Flying home after Christmas in New York City six years ago, Janie Axelrad wanted to relax, and the empty rows of seats in the back of the Boeing 757 were calling. So she left her fiancé, Joseph LaPorte, in their ticketed seats in the crowded midsection of the plane and walked back to an empty aisle of Delta Flight 1145, where she stretched out her long legs. At five feet nine, Axelrad was then a striking beauty, with a trim and full figure, long and lush brown hair, and a pretty, almost perfectly oval face.
When flight attendants served refreshments, Axelrad bought a glass of wine and, as she sipped it, thought of coming home to Delray Beach to see her son, Steven, who was then seven years old. She was ready to go home, even though she and LaPorte, who was something of a surrogate father to her son, had had a great time. Packed in their luggage were pictures they'd taken of Big Apple landmarks: the Statue of Liberty, Rockefeller Center, the Twin Towers crowning the Manhattan skyline.
Then things got weird at 31,000 feet. The three flight attendants suddenly stopped serving passengers and went back into the kitchen, where Axelrad could see them huddling together through a crack in the doorway. She could hear whispering but couldn't make out the words. Then they came out and abruptly locked down the serving tables. Axelrad didn't think it was possible that they could already be in Atlanta, where the plane was scheduled to stop before flying on to Fort Lauderdale.
She asked the attendants what was wrong.
"No, no, nothing's wrong," one of them answered. "We're already there. We're about to land."
Axelrad could hardly believe they were already there but returned to her seat next to LaPorte. After five minutes or so, the plane began its descent, which seemed much steeper and faster than usual. When the wheels hit the runway, the aircraft stopped quickly, with a little jerk. Then the pilot, Capt. Raymond Harcourt, announced the truth. This was an emergency evacuation. Harcourt ordered the passengers to leave behind their belongings and proceed to the nearest exit, which for Axelrad was in the center of the plane. As she walked toward the flight attendant at the door, she remembers thinking, "They lied to me. Something is wrong. Oh my God."
When it was her turn to exit, Axelrad says she expected a flight of stairs, "like the president goes down." She was in for a brutal surprise.
"I turned to the right, and [the flight attendant] grabs my left upper arm, and she yells, "Go!'" Axelrad remembers. "And I go flying out of the plane, and I start spinning around on this chute, not sliding correctly, not even knowing I was on a chute, and I ended up landing on both of my knees on the runway."
At the bottom, with what would later be diagnosed as a broken kneecap, several passengers slammed into Axelrad before LaPorte helped her up. While LaPorte and the other 115 passengers on the plane ran to a nearby field, a medic treated Axelrad. Soon, she and another passenger, a man with an injured ankle, were taken by ambulance to a nearby hospital. According to a newspaper article published the next day, eight passengers suffered injuries during the rushed evacuation.
Soon, she learned that she was not in Atlanta but at Piedmont Triad International Airport in Greensboro, North Carolina. After she was treated at a local hospital, she was taken back to the airport, where FBI agents questioned her. They asked her if she had any enemies and if she knew anyone who didn't want her to get on the plane. Then they told her there had been a bomb threat.
Axelrad says that even though no bomb exploded, she's been scarred for life. During her fall down the chute onto the coarse concrete runway, her right knee was fractured, according to medical records. Her knees were especially vulnerable -- she'd already had surgery on the left one after a fall at a skating rink as a teenager, and she suffered from arthritis in both.
Since the wild ride down the chute, the pain has been almost constant, she says. Four months after the emergency landing, she underwent major surgery on the knee, leaving her with a ten-inch scar and a disfiguring mound of bone grafted to the top of her shin. In all, she's been through dozens of medical procedures and physical-therapy sessions. She's now on permanent disability and concedes she's hooked on pain pills.
Axelrad says Delta refused from the beginning to help her, so she sued the company in 1996, seeking payment of her medical bills, which now total about $100,000, and other damages. The airline has vigorously fought her claims in court through the years and just last month emerged victorious from a five-week trial at the Broward County Courthouse.
The jury, however, didn't hear the whole story of what happened that night, and Axelrad's attorney, Julie Hager, has requested a new trial.
Whether Axelrad prevails, her case shows just how far Delta will go to thwart plaintiffs and bury its mistakes. Hager alleges that Delta lied repeatedly in sworn documents about key facts and tried to hide an important witness. At the heart of the apparent cover-up, she says, is Delta's desire to conceal what really happened on Flight 1145, including a long delay in getting word to the pilot of what appeared to be a terrorist threat. Had the caller been telling the truth, the delay would have sealed the fate of all those onboard, Hager claims.
