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Case number 18-7138.

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Rachel Bar-Scratcher-Frankel, individually, and as First Representative of the Estate of Yadav Natali-Frankel, and as the natural guardian of Plaintiffs A. H. H. F., A. L. F., N. E. F., S. R. F., L. L. Pelt, which is Iranian

[00:00:28] Speaker 04:
I see you again on this case, Judge Griffith.

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I guess the easiest place to begin is with a one-liner.

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the story is told about a family comes to the to hear the will read for their rich uncle and the lawyer reads out and to my nephew harry who wanted me to remember you in my will hello harry and reading the judge collier's treatment of flato that's how i felt this court told her

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She needed to reconsider the case in light of the Plato factors.

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She said the word Plato.

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She said a few of the factors.

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She said these factors weigh in favor of an award of salatium damages.

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And she ended the discussion.

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There was no meat to it.

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A discussion of factors, as I'm sure your honors know better than I, requires a presentation of

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What are the facts that are relevant to this factor?

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Are they strong?

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Are they weak?

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Are they stronger or weaker than the way those factors are or the way that factor is arrayed in other cases?

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Compare this case to some other situation and say this one is

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waved more heavily, this case it waved more lightly, and discuss the factors in a analysis that comes to a conclusion.

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Haven't we expressly rejected that line of reasoning that you just advanced, that the idea that it's incumbent upon the district court to measure

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her determinations by the determinations made by other district court judges.

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Have we expressly rejected that?

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No.

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No, I don't think you have, Your Honor.

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When we were here before, the argument was that the Heiser case

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which had been relied on by so many and had incorporated so many cases that came before it, I tried to persuade you that it created a precedent, even though it wasn't from this court, it was from other district courts, but I said that Heizer was quasi-binding.

[00:02:59] Speaker 04:
And your honor said, no, it's not binding.

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And you said to the Delaware court that the court has to consider the issue of damages in light of

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the flato factors.

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Now, I will agree with you, Your Honor, there are ways that you can analyze damages in many cases without looking at prior cases.

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I'll give you a simple example.

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If you're talking about lost wages, you don't have to look and say, somebody who lost a leg in a previous case, how much did he get for lost wages?

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And let's give the same amount here.

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For that, you can say he had lost wages.

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He made so much an hour.

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His work life expectancy was such and such.

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He was such and such years old.

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He would have expected so many raises.

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You can do a calculation.

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There's many kinds of damages, many kinds of factors that you can analyze in the abstract without reference to things that came before.

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But how do you take something like the emotional impact that losing your son had on you and analyze that in the abstract?

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There's no math that you can do.

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There's no table you can look at.

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There's no book you can look in other than looking at what did courts do with similar things in the past, or if it were a jury trial, the jury looks at it in terms of the arguments that are made that are based on real life human analysis.

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The difference is that the jury doesn't have to explain how it got there, whereas

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The cases that we cite, Arpin and the other cases, Eureka, say that a district court analyzing damages has to explain how it got there.

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It's not enough to say that here's five factors, 11 factors, seven factors, however many factors, and to recite that a few of them, quote, weigh in favor of salation damages, and then end the analysis at that.

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The court needed to go through how did she weigh

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those factors to come up with the number.

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It's not enough to say that this factor weighs in favor of salation damages.

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And on the facts of this case, I pick a number out of the air and give you X dollars, which happens to be an increase over what I gave you before when I considered impermissible factors.

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And I'm not even going to explain to you the analysis that I did to back out the impermissible factors.

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So Judge Griffith,

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It's not binding.

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It's not precedent.

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But I don't know what else you could look at besides prior cases, prior jury verdicts.

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Outside of the court, if we were evaluating a case, we would look at jury verdict reporters.

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We would look at prior decisions.

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We would look at sustained decisions on damages.

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That's what lawyers and judges and insurance companies, that's what people look at to assess the sustainable amount of damages for

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non-physical or non-accountable, non-scientifically-calculable damages in personal injury cases.

