[00:00:00] Speaker 01: Case number 22 of 1758. [00:00:03] Speaker 01: Eli M. Barjab et al, Sherry Mayor Barjab et al, the balance, versus Islamic Republic of Iran and Syrian Arab Republic. [00:00:12] Speaker 01: Mr. Doljan Pradeep Balans, Mr. Janel, court appointed amicus garridae. [00:00:22] Speaker 03: Good morning, Your Honors. [00:00:24] Speaker 03: It's a pleasure to be here in person. [00:00:29] Speaker 03: Um, [00:00:30] Speaker 05: We agree. [00:00:33] Speaker 03: So there's two issues I think to address today. [00:00:37] Speaker 03: One has to do with the status of the appeal, and the other is the substance of it. [00:00:48] Speaker 03: Would the court prefer to start with one or the other? [00:00:51] Speaker 05: Start where you feel most comfortable, and we'll let you know when we have questions. [00:00:54] Speaker 03: All right. [00:00:55] Speaker 03: So the issue about the final order, [00:01:00] Speaker 03: I don't have much to add to what was set forth in our reply brief except for the following, that if the court sees it the way I briefed it, that the order, despite appearances, was technically non-final. [00:01:19] Speaker 03: and remands it to the court below, it should be done with instructions, some explanation so that there's no confusion in the court below as to why it's coming. [00:01:29] Speaker 03: It shouldn't just be a one-line order that says it's a non-final order that dismissed. [00:01:33] Speaker 03: The court below has to know what to do about it. [00:01:39] Speaker 03: Otherwise, I'm just afraid we'll be back here [00:01:43] Speaker 03: in short order with the similar arguments. [00:01:48] Speaker 02: On the merits, what if any legal error do you contend the district court made? [00:01:55] Speaker 03: Sure. [00:01:57] Speaker 03: The basic legal error was leaving the plaintiffs, and I'm starting with the conclusion, but leaving these Israeli plaintiffs bereft of a remedy based on the [00:02:13] Speaker 03: thought process that we did not present everything that the judge thought one might present in this context. [00:02:22] Speaker 03: Not every case has every kind of evidence or every kind of argument or every kind of proof that you might theoretically have. [00:02:31] Speaker 03: It would be nice if we had Israeli court decisions in similar cases. [00:02:38] Speaker 02: I'm trying to find out what error of law. [00:02:41] Speaker 02: So you're saying that the judge erred by concluding that the quantum of evidence that you presented was not sufficient. [00:02:57] Speaker 03: Yes, I would qualify it somewhat. [00:02:59] Speaker 02: And don't we review that for clear error? [00:03:01] Speaker 02: That's the way we we review damages. [00:03:06] Speaker 03: Well, I don't think that's [00:03:08] Speaker 03: This wasn't a damages award. [00:03:09] Speaker 03: If the judge had said, look, I reviewed the Israeli law experts' assessment of Israeli law, and I reviewed the affidavits of the plaintiffs and heard what their damages was, and I decided that these plaintiffs deserve X dollars. [00:03:27] Speaker 03: So that would be a damages award that your honor would review for clear error. [00:03:32] Speaker 03: Here, the court didn't do that. [00:03:35] Speaker 03: I believe this is a de novo review. [00:03:37] Speaker 03: um the what authority do you have for that proposition um you mean for for the proposition that it's de novo as opposed to yes um it's set forth in our opening we find the page reference for you [00:04:02] Speaker 03: Now, while I'm finding the page reference, I would also say I don't think it matters, whether it's de novo or clear error or any other standard, because I think that the... I'm looking in the wrong grief. [00:04:18] Speaker 02: Well, here's, I guess, not to get to the nub of it, and I know my colleagues have questions, so I'll stop after this. [00:04:30] Speaker 02: When the district court judge asked you to provide evidence, you had one opportunity. [00:04:37] Speaker 02: Then they gave you a second opportunity with the show clause. [00:04:41] Speaker 02: And the issue was, what do you need to prove damages under Israeli law? [00:04:46] Speaker 02: And he specifically asked for exemplar damages. [00:04:51] Speaker 02: And you didn't do that. [00:04:54] Speaker 02: Then you filed a motion for reconsideration, winning a third bite at the apple, [00:05:00] Speaker 02: and said, well, we can't really provide exemplar damages because we can't serve Iran and Syria. [00:05:07] Speaker 02: But that kind of begs the question of, well, you know, are there no cases against Palestinian authority, against individuals? [00:05:16] Speaker 02: There are no wrongful death cases. [00:05:22] Speaker 02: You say that Israeli law generally provides lesser damages in the U.S., but we don't know what that means. [00:05:30] Speaker 02: So the district court said, look, it's too late, but even if I consider that, it's not sufficient. [00:05:39] Speaker 02: So I'm having a problem seeing where the error of law is in that. [00:05:43] Speaker 03: OK, so let me back up. [00:05:44] Speaker 03: First of all, the procedural recitation that Your Honor just gave isn't exactly right. [00:05:49] Speaker 03: There were no three requests from the court below. [00:05:52] Speaker 03: We filed a motion for a default judge. [00:05:54] Speaker 02: Well, that's there's no request, but that's your opportunity. [00:05:57] Speaker 02: I mean, I mean, when you put a case on at trial. [00:06:01] Speaker 02: and it's time to rest, and then the court has to decide. [00:06:06] Speaker 02: The plaintiff doesn't, after there's a directed verdict against him, get to say, oh, but we have more evidence. [00:06:13] Speaker 02: That's your shot. [00:06:14] Speaker 02: That's your bite at the apple. [00:06:16] Speaker 03: That's what I meant. [00:06:17] Speaker 03: A motion for a default judgment isn't exactly a trial. [00:06:21] Speaker 02: I understand that completely, but my point is is that that's your opportunity to present evidence. [00:06:26] Speaker 03: So look, first of all, [00:06:29] Speaker 03: the idea of presenting similar verdicts from another jurisdiction or verdicts from another jurisdiction in a similar case, that's not an issue of law. [00:06:41] Speaker 03: What the court did here was not an issue of law. [00:06:44] Speaker 03: The issue of damages, this is really our main thrust, our main argument in this case is that the judge's job [00:06:55] Speaker 03: when making a damages determination. [00:06:58] Speaker 03: He was with us all through liability. [00:07:00] Speaker 03: We got up to damages. [00:07:02] Speaker 03: And the judge's job, just like a jury's job at a jury trial, is to hear what the law is, to hear the evidence of damages, hear about the injuries, and make an award. [00:07:17] Speaker 03: If they're in a jury trial, you would never tell the jury what was awarded in another case. [00:07:25] Speaker 03: You would never call a witness to say, this is a car accident where somebody lost a leg, and now I'm going to give you a list of jury verdict reports from what other juries awarded in other cases. [00:07:36] Speaker 03: That would be so forbidden you couldn't even mention it, that there are other cases and what other juries did on other evidence. [00:07:43] Speaker 03: The judge's job is to hear the law of damages [00:07:46] Speaker 02: But that's exactly what you wanted this judge to do, right? [00:07:50] Speaker 02: By showing him other awards in other terrorism cases, awards under federal law. [00:07:58] Speaker 02: And that's what's done in these default judgment cases. [00:08:02] Speaker 03: The first line of argument is that the judge