THE law firm of Banes Horey Berman & Miller has removed the wrongful death lawsuit against Jeju Airlines Company Ltd. to the federal court.
Attorney David Banes, who filed the notice of removal to the District Court for the NMI from the CNMI Superior Court, said the plaintiff sued Jeju Airlines on May 21, 2021 for (1) wrongful death, (2) intentional infliction of emotional distress and (3) negligent infliction of emotional distress.
Banes, whose law firm represents Jeju Airlines, said the District Court has jurisdiction because the plaintiff is a U.S. citizen and a resident of the CNMI and the defendant is a corporation incorporated in the Republic of Korea and having its principal place of business and corporate headquarters in the Republic of Korea, and the amount in controversy exceeds $75,000, exclusive of interest and costs.
Banes said decedent Tae Hyang Bang was a citizen of the Republic of Korea and a permanent resident of the United States who was domiciled on Saipan.
“Under CNMI law, an action for wrongful death belongs to the decedent’s family — spouse, children, and next of kin — not decedent’s estate, and the estate may not recover for decedent’s injuries,” Banes said.
“Although a CNMI wrongful death action must be brought in the name of the personal representative of the deceased (7 CMC § 2102), it is not brought by the legal representative of the estate. Hence, Tae’s personal representative — her only child, plaintiff Mari Chung Cepeda, is not deemed to be a citizen of the same state. The claim belongs to the person appointed to prosecute it: Mari, the only child of decedent.
“Mari is a citizen of the CNMl for diversity purposes. Hence, there is complete diversity for all plaintiff’s claims against foreign citizen Jeju Air,” Banes said.
“Judicial experience and common sense indicate that plaintiff is looking for more than $75,000 in damages,” he added.
In the CNMl, he said, awards for plaintiffs in wrongful death actions typically run far in excess of the jurisdictional minimum.
A study of 110 wrongful death awards in North Carolina from 2009 through 2013 found that the mean award was $1,300,740 and the median was $590,000 noted the lawyer.
“In addition to claiming wrongful death, plaintiff alleges both negligent and intentional infliction of emotional distress, and these allegations put untold further amounts into controversy,” Banes said.
The plaintiff is represented by attorney William Fitzgerald.
The decedent was 62 years old at the time of her death.
According to the original complaint, in December 2020, the 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.
“Mari and her mother, after being informed by Saipan doctors that her condition was critical, and that she should immediately go to a place with sophisticated and advanced cardiac, decided in December 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 as soon as possible to consult with a cardiologist and undergo whatever procedures were necessary to correct her condition.”
While in normal times, Jeju Air had daily flights to Korea, as a result of the Covid-19 crisis, these flights were discontinued. But Jeju did offer a flight from Saipan to Korea on Jan. 15, 2021.
Mari and Tae decided that Tae should take the Jan. 15 Jeju Air flight to the necessary medical treatment in Korea, the complaint stated.
On Dec. 9, 2020, Mari attempted to book a seat on the Jan. 15, 2021 Jeju flight, but was unsuccessful. 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 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 Healthcare Corp.’s Emergency Room, where Tae was seen by Dr. Jenna Kong. The doctor told Mari that Tae’s condition was critical so she was admitted to the CHC 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, the 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 the 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 member Ana who said that Jeju’s decision was final and that her mother would not be allowed on their plane to Korea on Jan. 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 able to be on that flight and get to 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.
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 to 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 in which she had arrived.
The hospital doctor told Mari that Tae was extremely debilitated and in critical condition with a massive buildup of fluid in her lungs, which they 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.
Mari had daily telephone conversations with Tae, and her mother 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.
Tae did not have a normal hospital bed, but was on an ER bed in a comer of the ER where she felt isolated and abandoned and got food and water only sporadically.
During all of this trouble, Mari tried to stay strong for her mother, talking to her every day by phone encouraging her to be strong, patient and not to give up while Tae made constant and pathetic pleas for her daughter to get her out of the place where she was not being adequately cared for.
According to the complaint, the calls from her mother were heartbreaking and the inability to help alleviate her mother’s pain and discomfort caused Mari severe pain, both physical and emotional including inter alia stomach pain, headaches, insomnia, anxiety and depression.
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 her heart stopped the third time she 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.
