Introduction

We continue to analyze the influence of the American Jewish experience on the current and historic American legal and political system. This week we focus on different types of damages available for a plaintiff in a lawsuit and its effect on American foreign policy.

American courts have awarded millions of dollars in damages to victims of terror by “Terrorist States,” such as Iran and North Korea. Would a lawsuit against Hamas yield similar results? We begin with a statute.

The Foreign Sovereign Immunities Act (FSIA)

28 U.S.C. § 1605(a)(1) states that “property of a foreign state in the U.S. shall be immune from attachment, arrest, and execution except as permitted in this Act.”

In general, one cannot collect a judgment from the property of a foreign government that is not located in the United States. However, one may collect a judgment from the property of “terrorist states” that engage in acts of killing and torture against American.

Warmbier v. Democratic People’s Republic of North Korea (D.D.C 2018)

Warmbier v. Democratic People’s Republic of North Korea involved North Korea’s kidnap, torture and killing of Otto Warmbier, a Jewish American college student. The Warmbier family sued North Korea in D.C. federal court and was awarded more than $500 million in damages.

After the D.C. court issued their judgment, a New York federal judge instructed the New York State Comptroller to transfer funds to the Warmbier family. These funds, originally deposited in American banks, had previously belonged to North Korea. Despite severe sanctions against it, North Korea manages to utilize the American and international banking system to facilitate the proliferation of weapons of mass destruction. The Court instructed to direct some of Iran’s frozen funds to the Warmbier family.

Four Different Types of Damages Awarded

The District Court awarded the Warmbiers several types of damages: (1) Economic Loss and Medical Expenses, (2) Pain and Suffering (of Otto, the decedent), (3) Solatium (payment for Otto’s parents’ emotional distress, (4) Punitive Damages.

Lost Wages

James V. Koch testified as to economic damages. Dr. Koch was qualified to testify as an expert in the field of economics, as he was an economics professor emeritus and president emeritus at Old Dominion University, Economics. He also held a Ph.D. from Northwestern University.

Dr. Koch testified that Otto, being a college student at a Virginian university, would likely work at a Wall Street firm, advance to the position of director within 20 years, and earn $6,038,308 throughout his career. Accordingly, the Court awarded that sum in damages to Warmbier’s family.

Medical Expenses

North Korea returned Otto to Cincinnati, Ohio in a comatose on June 13, 2017. He was taken to the University of Cincinnati Medical Center for treatment. He never regained consciousness and died six days later, on June 19, 2017.

The District Court awarded Otto’s family $96,375.80 in medical expenses. The Warmbiers had “reasonably” proven these expenses through his mother’s testimony. Additionally, the Court ruled that even though insurance had “covered part” of the expenses, the medical expenses were still recoverable in full.

Pain and Suffering

As a baseline, the Court awarded $5 million. Citing Kaplan v. Hezbollah (2016), the court explained: “When assessing damages for surviving victims of terrorist hostilities, the baseline assumption is that persons suffering injuries in terrorist attacks are entitled to $5 million in damages.”

The court awarded an additional $10 million for torture. Citing Gill v. Islamic Republic of Iran (2017) and Foley v. Syrian Arab Republic (D.D.C. 2017) the court explained: “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 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.”

The court reasoned that North Korea is known to use extreme methods of torture. While the precise torture used to inflict Otto’s brain injury was unknown, his body showed signs of torture, especially to the jaw area.

Additionally, North Korea forced Otto to endure humiliation at a public trial, a forced confession, and 17 months of imprisonment. Accordingly, the court awarded $15 million in compensatory damages for pain and suffering to Otto’s parents.

Solatium: Emotional Damages From the Loss of a Loved One Are ‘Unquantifiable’

In Flatow v. Islamic Republic of Iran (1998) Judge Lamberth explained the origins and particulars of solatium damages. The court explained that “solatium 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.”

The court explained that solatium damages, by their nature, are “unquantifiable.” As explained below the court found that Otto’s parents suffered a tremendous amount of emotional distress.

A Single Attack v. The Experience Of an Extended Hostage Situation

The court noted that “circumstances surrounding Otto’s detention made North Korea’s acts particularly agonizing for his parents. While North Korea detained Otto, this totalitarian state permitted almost no facts regarding his condition to be known, and Fred and Cindy constantly worried about their son, unsure of what was happening to him.”

Moreover, “families of torture and hostage-taking victims are typically awarded greater damages than are the families of victims of a single attack, because in the former cases, the afflicted party not only had to cope with the grief that follows the loss of a loved one, but—at the time of the event—was also forced to endure unending anxiety and an extended period of extreme distress over the health and safety of their captive family member.”

Finally, North Korea returned Otto with such extensive brain damage that Otto’s parents witnessed his discomfort, monstrous condition and, finally, his death shortly after his return. Accordingly, the Court awarded $15 million to each parent.

In Sum

The court awarded Otto Warmbier’s family millions of dollars in damages consisting of lost wages, medical expenses, Otto’s pain and suffering, and his parents’ emotional distress. The Oct. 7 lawsuits will likely claim similar damages.

Next week, we will hopefully discuss Punitive Damages next week and begin examining Flatow v. Islamic Republic of Iran.

© 2025 Eliyahu Asher Prero, Esq. is a certified mohel and practicing lawyer. He graduated magna cum laude from Seton Hall Law with a concentration in intellectual property law and served as a clerk for the Honorable Thomas A. Sarlo, Superior Court of New Jersey, Civil Division–Bergen County. He is currently an associate at the law firm Schenck, Price, Smith & King, where he focuses on constitutional law, commercial litigation, and insurance defense. Please address all correspondence to the NJ Jewish Link.