should have heard what categories of damages Israeli law allows in a case like this, and based on hearing [00:08:14] Speaker 03: what those categories of damages are, you know, lost wages, pain and suffering, loss of salatium, categories of damages, then the court should have looked at the testimony of the plaintiffs to see what they said about their injuries, what they said about their damages, and the court should have made an award. [00:08:32] Speaker 03: Now, we did go on to say that as a fallback, if you don't, you know, it's [00:08:39] Speaker 03: How do you do it as a judge? [00:08:41] Speaker 03: How do you or as a tour? [00:08:42] Speaker 02: How do you? [00:08:43] Speaker 02: So if I'm understanding you correctly, then it was error for him to require exemplar damages under Israel. [00:08:51] Speaker 02: Exactly. [00:08:52] Speaker 03: That's 100% error. [00:08:54] Speaker 03: Exemplar damages are nice to have in this context as guideposts. [00:08:58] Speaker 02: And that's exactly what in what's your best case for why [00:09:04] Speaker 02: precedent from us or any other jurisdiction as to why that was here. [00:09:08] Speaker 02: If that's if that was if that's what he required. [00:09:11] Speaker 03: And that's the you don't have to read beyond this court's decision in Frankel or this court's decision in Hill. [00:09:19] Speaker 03: Um, you know, in Frankel, it's funny because I was the plaintiff's attorney in Frankel and in Frankel, we were very upset at Judge Collier's [00:09:28] Speaker 03: damage award. [00:09:29] Speaker 03: She looked at the evidence, she looked at the testimony, and she awarded to us what we viewed as substantially lower damages than should have been awarded. [00:09:39] Speaker 03: And we argued that because of that it was wrong, as we saw it, for her to award less than what had become like a standard in these cases under Heiser. [00:09:52] Speaker 03: And she said, I don't care. [00:09:54] Speaker 03: I'm the judge. [00:09:55] Speaker 03: I'm supposed to hear the evidence and make awards that are in this case. [00:10:00] Speaker 03: And Heiser, he said, it's just another district court decision. [00:10:03] Speaker 03: It's not precedent. [00:10:05] Speaker 02: And our position was like, well, we said that was an error because it wasn't binding. [00:10:10] Speaker 02: You said it's not binding. [00:10:12] Speaker 03: right you said it's merely that's my point we tried as tried as we could we didn't say it's not relevant we just said it's not binding oh it's certainly relevant it's you know i should qualify we didn't say it couldn't be considered we just said it's not binding that's correct it's something that could be considered now you don't have to consider it in fact Judge Collier disregarded it [00:10:38] Speaker 03: And she said, I'm going to make my assessment based on the way I see the evidence. [00:10:41] Speaker 03: And that's what this court said, that it's a guidepost. [00:10:45] Speaker 03: It can be consulted, but it's not binding. [00:10:49] Speaker 03: So there's lots of evidence that you could present in a case. [00:10:53] Speaker 03: It's nice to have an MRI. [00:10:55] Speaker 03: It's nice to have fingerprints. [00:10:57] Speaker 03: It's nice to have DNA evidence. [00:10:59] Speaker 03: But you don't have DNA evidence in every case. [00:11:01] Speaker 03: Sometimes you have to go to trial without some kind of evidence that you might have. [00:11:06] Speaker 03: Here, we did not have Israeli law verdicts of the same kind of case against the sovereign. [00:11:14] Speaker 03: And that's the answer, Your Honor. [00:11:15] Speaker 03: It's not a wrongful death case. [00:11:17] Speaker 03: It's not a case against the Palestinian Party. [00:11:19] Speaker 03: It's a case against the sovereign. [00:11:21] Speaker 03: state-sponsored terrorism, which we cite cases in our brief. [00:11:24] Speaker 05: Where did the district court say it had to have the exact same type of parties as opposed to just examples of terrorism cases of salacious damages? [00:11:33] Speaker 05: I mean, your own expert said the Jerusalem District Court, which deals with tort claims based on terrorist actions. [00:11:40] Speaker 05: So has that court ever issued salacious damages in a terrorism case? [00:11:46] Speaker 03: against a foreign sovereign law? [00:11:48] Speaker 05: I didn't ask that. [00:11:49] Speaker 03: I don't know the answer to that. [00:11:51] Speaker 05: But maybe that was, you know, if you don't have it against, I didn't read the district court's order as saying I want identical parties or parallel parties. [00:11:58] Speaker 05: I want, excuse me, I want examples of how these awards, distillation damages are computed and implied. [00:12:06] Speaker 05: And what kind of amounts are given in Israel? [00:12:09] Speaker 05: Because this isn't like showing examples in a car accident case. [00:12:14] Speaker 05: This is a very difficult application of foreign law. [00:12:18] Speaker 05: And so what I've been baffled all along about is why you didn't have one. [00:12:24] Speaker 05: I mean, you're briefing to us as we don't have it against Syria and Iran. [00:12:28] Speaker 05: And now you say we don't have it against sovereign governments. [00:12:31] Speaker 05: but then why you wouldn't go, but here's what we do have in other terrorism cases, here's how it's been done. [00:12:38] Speaker 03: And the answer to that, Your Honor, is that in my view, a case against something other than a sovereign government isn't really comparable. [00:12:47] Speaker 05: What has that got to do with the nature of the damages suffered by your clients? [00:12:51] Speaker 05: Do they suffer less? [00:12:53] Speaker 05: Excuse me, do they suffer less because the defendant is a sovereign? [00:12:57] Speaker 03: They suffer more. [00:12:58] Speaker 05: Okay, well then you can explain that you go. [00:13:00] Speaker 05: Here's what it is. [00:13:02] Speaker 05: You could say here's what it is when it's not a sovereign and we think it should be more. [00:13:06] Speaker 03: Right. [00:13:07] Speaker 03: But I don't think you didn't do that. [00:13:08] Speaker 03: I don't just to use a crude example. [00:13:12] Speaker 03: If somebody has a baby that dies of crib death and somebody has a baby that's killed by a gang member in a shootout, one is worse than the other. [00:13:20] Speaker 03: The damages from one will suffer. [00:13:22] Speaker 03: That's not my question. [00:13:24] Speaker 05: My question is the judge said, I don't know how this type of award is [00:13:31] Speaker 05: I don't know what kind of amounts they give and how they go about assessing this very difficult to evaluate thing called the injuries from salation, the pain from loss and witnessing the suffering of a loved one. [00:13:46] Speaker 05: All right, so please tell me what Israeli courts do. [00:13:50] Speaker 05: And your own expert said there's a court in Jerusalem that's really expert in terrorism tort cases. [00:13:56] Speaker 03: I wouldn't say that. [00:13:57] Speaker 05: Well, your expert said that. [00:13:59] Speaker 03: No, they're not expert in terrorism court cases. [00:14:02] Speaker 03: What he said is that they had a case. [00:14:03] Speaker 03: They don't have a lot of these cases. [00:14:06] Speaker 05: That's not what he said, which deals with most tort claims based on terrorist actions. [00:14:11] Speaker 05: That's plural. [00:14:13] Speaker 03: That's correct, but it's not like there's a million cases over there. [00:14:16] Speaker 05: No one asked for a million cases. [00:14:18] Speaker 05: I think you need to understand that the problem here, one of the problems here