. B.W.

B.W. is Chaim Winternitz’s minor daughter who was present at the airport during the at-

tack. Fortunately, she was not physically injured. Still, she suffers severe emotional trauma be-

cause of what she saw that day. See ECF No. 14-3 ¶ 19. In similar cases in which a survivor does

not suffer any serious physical injuries, but does suffer severe emotional injuries, courts have

awarded damages of $1.5 million. See, e.g., Valore,

; Akins,

. The Court finds that B.W. is entitled to the same.

3. Chaim Winternitz’s Other Children, Father, and Siblings

The remaining plaintiffs are members of Chaim Winternitz’s family who were not present

during the attack but who have suffered severe emotional distress because of what happened to

him. Courts often award damages for loss of solatium or intentional infliction of emotional distress

in such cases. Pennington v. Islamic Republic of Iran, No. CV19-796 (JEB),

,

at *4 (D.D.C. June 24, 2021) (“[I]mmediate family members of terrorism victims may state a claim

for IIED even if they were not present at the site of the attack.”). Such awards are “functionally

identical” and meant to compensate persons for the mental anguish resulting from injury to a loved

one and loss of their companionship. See Roth,

. When an immediate family

member was injured, but not killed, courts have adopted as a general framework that spouses,

parents, and siblings receive baseline awards of $4 million, $2.5 million, and $1.25 million, re-

spectively. See Oveissi v. Islamic Republic of Iran,

, 26 n.10 (D.D.C. 2011).

Children of an injured victim generally receive a baseline award of $1.5 million. See Schooley v.

19 Islamic Republic of Iran, No. 17-cv-1376,

, at *78 (D.D.C. June 27, 2019). In

Doe, the court found these baseline amounts to be appropriate for the spouse and child of a victim

injured in the Brussels Airport attack, both of whom suffered severe mental anguish as a result.

See Doe,

, at *16–17.

The Court finds these baseline awards appropriate here as well. Thus, because Chaim

Winternitz’s children—A.W., B.W., D.W., Mi.W, and Mo.W—each suffer from mental anguish

as a result of their father’s injuries, ECF No. 14-5 ¶¶ 23–43, the baseline award of $1.5 million is

appropriate for them. Chaim Winternitz’s siblings—Ester Winternitz, Faige Quitt, Moshe Win-

ternitz, and Yitel Winternitz—also suffer in the same way because of what happened to their

brother. ECF No. 14-7 ¶¶ 8–21; ECF No. 14-8 ¶¶ 7–24; ECF No. 14-9 ¶¶ 17–28; ECF No. 14-10

¶¶ 11–20. Thus, the baseline award of $1.25 million is proper for them. And because his father

suffers from the same trauma, ECF 14-6 ¶¶ 23–26, the baseline award of $2.5 million is suitable.

B. Punitive Damages

Punitive damages are awarded not to compensate the victim, but to punish and deter future

outrageous conduct by the foreign state. Oveissi v. Islamic Republic of Iran,

(D.D.C. 2012) (citing In re Islamic Republic of Iran Terrorism Litig.,

(D.D.C. 2009)); Estate of Heiser v. Islamic Republic of Iran,

, 29–30 (D.D.C.

2009). In deciding whether to award punitive damages, courts look to four factors: “(1) the char-

acter 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.”

Doe,

, at *17 (quoting Acosta v. Islamic Republic of Iran,

(D.D.C. 2008)). The Court agrees with the Doe court that “[a]ll four factors weigh in favor of

awarding punitive damages [for the Brussels Airport attack]: the targeted bombing of a crowded

20 airport was unconscionable, the harm it caused was substantial, the need to deter terrorism is high,

and Syria is a wealthy sovereign.” Doe,

, at *17; see also Colvin,

(weighing all four factors in favor of awarding punitive damages against Syria, including

that it is a state with substantial wealth). Thus, punitive damages are warranted here.

The amount of punitive damages is another question, and courts have used several meth-

odologies to calculate them. Some courts award punitive damages in an amount three to five times

the defendant’s “annual expenditure on terrorism.” Acosta,

; Valore, 700 F.

Supp. 2d at 89–90. This approach is “considered more appropriate for cases involving ‘exception-

ally deadly attacks.” Doe,

, at *17. But this approach would be “difficult to

apply here” since Plaintiffs “presented no evidence of Syria’s actual expenditure on terrorism.”

