[00:00:02] Speaker 02:
Case number 17-7-100, Rachel Deboros feature Frankl individually as personal representative of the estate of Yintag, Natali Frankl, and as the natural guardian of plaintiffs A-H-H-F, A-L-F, N-E-F, and S-R-F at El Appellants for the Islamic Republic of Iran.

[00:00:23] Speaker 02:
Ministry of Foreign Affairs at El, Mr. Tuljan for the

[00:00:48] Speaker 06:
There we go, good morning.

[00:00:53] Speaker 04:
Good morning, your honors, and may it please the court, Robert Tulchin for the appellants.

[00:00:59] Speaker 04:
First of all, I want to thank the, it may sound strange, but I want to thank the Georgetown Law Clinic for taking on as amicus to represent the interest of the decision.

[00:01:11] Speaker 04:
It's an amazing academic opportunity, but

[00:01:15] Speaker 04:
To me, we shouldn't lose sight that this isn't an academic exercise.

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This isn't a lawsuit to make a statement.

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It's not only to obtain justice for the plaintiffs and to

[00:01:30] Speaker 04:
have a determination from the court of what happened, but there's actually a very practical impact, which is that part of the judgment that we've obtained actually is collectible.

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A lot of people think, why are you bringing these cases?

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It's just a symbolic act.

[00:01:45] Speaker 04:
But because of the existence of... The punitives are not collectible.

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The punitives are not.

[00:01:51] Speaker 04:
Right.

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And that's the point I'm coming up to.

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Amicus talks about this is a fifty five point one million dollar judgment as a practical matter.

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The punitives are symbolic.

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The compensatories are not.

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And there is this victims fund that was created with the

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impossible acronym, USVST, which is funded by fines and forfeited money and sanctions for people who wrongfully do business with Iran, and distributes a very small... Part of the compensatory damages you can't collect either.

[00:02:29] Speaker 04:
No, that's not so.

[00:02:30] Speaker 04:
The compensatory damages... Against the father?

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No, and anyone who has a judgment, you know what I mean, against the father, I mean in favor of the father.

[00:02:40] Speaker 04:
In favor, I'm sorry.

[00:02:41] Speaker 04:
Yes, they're collectible.

[00:02:42] Speaker 05:
The way the statute works... I thought he could only, he was not a U.S.

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citizen, he could only recover under Israeli law.

[00:02:49] Speaker 04:
That's correct, but his judgment, nevertheless, is under the... He didn't recover under FASA.

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But he does recover under FISA.

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What gives him access to this court is the Foreign Sovereign Immunities Act.

[00:03:04] Speaker 04:
The case I would point you to that is the Seventh Circuit's decision in Leibovitch where exactly that issue came up.

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As long as somebody in the picture, the victim or the family member seeking seletium damages, is a U.S.

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citizen, then an action can be maintained.

[00:03:20] Speaker 05:
Well, I'm on that.

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His right to recover was dependent upon Israeli law.

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The measure of his damages was... The damages.

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Right.

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And you haven't made any argument that the district court misconstrued Israeli law.

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Right?

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So the only thing we're arguing about is we can exclude the father, the million dollars that was awarded to the father.

[00:03:48] Speaker 04:
No.

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I don't contend that the district court made an error of determining Israeli law.

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I contend that the district court's damages awards were insufficient and the case law

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that the court followed finds no substantial deviation between Israeli law of damages in this type of a case and the FSIA damages in this type of a case, which is why typically when we have these cases with an Israeli parent or a parent of some other citizenship,

[00:04:18] Speaker 04:
and American citizens, the award to the Israeli parent is typically in lockstep with the award to the American parents.

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That was exactly the issue in Leibowitz that was resolved there.

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The point I'm trying

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To start off with this, it actually matters very much what these compensatory damages are.

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I know we briefed the punitive damages.

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I'm not going to talk about them.

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I acknowledge they're symbolic.

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I think they should have been higher, but I'm not going to dwell on that.

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What we're keenly looking to is these compensatory damages, which, in the end of the day, go into a pool

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And that victim's fund is prorated.

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The distributions are prorated against the other 3,000 people who have made claims to the fund.

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And all those 3,000 people have received their judgments in accordance with that Heiser standard.

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There are precious few deviations from that.