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of awards in other cases by district courts.

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And let me explain why I ask that.

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In one sense, it's very powerful that the awards gravitate around the points 5 million and 2.5 million for parents and for siblings.

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And it makes the award in this case look like more of an outlier and potentially more arbitrary, right?

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Yes.

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On the other hand, the very consistency of those awards

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may give each one of them less sort of gravitational mass in terms of representing a data point of reasoned analysis on the facts before those courts, if they seem to be just, well, we're just going to do what Dirk Lemberth did.

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Because as you acknowledge, it's very difficult to find real guideposts

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for this kind of analysis.

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And therefore, to some extent, don't we have to see what the district judge in this case did as sort of treating those as less than 60 odd data points and sort of as one?

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I have a few answers for that.

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You know, the Heiser case was not the first case where those numbers came up.

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If you read the Heiser case, Judge Lamberth looked back at many other cases and tried to spot the trend, tried to see where those cases are going.

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I think he was motivated tremendously by the idea of fairness, that where the cases are

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not so distinguishable.

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They should be treated similarly, although his approach did involve the idea of upward and downward departures when

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cases were particularly egregious or the damages were particularly severe.

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You know, for example, a case where somebody dies in a terror attack and is killed instantly versus one where somebody lingers, like the Woltz case, where the decedent lingered for a month and the family had to go through that, the damages are different and that's dealt with the idea of upward departures.

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I hear the question, and it's something that when I first got involved in these cases 15 years ago, I wondered about.

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I said, you know, gee, what Iran should do is they should come in and try one of these cases.

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In the cases we brought against nongovernmental entities under the Anti-Terrorism Act, they said the defendant should come in and try these cases and see if they can get a jury verdict to come in at lower numbers.

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And you know, it happened.

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There was a case called Sokolo in New York,

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which was a very large case.

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It was six or seven attacks.

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I had some involvement in it, although I didn't try the case.

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It went to verdict.

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It was ultimately, on appeal, dismissed for lack of jurisdiction under the Daimler at-home line of cases.

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But it went all the way to verdict in a full, heavily litigated adversarial trial.

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And wouldn't you know it, the jury's verdicts

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on the salacious damages were, they never heard of Heiser.

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They never heard of any, they never heard of Judge Lamberth.

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All they heard was the arguments of counsel and the testimony of witnesses about what they experienced and the jury's verdicts could have been copied out of Heiser.

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So when I saw that, I said, well, these cases do have validity.

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But still, as a matter of procedure,

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Sure, Judge Collier didn't have to accept the numbers that Judge Lamberth and other cases recited in Heiser following the Plato standard, but Judge Collier had to show how she got to the numbers that she picked.

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It is not enough just to say,

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Because you deserve salacious damages, I give you $1 million.

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It's not yours to just give.

[00:10:34] Speaker 02:
But Amika's counsel goes through the philatel factors in the brief, and they point to her evaluations of lingering versus non-lingering.

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brutal, but not as brutal as you know, it could have been, you know, and, and it's, I mean, and recognizing this is a very surreal and tragic kind of analysis to even be, I mean, the comparative, there's something that feels very comparative horror, very uncomfortable for anyone.

[00:11:07] Speaker 02:
Um, but she does, you know,

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go down each of those factors and make some determination, relative determination.

[00:11:18] Speaker 04:
I commend Amicus Council for the way that they stitched together a little bit here and a little bit there, but it's not an accurate statement to say that Judge Collier conducted any analysis.

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She recited some facts.

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She repeated some facts

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in the setup of the analysis.

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What you would expect to see after that is a discussion of how she weighed the facts and what she credited.

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Where did she get the number from?

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Why was it one number before and now it's a different number?

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And why does she insist on using

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The Gates case, which, okay, it's her personal favorite.

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She wrote it.

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I'm sure it made a great impression on her because it was tried in front of her.

