WARMBIER v. DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA
Cite as 356 F.Supp.3d 30 (D.D.C. 2018)
and severe injuries, were rendered quadriplegic, including partially lost vision and
hearing, or were mistaken for dead,’ or
downward in the face of ‘minor shrapnel
injuries or minor injury from small-arms
fire.’ ’’ Id. at 35–36 (quoting Valore v. Islamic Republic of Iran, 700 F.Supp.2d 52,
84 (D.D.C. 2010) ) (citation omitted and
alteration adopted).
An award of ‘‘$ 9 to $ 10 million in
compensatory damages’’ has been appropriate ‘‘in cases where the victims were
held as hostages and tortured for extensive periods of time,’’ Gill v. Islamic Republic of Iran, 249 F.Supp.3d 88, 103
(D.D.C. 2017) (collecting cases), and $ 10
million has been awarded to an estate
when a victim was ‘‘subjected to mental
and physical torture before being murdered by means involving the application
of ‘significant force’ to his jaw,’’ Foley v.
Syrian Arab Republic, 281 F.Supp.3d 153,
157 (D.D.C. 2017).
[30] Similar to these cases, North Korea detained Otto for approximately 17.5
months, and North Korea is known to use
extreme methods of torture to extract confessions from those it detains, including
‘‘water-boarding, being forced to squat for
several hours, TTT being placed in a box
too small to either stand or lie down in for
long periods of time,’’ Collins Expert Decl.
¶ 28, ‘‘string[ing] prisoners up by their
wrists from the bars in the cells just with
their toes off the floor,’’ forced kneeling or
squatting with an ‘‘iron ore wooden bar’’
behind the legs, and beatings, H’rg Tr.
(Rough) at 92–93 (Expert David Hawk).
North Korea also returned Otto to the
United States with such severe brain injury that he was blind, deaf and completely
unresponsive. F. W. Decl. ¶ 25; H’rg Tr.
(Rough) at 33, 36 (F. W.). While the precise torture applied to Otto for this resulting injury is unknown, the blood flow to his
brain was cut off for from five to twenty
57
minutes, Kanter Decl. ¶ 15, which could
have been caused by ‘‘[w]ater-boarding,’’
‘‘manipulating teeth with pliers,’’ ‘‘application of electric shock,’’ or suffocation. Collins Expert Decl. ¶ 31. Furthermore, Otto’s
perfectly straight teeth had been rearranged to be misaligned, further indicative
of the use of pliers or other tools to inflict
that painful damage, plus the scar on his
foot may have been caused by multiple
applications of electrical shocks. Id. ¶ 30.
Due to the duration of Otto’s detention,
the public humiliation to which he was
subjected with a publicized coerced ‘‘confession’’ and trial, and the severity of the
torture to which he was subjected over
such a long period of time, Otto’s estate is
awarded $ 15 million in compensatory
damages for pain and suffering.
4.
Solatium (Fred and
Cindy Warmbier)
[31–33] Fred and Cindy Warmbier, in
their individual capacities, seek solatium
damages to compensate for the emotional
distress they experienced as family members of victims of the attack. ‘‘District
Court judges have discretion under 28
U.S.C. § 1608(e) to grant solatium awards
based on the particular facts of each case,
subject to abuse-of-discretion review for
errors of law, clearly erroneous factual
findings, and faulty reasoning.’’ Fraenkel,
892 F.3d at 351. Citing Judge Lamberth’s
‘‘seminal opinion explaining the origins and
particulars of solatium damages’’ in Flatow
v. Islamic Republic of Iran, the D.C. Circuit has explained that ‘‘ ‘[s]olatium is traditionally a compensatory damage which
belongs to the individual heir personally
for injury to the feelings and loss of decedent’s comfort and society,’ ’’ and was an
award that ‘‘began as a remedy for the loss
of a spouse or a parent,’’ but is now understood to include the loss of a child or a
sibling, as well. Id. at 356 (quoting Flatow