[00:05:22] Speaker 06:
That's your weakest argument, isn't it?

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I mean, the district court that just called you here should have followed Heiser.

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She's not bound to do that.

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one court, to the extent it's persuasive, follow it, but certainly no requirement that she find it.

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And in fact, Heiser itself acknowledges that with these salacious damages, they're highly discretionary and subjective.

[00:05:48] Speaker 04:
This was the fifth error of law that I was going to talk about.

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I was going to talk about four more.

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But if you want to start from the... If you want to put it... That's about where I would put it too.

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We can start about the end of the list.

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You're correct.

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The judge could use some other method to reach the judgment.

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Heiser provides a methodology that's well thought out and widely accepted and one that I think would be wise to follow it.

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But if the district judge had an alternative methodology, I would hear it.

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The problem that we have with the judge's decision is she doesn't have a methodology.

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You can scour her decision and scour her decision on the argument backwards and forwards.

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You will not find how she reached these numbers.

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She talks about the liability.

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She talks about some extraneous facts, which I'm going to tell you she shouldn't have been talking about.

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And then she just says, and therefore I award.

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She doesn't say, she doesn't engage in any

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looking at what's the past damage, what's the future damage.

[00:06:49] Speaker 03:
Actually, she does point to a couple of factors which you disagree with.

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I challenge you, Your Honor, to say what those factors are.

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She doesn't talk about any factors.

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What are your factors?

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Put aside Heiser.

[00:07:04] Speaker 03:
Wait, now I'm confused.

[00:07:06] Speaker 03:
There are a couple of factors that she's relying on that I thought you were suggesting are inappropriate.

[00:07:12] Speaker 04:
She talks about some factors, but they're not factors that have to do with damages.

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She doesn't say, okay, I've looked at it, this person went through 18 days of hell while their kid was

[00:07:25] Speaker 04:
with her kids fate was unknown.

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I thought she departed from, departed down from Heizer, if you want to put it that way, on assumption of risk and on nationality.

[00:07:37] Speaker 04:
Assumption, okay, we're drawing, I understand your argument, but she shouldn't have done that.

[00:07:40] Speaker 04:
We're saying the same thing.

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So assumption of risk, let's come back to that.

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That's not a damage factor.

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Right.

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Assumption of risk is a liability factor.

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But I mean, she used it.

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Isn't your argument that she used it improperly to reduce damages here?

[00:07:52] Speaker 04:
Correct.

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Correct.

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It was not like she said, OK, this person, I'm going to give them $50,000 a day for the past and $10,000 a day for the future, and let's look at their life expectancy and project it out, maybe discount to present value, and that's how I'm going to come to a number.

[00:08:09] Speaker 04:
She didn't do any of that.

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She said, well, these people lived in a dangerous neighborhood, and therefore, I give them $1 million.

[00:08:17] Speaker 04:
That's not a methodology, Judge Edwards, for calculating damages.

[00:08:20] Speaker 03:
I wasn't suggesting it was a methodology.

[00:08:22] Speaker 03:
You're snapping at me when I'm trying to get you on the points that we may be equally concerned with.

[00:08:29] Speaker 04:
You're not listening.

[00:08:30] Speaker 04:
So let's come back to the first point I was going to discuss today.

[00:08:35] Speaker 04:
Judge Collier took and she created categories.

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She said that,

[00:08:41] Speaker 04:
She started talking about whether the plaintiff is a US citizen who goes abroad to work, or is the plaintiff a US citizen and a dual citizen of some other country who lives overseas?

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And therefore, based on being a dual citizen of another country, she says you don't get as much as a U.S.

[00:09:02] Speaker 04:
citizen who is not a dual citizen residing in another country, but merely there for business.

[00:09:07] Speaker 03:
And as I recall, she was comparing it to Gates.

[00:09:10] Speaker 04:
She was comparing it to Gates, and it's an awful comparison because Gates was a military contractor who went into

[00:09:19] Speaker 04:
a absolute war zone, which was extraordinarily high risk.

[00:09:24] Speaker 04:
Baghdad in 2004 was a hotbed of terrorism.

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They had just burned and hung those Blackwater contractors alive.

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It was all over the news.

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It was on the State Department's intense warning list for stay away from this place.

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It's dangerous.

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And Judge Collier made it look like, well, they were just some American contractors off working overseas.