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But you couldn't think of a case, it's coincidentally also a foreign sovereign immunity state terrorism exception case, but you couldn't think of a case that was more dissimilar in terms of the facts of the case.

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There are so many other cases that are right on point.

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A teenager killed in a bombing or an execution or a kidnapping.

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There's unfortunately dozens of cases like that.

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To take the Gates case, which was a US military contractor working in Iraq,

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who is beheaded and say, OK, we're going to start with that case, but now I'm going to show you how completely different it is from this case.

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And then say, and therefore I'm giving a certain dollar amount without showing what the calculation is and without saying why.

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OK, she doesn't want to regard what other judges of her court have done as finding precedent, but why ignore them?

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Why start with your own case that's dissimilar and go through a long discussion of why it's dissimilar and why we have to give less here and completely ignore the other cases that have facts much more similar?

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How many cases would she have had to discuss?

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And wouldn't she discuss fewer than all the cases you identified?

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Would she be accused of cherry picking?

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No.

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How many of the facts does she have to line up with the facts of this case?

[00:13:48] Speaker 04:
I think they come in groups.

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We tried in our brief to identify a handful of cases that really were very similar.

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On page 50 of our brief,

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Botvin, Roth, Thunebot, Woltz, Hirschfeld, Waxman.

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These are cases where the facts are similar, the age and stage of the plaintiff, the decedent is similar, the family is similar.

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In the Gates case, the surviving family were much older.

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He wasn't a teenager that was killed.

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It was an adult man working in Iraq as a military contractor.

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So even just the idea of how many years is this salatian damages award supposed to compensate you for, an older person has fewer years of life expectancy left.

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It's really comparing apples to oranges.

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Picking any of these other cases, the Hirschfeld case, it was a high school student who was killed in a terrorist attack when a gunman burst into a yeshiva in Jerusalem and killed a bunch of teenagers.

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The family was similar, younger parents, younger siblings, it's on all fours with our case.

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The Waxman case, same thing.

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Batvin was killed in an explosion in a public

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in a public mall in Jerusalem, also a teenager, these cases are so much similar.

[00:15:21] Speaker 04:
And I would respect if Judge Collier said, look, I looked at this, but I think that those damages were excessive, and here's why.

[00:15:31] Speaker 02:
So I think Amicus has also argued that where on your first appeal you put in your table

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and you linked it doctrinally to Heiser on your second appeal, you put in the same table and linked it doctrinally to Fleetow.

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How is it really, you were making a similar argument to the prior panel and they did not rule in your favor on that issue.

[00:15:54] Speaker 02:
How do we,

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CRU passed that and respect the binding decision of a prior panel.

[00:16:02] Speaker 04:
I agree with you that the tables in the two appeals are virtually the same table, although I think there's some newer cases added in the second one.

[00:16:11] Speaker 04:
But the table just summarizes what happened in all the cases.

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The difference now is, previously, we gave you our pitch that what we call the Heiser standard is binding.

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That didn't fly.

[00:16:25] Speaker 04:
Your Honor said it's not binding.

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However, district courts have to follow flato.

[00:16:31] Speaker 04:
So, you know, even in Gates, Judge Collier didn't say she ignored flato, but she described it as being in disuse.

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After Frankel, now the only word from this court about what district courts are supposed to do when they assess damages in FSIA cases is this case.

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And after this case, the rule is look to Plato.

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So the same table, Judge Pillard, is relevant because it summarizes how all those different courts handled cases arising under the Plato standard.

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I'm not saying it's binding, but it gives us information about what the court might have considered.

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And again, I can't emphasize this enough.

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If Judge Collier had followed some other method of analysis, that would be fine.

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She doesn't have to start with other cases and reason that this one is more, this one is less.

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But in the absence of any other form of weighing and balancing and discussion, what she did was picking a number out of the air.

