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Futu died while family detained at Honolulu airport

By Fili Sagapolutele PAGO PAGO, American Samoa, (Samoa News, Feb. 23, 2010) - In its trial brief filed recently, the U.S. government has disputed claims by the parents of baby Michael Futi, that U.S. Customs and Border Protection (CBP) was responsible in any way for the death of the two week old infant from American Samoa.

The wrongful death lawsuit was filed by Honolulu-based attorney L. Richard Fried Jr. on behalf of baby Michael’s parents Luaipou and Tony Futi. Baby Michael died while being detained at a customs room at Honolulu International Airport the morning of Feb. 8 2008.

Baby Michael was born with a heart defect, which was the reason he was being taken to Kapiolani Medical Center for Women and Children in Honolulu for treatment. He was traveling with his mother and Lyndon B. Johnson (LBJ) nurse Arizona Ve’ave’a.

Honolulu-based Assistant U.S. Attorney Derrick K. Watson, on behalf of the federal government, filed its 42-page trial brief in response to the plaintiff’s trial brief filed Jan. 25 with the federal court in Honolulu.

According to the government, the infant developed respiratory difficulties at 6:06 a.m. on Feb. 8 while in the Federal Inspection Service (FIS) secondary processing area of CBP at the Honolulu International Airport.

What is not disputed, the government says, is that the infant died only six minutes later at 6: .m.— exactly forty minutes after Hawaiian Airlines flight 466 arrived from American Samoa and set up at the gate at the airport.

Plaintiffs "claim that CBP is responsible for Michael’s unfortunate death," said Watson.

Each of the plaintiff’s six theories of liability depend on the notion that CBP law enforcement personnel knew or should have known that Michael was having a medical emergency as early as 5:36 a.m. and that CBP should have immediately suspended its immigration and customs inspection process at that time to allow Michael and his companions to reach Kapiolani in time to render aid, said Watson.

These theories, however, cannot overcome "one significant and insurmountable problem"— the plaintiff’s own witnesses confirm that Michael was "not in any distress", much less experiencing a medical emergency until approximately 6:06 a.m., at which time multiple CBP officers immediately responded to calls for help by contacting emergency medical services, Watson argued in this trial brief.

"There was simply no reason for CBP to have suspended inspection efforts 30 minutes prior, before the onset of any emergency," Watson argued. "Further, plaintiffs readily attributed Michael’s death to a ‘lack of supplemental oxygen’."

According to the federal government, the plaintiffs did not mention in their trial brief that the only reason the flight nurse traveling with Michael did not have supplemental oxygen while in the FIS is because she "inexplicably refused it, when it was unconditionally" offered by Hawaiian Airlines personnel upon deplaning.

"Had she simply accepted the airline’s offer of the supplemental oxygen canister that Michael used in-flight, Michael would have presumably survived," Watson claims.

Even more remarkable, Watson contends, is that the nurse refused the airline’s offer despite receiving specific verbal and written instruction from her physician supervisor in Pago Pago, stating that Michael required a constant supply of supplemental oxygen to be available both "in flight" and "on the ground."

What plaintiffs also do not mention is that even if CBP had suspended the inspection process at 5:36 a.m., as plaintiffs assert should have occurred, there is no way that plaintiffs could have reached Kapiolani in time before Michael’s death at 6:06 a.m, he said.

"That is because plaintiffs still needed to walk to another floor in the FIS to claim their checked-in luggage at baggage claim and proceed through the customs checkpoint to the exit," Watson explained.

Once outside, plaintiffs still needed to locate transportation to Kapiolani because an ambulance had not been pre-arranged, he said.

"And importantly, once transportation was secured, the only person to have driven from Honolulu airport to Kapiolani on the morning of February 28, 2008 testified that it took 35 to 40 minutes to get there in the traffic and weather conditions that existed at the time," said Watson.

The person cited in the brief to drive to Kapiolani is Solipo Matai, who is an RN and a friend of Ve’ave’a. Matai gave this testimony during her deposition.

Watson also disputed a lot of claims made by the plaintiffs in the trial brief based on depositions taken from physicians, CBP agents and others involved in this case.

In short, said Watson, plaintiffs can establish neither "liability nor causation, and the United States is entitled to judgment in its favor."

According to Watson, the plaintiffs have waived any claim to economic damage. As a result, upon a showing of liability and causation, plaintiffs’ recovery would be limited to non-economic damages.

Watson says plaintiffs estimate their total non-economic damages at about US$1 million, which is "significantly" overstated.

Based on previous cases cited by the government, Watson said the U.S. submits that US$500,000 is an appropriate measure of plaintiffs’ total un-offsetted non-economic damages. However, no percentage of these damages is attributed to the United States, he added.

Plaintiffs did not specify an amount of compensation in their trial brief but Fried said the plaintiffs suggest to the court "that a proper total award in this case, conservatively, is somewhere in the upper six-figure or lower seven figure range."

"Half should go to Michael’s parents, to be shared between them as the court sees fit, taking into account the greater immediacy of Mrs. Futi’s suffering, and half to Michael’s Estate for the life he should have lived," Fried said.

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