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So let's assume that

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You have the courts here in attention with respect to your claims about assuming the rest and citizenship being irrelevant.

[00:09:57] Speaker 04:
Okay.

[00:09:58] Speaker 03:
So we're still back to a situation in which a district court judge has great discretion to make the determination.

[00:10:06] Speaker 03:
There's one more there.

[00:10:07] Speaker 03:
Let's also assume that we don't think you're on great ground in saying that a hyzer creates the framework which a court is obliged to follow.

[00:10:19] Speaker 03:
So what's the framework?

[00:10:20] Speaker 03:
So what's a district court judge supposed to do in a case like this?

[00:10:24] Speaker 04:
The district judge should

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conduct a damages analysis like any other case where a process has gone through to calculate what are these people's actual damages.

[00:10:40] Speaker 04:
Now there's a conundrum.

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This isn't like you lost an arm and as a result of losing an arm you can't work and then you can take your lost wages and come through some sort of a mathematical process.

[00:10:52] Speaker 04:
When you're talking about salaceium, what is this nightmare worth

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to a person.

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What is the value of a mother losing her child going through that 18-day period of rollercoaster emotion, not knowing what's going on?

[00:11:10] Speaker 05:
You're posing the question, but I'd like to know your answer to it.

[00:11:14] Speaker 04:
Well, you see, that's where Heiser steps in.

[00:11:17] Speaker 03:
But we're telling you Heiser is not controlling, so if you're the district court judge, how would you do it?

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in a way that she didn't do it that you would argue... She needs to talk about what she considered.

[00:11:27] Speaker 04:
In every case, every jury verdict sheet breaks down past damages, future damages, pain and suffering damages, lost wages damages.

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There are categories of damages and you have to come to some kind of an award using a logical process.

[00:11:44] Speaker 04:
Now, Heiser is one process.

[00:11:48] Speaker 04:
Heiser, Judge Lambert looked at literally

[00:11:52] Speaker 04:
Well, when he looked at it, he looked at a handful of cases, but what we've had now following Heiser, especially with the Peterson case, there are literally hundreds of cases, 65 death cases in which there are multiple plaintiffs.

[00:12:06] Speaker 04:
Some of them, the Peterson case has hundreds of plaintiffs in it.

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He came up with a way of approximating those very hard to quantify damages.

[00:12:19] Speaker 04:
If you're not going to follow Heiser, you still have to look at the damages and evaluate them, not just say, I give $3.1 million to all these plaintiffs.

[00:12:30] Speaker 04:
Judge Collier didn't even differentiate in her initial decision between the mother and the children.

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She just gave a lump sum to all of them.

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You are correct, Judge Edwards.

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It's a difficult process to go through because salatium... It's difficult.

[00:12:49] Speaker 05:
I mean, it doesn't tell you anything in terms of calculation.

[00:12:53] Speaker 05:
I'm sorry?

[00:12:53] Speaker 05:
It doesn't tell you anything in terms of how to calculate the damages.

[00:12:57] Speaker 05:
I mean, she can say, yes, the pain and suffering for the half hour

[00:13:01] Speaker 05:
that this poor child, that was terrible, and so is the state.

[00:13:07] Speaker 05:
You know, we can do that, and then we do this, and then we consider that.

[00:13:11] Speaker 05:
But that doesn't tell you anything about how you get to a number, how you translate that into a monetary amount.

[00:13:18] Speaker 05:
You're correct.

[00:13:19] Speaker 04:
That's why, that's what was confronting Judge Lamberth when he wrote the Heiser decision.

[00:13:25] Speaker 04:
What, when you take a look at this case, this case is interesting because it has phases with different kinds of damages.

[00:13:32] Speaker 04:
When the Frankles were told that Naftali was kidnapped,

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And then for 18 days, there was a search.

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And the whole country of Israel was involved in it.

[00:13:42] Speaker 04:
This was an amazing thing.

[00:13:44] Speaker 04:
I don't know if you're aware of this.

[00:13:45] Speaker 04:
When this was going on, this was an international event.

[00:13:50] Speaker 04:
There were kids in Jewish schools in the United States were gathering for prayer rallies for these three teenagers who were kidnapped.

[00:14:00] Speaker 04:
My own children were coming home with their pictures.

