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It took a jury just over three hours Thursday to determine Continental Airlines was justified in denying boarding to a passenger who hurled racial epithets at gate personnel when he didn’t get the seat he originally booked on an afternoon flight. Feierstein v. Continental was an appeal from arbitration in Philadelphia Common Pleas Court. Judge Joseph Papalini presided over the four-day jury trial. In October 1997 plaintiff Martin Feierstein arrived at 1:43 p.m. for a 2 p.m. flight, according to the complaint. Continental had given his reserved aisle seat away due to his late arrival, although Feierstein did not arrive late under the policy in effect at the time of the incident. Feierstein claimed he suffered from claustrophobia and was given one middle seat. He told a flight attendant the seat to which he was reassigned were unacceptable. Feierstein was told he needed to speak to two ticketing agents to resolve the problem. Attorney Denise H. Houghton of Philadelphia-based Cozen & O’Connor, who represented Continental, said Feierstein then began berating the agents, who told him he could either calm down or be accommodated on a later flight with open aisle seats. Initially, Feierstein began to depart the plane, according to Houghton. “But then he turned back at the gate and tried to get back on the plane, screaming at them,” she said. Witnesses testified Feierstein called one of the agents a “black b-h” and told both agents they were “idiots and a-holes,” and that he would “have their jobs.” The agents and captain of the flight, who overheard the yelling, denied Feierstein boarding. Feierstein sued Continental and the two agents individually for assault, battery, breach of contract, violation of the Unfair Trade Practices and Consumer Protection Law, both negligent and intentional infliction of emotional distress, and slander, for having “deridingly branded [Feierstein] as a ‘security risk,’” the complaint stated. Philadelphia attorney Steven D. Janel represented Feierstein. He could not be reached for comment late Thursday. Feierstein presented one expert witness, Dr. George Bell. The psychiatrist from Einstein Hospital testified that Feierstein suffers from anxiety and depression. Continental presented only fact witnesses, the two named gate agents and a security agent for the airline. Houghton said Judge Papalini decided that the word “black” should be stricken from the videotaped testimony of Feierstein’s expert, because he deemed it inflammatory. However, the videotape did not obscure the witness’ mouth; only the audio portion was removed. Later, when Houghton accidentally used the term “black b-h” on cross, the judge stopped the proceedings and asked jurors whether that would affect their decision. “Two of the black people on the jury said, ‘We could see the word on the videotape anyway, but it wouldn’t affect our decision,’” Houghton said. Feierstein had asked for $50,000 and treble damages under the Unfair Trade Practices law. Houghton said Continental had reason to be nervous. “In an age where there is talk of a ‘passengers’ rights bill’ in Congress, in addition to government attention to airline safety, there was a chance of a plaintiffs’ verdict,” she said. Houghton said the case had survived Continental’s filings of preliminary objections and a summary judgment motion. “Continental could have made this case go away for much less than it wound up spending over the past three years,” she said. “But the company believed in fighting for what was right and that it had the right to stand up for the safety of the 130 other passengers on that plane.” In its defense, the airline argued it was justified in denying boarding to anyone who could jeopardize the safety of one of its flights, that Feierstein had violated the contract of carriage, and that the seat a passenger books is a preference, not a right. Houghton said she did not know at press time whether or not Feierstein intended to appeal. Feierstein, a professional drummer who admitted in his testimony that he is a “squeaky wheel,” wound up taking the later flight offered to him and made the gig he was trying to get to, Houghton said. “The irony is that, because he was a frequent flyer, his tickets on this flight were free,” she said.

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