is that you read too much into either what you wanted to do and you over read what the district court was asking. [00:14:32] Speaker 05: And to follow up on Judge Wilkins' opinion here, he asked for information, but you didn't provide it. [00:14:38] Speaker 03: But I disagree with you completely, and I think you're making a mistake to do the case this way. [00:14:44] Speaker 03: The amount that an Israeli court may have awarded in some terrorism case is utterly irrelevant. [00:14:52] Speaker 03: Under Frankel, it's utterly irrelevant. [00:14:55] Speaker 03: to what this court should award in this case. [00:14:59] Speaker 05: I personally- I don't think Frankl said it was irrelevant. [00:15:02] Speaker 05: I think Frankl said it was a guidepost. [00:15:04] Speaker 03: It said it's useful merely as a guidepost. [00:15:06] Speaker 05: Correct. [00:15:07] Speaker 05: And the district court asked for some guideposts. [00:15:09] Speaker 03: Which can be disregarded completely. [00:15:11] Speaker 05: And the district court asked for some guideposts. [00:15:13] Speaker 05: When a district court judge asks for guideposts and information, your response is no. [00:15:20] Speaker 03: No. [00:15:20] Speaker 03: My response is that we did not have, even though the expert says that there's some terrorism cases in Israel, in my view, they're not guideposts because they are not against sovereigns. [00:15:33] Speaker 03: They're on different facts. [00:15:35] Speaker 06: But wouldn't you have to give a district judge some basis, some basis to follow you down that reasoning? [00:15:44] Speaker 06: For example, [00:15:45] Speaker 06: exemplars of cases, and then the experts saying, but this should not be equated. [00:15:52] Speaker 06: This guidepost should be subject to a multiplier because, fill in the blank, harm from a foreign sovereign, different from harm from an individual because, and here's the basis in Israeli law, the foreign sovereign is seen as a more formidable [00:16:09] Speaker 06: powerful, well-resourced, and potentially repeat actors. [00:16:12] Speaker 06: So that's going to change the experience of the injury or the victim or something. [00:16:19] Speaker 06: So the point is that my sense from reading the record is that the district court found the position of the plaintiffs in this case to be somewhat coy. [00:16:29] Speaker 06: We're going to give upward pushing information, rely on Heizer. [00:16:35] Speaker 06: These categories are open to you. [00:16:38] Speaker 06: and not countervailing guideposts, which might be helpful to take into account. [00:16:44] Speaker 06: And the timing and the belated acknowledgment that, well, for legal reasons, there aren't damages awards against Syria or Iran contributes to that. [00:16:58] Speaker 06: So there's a sense, I think, not just [00:17:01] Speaker 06: you know, this information is the be-all and end-all, but that the plaintiffs had not been fully cooperative or responsive or timely and candid in the case. [00:17:12] Speaker 03: The damages awards are not law. [00:17:16] Speaker 06: Well, law and law is something that the court needs information on. [00:17:20] Speaker 03: Law and law, yes. [00:17:21] Speaker 03: Is this actionable? [00:17:22] Speaker 03: What are the elements of the tort? [00:17:24] Speaker 03: What are the categories of damages? [00:17:27] Speaker 03: What are the considerations or the elements for each category of damages? [00:17:31] Speaker 03: Can a sibling recover? [00:17:33] Speaker 03: Can a child recover? [00:17:35] Speaker 03: Is there damages for law enforcement? [00:17:38] Speaker 02: That's the law. [00:17:39] Speaker 02: What if an Israeli statute or court decision said that selachium damages are capped at, you know, a million dollars? [00:17:49] Speaker 02: Isn't that law? [00:17:50] Speaker 02: That would be law, but we don't have that capped. [00:17:52] Speaker 02: Well, we don't have any facts about the content of Israeli law with respect to calculation of damages. [00:18:04] Speaker 03: Respectfully, if you're looking at damages awards, those are not law. [00:18:10] Speaker 03: Those are results. [00:18:12] Speaker 03: Those are verdicts. [00:18:13] Speaker 06: So they're reviewed for abuse of discretion. [00:18:16] Speaker 06: What if the district judge in this case had awarded nominal damages of one dollar? [00:18:20] Speaker 06: Would there be, would you be before us? [00:18:23] Speaker 03: I think so. [00:18:24] Speaker 06: A claim of legal error? [00:18:25] Speaker 03: I think so, because he, though the judge has discretion to make a damages award, it has to, uh, import to the facts of the case and to the applicable law. [00:18:36] Speaker 03: Um, honestly, I mean, just to go back to Frankel, um, it's a, it's water long under the bridge, but [00:18:45] Speaker 03: That's what the district court kind of did in Frankel. [00:18:48] Speaker 03: She had a view, and this is what Frankel was, on the merits part was reversed, she had a view that the plaintiffs were basically asking for it because of where they lived and where they sent their child to school. [00:19:02] Speaker 03: You live near the West Bank, you send your child to school in the West Bank, therefore you should expect to be attacked by terrorists. [00:19:08] Speaker 03: And that was reversed. [00:19:10] Speaker 03: But even when it came to the damages award, she was [00:19:15] Speaker 03: she saw the plaintiff's damages as diminished by their conduct. [00:19:20] Speaker 03: But the point is she took the guideposts and she said, but I'm going to call it the way I see it. [00:19:26] Speaker 03: And she disregarded the guideposts completely. [00:19:30] Speaker 03: And in fact, she had another case where she awarded [00:19:35] Speaker 03: many, many, many times what anyone would. [00:19:38] Speaker 03: Wait, so I'm sorry. [00:19:38] Speaker 05: Do you think her error was that she disregarded the guideposts completely? [00:19:42] Speaker 05: Is that what you just said? [00:19:43] Speaker 03: No. [00:19:44] Speaker 05: You just said she disregarded the guideposts completely. [00:19:46] Speaker 03: No, I'm just pointing out that's what she did. [00:19:47] Speaker 05: Was that error in that case? [00:19:52] Speaker 03: I'm constrained to say that this court said it wasn't, because we did appeal from it again. [00:19:56] Speaker 05: No, we didn't say that. [00:19:58] Speaker 05: We said they weren't binding. [00:20:00] Speaker 03: The second appeal, you said it wasn't binding, and she was free to call it the way she saw it based on the evidence. [00:20:06] Speaker 03: But to get back to Judge Gillard's question about what if the district judge awarded nominal damages, I think that would violate what this court said in Frankel, because a dollar doesn't [00:20:19] Speaker 03: have any connection to the damages these people suffered. [00:20:22] Speaker 03: That would be an extreme. [00:20:24] Speaker 03: The question would be harder, what if he awarded $100,000? [00:20:27] Speaker 06: Can I ask you a separate question and a prior question about whether we have jurisdiction under the reasoning of the district court in the force case? [00:20:43] Speaker 06: In other words, there's a question whether in a terrorist attack where nobody dies, [00:20:50] Speaker 06: is does the exception to foreign sovereign immunity even apply? [00:20:56] Speaker 06: And we have not ruled on that. [00:20:58] Speaker 06: The district courts in this jurisdiction have come out in different ways in Cabrera, for example, and in the force decision that you cite in your opening brief, but for a different purpose. [00:21:11] Speaker 03: Right. [00:21:11] Speaker 