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I would challenge amicus to

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beyond just reciting some facts, finally one word in the decision that the district court wrote that could be described as analyzing those factors towards a calculation of damages that relies on something other than I know it when I see it.

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So every other case besides Gates and this case that's ever been has had substantially higher

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damages awards.

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For this family, for what they've been through, to be the theoretical example of, well, it's just the judge's discretion, and she doesn't have to really tell you why, it's really, it lacks heart, and we're coming up in a couple of weeks on the fifth anniversary of Naftali Frankel's murder, and I hope I'll have good news for them.

[00:18:48] Speaker 04:
With that, I'll rest on my brief.

[00:18:57] Speaker 00:
Good morning, Your Honors.

[00:18:59] Speaker 00:
Erica Hashimoto as court appointed amicus.

[00:19:02] Speaker 00:
And with me at council table are the three students who have been working on this.

[00:19:06] Speaker 00:
Kate Ruhm, Alison Dapper, and Kyle Hendricks.

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With the court's permission, Mr. Hendricks will be arguing this case.

[00:19:13] Speaker 00:
Yes.

[00:19:24] Speaker 03:
May it please the court.

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The Frankel family has suffered an unimaginable tragedy that continues to affect them to this day.

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The district court was faced with the extremely difficult task of quantifying this mental anguish.

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While another district court may have awarded a larger sum, the district court here did not abuse its discretion.

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Cured of the two impermissible factors, the district court used the flat-out mental anguish test as mandated by this court.

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This court previously held in the Frankel case that it is for this court to leave it to the wise discretion of the colleagues on the district court in coming to these extremely difficult.

[00:20:03] Speaker 05:
You've heard your friend on the other side say that his reading of the district court opinion is that she simply identified a blackout factor and did not conduct any analysis to say how that factor played out here.

[00:20:20] Speaker 05:
And he gave you a challenge.

[00:20:22] Speaker 05:
challenge my friend to identify instances where there was analysis that took place.

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Can you?

[00:20:28] Speaker 05:
give us some instances where the district court analyzed the flat-out factor?

[00:20:33] Speaker 03:
Yes, Your Honor.

[00:20:33] Speaker 03:
The district court goes through each factor in depth, discussing all of the things that it found relevant to this.

[00:20:39] Speaker 03:
It goes through how the family suffered in not knowing whether their sibling and their child was dead or not, how they are affected to this day with PTSD and types of anxiety and seek help for those

[00:20:56] Speaker 05:
But did she make a link between those factors and the amount of selenium bandages?

[00:21:02] Speaker 03:
Yes, Your Honor.

[00:21:03] Speaker 03:
At the end of the opinion, the District Court recognized that it had come to the award by taking into account all of the facts in this case used through the flat-out analysis.

[00:21:13] Speaker 05:
Well, that's a conclusion, but where's the analysis?

[00:21:17] Speaker 05:
Where did she say, because of this factor, the amount should be X?

[00:21:23] Speaker 03:
At no point in the opinion did the district court go through and say factor one means that a certain number of damages should be awarded.

[00:21:33] Speaker 03:
But this test is overall looking at all of the relevant facts and the other district court opinions are written in a fairly similar manner to this.

[00:21:42] Speaker 03:
where there aren't numbers given for each relevant factor.

[00:21:46] Speaker 03:
All of the factors are gone through, and as long as they are done in depth and looking at the entire record, the court uses its wise discretion to eventually come to an award that... The outer limits of that discretion?

[00:21:59] Speaker 05:
What if she had gone through all the flat-out factors and said, and therefore I think they should get $10?

[00:22:05] Speaker 05:
How would we review that under your argument?

[00:22:11] Speaker 03:
One of the things that causes an abuse of discretion is an erroneous assessment of the evidence.

[00:22:16] Speaker 03:
And if the number chosen is so wildly out of proportion to the analysis done, it clearly could be an abuse of discretion.

[00:22:25] Speaker 03:
But we don't see that here.

