Pescatore v. Pineda

• Decision Date: 01 November 2018
• Docket Number: Civil Action No. 08-2245 (RMC)
• Citation: 345 F.Supp.3d 68
• Parties: Olivia PESCATORE, et al., Plaintiffs, v. Juvenal Ovidio Ricardo PALMERA PINEDA, et al., Defendants.
• Court: U.S. District Court — District of Columbia

345 F.Supp.3d 68

Olivia PESCATORE, et al., Plaintiffs,

v.Juvenal Ovidio Ricardo PALMERA PINEDA, et al., Defendants.

Civil Action No. 08-2245 (RMC)

United States District Court, District of Columbia.

Signed November 1, 2018

Nathaniel A. Tarnor, Hagens Berman Sobol Shapiro LLP, Peter G. Safirstein, Pro Hac Vice, Safirstein Metcalf LLP, New York, NY, for Plaintiffs.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, United States District Judge

Frank Thomas Pescatore, Jr., was working as a geologist in the Republic of Colombia in 1996 when he was kidnapped, held for ransom, killed, and eviscerated in an effort to take "life like" photos to support ransom demands. The perpetrators were members of the Fuerzas Armadas Revolucionarias de Colombia (FARC), a group since found to be terrorists by the United States Department of State. In 2008, his family sued FARC and Juvenal Ovidio Ricardo Palmera Pineda, also known as Simon Trinidad, under the Antiterrorism Act. After this Court found Defendants liable for Mr. Pescatore's death, this case trailed a related case in Florida for years; that case has now settled.¹ Returning to the District of Columbia, Mr. Pescatore's family seeks $240 million in damages. Based on the evidence provided, the Court will grant their motion in part and award lesser sums.

I. BACKGROUND

Defendants' liability in this case has already been established through default. See Order [Dkt. 17]. Therefore, the facts of this case will be recounted only briefly here.

In December 1996, decedent Frank Pescatore was working as a geologist at the Cerrejon coal complex in La Guajira Department, Colombia. Compl. [Dkt. 1] ¶ 28. On or about December 19, 1996, members of FARC's Caribbean Bloc under the command and control of Defendant Palmera Pineda attacked the coal complex. While none of the Colombians at the site was injured, FARC captured Mr. Pescatore and took him into the Colombian jungle. Id. ¶ 29.

FARC then attempted to obtain a ransom for Mr. Pescatore. Id. ¶ 31. When, in February 1997, he attempted to escape, he was shot dead. Id. ¶ 32. To continue its ransom demands, FARC had his body eviscerated and makeup applied to have the body appear alive. Id. ¶¶ 32-34. Two months later, when Mr. Pescatore's ransom had not been paid, FARC dumped his body, which was then discovered on or about February 23, 1997. Id. ¶ 35.

Plaintiffs are members of the Pescatore family, including: Olivia Pescatore, Mr. Pescatore's surviving spouse; Josh Pescatore, Jada Pescatore, Jarrod Pescatore, and Jordan Pescatore, his children; the Estate of Frank Pescatore, Sr., his father; Carol Pescatore Harpster, his sister; and his brothers Richard and John Pescatore.

Defendants are FARC and Mr. Pineda, a senior FARC commander who was partially responsible for Mr. Pescatore's kidnapping and murder. See Second Decl. of Olivia Pescatore [Dkt. 40-8] ¶ 5; Letter from Christopher Carbonneau, Special Agent, Federal Bureau of Investigation, to Olivia Pescatore (Apr. 21, 2004) [Dkt.40-8]. According to the U.S. Department of State, as of September 1, 2017, FARC had agreed to a peace accord, disarmed, and reincorporated as a political party. See U.S. Dep't of State, Colombia 2017 Human Rights Report 14-15 (2017) available at https://www.state.gov/documents/organization/277563.pdf. Mr. Pineda is currently serving out a sixty-year prison term at the United States Penitentiary, Administrative Maximum Facility in Florence, Colorado. See Mem. Op. [Dkt. 16] at 4. Neither Defendant has appeared before this Court.

II. LEGAL STANDARD

A default judgment under Fed. R. Civ. P 55 establishes the defaulting party's liability for every well-pled allegation in the complaint. Int'l Painters & Allied Trades Indus. Pension Fund v. Newburgh Glass and Glazing, LLC , 468 F.Supp.2d 215, 217 (D.D.C. 2007) (citing Adkins v. Teseo , 180 F.Supp.2d 15, 17 (D.D.C. 2001) ). However, it does not automatically establish liability in the amount claimed by the plaintiff. Id. Rather, "unless the amount of damages is certain, the court is required to make an independent determination of the sum to be awarded." Adkins , 180 F.Supp.2d at 17 (citing SEC v. Mgmt. Dynamics, Inc. , 515 F.2d 801 (2d Cir. 1975) ). The court has considerable latitude in determining the amount of damages. Fanning v. Wegco, Inc. , 5 F.Supp.3d 1, 4 (D.D.C. 2013) (citing Jones v. Winnepesaukee Realty , 990 F.2d 1, 4 (1st Cir. 1993) ). The court may determine the appropriate sum by hearing, see Fed. R. Civ. P. 55(b)(2), but it may also rely on detailed affidavits or other documentary evidence. Fanning , 5 F.Supp.3d at 6. Ultimately, what matters is that the court "ensures that there is a basis for the damages specified in the default judgment." Id. at 4.