[00:14:02] Speaker 04:
I remember it vividly.

[00:14:05] Speaker 04:
There were ups and downs.

[00:14:06] Speaker 04:
They thought they had a clue.

[00:14:07] Speaker 04:
There was no clue.

[00:14:08] Speaker 04:
They had a recording of the 911 call.

[00:14:12] Speaker 04:
Then they heard gunshots.

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You don't know, are they alive or are they dead?

[00:14:16] Speaker 04:
Maybe they were just wounded, and then you have to fear maybe they're wounded and not getting medical care.

[00:14:21] Speaker 04:
What's going to be with them?

[00:14:22] Speaker 04:
Imagine being a parent in that situation.

[00:14:24] Speaker 04:
That is one period of time for which a certain amount of damages needs to be awarded.

[00:14:30] Speaker 04:
Then there's the period of time from when the bodies were discovered, eaten by animals in a shallow grave, to the funeral, 100,000 people at the funeral, Prime Minister speaking at the funeral, the mourning period.

[00:14:43] Speaker 04:
That is a

[00:14:46] Speaker 04:
period of time with another type of damages.

[00:14:48] Speaker 04:
Then you have the period after that up to the time of trial and from the time of trial for the rest of their life.

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So, Judge Edwards, if I were the judge and I for some reason didn't want to follow Heizer, I would look at each of those periods and it would be a torture to figure out how you come to a number for each of those phases of time.

[00:15:11] Speaker 04:
But you would have to struggle with that.

[00:15:14] Speaker 04:
Just

[00:15:16] Speaker 04:
in one sentence of the decision, throwing a number out without any analysis about how you reached it.

[00:15:24] Speaker 04:
Number one makes it unreviewable.

[00:15:27] Speaker 04:
I don't know how you review it.

[00:15:28] Speaker 04:
You don't know what the judge's thought process was.

[00:15:30] Speaker 04:
She made a decision that she wanted to disregard Heiser or not follow Heiser.

[00:15:34] Speaker 06:
I think you've made that point sufficiently clear.

[00:15:37] Speaker 06:
So you're out of time.

[00:15:39] Speaker 06:
We'll give you back a couple of minutes on rebuttal after we hear from him.

[00:15:44] Speaker 06:
Thank you.

[00:15:51] Speaker 01:
Good morning, Your Honor.

[00:15:52] Speaker 01:
Erica Hashimoto, quarter-pointed amicus.

[00:15:55] Speaker 01:
And with the court's permission, Harry Phillips, a third-year law student, will be arguing this case.

[00:16:01] Speaker 02:
Thank you.

[00:16:02] Speaker 06:
Thank you.

[00:16:04] Speaker 06:
Good morning, Mr. Phillips.

[00:16:06] Speaker 00:
May I please the call?

[00:16:18] Speaker 00:
This appeal is about a damages judgment, and the standard review for a damages judgment is abuse of discretion, a standard whose hallmark is deference to the district court.

[00:16:33] Speaker 00:
Now, of course, a legal error is per se an abuse of discretion, and as we understand the plaintiff's arguments, they allege two primary legal errors in this case.

[00:16:42] Speaker 00:
The first is they claim that the district court employed an improper methodology by not applying the Heiser presumptions and calculating solation damages.

[00:16:53] Speaker 00:
And they claim that it was improper for the district court to consider the history of violence against Israelis near Alon Shavut when assessing those damages.

[00:17:06] Speaker 00:
And I want to get to each point in turn, but just while we're on the standard of review.

[00:17:11] Speaker 05:
Well, there's another aspect, too, that he was murdered not because he was an American.

[00:17:23] Speaker 05:
They claim that the district judge mentioned that, and they claim that was an error.

[00:17:28] Speaker 00:
Right.

[00:17:28] Speaker 00:
So the district court took into account the history of past terror attacks in Gush Etzionaria and near Elan Shavut, and the citizenship of the victim, because those facts... What's the citizenship of the victim have to do with anything?

[00:17:46] Speaker 05:
Well, so in a district court's reading, the fact that there had been... It has something to do with whether the estate could recover under the Sovereign Immunities Act.

[00:17:57] Speaker 05:
I agree with that, but does it have anything to do with the relatives who are American citizens?

