WARMBIER v. DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA
Cite as 356 F.Supp.3d 30 (D.D.C. 2018)
Otto ‘‘to be alone anymore.’’ C. W. Decl.
¶ 24. Over the next couple of days at the
hospital, Otto’s family was advised by medical personnel about the severity of Otto’s
brain damage: he was a ‘‘vegetable,’’ completely unresponsive to his family, blind,
deaf and without ‘‘any signs of consciousness.’’ F. W. Decl. ¶ 25; H’rg Tr. (Rough)
at 33, 36 (F. W.). In addition to these
horrendous signs of his torture, Otto also
had ‘‘a large scar on his left foot,’’ a wound
not present before he left for North Korea,
and his once ‘‘perfectly straight’’ teeth
were ‘‘noticeably misaligned.’’ F. W. Decl.
¶ 24; H’rg Tr. (Rough) at 36 (F. W.); id. at
61 (C. W.). Seeing Otto in that state ‘‘was
horrible.’’ H’rg Tr. (Rough) at 36 (F. W.).
Otto’s lead neurologist, Dr. Daniel Kanter, concluded Otto’s brain damage most
likely resulted from the loss of blood flow
to the brain for a period of five to twenty
minutes. Kanter Decl. ¶ 15. Otto was in an
unrecoverable state of non-responsiveness.
Id. ¶ 16. After Otto’s physicians concluded
that his condition would never improve,
Otto’s family transitioned him to palliative
care and ultimately ceased feeding and
breathing assistance. Id. ¶ 20; F. W. Decl.
¶ 25. Otto died quickly on June 19, 2017,
less than a week after his release from
North Korea. Kanter Decl. ¶ 20.
Since Otto’s death, North Korea has denied any responsibility, calling his death a
mystery and blaming it on ‘‘botulism’’ and
the United States government. F. W. Decl.
¶ 24; Hatch Decl., Ex. G (KCNA Article
titled, ‘‘DPRK FM Spokesman Accuses
4.
The plaintiffs have submitted eleven declarations, with exhibits, that detail evidence
about (1) Otto’s detention in North Korea, see
Hatch Decl.; C. W. Decl.; F. W. Decl.; (2)
Otto’s medical and dental history, see Kanter
Decl., Decl. of Dr. Murray Dock, ECF No. 165; Decl. of Dr. Todd Williams, ECF No. 16-6;
Decl. of Dr. Barbara J. Walker, ECF No. 18
(sealed); (3) expert declarations on North Korean torture, hostage taking, and extrajudicial
41
U.S. of Slandering Humanitarian Measure’’).
B.
Procedural History
Plaintiffs Fred and Cindy Warmbier, individually and as personal representatives
of the estate of Otto Warmbier, filed this
lawsuit against North Korea, on April 26,
2018. See Compl. They served North Korea in accordance with the FSIA, which
provides the procedure for completing service upon a foreign state or political subdivision of a foreign state. Decl. Supp. Default, ECF No. 13; see also infra Part
III.B for further discussion. After the
plaintiffs sought entry of default, see Decl.
Supp. Default, the Clerk entered default
against North Korea on September 7,
2018, see Entry of Default, ECF No. 14;
see also FED. R. CIV. P. 55(a) (‘‘When a
party against whom a judgment for affirmative relief is sought has failed to plead
or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk
must enter the party’s default.’’). The
plaintiffs subsequently filed the instant
motion for default judgment, see Pls.’ Mot.
Default J., ECF No. 16 (‘‘Pls.’ Mot.’’), supported by eleven declarations, as well as
testimony and exhibits presented at an
evidentiary hearing on December 19, 2018,
pursuant to Federal Rule of Civil Procedure 55(b)(2).4 The plaintiffs’ motion for
default judgment is now ripe for review.
II.
LEGAL STANDARD
[1] Under Federal Rule of Civil Procedure 55(b)(2), a court may consider enterkilling, see Expert Decl. of Professor SungYoon Lee (‘‘Lee Expert Decl.’’), ECF No. 16-8;
Hawk Expert Decl.; Collins Expert Decl.; and
(4) an expert report on lost wages, see Report
of James V. Koch (‘‘Koch Report’’), ECF No.
16-11. The plaintiffs also filed post-hearing
evidence regarding Otto’s medical expenses.
See Decl. of Benjamin L. Hatch (‘‘Hatch Medical Expenses Decl.’’), ECF No. 23 (sealed).