They do allege that Syria spends somewhere between $500,000,000 and $700,000,000 on

terrorism, but they cite no authority for that claim. ECF 14-1 at 76.

Other courts have simply awarded $150 million for each of the victims and their families.

See Baker v. Socialist People’s Libyan Arab Jamahirya,

(D.D.C. 2011).

But that approach is usually reserved when one of the plaintiffs was killed by the attack. Doe,

, at *17.

The third approach “is to multiply the total compensatory-damages award by a factor of

between one and five.” Doe,

, at *18; see also Fritz v. Islamic Republic of Iran,

(D.D.C 2018). That was the approach taken by the court in Doe, and it

makes sense here too. Courts choose the multiplier by weighing several “factors, including, among

other things, whether the case involved exceptional circumstances, the perceived deterrence effect,

the nexus between the defendant and the injurious acts, and the evidence plaintiffs presented re-

garding the defendant's funding of terrorist activities.” Hamen v. Islamic Republic of Iran,

Supp. 3d 1, 10 (D.D.C. 2019). In Doe, the court determined that the appropriate multiplier was

three. See Doe,

, at *17–18; see also Harrison v. Republic of Sudan,

, 50–51 (D.D.C 2012). The Court agrees with that conclusion. Thus, since the total

amount of compensatory damages is $27,232,031, applying a multiple of three results in a punitive

damage award of $81,696,093.

C. Interest, Attorneys’ Fees, and Costs

Plaintiffs also requested in their complaint prejudgment interest, an award of attorneys’

fees, and reasonable costs and expenses. See ECF No. 1 at 26. In their motion for default judg-

ment, Plaintiffs do not mention prejudgment interest, but reraise in their conclusion that they seek

costs and—for the first time—mention post-judgment interest. See ECF No. 14-1 at 78. Plaintiffs

are entitled to post-judgment interest but not the rest.

The federal post-judgment interest statute provides that “[i]nterest shall be allowed on any

money judgment in a civil case recovered in a district court” and that such interest “shall be cal-

culated from the date of the entry of the judgment, at a rate equal to the weekly average 1-year

constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve

System, for the calendar week preceding the date of judgment.”

(a). The statute

also says that “[i]nterest shall be computed daily to the date of payment . . . and shall be com-

pounded annually.”

§ 1961(b). “Application of section 1961(a) is mandatory, not discretion-

ary.” Schooley,

, at *79. Thus, the Court will award Plaintiffs post-judgment

interest at the statutory rate.

Whether to award prejudgment interest is “within this Court’s discretion, subject to equi-

table considerations.” Oveissi,

. It is only appropriate for compensatory

damages, but there are limits.

at 58–59. “When an award without prejudgment interest fully

22 compensates a plaintiff, an award of prejudgment interest no longer has the intended compensatory

purpose and should be denied.” Doe,

, at *18 (cleaned up). Chaim Winternitz’s

economic damages were discounted to their present value. See ECF No. 14-4 at 10; see Roth,

(“prejudgment interest should not be added to economic loss damages when

such awards are already discounted to present value because this would result in double counting

of the interest multiplier”). And the Court calculated B.W.’s pain and suffering damages to be

fully compensatory. See Doe,

, at *18 (declining to award prejudgment interest

when the injuries “are in the nature of enduring psychology harm” and the “damage award assumes

continued suffering”). Same for the other family members’ solatium damage awards. See Thu-

neibat,

(solatium damages “do not typically require prejudgment interest

because they are designed to be fully compensatory” (cleaned up)); see also Wyatt,

(“pain and suffering and solatium damages are both designed to be fully compensatory”).

For these reasons, the Court will not award prejudgment interest.

As for Plaintiffs’ request for attorneys’ fees and costs, they “have not provided any infor-

mation regarding the fees and costs sought,” so the request is denied without prejudice. Schooley,

, at * 79. The plaintiffs may file a post-judgment motion for attorneys’ fees in

accordance with Federal Rule of Civil Procedure 54(d)(2)(B), and for costs in accordance with

Federal Rule of Civil Procedure 54(d)(1).”

23 V. Conclusion

For all these reasons, the Court will grant Plaintiffs’ Motion for Default Judgment, ECF

No. 14, and award damages in the total amount of $108,928,124. A separate order will issue.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

Date: March 31, 2022

24