[00:18:05] Speaker 00:
According in the district court's analysis, the citizenship of the fact that Naftali Frankel was Jewish and Israeli was relevant to the relative unexpectedness of this attack compared with past attacks.

[00:18:20] Speaker 00:
And she relied on facts in the record for that.

[00:18:23] Speaker 00:
that conclusion, specifically the fact that there had been past attacks by Hamas near the Alon Shifrut Junction.

[00:18:33] Speaker 00:
The fact that, and again, this is quoting the plaintiff's own expert, Hamas was ceaselessly engaged in attacks on Jewish Israelis for the purpose of using a bargaining chip, and the fact, therefore, that because... And again, you all do a valiant job trying to rescue the expectedness

[00:18:52] Speaker 06:
analysis of the district court, but isn't it wrong?

[00:18:55] Speaker 06:
I mean, when we look at expectedness, it's supposed to be from the vantage point of the victim.

[00:19:01] Speaker 06:
And all the testimony here was, you know, what the experts expected, but not necessarily what the family expected.

[00:19:11] Speaker 06:
In fact, the evidence is that the family didn't expect something like this.

[00:19:15] Speaker 06:
They didn't live their lives in a way that they were expecting this.

[00:19:19] Speaker 00:
I agree that the right vantage point is the viewpoint of the family.

[00:19:26] Speaker 00:
When courts have considered expectedness in the past, that's what they've looked at.

[00:19:30] Speaker 00:
And the district court here didn't engage in that sort of inquiry at all, right?

[00:19:35] Speaker 00:
Well, not quite.

[00:19:35] Speaker 00:
I think the district court's use of the testimony of Mrs. Frankel hearing that the phone had been traced to Hebron and immediately thinking that it was, therefore, terrorism.

[00:19:49] Speaker 00:
suggest that the terrorism here, this particular attack, was less unexpected than perhaps it might have been in other cases.

[00:19:57] Speaker 00:
I think that's the fact that... That's a really tough argument to make, isn't it?

[00:20:03] Speaker 06:
That somehow that affects the level of suffering that a mother went through under these circumstances.

[00:20:14] Speaker 00:
No terrorist attack is to be expected, obviously.

[00:20:17] Speaker 00:
This is a heinous attack.

[00:20:21] Speaker 00:
The way we understand the district court's opinion in this regard is to say that

[00:20:30] Speaker 00:
When an attack is completely out of the blue, completely unexpected, never possibly could have imagined that it would happen, that is a reason to increase damages because that can affect the anguish and grief that you feel.

[00:20:54] Speaker 00:
And our reading of the district court's opinion is that here, because of the history of violence in this specific area.

[00:21:03] Speaker 05:
Didn't the district court make a mistake in identifying the place of the kidnapping?

[00:21:11] Speaker 00:
The district court, in her opinion on reconsideration, did reference the incorrect junction when engaging in this analysis.

[00:21:20] Speaker 05:
And the actual correct junction?

[00:21:23] Speaker 05:
The only testimony or evidence about that was the mother who said it was safe.

[00:21:30] Speaker 05:
Rachel said that.

[00:21:32] Speaker 05:
So why isn't that, if it's assumed it's a proper factor, and I have my doubts about that, but even if you assume that, the district court made a mistake.

[00:21:43] Speaker 05:
He wasn't kidnapped at whatever that place was.

[00:21:48] Speaker 05:
He was kidnapped in another place.

[00:21:52] Speaker 00:
The two junctions are very near to one another.

[00:21:54] Speaker 00:
They're about a mile away.

[00:21:56] Speaker 00:
And so I'm not sure that the fact that... I'm not sure the district courts...

[00:22:02] Speaker 00:
you know, saying that the attack took place at Gushetian Junction, whereas, in fact, it took place at Alanshavod Junction, a mile down the road.

[00:22:10] Speaker 06:
But wasn't there evidence that they were very differently situated?

[00:22:12] Speaker 06:
That one was, in fact, have a history of no terrorism, and the other was quite dangerous?

[00:22:18] Speaker 06:
And, in fact, that's why the boys walked from one area to another.

[00:22:23] Speaker 00:
I don't know if there's any evidence in the record which says that there's no terrorism at Alanshford.

[00:22:30] Speaker 06:
Much different level, correct?

[00:22:32] Speaker 00:
Right.