A Broward Circuit judge is expected to rule in coming weeks on whether to allow a new trial and whether Delta should be sanctioned for what Hager alleges is fraud committed by the airlines against her client and the court. Hager also claims in court documents that Delta's handling of the bomb threat points to a breakdown that is especially alarming in light of September 11 and the heightened national concern about airline security.
Fort Lauderdale attorney Jeffrey Wolfson, who was Axelrad's first lawyer, says that he's seen big companies stonewall small plaintiffs before and that Delta was a master at such ploys. "Deny and delay was Delta's motto," Wolfson says. "Like a lot of big companies, they like to play discovery games."
Delta withheld even the most basic information about Flight 1145. The airline, for instance, supplied Axelrad's attorneys with a largely illegible passenger list that didn't include addresses or phone numbers.
For years, Delta refused to provide Wolfson and his co-counsel, Ronald Simon, with basic information, such as when exactly the bomb threat was received and what the caller had said. One crucial -- and particularly frustrating -- battle involved what are called "comment cards" that all passengers filled out after the emergency. On July 24, 1997, Wolfson and Simon requested in court that Delta produce the cards. Two weeks later, the Fort Lauderdale law firm of Wicker Smith, which represents Delta, filed its reply: "Not in possession of this defendant," wrote Wicker Smith partner Dennis O'Hara, who represented Delta with co-counsel Gregory Palmer.
On March 25, 1998, Wolfson filed a motion to compel Delta to hand over the cards, charging that the airline was "willfully and intentionally refusing" to provide them. A hearing was held in mid-April before Broward Circuit Judge Patricia Cocalis, who ordered Delta to produce the documents within 15 days. More than a month later, Delta finally gave the plaintiff photocopies of the cards that its attorneys had sworn it didn't have.
At the end of 1999, Wolfson and Simon left the case. Wolfson wouldn't discuss the reason for leaving, citing attorney-client privilege. But Axelrad says it boils down to one word: frustration. "They said they didn't feel they could win the case anymore," she explains. "They were going crazy trying to get information from Delta. Nothing was being answered."
Delta might have won by default, but Hager, who owns a small, independent, personal-injury law firm in Fort Lauderdale, took over Axelrad's case. Though litigation had been ongoing for nearly four years, she says Delta had kept the plaintiff essentially clueless about what really happened the night of December 29, 1995. "I had no information about the bomb threat," Hager says.
During the past two years, Hager has spent $75,000 and hundreds of hours battling Delta. It wasn't just records that Delta seemed intent on hiding -- the company also apparently tried to hide passengers. Hager realized that the backs of some of the photocopied cards were missing, so she argued before Judge Cocalis on March 17, 2000, that Delta should provide the originals. Cocalis obliged her, signing an order demanding that Delta turn them over. Two weeks later, on March 31, Delta filed a notice in court denying that any other Flight 1145 passengers had claimed an injury or sued the airline.
Hager obtained the original comment cards more than a month later, and among them were five that Delta had failed to produce the first time. All five of those passengers, it turned out, had injury claims against Delta, and one of them, Sally Barker, had an important story to tell Hager. Barker, who lives in New Jersey, also claimed to have been pushed down the slide by a flight attendant. She too claimed that she'd injured her knees and sued Delta. The airline settled out of court with Barker, paying her medical bills (which totaled less than $20,000).
Delta attorney O'Hara spoke to New Times on the airline's behalf but commented only briefly on the case. The exclusion of the five cards was an honest mistake, he explained. "Five of the comment cards were not included in the first batch of comment cards because five passengers had made claims that maybe they had been injured," O'Hara said. "Those comment cards were removed and put in those claims files."
O'Hara's explanation, however, contradicts Delta's previous sworn assertion that there had been no other injury claims or lawsuits stemming from the flight. Barker was living proof that Delta wasn't telling the truth. "I was afraid to go down the chute," Barker recalls of the evacuation. "I turned around to say something to the flight attendant, and he took me by the shoulders and shoved me right onto the chute, and I wasn't prepared for it. It was like a swan dive down. My buttock hit the runway and then my knees."
Barker says that when she learned from Hager that her card wasn't initially included, she was outraged. "They snatched my name right out of the file," she says. "If Delta had its way, I wouldn't exist. They wanted to hide me. I would really like to know why they tried to hide me."
In Barker's lawsuit, Delta alleged that the bomb threat had been received about 8:45 p.m. -- the first instance when Delta provided a time for the threat in any court documents. The time, however, contradicted an article published in the Greensboro News & Record the day after the evacuation. In the front-page report, the newspaper printed that the call had come in at 8:22 p.m.
