JEJU Airlines, through the law firm of Banes Horey Berman & Miller, is asking the federal court to rule in its favor and dismiss the wrongful death lawsuit filed against it.
Attorney David Banes asked the court to issue a judgment dismissing the complaint in its entirety or, alternatively, judgment limiting its liability.
Tae Hyang Bang, a citizen of South and a permanent resident of the U.S. who was domiciled on Saipan, through a personal representative — her only child, plaintiff Mari Chung Cepeda — sued Jeju Airlines in May 2021 for 1) wrongful death, 2) intentional infliction of emotional distress, and (3) negligent infliction of emotional distress in Superior Court.
Plaintiffs are represented by attorney William Fitzgerald.
The defendant moved the lawsuit to the District Court for the NMI in June 2021 citing diversity and the amount of controversy which exceeds $75,000.
In response to the lawsuit, Banes said the alleged damages were not proximately caused by any conduct on the part of Jeju or any person or entity for whom Jeju is responsible.
“Plaintiff’s damages, if any, were caused and brought about by an intervening and superseding cause and were not caused by Jeju or any person or entity for whom Jeju is responsible,” he said.
Plaintiff failed to mitigate her damages, Banes said, if any, and therefore is barred from recovering any such damages from Jeju.
“Jeju did not owe or breach any duty to plaintiff as alleged in the complaint and, therefore, plaintiff is barred from recovering any damages from Jeju,” Banes said.
He added that plaintiff’s alleged injuries were caused by the negligence or culpable conduct of plaintiff and/or her mother and, accordingly, the damages recoverable by plaintiff must be reduced in proportion to the negligence or culpable conduct of plaintiff and/or her mother.
“Plaintiff assumed the risk that her mother would not be successfully treated on time in Korea when she and her mother refused to seek alternate transportation to Korea or explore the possibility of successful treatment elsewhere,” Banes said.
Moreover, he said plaintiff’s damages for pain and suffering are limited by CNMI statute, including 7 CMC §2902.
“Plaintiffs’ damages for wrongful death are also limited by CNMI statute, including 7 CMC §2903,” he added.
Banes said Jeju affirmatively denies it is at fault in any way with respect to the claims alleged or as to the issues raised in the complaint, and therefore is not liable to plaintiff for any damages prayed for in the complaint.
“Defendant gives notice that it intends to rely upon any other matter constituting an avoidance or affirmative defense as set forth in Fed. R. Civ. Pro. 8(c), 9 and 12, and may seek leave to amend this answer to include and allege those defenses during the course of discovery or trial of this action. Wherefore, Jeju Air Co. Ltd. demands judgment dismissing the complaint in its entirety or, alternatively, judgment limiting its liability pursuant to the foregoing, together with attorneys’ fees, costs, disbursements and such other and further relief as this court deems just and proper,” Banes stated.
Background
According to the original complaint, in Dec. 2020, decedent’s heart condition took a turn for the worse and she experienced severe symptoms of congestive heart failure, low oxygen levels, bloating and weight gain. She was 62 at the time of her death.
“Mari and her mother [Tae Hyang Bang] after being informed by Saipan doctors that [Tae Hyang Bang’s] condition was critical, and that she should immediately go to a place with sophisticated and advanced cardiac, decided in Dec. 2020 that because there was no resident cardiologist in Saipan and heart surgery and other cardiac procedures were unavailable in Saipan, Tae should go to Korea…to consult with a cardiologist and undergo whatever procedures were necessary to correct her condition.”
In normal times, Jeju Air had daily flights to Korea, but as a result of the Covid-19 crisis, these flights were discontinued. Jeju did offer to passengers a flight from Saipan to Korea on Jan. 15, 2021.
Mari and Tae decided that Tae should take the Jan. 15, 2021 Jeju Air flight to the necessary medical treatment in Korea.
On Dec. 9, 2020, Mari attempted to book a seat on the Jan. 15, 2021 Jeju flight, but was unsuccessful, and so on that same day, she contacted Jeju Saipan staff member, Ana Kim, and told her that her mother was in critical condition with a heart problem that could not be treated in Saipan and that she was desperate to get her mother to Korea as soon as possible, and she would need to have oxygen on the plane.
The complaint stated that Ana told Mari she would do her best to help her, but had to check with Jeju Air’s upper management.
On Dec. 10, 2020, at Ana’s request, Mari gave Ana a list of her mother’s medications.
On the same day, Tae complained of swelling — edema on her ankles and legs was clearly visible and Mari, therefore, took Tae to the Commonwealth Health Center Emergency Room where Tae was seen by Dr. Jenna Kong who told Mari that Tae’s condition was critical. Tae was then admitted to the hospital’s Intensive Care Unit.
“Dr. Kong told Mari that Tae urgently needed the consultation and treatment of a sophisticated cardiology center and that it was best if she went to such center as soon as possible and that Tae would be able to fly as long as she can travel with oxygen. Mari reported this to Ana who told her that she had checked with Jeju management and they refused to allow Tae on the flight with an oxygen tank, so Mari began doing research and discovered that there was a portable oxygen concentrator or POC known as ‘Inogen One’ that is approved and authorized for use on flights by the Federal Aviation Administration.” At the time, there was no Inogen One available on Saipan, but Mari arranged with Marianas Medical Supplies to purchase an Inogen One pursuant to a prescription provided by Dr. Kong. Mari received the device on Jan. 7, 2021.
“On Dec. 12, 2020, Mari telephoned Ana of Jeju Air and informed her that she had ordered a POC, Inogen One, which was approved and authorized by the FAA.