[00:22:33] Speaker 00:
The evidence about the two junctions that Judge Collier relied on in the record is that there were

[00:22:39] Speaker 00:
had been previous attacks on Israelis by Hamas at the Gossetzian Junction, and that in general, attacks by Hamas on Israelis were increasing in recent years.

[00:22:52] Speaker 00:
I don't know if there's anything specifically about the Alon Shavut Junction, which is a mile down the road and is in the general Gossetzian area, but there might be, there might not.

[00:23:01] Speaker 00:
I don't know if those facts were in the record.

[00:23:04] Speaker 03:
What framework did the district court, in your mind, what framework did the district court follow?

[00:23:09] Speaker 00:
In calculating damages.

[00:23:12] Speaker 00:
So the district court compared the facts of this case to the facts of Gates and decided that here a lesser award was warranted.

[00:23:23] Speaker 00:
That is not a unusual way of calculating salation damages.

[00:23:29] Speaker 00:
In fact, that's kind of what Heiser is.

[00:23:30] Speaker 00:
It's just comparing what a plaintiff has been awarded in the past with similar injuries to

[00:23:38] Speaker 00:
the current plaintiff and seeing if those same injuries weren't the same award.

[00:23:42] Speaker 03:
And in this case… Well, if the… I didn't mean to interrupt you.

[00:23:45] Speaker 00:
No, it's okay.

[00:23:48] Speaker 03:
Oh, sorry.

[00:23:48] Speaker 03:
Gates, on assumption of risk, how can you possibly conclude that the assumption of risk in Gates was less than here?

[00:23:58] Speaker 00:
I'm not sure assumption of risk is what the district court was actually doing here.

[00:24:03] Speaker 00:
So the analysis, the comparison to Gates, if you read the opinion of Gates, it's quite clear that Judge Collier is awarding more damages than she would otherwise have done because of this particularly gruesome fact of that case and the particularly shocking nature of the attack.

[00:24:25] Speaker 00:
She talks about how the cruel and calculated public manner added to the plaintiff's damages and malice and political objectives increased those damages.

[00:24:34] Speaker 00:
And so what she's saying is here there isn't the same, she wasn't reducing damages here because she was increasing them in gates.

[00:24:44] Speaker 00:
She increased the damages in gates because a factor was present and here she found that there were no factors to reach the same level.

[00:24:50] Speaker 03:
Now your reading is that she thought the level of

[00:24:54] Speaker 03:
Cruelty was uniquely high in Gates, and what was the other thing you said, cruelty?

[00:24:58] Speaker 00:
Well, I think that was one of the factors that was important in Gates.

[00:25:01] Speaker 00:
It was the cruelty of the attack, the public nature of the attack, the fact that in Gates... And we got both of those so far.

[00:25:08] Speaker 00:
What else?

[00:25:08] Speaker 00:
There was a video that some of the relatives... And, you know, what we're doing here is compensating relatives for their grief and distress, and some of the relatives have seen the video.

[00:25:17] Speaker 00:
and just the fact it was in general a very shocking attack.

[00:25:21] Speaker 00:
And as we read Gates, those were reasons for what was, in Judge Collier's opinion, an increased award, even though it was less.

[00:25:32] Speaker 03:
I realize that's what she says, but just taking it on the record here, safe for the absence of the video, the facts in this case seem no less horrendous than in Gates, right?

[00:25:45] Speaker 03:
In terms of the eyes of the victim?

[00:25:48] Speaker 03:
Forget the video, because if you're a parent, you have a mental video that will substitute for the public one.

[00:25:56] Speaker 03:
But there was certainly the publicity.

[00:25:58] Speaker 03:
It was horrendous, cruel.

[00:26:05] Speaker 03:
I mean, you're on the spot.

[00:26:07] Speaker 03:
But I'm just curious.

[00:26:09] Speaker 03:
You've looked at the record.

[00:26:10] Speaker 03:
Is there anything else that you really persuaded?

[00:26:12] Speaker 03:
That's not a fair question.

[00:26:15] Speaker 00:
Whether I'm persuaded or not, and whether this was persuaded or not by the analysis, isn't really the point here.

[00:26:20] Speaker 00:
No, I understand.

[00:26:21] Speaker 03:
That's not a fair question.