03: I believe, I also represent the plaintiffs in force, I believe that Judge Moss's [00:21:18] Speaker 03: a decision in force is really the right view. [00:21:25] Speaker 03: I know that he invested a lot of careful time and thought into that issue. [00:21:32] Speaker 06: If his view is the right view, then you have no claim. [00:21:41] Speaker 03: He ordered money to the injured parties. [00:21:47] Speaker 03: He didn't like Daniela Parnas because she had no... Oh, wait, take it back. [00:21:54] Speaker 03: He's still considering that issue. [00:21:58] Speaker 03: That issue was still going on. [00:22:00] Speaker 03: I misspoke, I was confusing with another case. [00:22:03] Speaker 03: That issue was still subjudice with him. [00:22:05] Speaker 03: It's been for a long time. [00:22:08] Speaker 03: I suspect, and I don't know this, I suspect that there's some decision here that he might be waiting [00:22:19] Speaker 06: I'm looking at the decision I believe you cited in which Parnas was not at home. [00:22:27] Speaker 03: Right. [00:22:28] Speaker 06: And he said he'd previously entered a default judgment as to most of the plaintiffs, declined to enter judgment in favor of six. [00:22:37] Speaker 06: One has renewed her motion for default judgment, and he says the court reconsiders and changes its view about whether the waiver of foreign sovereign immunity in 1605A regarding terrorism applies to attempted extradition. [00:22:51] Speaker 03: His first view, I agree with. [00:22:52] Speaker 03: His second view, he changed his mind, and there is a motion pending for further consideration on that, except not for Daniela Parnas, because what [00:23:06] Speaker 03: His ruling about Parnas was that, come on, she wasn't even injured. [00:23:10] Speaker 03: Like, it's not even. [00:23:10] Speaker 06: I'm less interested in the details of the awards to the plaintiffs in that case than the reasoning, which obviously is not binding on us one way or the other. [00:23:20] Speaker 06: But if one were to find it compelling, would that not mean that your clients in this case have no claim, cannot proceed? [00:23:32] Speaker 06: We lack jurisdiction. [00:23:34] Speaker 03: If the law is that [00:23:36] Speaker 03: an injured but not killed party does not give rise to solation claims, then these plaintiffs would be out of luck. [00:23:47] Speaker 03: Procedurally, that's not the issue that has been raised in this appeal. [00:23:51] Speaker 03: It was raised by the court below. [00:23:54] Speaker 03: and it's not really before the court right now jurisdiction is always before this court and a waiver of sovereign immunity is jurisdictional under the foreign sovereign immunities act so it is before this court but not without briefing but if that if that's a road that this court wants to go down notwithstanding that it wasn't raised below and it wasn't well you're the appellant it's your obligation to establish our [00:24:17] Speaker 05: And so what I'm interested in is the waiver of sovereign immunity applies to extrajudicial killing, didn't happen here. [00:24:26] Speaker 05: Aircraft sabotage, didn't happen here. [00:24:29] Speaker 05: Hostage taking, didn't happen here. [00:24:31] Speaker 05: Or the provision of material support or resources for such an act. [00:24:39] Speaker 03: The issue is the attempt. [00:24:40] Speaker 03: The word act includes attempt. [00:24:43] Speaker 05: The word act includes attempt? [00:24:44] Speaker 03: What's your authority for that? [00:24:47] Speaker 05: Such an act is not deferring back to the prior list that they just gave. [00:24:52] Speaker 03: The courts that have awarded damages to non-killed, you know, just injured solutions have relied on the word an act of extrajudicial killing in the sense that if I take a gun and point it at your honor and shoot, but I miss, that was an act of attempted murder. [00:25:11] Speaker 03: and it's an act of killing even though it was not successful. [00:25:14] Speaker 03: That's what Judge Moss said originally. [00:25:16] Speaker 06: And then there's the Cabrera decision which takes different reasoning and uses the material support for. [00:25:27] Speaker 06: as requiring purpose and something I'm not sure that has been established in this case, but I take you to be requesting that if we felt that we needed to answer that question that you're requesting an opportunity for supplemental briefing. [00:25:43] Speaker 03: Absolutely. [00:25:46] Speaker 03: And I think it would be very wise to do that because it would wind up being a decision that affects an awful lot of cases. [00:25:58] Speaker 05: All right, my colleagues, any more questions? [00:26:01] Speaker 04: All right, thank you. [00:26:13] Speaker 04: Good morning, your honors, and may it please the court. [00:26:15] Speaker 04: My name is Kate Stetson. [00:26:16] Speaker 04: I am here today in my role as a sponsor of the University of Virginia School of Law Appellate Litigation Clinic. [00:26:23] Speaker 04: It's my pleasure to introduce Andrew Nell as student counsel, arguing as amicus in support of the district court's judgment. [00:26:33] Speaker 05: Welcome, Mr. Nell. [00:26:40] Speaker 00: Thank you, your honors may please the court. [00:26:42] Speaker 00: I'd like to begin by making two remarks. [00:26:44] Speaker 00: First, the district court's order was a final judgment granting this court public jurisdiction. [00:26:50] Speaker 00: Second, because appellants claims arise under Israeli law, the amount and the proper calculation of those damages is necessarily a question of Israeli law. [00:27:00] Speaker 00: The district court was well within its discretion to request briefing on how to calculate those damages. [00:27:05] Speaker 00: And when plaintiffs didn't comply with the court's show cause order, there was no obligation to apply a hyzer or any other federal damages framework. [00:27:13] Speaker 00: Now, I think this court's questioning is really getting at the heart of what Judge McFadden was struggling with here, which is how to go about actually calculating these damages under Israeli law. [00:27:23] Speaker 00: And I think, as your honors pointed out, and I point you in the record as well to A563 to 66, as well as A636 to A639, there are multiple Israeli cases rewarding salaceum damages in terrorism cases. [00:27:39] Speaker 00: That's all Judge McFadden needed. [00:27:41] Speaker 00: Some understanding of how an Israeli court faced with these facts would go about calculating an actual dollar figure for these awards. [00:27:49] Speaker 00: To your honor's question earlier about what if the district court has awarded $1. [00:27:53] Speaker 00: I think that gets to the heart of the problem we have here is if at the end of the day, Judge McChadden had looked at these facts and said, I think an Israeli court would award you $10 or $10 million. [00:28:03] Speaker 00: There'd be no way for this court to know if he got the question right without some understanding of how that calculation actually takes place. [00:28:11] Speaker 00: And that's why in all of the cases that are citing in the briefing, the district courts are either defaulting to federal damages or simply awarding nothing. [00:28:20] Speaker 00: But no district court has found the expert declarations that were used here sufficient to figure out how to calculate damages. [00:28:27] Speaker 00: They go to what is compensable, but not how that compensation actually takes place. [00:28:32] Speaker 06: I mean, it's true even for the claimants who are preceding the American citizen plaintiffs, that there's a character of sort of normlessness or out of thin airness about all of these efforts