FRAENKEL et al v. ISLAMIC REPUBLIC OF IRAN et al
Filing
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MEMORANDUM OPINION ON REMAND. Signed by Judge Rosemary M. Collyer on 7/13/2018. (DAS)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
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ABRAHAM RON FRAENKEL, et al.,
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Plaintiffs,
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v.
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Civil Action No. 15-1080 (RMC)
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ISLAMIC REPUBLIC OF IRAN, et al., )
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Defendants.
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_________________________________
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MEMORANDUM OPINION ON REMAND
Abraham and Rachelle Fraenkel lost their son, Naftali, when Hamas terrorists
kidnapped and murdered him and two other young men. The Fraenkels and their remaining six
children sued the Syrian Arab Republic, the Islamic Republic of Iran, and the Iranian Ministry of
Information and Security (MOIS), as supporters of Hamas, under the Foreign Sovereign
Immunities Act (FSIA), 28 U.S.C. § 1602 et seq. (2012). On default judgment, the Court found
in the Fraenkels’ favor and awarded money damages. The Fraenkels moved to reconsider the
damages because they were “insufficient to provide them fair compensation,” specifically
because the amount awarded was less than the “gold standard” for FSIA awards as set in Estate
of Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229 (D.D.C. 2006). The Court denied the
Fraenkels’ motion for reconsideration and they appealed.
The Court of Appeals for the District of Columbia Circuit affirmed this Court’s
awards for Naftali’s pain and suffering and for punitive damages but reversed and remanded the
award of solatium damages to the family members, with directions to consider the factors for
solatium damages discussed in Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 30-32 (D.D.C.
1998). Having considered the Flatow factors, the Court awards the following solatium damages:
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Rachelle Fraenkel - $2,000,000
Abraham Fraenkel - $2,000,000
Tzvi Amitay Fraenkel - $750,000
Ayala Chaya Hinda Fraenkel - $750,000
A.L. Fraenkel - $750,000
N.E. Fraenkel - $750,000
N.S. Fraenkel - $750,000
S.R. Fraenkel - $750,000
I. BACKGROUND
The facts of this case have been discussed at length in this Court’s Memorandum
Opinion on the motion for default judgment, Fraenkel v. Islamic Republic of Iran, 248 F. Supp.
3d 21 (D.D.C. 2017) (Fraenkel I), Memorandum Opinion on the motion for reconsideration,
Fraenkel v. Islamic Republic of Iran, 258 F. Supp. 3d 77 (D.D.C. 2017) (Fraenkel II), and the
Circuit’s opinion on appeal. Fraenkel v. Islamic Republic of Iran, 892 F.3d 348 (D.C. Cir. 2018)
(Fraenkel III). Therefore, the facts will only be briefly recounted. Naftali Fraenkel and two
other young men were kidnapped and murdered on June 12, 2014 by members of Hamas. Their
bodies were buried on private land and were not discovered for 18 days. The search for the boys
garnered the attention of the entire state of Israel. The final burials of all three murdered young
men were effectively state funerals.
Rachelle Frankel and her children are citizens of the United States as well as
citizens of Israel. The entire Fraenkel family sued Iran, Syria, and MOIS on July 9, 2015,
advancing claims for liability and damages under the FSIA and, for Abraham Fraenkel who is
not a U.S. citizen, damages under Israeli law. See Compl. [Dkt. 1]. The Court held a two-day
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hearing on the Fraenkels’ Motion for Default Judgment on December 6-7, 2016 and Plaintiffs
submitted proposed findings of fact and law. See Proposed Findings [Dkt. 36]. On March 31,
2017, the Court issued its Memorandum Opinion and Order, finding in favor of the Fraenkels
and awarding the following damages:
Pain and Suffering to the Estate of Naftali Fraenkel – $1,000,000
Solatium to U.S. Citizen Plaintiffs – $3,100,000
Solatium to Abraham Fraenkel – $1,000,000
Punitive Damages to the Estate of Naftali Fraenkel – $50,000,000
See Final Order [Dkt. 40].
The Fraenkels moved to reopen the case and schedule a conference on the same
day the Court’s Final Order issued, see Mot. for Conference [Dkt. 41], which the Court denied.
4/3/2017 Minute Order. The Fraenkels moved to reconsider the damages award on April 27,
2017, Mot. to Amend [Dkt. 44], which the Court denied. See Fraenkel II, 258 F. Supp. 3d 77.
The Court did clarify its damages award and listed the specific amount of solatium damages
awarded to each of the U.S. citizen plaintiffs. See id. at 85.