Soon, Hager would come to realize that the newspaper article was closer to the truth. And the incorrect time Delta provided in Barker's lawsuit, Hager alleges, is central to why the airline was intent on hiding the truth.
The heart of Axelrad's complaint against Delta was that the flight attendants, contrary to the airline's procedures, failed to notify or instruct passengers about plans for an impromptu landing. "They should have said we are going to make an emergency landing and when we do, prepare to go down the slide," says Axelrad. "A simple order would have made it so much easier. Then so many people wouldn't have been injured."
In the case of bomb threats, Delta's procedures are specific: The plane must be evacuated as far from the terminal as possible, and chutes are deployed.
When deposed, the chief flight attendant, Cole Gardiner, explained one reason passengers were never given safety instructions. Capt. Harcourt told him only that there was a security threat but never mentioned a bomb, he testified. Because he didn't know the nature of the emergency, Gardiner said, he had no way to know what type of evacuation to expect.
A report that Harcourt wrote immediately following the evacuation, however, contradicted Gardiner's claim. "Got Cole Gardiner to the cockpit," Harcourt wrote. "I told him of the bomb threat.... I told him not to tell [the passengers] about a bomb."
A second flight attendant, Joe D'Aleo, also contradicted Gardiner's testimony, saying in a deposition that Gardiner had told him details of the bomb threat before the plane landed. Only the third flight attendant, Anne Medrano, who was accused of pushing Axelrad out of the plane, supported Gardiner's version of events.
On July 19, 2000, Delta finally provided Hager with a blurry printout of the flight history, most of it in code. The quality of the printout was so bad that Harcourt said during a deposition that even he couldn't make sense of it.
Delta, meanwhile, continued to block Hager's attempts to learn basic information about the bomb threat. When Hager demanded in court that Delta reveal the names of employees who had handled the threatening call, Delta attorney Palmer wrote in a sworn response August 1, 2000, that the airline had "not yet learned the identity of the individual who received and transmitted the bomb threat and is not able to tell if that person even exists."
During a hearing before Judge Cocalis nine days later, Delta attorneys finally announced that the person who had alerted the aircraft about the threat was named Kenneth Kaschok. Kaschok, Hager later learned, was mentioned in the flight history that Delta possessed all along. Only he was identified on that document not by name but by his employee identification number, DD42.
"Delta clearly knew Kaschok notified the pilot but mounted a continued effort to conceal that information from us," Hager alleges.
Hager soon got another break in the case. On August 31, 2000, airport police in Greensboro faxed her their report on the bomb threat (which Delta also had but never produced for the plaintiff, despite several requests). The one-page printout contained only nominal information, but for Hager, it was a major coup: For the first time, she learned the official time of the bomb threat: 8:21 p.m. The report also shed new light on the caller: He had a "strong Middle Eastern accent" and demanded that a prisoner (whose name isn't known) be released. And most important, Hager learned that the caller warned that the plane would blow up in 26 minutes.
Now, Hager finally understood why the crew was so hurried. Capt. Harcourt didn't learn of the threat until 8:44 p.m. That meant 23 minutes had passed before the pilot was informed, leaving only three minutes to land the plane before the expected explosion -- a physical impossibility. As quick as the landing was, it still took about 15 minutes to reach Greensboro and empty the plane of passengers and crew.
A month after she received the police report, Hager obtained the declassified FBI file on the case. The file identified the Delta employee who took the call, a receptionist in the Miami reservations office named Christina Rooney -- whom Delta had claimed it didn't even know existed. Also included was a memo Rooney had written on Delta letterhead about the bomb threat. Again, Delta had sworn that it didn't have any such documents. Hager soon learned that Rooney should have been quite easy to find; she was still employed by the airline.
From that FBI file, Hager also learned that, contrary to Delta's assertions, there was a tape recording of the bomb threat:
"You have 26 minutes," the caller says. "The flight is Delta 1145. There is an explosive in the -- "
"What kind of explosive?" Rooney asks.
"The plastic kind, in the cabin."
Delta attorneys, meanwhile, were stonewalling Hager's efforts to depose Kaschok. First, they said they weren't able to determine if Kaschok was still employed by Delta. Hager discovered on her own that not only was he employed by the airline but that he worked in Atlanta. Amazingly, Delta attorney Palmer then wrongfully declared that Kaschok actually lived in Miami, which caused further delays. Finally, Judge Cocalis ordered that Delta make Kaschok available, and Hager finally deposed him on September 5, 2000.