to value non-numerical suffering. [00:28:55] Speaker 06: And to the extent that it appears [00:29:00] Speaker 06: that Judge McFadden was entering a zero award, not because he was assessing that as any measure of damages, but really almost as a sanction for noncompliance. [00:29:13] Speaker 06: And you don't defend it as [00:29:15] Speaker 06: as an appropriate sanction, do you? [00:29:18] Speaker 00: Well, I guess I wouldn't characterize it quite as a sanction, Your Honor. [00:29:21] Speaker 00: I think what Judge McFadden said is this is a part of your burden of proof, and if you can't actually show me what the value is of this claim, then I'm not in a position to award you anything, because anything he would have awarded would have been purely arbitrary. [00:29:32] Speaker 06: Just to probe a little bit on that. [00:29:35] Speaker 06: The plaintiffs did establish through expert testimony categories of types of harm that are recognized in Israeli law and through the plaintiff's own testimony what they suffered, which is, I think you'd have to acknowledge, quite analogous to what they proposed, what they presented on the American plaintiffs. [00:30:02] Speaker 06: Yes, there's hyzer out there as a guidepost, but with respect to those calculations, I trust that the district court also felt that there was a level of being at sea. [00:30:17] Speaker 06: So does it not seem arbitrary to grant zero? [00:30:22] Speaker 06: I mean, even if he said, well, I understand Israeli awards are much lower, [00:30:29] Speaker 06: Therefore, I'm going to grant a tenth of what was granted under the FSIA for the American plaintiffs. [00:30:38] Speaker 06: I mean, there would have been some thinking about that. [00:30:42] Speaker 06: But to grant zero, I guess I'm pushing back on the notion that there's no evidence on which a judge, if so inclined, could have arrived at some damages. [00:30:58] Speaker 00: I guess I'd have two responses to that, Your Honor. [00:31:00] Speaker 00: The first is that if they come forward with even a single case, not even in a terrorism case, but just an ordinary Israeli negligence damages case, something to establish some form for Judge McFadden to work off, I think I would agree it would be abusive discretion. [00:31:14] Speaker 00: But when he had nothing to go by, any sort of number, even a tenth, would be purely arbitrary. [00:31:19] Speaker 00: The second thing I'd point to is ordinarily, within an ordinary jury trial, whatever verdict the jury reaches is reviewed for abusive discretion on the back end. [00:31:28] Speaker 00: But because Judge McFadden was sitting as fact-finder, he essentially had to do that check on the front end. [00:31:33] Speaker 00: And so that's why he needed some understanding of what exemplar awards are under Israeli law, particularly when, from what little evidence was in the record, he knew those damages were lower. [00:31:43] Speaker 00: It could be the case that even a tenth of what these American plaintiffs did receive in this case would be an abuse of discretion under Israeli law. [00:31:50] Speaker 00: And that's all the court was seeking, was some sort of guidance for how to go about doing so. [00:31:55] Speaker 00: I think it was well within the court's discretion when my friend on the other side chose not to present that evidence for Judge McBadden to then reach the conclusion, well, I'm not in a position to award you anything then. [00:32:09] Speaker 02: So the expert declaration that's at, you know, A 636 and then the subsequent cases about [00:32:23] Speaker 02: Israeli damage awards in these types of cases. [00:32:28] Speaker 02: They give examples where pecuniary damages have been awarded. [00:32:34] Speaker 02: They don't give any amounts that the declaration doesn't, but it says courts have awarded. [00:32:41] Speaker 02: Why shouldn't the district court have said, well, give me the information about what the amounts are here [00:32:52] Speaker 02: in these cases that your expert discusses, why shouldn't he have done that before deciding to award them? [00:33:02] Speaker 00: So I think, first off, I'd point, Your Honor, to the court's show cause order, where Judge McFadden did expressly request what the amounts were. [00:33:10] Speaker 00: And so I think he had already requested this information. [00:33:13] Speaker 00: And in the response to the show cause order, and I point you in the record to A571, where in their response to the code, [00:33:21] Speaker 00: bill cause order, they have a section heading damages and what they say is in these expert declarations that we presented to this court, which we've taken from Leibovic and other cases, those declarations didn't specify what the dollar figures were. [00:33:34] Speaker 00: And so what we actually want is federal damages instead. [00:33:37] Speaker 00: And so I think Judge McFadden correctly understood [00:33:39] Speaker 00: that the issue wasn't that they couldn't get these dollar figures from these expert courts, it's that they understood that federal damages were more favorable, and they made a litigation decision to request those more favorable damages. [00:33:52] Speaker 00: That was, of course, well within their discretion to make that choice, but once they made that choice, there certainly wasn't an abuse of discretion on Judge McFadden's part to hold them to account for that, to say that federal damages is not a proper measure, having not complied with the court's show-cause order to award nothing. [00:34:08] Speaker 06: Mr. Nell, you said that had Judge McFadden in the face of the evidence that was before him, not including number amounts in other cases, had he attempted to award damages figures based on that evidence, it would have been arbitrary. [00:34:25] Speaker 06: But presumably, before the Heizer framework, I mean, it has to start somewhere. [00:34:30] Speaker 06: Was the court in Heizer that has been subsequently relied on as creating a rubric and some guideposts arbitrary if it was the first to award a number in a particular category? [00:34:44] Speaker 00: So I think even in the very first case under the FSIA, there's a certain just baseline understanding that district courts have about what salacious damages look like built up over hundreds of years. [00:34:56] Speaker 00: And indeed, when courts review for abuse of discretion, what they're doing is analogizing the past cases. [00:35:01] Speaker 00: But when you're dealing with an issue of foreign law, there isn't that institutional knowledge. [00:35:05] Speaker 00: So it really is kind of starting from scratch and baseline. [00:35:08] Speaker 00: And if this information truly didn't exist, that would be one thing. [00:35:12] Speaker 00: But when the information is readily available, the district court requests that information, and plaintiffs choose not to provide it. [00:35:19] Speaker 00: Certainly, within the course of discretion, at that point, say that there is no way for me to come to this figure, and therefore the proper remedy is zero dollar. [00:35:28] Speaker 05: The district court did order one of the plaintiff's damages for pain and suffering for emotional trauma. [00:35:38] Speaker 05: And that was Roland Gotan. [00:35:40] Speaker 05: I'm sorry if I'm not pronouncing that correctly. [00:35:42] Speaker 05: And he said, well, I'm going to carve out an exception for her because she also had a physical injury. [00:35:50] Speaker 05: Was the award that he gave to her, to the extent it went beyond physical pain, completely arbitrary because you've said there was no basis for him to make any decision? [00:35:58] Speaker 00: Well, no, because what Judge McFadden did there, and what