The Fraenkels appealed and the D.C. Circuit affirmed in part, reversed in part,
and remanded to reconsider the solatium damages applying the Flatow factors and without
considering the nationality of the victims or “assumption of risk.” Fraenkel III, 892 F.3d at 35761. The Mandate issued on June 29, 2018, see Mandate [Dkt. 50], and the Fraenkels submitted a
supplemental memorandum, including supplemental declarations from psychiatrist Dr. Rael
Strous and each of the family members except A.L. and S.R. See Supp. Mem. [Dkt. 51]. The
Court has reviewed and considered the entire record.
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II. FLATOW FACTORS
Flatow was the first FSIA case decided against Iran. It provides a detailed
analysis of factors that bear on solatium damages, which are intended to compensate for the
personal injury to others resulting from the loss of a decedent’s society and their anguish.
Flatow, 999 F. Supp. at 30.
It is entirely possible to come to terms with the fact of death, and yet
be unable to resolve the sense of anguish regarding the
circumstances of death. This is particularly true where the death
was sudden and violent. How the claimant learned of decedent’s
death, and whether there was an opportunity to say good-bye or view
the body can be a significant factor contributing to the claimant’s
anguish. . . .
The calculations for mental anguish and loss of society share some
common considerations. First, the calculation should be based upon
the anticipated duration of the injury. Claims for mental anguish
belong to the claimants and should reflect anticipated persistence of
mental anguish in excess of that which would have been experienced
following decedent’s natural death. . . .
The nature of the relationship between the claimant and the decedent
is another critical factor in the solatium analysis. If the relationship
is strong and close, the likelihood that the claimant will suffer
mental anguish and loss of society is substantially increased,
particularly for intangibles such as companionship, love, affection,
protection, and guidance. Numerous factors enter into this analysis,
including: strong emotional ties between the claimant and the
decedent; decedent’s position in the family birth order relative to the
claimant; the relative maturity or immaturity of the claimants;
whether decedent habitually provided advice and solace to
claimants; whether the claimant shared interests and pursuits with
decedent; as well as decedent’s achievements and plans for the
future which would have affected claimants.
Finally, unlike lost wages, which can be calculated with a fair degree
of mathematical certainty, solatium cannot be defined through
models and variables. . . . This is the paradox of solatium; although
no amount of money can alleviate the emotional impact of a child’s
or sibling’s death, dollars are the only means available to do so.
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Id. at 30-32. Other courts have distilled the analysis in Flatow down to five factors to consider
when awarding solatium damages.
In calculating damages for loss of solatium in the case of a deceased
family member, this district court has considered a variety of factors
to include: (1) whether the decedent’s death was sudden and
unexpected; (2) whether the death was attributable to negligence or
malice; (3) whether the claimants have sought medical treatment for
depression and related disorders resulting from the decedent’s death;
(4) the nature (i.e., closeness) of the relationship between the
claimant and the decedent; and (5) the duration of the claimants’
mental anguish in excess of that which would have been experienced
following the decedent’s natural death.
Stethem v. Islamic Republic of Iran, 201 F. Supp. 2d 78, 89-90 (D.D.C. 2002) (citing Flatow,
999 F. Supp. at 30-31).
III. ANALYSIS
Naftali Fraenkel was sixteen years old when he was kidnapped and shot to death
by Hamas. Fraenkel I, 248 F. Supp. 3d at 27-28. He was a healthy and intelligent young man
who had just finished high school exams and was on his way home. Id. at 27. He was
discovered missing the next morning but his death was confirmed only after 18 days of
searching. During that period, Abraham and Rachelle Fraenkel listened to an audio recording of
a telephone call made by one of the murdered boys where shots could be heard and at least one
individual moaned in pain. Id. at 28, 42. Because his body was not found for 18 days, it was not
in a state to be viewed by his family and friends. Abraham, Rachelle, and their eldest son, Tzvi,
spent only a few moments alone with Naftali’s shrouded casket before the funeral. Id. at 42; see
also Ex. 11, Declaration of Plaintiff Rachelle Fraenkel (R. Fraenkel Decl.) ¶¶ 60-61. Naftali’s
death was sudden, senseless, and tragic, all factors which weigh in favor of an award of solatium
damages.
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The Hamas terrorists who claimed responsibility for Naftali’s death after his body
was recovered were motivated by a desire to conduct acts of terror to promote the elimination of
Israel. Fraenkel I, 248 F. Supp. 3d at 28. These motives weigh in favor of solatium damages.