“Ana later told Mari that Jeju Air management absolutely refused to allow Tae on the plane with Inogen One.
“Further research by Mari, which she reported to Jeju Air, showed many airlines, including Asiana, United, Korean Air, and Jin Air, allowed POCs on their planes and had application forms for this purpose.
“A screenshot of Asiana’s website allowing the use of POCs and providing application process was sent to Jeju Air by Mari.
“Later that day, Mari received a message from Jeju Air’s staff Ana, that Jeju’s decision was final and that her mother would not be allowed on their plane to Korea on January 15, 2021, with a POC.
“On Dec. 26, 2020, Tae had a consultation with a physician at CHC who told Mari that Tae urgently needed specialized cardiac care, not available in Saipan and that Tae should seek specialized cardiac care as soon as possible.
“On Dec. 30, 2020, Mari filed a complaint against Jeju Air with the Department of Transportation and received a reply that stated: ‘We will remind the carrier that as they are operating into a U.S. airport since the rule also applies to territories that they need to abide by the [Air Carrier Access Act] which requires them to accept FAA-approved POCs. We will forward your complaint to the airline and will ask the company to respond directly to you. Airlines are required to provide a substantive response to the complainant within 60 days.’
“As of May 10, 2021, Jeju Air had not responded to Mari’s complaint.
“Through Tae’s relatives in Korea, Mari was able to arrange an appointment for Tae to have a consultation at Asan Medical Center, a world class hospital specializing in cardiac care on Jan. 28, 2021.
“Mari then again informed Jeju Air of the desperate condition her mother was in and how critical it was for her mother to get passage on the plane from Saipan to Korea, and that the POC she would use was approved by the FAA.”
The lawsuit alleged that Jeju Air “callously cut her off and recklessly refused to accept her explanations and failed to conduct any investigation of its obligations under the Air Carrier Access Act or ACAA and the FAA approval of the Inogen One POC.
Jeju Air’s flight from Saipan to Korea took off from Saipan as scheduled on Jan. 15, 2021, without Tae.
According to the lawsuit, if Tae had been on that flight and arrived in Korea on Jan. 15, 2021, she would have completed a 14-day quarantine and made the appointment at Asan Medical Center on Jan. 28, 2021. She would have had the opportunity to undergo sophisticated heart diagnostic and procedures.
As a result of Jeju Air’s actions, Tae’s appointment at Asan Medical Center was postponed to Feb. 19, 2021.
Mari sought an alternative route and was able to secure passage on United’s flight to Guam, and after a two-day layover, a Jin Air flight from Guam to Korea on Feb. 3, 2021.
Both airlines allowed Tae to board with the Inogen One POC.
Tae left Saipan on Feb. 1, 2021 to Guam, accompanied by a friend, and was held at the Guam airport for five hours before being taken to a quarantine facility for a two-night stay before the flight to Korea on Feb. 3, 2021.
“This arduous itinerary caused Tae increased debilitations,” the complaint stated.
“If Jeju had not barred Tae from their flight, she would have arrived in Korea on Jan. 15, 2021. The route that Tae was required to take, which included the five-hour detention at the Guam airport and the two-night stay in Guam was exhausting and caused her condition to deteriorate. Once in Korea, Tae was required to undergo a 14-day quarantine, which she did at her friend’s house.”
On Feb. 8, 2021, Mari received a phone call from Tae’s friend, who told Mari that Tae’s condition had taken a turn for the worse and she had become more debilitated and delusional.
“After the phone call from Tae’s friend, Mari made arrangements to conduct a Facetime call with Tae.
“Mari was shocked by Tae’s appearance on the Facetime call and realized that Tae’s condition had severely deteriorated.
“After seeing her mother on the Facetime call, Mari talked again to Tae’s friend and told her to call an ambulance, which arrived but was unable to transport Tae to a hospital because no hospital had agreed to admit her.
“The ambulance was standing by, but after a time, because they were unable to get a hospital to admit Tae, the ambulance left.”
Beginning at approximately 6 p.m. Saipan time, on Feb. 8, 2021, Mari searched the internet and called get her mother admitted to a hospital.
Finally, at about 3 a.m. Saipan time after countless phone calls to Korea, Han Yang University Medical Center agreed to accept Tae, but only in the emergency room.
The ambulance returned and took Tae to Han Yang but she was only treated in the emergency room and spent a full week there without getting admitted to the main hospital.
After Tae arrived at the Han Yang ER, Mari was able to talk to a doctor who informed her that her mother’s condition was very grave because of the weakened condition she had arrived in.
The doctor told Mari that Tae was extremely debilitated and in critical condition with a massive buildup of fluid in her lungs, which they had drained, but the length of time before receiving this treatment had caused Tae to become weak, debilitated and in more critical condition.
Over the next week, Tae was never able to get admitted to the main Han Yang hospital and had to stay in the ER alone, with no physical contact with family or friends, and where the care was sporadic and haphazard, the complaint stated.
Mari had daily telephone conversations with Tae who complained about the lack of care and begged Mari to get her out of the hospital.
Mari had to call the ER nurse and request that they get water to her mother.
On Feb. 15, 2021, after a week in Han Yang’s emergency room where Tae was unable to get the specialized attention of a cardiologist, which she would have had at Asan Medical Center, Tae took a turn for the worse and her heart stopped twice, but was revived each time until an hour after when her heart stopped the third time she and passed away.
“But for Jeju Air’s violation of the law in refusing passage to Tae using a POC, Tae would have arrived in Korea on Jan. 15, 2021, and would have had access to the specialized cardiac care at Asan Medical Center that would have saved her life,” the complaint reiterated.