a lot of other district courts have done, is the district courts are unanimous in finding that these expert declarations simply don't give enough information for how to calculate damages. [00:36:09] Speaker 00: What some courts have done, and what Judge McFadden did for this one plaintiff, is say, in the interest of justice, that they'll then look to a forum law, and in this case, federal damages. [00:36:17] Speaker 00: And so he actually used the Heiser framework to come up with it. [00:36:21] Speaker 05: Well, first of all, I mean, the forum law is district law. [00:36:23] Speaker 05: So that would have been a mistake. [00:36:24] Speaker 05: But I want to get back to you. [00:36:26] Speaker 05: But the only reason he said there's an interest of justice for this particular client is because she also, it was a she, as I recall, also had a physical injury. [00:36:36] Speaker 05: Why is that not an arbitrary distinction between these, all of the other non-US plaintiffs who had, as he acknowledged repeatedly, found and suffered [00:36:52] Speaker 05: the very types of injuries that we put under the category of salacious damages. [00:36:56] Speaker 05: They had suffered this terrible emotional pain and witnessed their loved ones' injuries and their pain and suffering and recovery process. [00:37:06] Speaker 05: And so why is it at all permissible to say, well, because this one also got physically injured [00:37:13] Speaker 05: I'm gonna do an interest of justice decision for her and everyone else who I have admitted has suffered, I recognize has suffered. [00:37:21] Speaker 05: There's no question about the fact of damage here, but I'm going to discard theirs. [00:37:28] Speaker 05: I'm gonna make an arbitrary calculation for this person, in your words, an arbitrary calculation for this person, because they also suffered physical injury. [00:37:35] Speaker 05: What possible rational basis is there for that? [00:37:38] Speaker 00: Your honor, I guess I'd say in the first instance, I think it would have been within the discretion of the court to have simply awarded nothing to all the Israeli plaintiffs. [00:37:45] Speaker 00: When it comes to the interests of justice, at the end of the day, it's inherently a judgment called by the district court judge. [00:37:51] Speaker 05: And I certainly think it was within his- Is it subject to abusive discretion review? [00:37:55] Speaker 00: That would be the correct- Yes. [00:37:56] Speaker 05: And so why isn't it an abusive discretion to single one? [00:37:59] Speaker 05: What if the district court instead had put all their names in the hat and said, I'm going to draw one out. [00:38:06] Speaker 05: And for that one, [00:38:07] Speaker 05: I will follow the hyzer framework. [00:38:09] Speaker 05: Would that be a violation, that'd be abusive discussion? [00:38:12] Speaker 00: Yes, your honor. [00:38:12] Speaker 00: I think if the district court had on that purely arbitrary basis. [00:38:16] Speaker 05: Why is it not just as arbitrary to go, well, let me see. [00:38:19] Speaker 05: Oh, here's one who also has a physical injury. [00:38:22] Speaker 05: So I'm going to treat that one completely differently and apply the law that I've said I can't apply. [00:38:26] Speaker 00: Well, I'd say it's well established within the law that physical injuries are more grave than purely emotional. [00:38:32] Speaker 05: He wasn't really, this was not just for [00:38:35] Speaker 05: the physical injury, this was a separate award or that he said for emotional trauma. [00:38:42] Speaker 05: And so if he can do it for one, so put aside, he can compensate for the physical injury, but this was also, as he said, for the severe emotional trauma. [00:38:52] Speaker 05: And I don't have a framework, I'm just gonna treat her differently because she had a physical injury, but why is it relevant to her emotional damages? [00:39:04] Speaker 05: that are emotional damages without a physical injury a lesser category in the law? [00:39:12] Speaker 00: I guess what I would say is she had emotional damages plus, Your Honor, which is that she had these. [00:39:16] Speaker 05: I understand she, that's what the district court found, she had plus. [00:39:18] Speaker 05: And I'm asking you whether that plus, when as you said, the district court found it had no basis to make a calculation for emotional damages. [00:39:28] Speaker 05: Made any sense then to go that, but I'm going to find a way of doing it. [00:39:32] Speaker 05: because this person also had already separately compensated physical injuries. [00:39:39] Speaker 00: Well, the nature of her emotional damages that was compensated would be the emotional damages from the direct victims plus her own suffering. [00:39:46] Speaker 00: So even the nature of her emotional suffering, I'd say- That's not what the district court said. [00:39:50] Speaker 05: Just said because she has a physical injury, I still don't have any information that I need to make a decision, but because she has a physical injury, [00:39:58] Speaker 05: I will go ahead and give her an additional award that includes emotional harm, even though I can't figure out in any way that's not arbitrary how to calculate emotional harms for any of these plaintiffs here. [00:40:11] Speaker 00: Well, again, the way he actually came up with the dollar figure, though, was not by looking to Israeli law. [00:40:17] Speaker 00: It was by looking to federal law. [00:40:19] Speaker 05: No, I don't. [00:40:19] Speaker 05: I get all that. [00:40:22] Speaker 05: My question is, if he found a way in the interest of justice, [00:40:26] Speaker 05: to do it for one of these nine U.S. [00:40:28] Speaker 05: citizen plaintiffs, or the Israeli plaintiffs. [00:40:33] Speaker 05: You needed to have a reasoned basis for singling that one out, correct? [00:40:37] Speaker 07: Right, yeah. [00:40:37] Speaker 05: Right, we could do that. [00:40:38] Speaker 05: That doesn't count, right? [00:40:39] Speaker 05: That's our reasoned basis. [00:40:41] Speaker 05: What in the law allows someone to say it's a reasoned basis? [00:40:47] Speaker 05: When I've said I don't have law to apply, [00:40:51] Speaker 05: I can't make any award for recognize and acknowledge damages over here. [00:40:56] Speaker 05: I have, as you said, nothing other than an arbitrary basis for doing so. [00:41:01] Speaker 05: But I can be arbitrary because you also had a physical injury. [00:41:06] Speaker 00: Well, I guess what I would say, Your Honor, is Judge McFadden surveyed the case law, and he saw that lots of other district courts had, in the interests of justice, simply used federal damages as a gap filler. [00:41:16] Speaker 05: So they should have done it for all the Israeli plaintiffs. [00:41:18] Speaker 00: But I think what, you know, what this law that has built up, it's inherently a discretionary choice, and certainly he was under no obligation to do so, and so I think what he says [00:41:25] Speaker 00: In the first instance, there's no requirement for me to default to feral damages. [00:41:31] Speaker 00: For this one particular plaintiff, in my judgment, she has suffered greater than all others in this case. [00:41:36] Speaker 05: And so in my judgment, the interest of justice... Did he find that her emotional trauma was greater than the other Israeli plaintiff's emotional trauma? [00:41:45] Speaker 05: Did he find that it was greater? [00:41:48] Speaker 00: I guess I'd say it's emotional harm. [00:41:50] Speaker 00: No, but I'd say it's implicit disorder for the fact that she, in the first instance, all of them of course suffered the same emotional harm from this terrorist attack. [00:41:58] Speaker 