[00:22:26] Speaker 03:
This is a lower award than has been given in other cases.

[00:22:30] Speaker 03:
But it's not so wildly out of proportion.

[00:22:32] Speaker 03:
It's only $2 million less than the amount given in Gates.

[00:22:36] Speaker 03:
And there was still a substantial amount given, $8.5 million total.

[00:22:41] Speaker 03:
This case is lower, but it is not totally outside the stratosphere of what is standard, particularly considering that over two thirds of these cases have been decided by just two judges who both use the Heizer formula.

[00:22:54] Speaker 03:
So the overall numbers are going to average far higher than they might have had.

[00:23:00] Speaker 03:
Several courts used different forms of calculation as this court did in comparison to Gates.

[00:23:07] Speaker 02:
So in terms of reasoning,

[00:23:09] Speaker 02:
I think everybody recognizes, and our court rests at its prior holding, on the recognition that one district court's determination is not binding on another.

[00:23:20] Speaker 02:
But it also seems clear that, especially in an area like this, where there's so few guideposts, that once there is a body of decisions, that it becomes part of the fabric of what's relevant

[00:23:38] Speaker 02:
for decision making unless the court explains in some way why it shouldn't be.

[00:23:48] Speaker 02:
And one of the things that, I mean, many things that are difficult about this case, but the judge in her reconsideration opinion before the appeal directly took on other

[00:24:03] Speaker 02:
other colleagues' decisions and said, I've already made it clear, I'm not following those, I respect those other judges.

[00:24:11] Speaker 02:
And she says it's true that my compensatory damage awards are inconsistent with those others.

[00:24:23] Speaker 02:
Yeah, they've used the framework, they've all kind of grouped around something, I'm doing something different.

[00:24:31] Speaker 02:
Does she though explain why?

[00:24:33] Speaker 02:
What's your sense and what would you point us to that explains why that's a non-arbitrary choice on her part?

[00:24:46] Speaker 03:
Well, I can't get into the district court's head, but it seems like

[00:24:51] Speaker 03:
She views that the numbers that have been given in other cases are too high, and through that has given awards, Gates and this case, that are lower than the Heiser formula.

[00:25:05] Speaker 03:
In that, the numbers may be lower, but we don't believe that she's required to look at the body of these other cases.

[00:25:14] Speaker 03:
This court previously held in the Frankel case that the court was not required to use the Heiser formula.

[00:25:19] Speaker 03:
It wasn't required to look at generally what is the standard for most district courts incoming to its war.

[00:25:26] Speaker 03:
It cited Gates as a place where a district court had declined to use Heiser.

[00:25:32] Speaker 02:
So when you say use Heizer, are you talking about the end result numbers or a methodology?

[00:25:37] Speaker 02:
And how do you see Heizer as different from Flaytow in terms of what they stand for that's guidance for a district court?

[00:25:46] Speaker 03:
When I say use Heizer, I mean that there are baselines given in Heizer, 2.5 million for siblings, 5 million for parents.

[00:25:53] Speaker 03:
So it's like their appendix A. Yeah, and then go up and down based on specific facts.

[00:25:58] Speaker 03:
We read Flaytow to be very different than that because

[00:26:02] Speaker 03:
It is simply several different considerations that are relevant for the court to look to in coming to its eventual award.

[00:26:11] Speaker 03:
The court goes through many different ones that some might be relevant in some cases and others in different cases.

[00:26:17] Speaker 03:
And this court required the district court to use those considerations in coming to an award.

[00:26:23] Speaker 03:
However, the Discord, we do not read its opinion to mandate that the numbers in flat style be used as a baseline in the way in which they would be used in the hyzer framework.

[00:26:34] Speaker 03:
It's about the way that the analysis is done as opposed to the numbers you need to begin with and then go up and down from.

[00:26:41] Speaker 03:
So under that understanding, it would be wholly reasonable for the district court to go through the Flatow analysis and fully fulfill this court's mandate and still come to an award that is substantially lower than the amount that was given in Flatow itself.