[00:26:22] Speaker 03:
But in reflecting on this side of the case, is it a fair distinction to present to this court?

[00:26:30] Speaker 03:
Can you really distinguish it?

[00:26:31] Speaker 03:
But for the video.

[00:26:33] Speaker 00:
One of the distinctions that the district court drew between this case and Gates was that in Gates, they were in a non-combat area and they were in non-military roles.

[00:26:47] Speaker 00:
They weren't providing bodyguard services or anything like that.

[00:26:50] Speaker 00:
There wasn't, I guess, the corresponding evidence that there is here of particular terror attacks in this area.

[00:26:56] Speaker 00:
But just Judge Edgewood, to your more broad general point, there are many facts.

[00:27:02] Speaker 00:
These cases are horrible.

[00:27:04] Speaker 00:
They have many facts that a court could take into account.

[00:27:10] Speaker 00:
And really, the universe of facts that could be relevant to what we're doing here, which is measuring a plaintiff's mental, measuring a relative's mental distress, grief, is innumerable.

[00:27:23] Speaker 00:
And as long as the court took into account a fact that actually was relevant.

[00:27:28] Speaker 06:
Do you agree that if we read the district court's opinion as using assumption of risk

[00:27:36] Speaker 06:
as a factor to weigh into the damages remedy, that that is an error?

[00:27:46] Speaker 06:
As I heard you make the argument, you were saying you don't really think assumption of risk was at work here.

[00:27:52] Speaker 06:
Let's say we disagree with you and we think, no, she actually was using assumption of risk.

[00:27:57] Speaker 06:
That's error and that's abusive discretion.

[00:27:59] Speaker 00:
If the court read the district court's opinion to say, I am reducing the Frankles damages because the area was dangerous or because he was an Israeli American rather than a U.S.-born American,

[00:28:12] Speaker 00:
That would be an abuse of discretion because it is hard to understand how that factors in.

[00:28:18] Speaker 03:
How those two factors should come into play.

[00:28:20] Speaker 00:
Exactly, exactly.

[00:28:21] Speaker 00:
But if the district court, sorry, if this court does not think that, thinks that that was a proper factor because it went to the unexpectedness of the attack and therefore the measurement of damages relative to other attacks,

[00:28:37] Speaker 00:
then you're left with a naked claim of assuming that... Certainly the district court didn't frame it that way, right?

[00:28:43] Speaker 06:
I mean, I don't recall her using the unexpectedness analysis the way that you are.

[00:28:51] Speaker 06:
Am I right?

[00:28:52] Speaker 00:
You're right.

[00:28:52] Speaker 00:
The district court doesn't articulate the analysis in the exact same way as we are here.

[00:28:58] Speaker 00:
You know, it's not a model of clarity in how these facts are relevant to the Frankel's distress.

[00:29:06] Speaker 00:
And so, you know, if this court thinks that, you know, on the explanation, it's not clear how these facts are relevant, then the court could remand for more explanation.

[00:29:17] Speaker 00:
That, you know, and give judgment.

[00:29:19] Speaker 05:
What is the case that requires, is there a case that requires the district court to explain the basis for damages

[00:29:27] Speaker 05:
of this type in this kind of a case?

[00:29:32] Speaker 00:
I don't think there is any case from this court that says that.

[00:29:36] Speaker 00:
And one thing I'll say is that the statute itself gives very broad discretion to the district.

[00:29:42] Speaker 00:
I mean, we haven't really talked about Heiser.

[00:29:44] Speaker 00:
Our argument on Heiser is that if, you know, we can understand the desire for consistency, but that's a decision for Congress to make.

[00:29:52] Speaker 00:
Congress has given district judges

[00:29:54] Speaker 00:
broad discretion to make what are highly subjective individualized decisions as they would in any other kind of tort case and to add, you know, if highs were required that would essentially add a statutory damages scheme to the statute that's just not there and Congress could, Congress pays attention to these cases as amended the statute in the past.

[00:30:15] Speaker 00:
and could do so here if it wanted to achieve consistency.

[00:30:19] Speaker 05:
Mr. Phillips, you a moment ago said to Judge Edwards that whether you were persuaded is really not relevant.

[00:30:28] Speaker 05:
It's not the point, right?