00: So she is that, but she also has her own physical injuries, which of course will manifest as emotional harm to her as well. [00:42:04] Speaker 00: And so I think the fact that he distinguished her physical injuries is also implicitly saying her emotional suffering as well is greater than all the other plaintiffs here. [00:42:14] Speaker 06: It's a little bit piling on, but along the same lines, there are cases in other jurisdictions, like the Leibovich case and the Goldberg versus UBS case from the Eastern District of New York, where the courts [00:42:32] Speaker 06: recognize that Israeli courts are unlikely to award the same amount as a U.S. [00:42:39] Speaker 06: court, and so they gave awards for emotional distress, 40%, 45% of, you know, a hyzer-type framework. [00:42:50] Speaker 06: And, you know, so I guess the question is if it's feasible, the notion that he had not enough to go on feels unsupported. [00:43:03] Speaker 00: I guess I'd say two things in response here are the first is that in a lot of those cases, and we think we believe it is the one that she gets this right that if you are going to default the form law that that in this case should actually be the district of Columbia and not federal damages and so it's still be wrong to be applying federal damages. [00:43:20] Speaker 00: and um the second point i'd say your honor is i think in the first instance all these courts recognize that it should be israeli law controlling the proper measure of damages now some judges when plaintiffs choose not to come forward with that information have said well i'm going to apply federal damages because i'm so moved but none of them were ever ever found that they were compelled to do so and i point your honor to the botman case where judge lamberth actually made the opposite choice what judge mccadden did [00:43:45] Speaker 00: What he said there is, if we simply default the federal law all the time as a gap filler, there's a real risk that we're going to create incentives for plaintiffs to obfuscate, as you were alluding to earlier, when the foreign law is unfavorable. [00:43:57] Speaker 00: I think that's all Judge McFadden was saying here. [00:44:00] Speaker 00: You can't simply use federal law every single time. [00:44:02] Speaker 00: Otherwise, plaintiffs will get to pick and choose which elements of which jurisdiction's law they actually want to apply in these cases. [00:44:09] Speaker 06: And do you have a position on the force issue, whether there's even jurisdiction in a case in which not only were the plaintiffs not killed, but no other person was killed by the attack? [00:44:24] Speaker 00: I don't, Your Honor. [00:44:25] Speaker 00: And I think I would agree with my friend on the other side that it would be in the interest of this court to have supplemental briefing before ruled [00:44:34] Speaker 05: Colleagues have no further questions. [00:44:37] Speaker 05: Thank you very much. [00:44:39] Speaker 05: Mr. Tulshin will give you two minutes. [00:44:43] Speaker 03: Over earlier. [00:44:44] Speaker 05: You can have two minutes. [00:44:46] Speaker 03: Thank you. [00:44:46] Speaker 03: Um, I would, I would just as to what you asked me about regarding Rotem. [00:44:55] Speaker 05: I'm sorry. [00:44:56] Speaker 05: I mispronounced the name. [00:44:57] Speaker 03: No, no. [00:45:01] Speaker 03: It is gender ambiguous. [00:45:02] Speaker 03: There's male and female. [00:45:03] Speaker 03: I believe this one's a female. [00:45:06] Speaker 03: But I don't deviate from my basic position that the judge hearing the damages is supposed to assess damages based on the evidence in the case, and that looking at what other courts have done in other cases is a, I would say even a dubious guidepost. [00:45:29] Speaker 03: It's a guidepost. [00:45:30] Speaker 03: The court has held it's a guidepost. [00:45:32] Speaker 03: I'll confess, I kind of like the guidepost, but you wouldn't do it. [00:45:37] Speaker 05: You like some guideposts. [00:45:39] Speaker 03: I don't have a problem. [00:45:41] Speaker 05: You seem perfectly fine with the Heiser guideposts. [00:45:44] Speaker 05: You asked the district court to apply those. [00:45:46] Speaker 03: And the Heiser guidepost wasn't just one case. [00:45:48] Speaker 03: Heiser surveyed numerous other cases, and those cases, many of them previous cases. [00:45:54] Speaker 03: And so it was sort of a synthesis of what had been done in many cases to create a rule of thumb. [00:46:02] Speaker 03: But the benefit in that is that everybody who comes before the court is treated equally. [00:46:12] Speaker 03: No, you don't encounter a situation where one person's suffering is deemed less worthy just because of an accident of citizenship. [00:46:24] Speaker 03: If this court would come out with a [00:46:26] Speaker 03: or if the district court had come out with a ruling that an American citizen who lost a child gets a million dollars, but an Israeli who lost a child gets $100,000, somebody might look at that and say, what kind of justice are we administering here? [00:46:42] Speaker 02: But choice of law is always like that. [00:46:44] Speaker 02: We have in domestic cases, do we apply Florida law or DC law or New York law? [00:46:51] Speaker 02: And oftentimes, that can be outcome dispositive. [00:46:54] Speaker 02: You get nothing. [00:46:56] Speaker 02: under one form's law, and you might get a generous award in a different form. [00:47:00] Speaker 03: And I would come back to saying that damages awards, Your Honor, and this is where I think you and I disagree about how we see it, damages awards numbers are not law. [00:47:12] Speaker 03: You might, that outcome determinative, that law impacting the outcome that Your Honor is referring to, [00:47:19] Speaker 03: I agree completely, for example, if you have one jurisdiction that follows comparative negligence, another follows contributory negligence. [00:47:27] Speaker 03: One jurisdiction doesn't allow emotional distress and wrongful death cases, the other jurisdiction does. [00:47:36] Speaker 03: You can have the same plane crash, but you have one person from a state where there's no emotional distress or a wrongful death case, or a New Yorker, like where I'm from, where all you get is actual pecuniary loss. [00:47:50] Speaker 03: New York is crazy. [00:47:51] Speaker 03: You have a surgeon who dies in a plane crash gets his projected lost earnings as a surgeon, whereas a laborer, his family gets only the projected lost earnings of a laborer, even though they both suffered the same, because they get nothing for suffering. [00:48:05] Speaker 03: So the law governing damages, the categories, the elements, what I've been arguing, that it does matter which jurisdiction's law you apply. [00:48:14] Speaker 03: But once you have gotten to what the law is, now the judge has to assess the damages just based on facts. [00:48:22] Speaker 03: Based on what does the plaintiff say in their declaration or what do they testify? [00:48:26] Speaker 03: What do the doctors say? [00:48:27] Speaker 02: That kind of brings me back to we agree that Israeli law governs damage, right? [00:48:32] Speaker 02: We agreed that on that. [00:48:35] Speaker 03: Yes, with the caveat that courts in the DC District Court have said that when we don't care, we're not bound by that. [00:48:45] Speaker 02: He's not down for sure. [00:48:46] Speaker 03: But the reason position they have taken is that when there is on clarity about what the foreign law is, it's OK to [00:48:54] Speaker 03: apply the federal law or the foreign law. [00:48:57] Speaker 03: We don't have to apply the foreign law. [00:49:00] Speaker 03: Once we've