As is evident from the supplemented record, grief continues to envelope the entire
family. Each member of the Fraenkel family, except S.R., testified at the default judgment
hearing and described how they felt when they learned of Naftali’s death and how his death has
continued to affect their lives. See T-1-10-23 (testimony of Rachelle Fraenkel); T-1-44-50
(testimony of Tzvi Fraenkel); T-1-60-61, 64-65 (testimony of Ayala Fraenkel); T-1-72-74, 78
(testimony of A.L. Fraenkel); T-1-79-81, 83 (testimony of N.E. Fraenkel); T-1-85-86, 89
(testimony of N.S. Fraenkel); T-1-90-97, 100-02, 110-11 (testimony of Abraham Fraenkel).1
Additionally, Abraham, Rachelle, Tzvi, and Ayala Fraenkel underwent
psychiatric evaluations by Dr. Rael Strous, who submitted reports to the Court and testified as an
expert concerning the persistent mental anguish suffered by each evaluated family member. See
Ex. 15, Psychiatric Evaluation of Rachelle Devora Fraenkel at 9; Ex. 16, Psychiatric Evaluation
of Abraham Fraenkel at 8; Ex. 17, Psychiatric Evaluation of Tzvi Fraenkel at 7; Ex. 18,
Psychiatric Evaluation of Ayala Fraenkel at 8; T-2-37-47, 49-81. Dr. Strous also interviewed
Abraham Fraenkel and prepared a report on his psychiatric impressions of the four youngest
Fraenkel children based on the information provided during that interview. See Ex. 19, May 20,
2016 Report of Dr. Rael Strous. Dr. Strous found that A.L., N.E., and N.S. Fraenkel “appeared
to exhibit some form of Unspecified Anxiety Disorder” and N.E. and N.S. might also suffer from
elements of complicated grief. See id. at 6. Dr. Rael Strous has spoken with most members of
1
The hearing transcript is set forth in two volumes, one for each day of the hearing. Citations to
the transcript are identified as “T-volume #-page,” i.e., transcript volume and page range.
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the family in preparation for this reconsideration of solatium damages and Plaintiffs submit his
supplemental declaration. See Ex. 1, Supp. Mem., 2018 Declaration of Dr. Rael Strous (Dr.
Strous Supp. Decl.) [Dkt. 51-1] ¶ 10. Since those initial evaluations, Abraham, Rachelle, Tzvi,
Ayala, N.S., N.E., A.L., and S.R. Fraenkel have received additional treatment. See R. Fraenkel
Decl. ¶¶ 74, 80; Ex. 12, Declaration of Plaintiff Abraham Ron Fraenkel ¶¶ 38, 47.
When he reevaluated each member of the Fraenkel family in June 2018, Dr.
Strous interviewed the three youngest children for the first time. See Dr. Strous Supp. Decl. In
his supplemental declaration, Dr. Strous has briefly summarized the continued grief suffered by
each member of the Fraenkel family and noted their continued involvement in either therapy or
other support groups. See id. ¶¶ 8-23.
Each of the Fraenkel family, save one, describes how Naftali’s death continues to
affect their daily lives. See Supp. Mem., Exs. 2-7, Fraenkel Declarations [Dkts. 51-2 to 51-7].
Abraham Fraenkel describes the impact of Naftali’s death on the entire family, saying that he is a
missing piece of the Fraenkel family puzzle. Ex. 2, Supp. Mem., Supp. Decl. of Pl. Abraham
Ron Fraenkel [Dkt. 51-2] ¶ 8. The Court need not detail these statements here but has read and
considered all of them and finds that the initial and ongoing suffering of the Fraenkels, and their
need for continued treatment to deal with the loss of Naftali, also weigh in favor of an award of
solatium damages.
Finally, the Court assesses the nature, or closeness, of the Fraenkel family and
finds, as it did in its original opinion, that the family is very close, which further supports an
award of solatium damages. Fraenkel I, 248 F. Supp. 3d at 41 (“The Fraenkel family is
obviously very close. Each member testified in detail about Naftali’s role in the family (second
oldest and second son) and what he meant in their lives specifically. The testimony provided a
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picture of a loving family, wherein Naftali played a central role in their spiritual and personal
lives. Multiple family members testified about Naftali’s musical ability and how it enriched their
celebrations on the Sabbath and other holy days. Without question, the lives of each member of
the family will be forever altered because Naftali is not with them.”).
“Solatium damages, by their nature, are unquantifiable.” Braun v. Iran, 228 F.