[00:30:31] Speaker 05:
Then why in your brief is there a statement that says that if you and your colleagues were the judges, you would have ordered more damages?

[00:30:41] Speaker 05:
Why?

[00:30:41] Speaker 05:
Why is that even relevant or even proper in a brief?

[00:30:46] Speaker 00:
Our point was that in making that statement was that the decision of how much to award in insulation damages is a decision for the trial court, trial court judge on frontline observation of the evidence.

[00:31:04] Speaker 00:
And whether, you know, reading the same record, considering the same facts, we would have

[00:31:09] Speaker 00:
considered different factors, weighed factors differently, assuming those factors are legally relevant, of course, and ultimately arrived at a different damages number.

[00:31:20] Speaker 00:
isn't really the point, because the district court is the one who is tasked with calculating the damages of the ward.

[00:31:30] Speaker 00:
And under the standard review that we're under, that's what's important here.

[00:31:37] Speaker 00:
So I see my time's expired, so I'll sit down if that's OK.

[00:31:40] Speaker 00:
Thank you.

[00:31:41] Speaker 00:
Thank you very much.

[00:31:43] Speaker 06:
We'll be back in two minutes.

[00:31:48] Speaker 04:
A quick answer.

[00:31:50] Speaker 04:
The case that says that the judge has to explain her damages awards, there's three of them.

[00:31:55] Speaker 04:
They're on page 51 of my opening brief.

[00:31:58] Speaker 04:
You have Aprin, Eureka, and Safer.

[00:32:02] Speaker 04:
Eureka, just picking the one that I happen to have right here, says the trial court, it is essential the trial court gives sufficient indication of how it computed the amounts so the reviewing court can determine

[00:32:17] Speaker 04:
whether it is supported by the record.

[00:32:18] Speaker 04:
That's this court, 1984.

[00:32:21] Speaker 04:
Akron is later, but I don't have the year.

[00:32:24] Speaker 05:
Was Eureka one of the, was that a foreign service and sovereign immunity case?

[00:32:29] Speaker 05:
I'm sorry, Judge, I didn't hear you.

[00:32:31] Speaker 05:
Was Eureka a foreign sovereign immunity?

[00:32:33] Speaker 04:
No, it wasn't.

[00:32:35] Speaker 05:
But this is a procedural point that when the judge... Was it a case in which salatium, is that the way you pronounce it?

[00:32:42] Speaker 04:
Salatium.

[00:32:43] Speaker 04:
Was awarded?

[00:32:45] Speaker 04:
No, but it scarcely matters.

[00:32:47] Speaker 04:
It's a category of damages.

[00:32:49] Speaker 04:
I don't see why it should matter if it's lost wages or pain and suffering or salatium or loss of consortium.

[00:32:57] Speaker 04:
The point is that district courts' decisions are supposed to be reviewable.

[00:33:01] Speaker 05:
One of the reasons it differentiates these cases is that they're usually default judgments.

[00:33:09] Speaker 04:
That's true.

[00:33:09] Speaker 05:
They're not litigated.

[00:33:11] Speaker 04:
I only have a very short time.

[00:33:13] Speaker 04:
One of the members of the court asked about the framework

[00:33:17] Speaker 04:
that the district judge followed, and the answer was that she compared it to Gates.

[00:33:22] Speaker 04:
That actually only begs the question, well, what framework did she follow in Gates?

[00:33:27] Speaker 04:
And if you look at Gates, she did the same thing that she did in this case.

[00:33:31] Speaker 04:
She just throws a number out.

[00:33:32] Speaker 04:
She did not have a principled, analytical method of reaching a number.

[00:33:40] Speaker 04:
She had the opportunity in this case

[00:33:43] Speaker 04:
to compare our facts to 64 other cases from the DC District Court involving deaths under the FSIA case.

[00:33:51] Speaker 04:
She chose, under the FSIA, and she chose not to do that.

[00:33:56] Speaker 06:
I think, unless there are further questions from my colleagues, we have your argument.

[00:34:00] Speaker 06:
Thank you very much.

[00:34:03] Speaker 06:
Thank you.

[00:34:03] Speaker 06:
Mr. Phillips, you were appointed by the Court to represent the District Court's opinion in this case, and we thank you very much.

[00:34:10] Speaker 06:
For your assistance, the case is submitted.