gotten to past liability and to the categories of damages, we can apply a more local law, which is what happens. [00:49:11] Speaker 02: Let me get to the brass tacks or at least how I see this. [00:49:15] Speaker 02: I want to give you an opportunity to explain. [00:49:20] Speaker 02: Your expert declaration gave examples of terrorism cases [00:49:24] Speaker 02: in Israel, but no damage amounts. [00:49:29] Speaker 02: The district court saw that and gave a show cause that said, I want some exemplar. [00:49:37] Speaker 02: Your response was, don't worry about that. [00:49:43] Speaker 02: Here's federal law exemplars. [00:49:46] Speaker 02: Not exactly. [00:49:48] Speaker 02: And that's the way I see it, Rick. [00:49:53] Speaker 02: To me, then the nub of the issue is, then, was it either clear or abuse of discretion for the district court to say, look, I wanted you to fill in a gap from your expert declaration. [00:50:09] Speaker 02: I specifically asked you to do that, and you didn't. [00:50:12] Speaker 02: And I don't think then I have enough to calculate damages under Israeli law. [00:50:18] Speaker 02: To me, I see that as like the nub of the issue. [00:50:21] Speaker 02: So accepting that as, as, as, as the correct framing, how is that, um, an abuse of discretion or clear error? [00:50:33] Speaker 03: And my answer to that, your honor, would be that for the judge to want to know what happened in particular cases. [00:50:44] Speaker 03: And then I suppose he'd want to know what were the damages claimed [00:50:48] Speaker 03: What were the, potentially did these plaintiffs have any set-offs because they got money from collateral sources or who knows what may have been present in those cases. [00:50:57] Speaker 03: Maybe a plaintiff in that case had a light injury or a heavy injury that would make it not comparable. [00:51:04] Speaker 03: But the judge wanted to know all that. [00:51:07] Speaker 03: In other words, asking for a guidepost [00:51:11] Speaker 03: and then to base his decision on the absence of a guidepost, I would say, is an abuse of discretion, because at bottom, the judge is not supposed to be making his decision based on guideposts. [00:51:24] Speaker 03: He's supposed to be making his decision based on the evidence in this case. [00:51:30] Speaker 03: If he has guideposts, which he chooses to look at, in my view, for the purpose of making sure that [00:51:38] Speaker 03: cases tend to have similar outcomes, that's okay. [00:51:42] Speaker 03: This court has said it's okay in Frankel, but you don't have that in any other kind of case. [00:51:50] Speaker 03: Any other kind of personal injury case, any kind of case where the damages are not just based on an invoice and a contract and a receipt or a cancel check, where the court has to determine something amorphous like suffering or pain, the jury [00:52:07] Speaker 03: where the finder of fact hears the testimony of what happened to the person and applies it to the law. [00:52:13] Speaker 03: Period. [00:52:14] Speaker 03: There is no guideposts. [00:52:16] Speaker 03: So yes, the judge asked for a guidepost. [00:52:19] Speaker 03: We gave him, here's the elements under the Israeli law. [00:52:22] Speaker 03: We did not give him numbers. [00:52:27] Speaker 03: Maybe he wanted them. [00:52:28] Speaker 03: I understand. [00:52:29] Speaker 03: He was looking to see that. [00:52:31] Speaker 03: But I didn't feel that there was enough of a range of cases [00:52:38] Speaker 03: for that to be meaningful. [00:52:39] Speaker 03: I did not feel that whatever numbers could be provided would really be relevant, because it's not like here. [00:52:50] Speaker 02: But the district court did. [00:52:52] Speaker 02: So you're essentially asking us to say, well, counsel can make a decision as to what they think is or isn't relevant [00:53:05] Speaker 02: And it doesn't matter what the district court thinks is or isn't. [00:53:08] Speaker 03: No, I'm saying the district court is wrong to think that that's a sine qua non, that he has to have died post. [00:53:17] Speaker 03: He's not supposed to be making his decision based on other cases. [00:53:21] Speaker 03: He's supposed to be making his decision based on the facts and law in this case. [00:53:26] Speaker 03: And it was an abuse of discretion for him to say, I need to have numbers from other cases. [00:53:32] Speaker 05: And I'm not going to look at what's an abusive discretion, even to ask for the guideposts. [00:53:37] Speaker 05: Sounds like that's what you're saying. [00:53:38] Speaker 05: I want to make sure I understand it. [00:53:40] Speaker 03: If it were any other case besides a case that's covered by Frankel, a terrorism case, I would say I'm asking in this case, it's not an abusive discretion for him to ask. [00:53:51] Speaker 03: But you don't have to answer if you don't think you have information to then not make a decision. [00:53:58] Speaker 03: as to not to make an award of damages based on the absence of those non-binding unnecessary dad posts is an abusive discretion. [00:54:07] Speaker 03: And then as your honor pointed out. [00:54:09] Speaker 05: And then just to clarify, I think I heard you just say in response to Judge Wilkins that you did have some numbers, but you didn't think they were relevant or appropriate or sufficient, a sufficient mass of data to give to the district court. [00:54:25] Speaker 03: That's what you just said. [00:54:25] Speaker 03: I should be clear about that because I don't want to leave the wrong impression. [00:54:28] Speaker 03: I did not have numbers. [00:54:30] Speaker 03: I did discuss later. [00:54:36] Speaker 05: You had numbers that you could have gotten, because your expert said, here's the type of things awarded. [00:54:41] Speaker 05: This was awarded an X, Y, and Z case. [00:54:43] Speaker 05: So you could have gotten the numbers. [00:54:45] Speaker 03: In our initial submission, we did not submit our own expert. [00:54:48] Speaker 03: We relied on experts that were submitted. [00:54:51] Speaker 03: I understand. [00:54:51] Speaker 03: So I had no communication with those experts about anything. [00:54:54] Speaker 03: We did have communication with the expert when we moved to re-argue. [00:54:57] Speaker 03: We talked about it, but there were, and I don't have, the conversation, going way outside the record, that's why I'm hesitating, but the conversation is more, do we have a body of numbers? [00:55:13] Speaker 03: Like, can we make a chart? [00:55:14] Speaker 03: In the Frankel brief, we submitted a chart of all the different cases to show which ones were outliers and which ones were [00:55:21] Speaker 03: I said, do we have, can we make a chart like this? [00:55:23] Speaker 03: And he said, no, we don't have enough cases. [00:55:26] Speaker 05: But you did have some numbers. [00:55:27] Speaker 05: You just didn't have it. [00:55:28] Speaker 05: What was in your judgment enough? [00:55:29] Speaker 03: I never, I actually never, I personally actually never had numbers, but you're asking, could I have asked the expert to give me a list of numbers? [00:55:36] Speaker 03: I could have, but I would never have submitted them because my contention is that they're not on the facts. [00:55:43] Speaker 03: They're not in power. [00:55:46] Speaker 05: My colleagues, any more questions? [00:55:48] Speaker 05: Thank you very much. [00:55:49] Speaker 05: Thank you. [00:55:50] Speaker 05: Mr. No, you were appointed by this court to argue brief and argue this case in defense of the judgment below. [00:55:56] Speaker 05: And the court thanks you for your excellent assistance. [00:56:03] Speaker 05: The case is submitted.