Supp. 3d 64, 85 (D.D.C. 2017). This Court has previously declined to adopt Heiser and
continues that respectful declination. See Gates v. Syrian Arab Republic, 580 F. Supp. 2d 53, 75
(D.D.C. 2008). The two decedents in Gates were slowly beheaded with a handheld knife by an
adherent to al-Qaeda in Iraq and each beheading was videotaped and widely displayed on the
Internet as a “propaganda act of terrorism” to the world. Id. at 72. This Court awarded
$3,000,000 in solatium damages to each spouse, parent, and child, and $1,500,000 to each
sibling. Counsel for the family members here argue that the Fraenkels should receive solatium
compensation at the amounts of, or higher than, the awards in Gates. They argue that “in 66
[FSIA] judgments written by 15 different judges [on the D.C. District Court] over 20 years, the
median solatium award given to parents is $5 million and the median solatium award given to
siblings is $2.5 million.” Supp. Mem. at 35. Counsel emphasize a colleague’s opinion that the
“primary consideration is to ensure that individuals with similar injuries receive similar
rewards.” Id. at 34 (quoting Stansell v. Cuba, 217 F. Supp. 3d 320, 345 (D.D.C. 2016) (Mehta,
J.) (citing Moradi v. Islamic Republic of Iran, 77 F. Supp. 3d 57, 72 (D.D.C. 2015) (Huvelle,
J.))). These opinions represent the judgments of colleagues that Heiser offers a useful calculus
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which each adopts in FSIA cases. The Court appreciates the advocacy of counsel but again
declines to adopt Heiser.2
As they request, the Court contrasts the Fraenkels’ claims to those of the plaintiffs
in Gates and concludes that the public nature of the horrific beheadings in Gates and the
resulting trauma to the decedents’ families from seeing, in graphic detail, the heartless nature of
those killings and their decedent’s pain and suffering, called for a high award of solatium
damages. Without doubt, the Fraenkel family has suffered substantial and ongoing grief that has
affected the entire family unit, including the very youngest child who was so young at the time of
Naftali’s murder that his parents spared him all discussion of it. The Court intends no disrespect
to the family by saying that Naftali’s death did not have the particularly painful aspects of the
Gates killings. Solatium damages are damages for “injury to feelings” that result “from the fact
of decedent’s death” and, as described in Flatow, the Court should consider how the family
learned of the decedent’s death. Flatow, 999 F. Supp. at 30. The fact that the plaintiffs in Gates
witnessed the video of the horrific beheadings of their loved ones is an additional “fact” of those
decedents’ deaths that weighed in favor of a greater award than in this case.
Considering the entire record and the individual supplemental declarations from
most of the Fraenkel family, the Court finds that the Flatow factors favor an increase in their
damages for loss of solatium. The Court notes that siblings of victims generally receive less than
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Interestingly, in distinguishing Gates, the Fraenkels cite the circumstances of those decedents’
situation that arguably made them susceptible to terrorist attack although they rejected this
Court’s similar approach in its initial opinion here. Supp. Mem. at 37 (arguing that decedents
were “adult employees of a civilian contractor operating in Iraq in September 2004, just after
four civilian contractors working for Blackwater USA in Iraq were killed and their bodies were
burned on camera. They were knowingly working adjacent to an active war zone—a dangerous
environment to say the least!—and had been correspondingly well paid. . . . Their kidnapping
and beheading was certainly not expected by anyone, but it cannot be said that the Gates
plaintiffs were without warning.”).
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spouses or parents and the Court should consider “the relative maturity or immaturity of the
claimants” when fashioning a solatium award. Flatow, 999 F. Supp. at 32. The Court will award
$2,000,000 in damages for loss of solatium to Abraham Fraenkel and Rachelle Fraenkel, and
$750,000 in such damages to Tzvi Fraenkel, Ayala Fraenkel, A.L. Fraenkel, N.E. Fraenkel, N.S.
Fraenkel, and S.R. Fraenkel.
IV. CONCLUSION
Drained of any impermissible considerations and focusing only on the Flatow
factors and the Circuit’s remand in light of the entire record, the Court concludes that the
members of the Fraenkel family should receive higher awards than previously granted for loss of
solatium. Therefore, the Court awards the following solatium damages:
Rachelle Fraenkel - $2,000,000
Abraham Fraenkel - $2,000,000
Tzvi Amitay Fraenkel - $750,000
Ayala Chaya Hinda Fraenkel - $750,000
A.L. Fraenkel - $750,000
N.E. Fraenkel - $750,000
N.S. Fraenkel - $750,000
S.R. Fraenkel - $750,000
Date: July 13, 2018
/s/
ROSEMARY M. COLLYER
United States District Judge
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