WARMBIER v. DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA
Cite as 356 F.Supp.3d 30 (D.D.C. 2018)
jurisdictional requirements of section
1605A are met,’’ Owens v. Republic of
Sudan, 826 F.Supp.2d 128, 153 (D.D.C.
2011) (citing Kilburn, 699 F.Supp.2d at
155); see also Hekmati, 278 F.Supp.3d at
163 (‘‘In concluding that there is jurisdiction over Hekmati’s claims TTT the Court
has already determined all of the essential
elements for imposing liability under
1605A(c) have been establishedTTTT’’);
Kaplan v. Cent. Bank of Islamic Republic
of Iran, 55 F.Supp.3d 189, 198 (D.D.C.
2014) (‘‘[P]laintiffs’ claims against North
Korea meet [the FSIA terrorism exception’s] requirements for purposes of subject-matter jurisdiction and liability.’’). Accordingly, for the reasons discussed in
Part III.A, supra, the plaintiffs have established North Korea’s liability to them
under 28 U.S.C. § 1605A(c), leaving only
the amount of damages allowable to the
plaintiffs to resolve.
D.
Damages
Otto’s estate seeks to recover economic,
pain and suffering, and punitive damages,
and Fred and Cindy Warmbier seek solatium and punitive damages. See Pls.’ Mot at
2–3. The damages to which each plaintiff is
entitled are described below.
1.
Legal Standard for Damages
Under Section 1605A(c)
[22, 23] Congress, in creating a private
right of action in Section 1605A(c) for victims of state-sponsored terrorism, also
provided, in the same subsection, that
such foreign states are liable for money
damages, including ‘‘economic damages,
solatium, pain and suffering, and punitive
damages.’’ 28 U.S.C. § 1605A(c). ‘‘Upon
obtaining a default judgment, successful
plaintiffs may recover damages by proving
‘that the projected consequences are reasonably certain (i.e., more likely than not)
to occur, and must prove the amount of
damages by a reasonable estimate.’ ’’
55
Fraenkel, 892 F.3d at 353 (quoting Hill v.
Republic of Iraq, 328 F.3d 680, 684 (D.C.
Cir. 2003) ); see also Kim v. Democratic
People’s Republic of Korea, 87 F.Supp.3d
286, 289 (D.D.C. 2015); Roth, 78 F.Supp.3d
at 402; Salazar v. Islamic Republic of
Iran, 370 F.Supp.2d 105, 115–16 (D.D.C.
2005). In determining the ‘‘reasonable estimate,’’ courts may look to expert testimony and prior awards for comparable injury. Reed v. Islamic Republic of Iran, 845
F.Supp.2d 204, 214 (D.D.C. 2012); Acosta
v. Islamic Republic of Iran, 574 F.Supp.2d
15, 29 (D.D.C. 2008).
For the reasons detailed supra, in Part
III.A, the plaintiffs have satisfactorily
shown that North Korea’s torture, hostage
taking and extrajudicial killing of Otto was
likely, and reasonably certain, to result in
injury and death to Otto and to devastate
his family.
2.
Economic Losses and Medical
Expenses (Otto’s Estate)
[24, 25] Otto’s estate seeks to recover
for Otto’s ‘‘lost earning capacity, or the
likely wages that he would have earned
had his life not been cut short.’’ Pl.’s Mot.
at 40; see also Compl. at 21. ‘‘Unlike damages for pain and suffering, lost earnings
are not hard to quantify, and the Court
will not excuse [a plaintiff’s] failure to support the claim for lost earnings with competent evidence.’’ Moradi, 77 F.Supp.3d at
71. A plaintiff, however, may prove lost
earnings based on reasoned analysis of an
expert economist, see Thuneibat v. Syrian
Arab Republic, 167 F.Supp.3d 22, 48
(D.D.C. 2016), as the plaintiffs have done
here.
[26] In support of Otto’s lost wages,
the plaintiffs submitted evidence in the
form of a report from Professor James V.
Koch, a Board of Visitors Professor of
Economics Emeritus and President Emeritus at Old Dominion University, with a