III. ANALYSIS

The family of Mr. Pescatore now seeks "damages from the Defendants solely for their emotional loses." Pls.' Mot. for Default J. Regarding Damages (Dmg. Mot.) [Dkt. 40] at 7. Plaintiffs suggest their own figures for damages: Olivia Pescatore seeks $15 million in damages for her loss. Cf. Estate of Bayani v. Islamic Republic of Iran , 530 F.Supp.2d 40, 46 (D.D.C. 2007) (awarding $30 million to widow of American held captive for 2 years before his brutal murder). She argues that a large award is justified because "larger awards are typically reserved for cases with aggravating circumstances that appreciably worsen the surviving spouse's pain and suffering, such as cases involving torture or kidnapping," Greenbaum v. Islamic Republic of Iran , 451 F.Supp.2d 90, 108 (D.D.C. 2006), and notes that here FARC not only kidnapped and killed her husband but also eviscerated his body in order to prolong ransom negotiations with his family.

Each of Mr. Pescatore's children seeks $10 million for their loss. Cf. Higgins v. Islamic Republic of Iran , No. 1:00-CV-00377, 2000 WL 33674311 at *8 (D.D.C. Sept. 21, 2000) (awarding $12 million to the daughter of a U.S. Marine held captive and executed by Hezbollah). They also argue that "it follows that this amount should also be awarded to his father because parents and children are generally awarded the same amounts." Dmg. Mot. at 10-11 (citing Peterson v. Islamic Republic of Iran , 515 F. Supp. 2d 25, 51 (D.D.C. 2007) ). "Finally, an award of $5 million to Mr. Pescatore's siblings is warranted because the siblings of a terrorist attack victim generally receive half the amount awarded to parents and children." Id.

In addition, Plaintiffs ask that their awards be trebled pursuant to 18 U.S.C. § 2333(a) ("Any national of the United States injured in his or her person ... by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney's fees.").

A. Documentation of Loss

In support of the numbers they put forward, each Plaintiff submitted both personal declarations and an expert report from Dr. Rael Strous, a board-certified psychiatrist and professor.² Dr. Strous is a medical doctor who specializes in psychiatry and is employed as the Deputy Hospital Director and Director of the Ambulatory Service of the Be'er Yaakov Mental Health Center located in Be'er Yaakov, Israel. See Expert Report of Dr. Rael Strous Re: Olivia Pescatore (Olivia P. Report) [Dkt. 40-18] ¶ 1. He also serves as a Full Professor in the Department of Psychiatry at the Sackler Faculty of Medicine at the Tel Aviv University and maintains a small private practice. Id. Dr. Strous has repeatedly been accepted as an expert in this District and others in the United States, as well as in Israel. Id. ¶ 5.

Dr. Strous' evaluations of the Pescatore family members were "based on clinical interview[s] and formal psychiatric evaluation[s], as well as [his] review of the relevant affidavit and deposition materials in this case." See, e.g., id. at 1. Because Dr. Strous concluded that each Plaintiff suffers from essentially identical conditions, it is helpful to describe those conditions first.

Dr. Strous identified Persistent Complex Bereavement Disorder as a "description of the normal mourning process that leads to chronic or ongoing mourning" experienced by "people who are unable to get over their grief despite the passage of time." Id. ¶ 9. Post-Traumatic Stress Disorder

(PTSD) is a "condition which develops from having been exposed to, or witnessing, life-threatening events" and may also be experienced indirectly "by hearing of a relative or close friend ... [whose] death must [have been] accidental or violent." Id. ¶ 10. Symptoms of PTSD "include avoidance, re-experiencing the event, and hyper-vigilance, ... [which is] a cluster of symptoms that includes exaggerated startle response, inability to fall asleep and inability to stay asleep." Id. Among other issues, PTSD can lead to "memory problems and a distorted sense of blame." Id. ¶ 11. As a result, "educational and employment prospects for PTSD victims are often lowered." Id. ¶ 12. Finally, Dr. Strous described Persistent Depressive Disorder, or Dysthymic Disorder, as a "chronic (long-lasting), mild form of depression" that "can last for years and ... can be just as debilitating as a more acute episode of major depression (clinical depression ), even leading to thoughts of, or attempts at, suicide." Id. ¶ 15.

Based on these submissions and with regards to each of the Plaintiffs, the Court notes the following facts:

1. Olivia Pescatore

Olivia Pescatore "nearly had a complete nervous breakdown" both in 1996, when she learned that Mr. Pescatore had been kidnapped, and again in 2005 when she learned that he had been eviscerated by FARC to prolong hostage negotiations. First Decl. of Olivia Pescatore [Dkt. 40-3] ¶ 25. Indeed, during and immediately after his kidnapping, Mrs. Pescatore's mother had to stay with the family for seven months because Mrs. Pescatore "could barely get out of bed and could no longer care for [her] children." Id. ¶ 20. As of 20...