[00:26:56] Speaker 02:
So how can you say, though, that when the court says you don't need to adhere to Heizer, meaning you don't need to do the same numbers, but if you're going to do some other project, wouldn't you think there would be a requirement to explain that?

[00:27:12] Speaker 03:
Yes, it would have been prudent for the court, in this opinion, to explain why it was choosing to use a number that was very different, or that it simply thought the awards were too high.

[00:27:23] Speaker 02:
And in your view, did the court explain, or how close did the court come to explaining why?

[00:27:29] Speaker 02:
I mean, it talks about where awards have to be based on their facts.

[00:27:35] Speaker 03:
The district court explained how it got to its award.

[00:27:38] Speaker 03:
It didn't explain

[00:27:41] Speaker 03:
why it may have had a thought about general awards being higher or lower than the general body of case law.

[00:27:49] Speaker 03:
But we don't believe that that was a necessary requirement for it to fulfill, for it not to abuse its discretion.

[00:27:57] Speaker 03:
The fact alone that it went through the flat out considerations as mandated by this court and came to an eventual award

[00:28:05] Speaker 03:
with a legitimate reasoning, in and of itself, seems to be enough to satisfy the discretionary issue here.

[00:28:18] Speaker 05:
OK.

[00:28:18] Speaker 05:
Thank you.

[00:28:18] Speaker 05:
Is there time left?

[00:28:21] Speaker 05:
We'll give you another two minutes.

[00:28:23] Speaker 04:
Your Honor, unless you have questions, I don't have much to add other than to point out

[00:28:35] Speaker 04:
two quick things in no particular order.

[00:28:39] Speaker 04:
One is just to emphasize, I neglected to mention before that the district judge didn't even really go through Plato.

[00:28:47] Speaker 04:
She said, I'm not gonna look at, there's Plato and then there's this other case that condensed Plato and I'll look at the other case.

[00:28:58] Speaker 04:
Plato, you know, it was the first.

[00:29:01] Speaker 04:
and it really represented, it really did what the district judge here should have done, which is say, how are we gonna come up with numbers?

[00:29:11] Speaker 04:
Let's identify these factors, and let's weigh them, and let's evaluate them.

[00:29:16] Speaker 02:
If that's your goal standard, I mean, FLETA doesn't, it talks generally about the problem, and the details of the problem, but it doesn't do what you seem to be asking for here, which is really embroider

[00:29:31] Speaker 02:
each of the factors and then relate them to a number.

[00:29:34] Speaker 04:
It was struggling in a field where nobody had ever been there before.

[00:29:39] Speaker 04:
It was navigating across the Antarctic with no signposts, with no landmarks.

[00:29:46] Speaker 04:
It did the best it could in its situation, in its time.

[00:29:51] Speaker 04:
Subsequent courts have the benefit.

[00:29:53] Speaker 04:
We say there's 60 cases.

[00:29:54] Speaker 04:
There's also cases from other districts.

[00:29:56] Speaker 04:
We just took the ones from the D.C.

[00:29:59] Speaker 04:
from the District of Columbia.

[00:30:03] Speaker 04:
But I repeat, there could be other ways to skin the cat, but you have to analyze based on some kind of signposts, some kind of analysis.

[00:30:16] Speaker 04:
And Judge Clard, I'm happy you referred to that reconsideration decision where

[00:30:25] Speaker 04:
Judge Collier actually said the court believes that difficult cases like this one require difficult and particular analyses of their facts and injuries.

[00:30:36] Speaker 04:
And she said that, and I'm looking for it.

[00:30:40] Speaker 04:
It's not here.

[00:30:44] Speaker 04:
Thank you.

[00:30:46] Speaker 04:
We'll take the matter under submission.

[00:30:48] Speaker 04:
Thank you.

[00:30:49] Speaker 01:
Stand, please.