Kaschok told Hager that he alerted the aircraft only after he overheard other Delta employees talking about the bomb threat. Though he was the flight controller, nobody directly notified him about it. But when Kaschok heard the details, he said that he knew it was a serious threat and that he "had to do something immediately." By the time he was able to transmit the information to Harcourt on an electronic message system, it was 8:36 p.m. -- 15 minutes after the threat was received. This would have given the pilot only 11 minutes to make an emergency landing and evacuate the plane. Harcourt didn't see the message until 8:44 p.m., reducing the response time to the impossible three minutes.
O'Hara wouldn't comment about the apparent concealment of Kaschok's and Rooney's identities or the delay. But he says there is a simple reason the company never turned over the tape recording of the bomb threat or the Rooney memo. "That stuff had been given to the FBI, and Delta didn't have it anymore. It was all with the FBI," he says. "But the information that was on the tape was known by the plaintiff. The information contained on that tape was in the newspaper in 1995."
The newspaper article, however, included nothing about a time bomb, a Middle Eastern accent, the delay in getting the threat to the pilot, or other essential information. (The FBI found no evidence that the threat was the work of a terrorist and has made no arrests in the case.)
This past March 27, Delta finally provided Axelrad's attorney with a legible passenger list, including addresses, phone numbers, and other information. "Apparently, the attached production had been misplaced and recently located," Delta co-counsel Palmer explained in a letter to Hager.
When the trial began in early October, Hager says, she felt Axelrad would win. What she didn't count on was that the jury would be barred from hearing most of her evidence.
When Sally Barker flew to Fort Lauderdale this October to testify in Axelrad's case against Delta, she'd never met Janie Axelrad. But in the courtroom, she recognized the plaintiff. And what she saw was a far cry from the woman she had seen on the night of December 29, 1995. "I remember she was small and had beautiful hair, long beautiful hair," Barker recalls. "I don't know what drew her to me that night -- I still don't know her at all. But I saw [in the courtroom] what a toll it's taken on her. It's bad. She's not the same girl. She was a very pretty girl, very pretty."
Axelrad, now 38 years old, barely resembles the vibrant woman displayed in photos taken prior to the flight. Rather, she has the overweight and rumpled appearance of what she says she has become: a virtual shut-in. And Axelrad, who lives in a small Boca Raton apartment, blames it all on the injury to her right knee. Indeed, her right leg is marred with bulges and scars from her 1996 surgery. It's also darker than her left leg and is slightly swollen, cool to the touch. These anomalies are the effects of Reflex Sympathetic Dystrophy Syndrome, a painful condition brought on by the trauma of the injury, she says.
When she recounts her past, it seems that she has two distinct lives: one before Flight 1145 and one after. In the previous life, she had a long-term relationship with LaPorte, a mechanical engineer. She had a good job working at a medical center and, even with her knee problems, could enjoy her passions: riding motorcycles and water-skiing.
The fall to the runway not only ruined the quality of her life but the stress and pain that resulted from it helped to end her relationship with LaPorte, both she and her ex-fiancé say. She complains that she can't even walk the length of a mall anymore without terrible pain. Her addiction to prescription drugs, she says, led to two DUI arrests during the past two years (both involving pain medications rather than alcohol), and she's currently in a custody battle over her son, who's now 13 years old.
Ironically, Delta attorney O'Hara used all of the problems Axelrad blames on Delta against her in court. O. Edgar Williams Jr., a retired judge who presided over the trial in place of Cocalis, allowed the Delta attorney to recount ugly details about her first DUI arrest, which occurred in Delray Beach on May 27, 2000. Axelrad scuffled with a police officer after the stop and bit his arm. She claims she was the victim of police brutality but ultimately pleaded guilty to careless driving and assault on a police officer.
O'Hara also intimated to the jury that Axelrad was a drug addict before Flight 1145 ever left the ground. In fact, Axelrad had been prescribed the pain reliever Darvocet for her arthritis but didn't fill the prescription for five months before the flight, Hager says.
"It was terrible, and the way they shot her down in the courtroom was a disgrace," says LaPorte, who testified on Axelrad's behalf. "How does any of that affect the incident that happened years ago? This is the way the system is, and it stinks. That girl lost her life from this."
But even as Axelrad's flaws were laid bare, Delta emerged almost unscathed. O'Hara announced to the jury that "everybody got off that aircraft in an appropriate manner," despite the fact that at least five passengers claimed to have been injured. Sally Barker was set to be Axelrad's star witness -- proof that she wasn't some lone nut case. O'Hara, however, was able to persuade Judge Williams to prohibit Barker from telling the jury about her injuries or her lawsuit. Williams agreed with the defense that Barker's story was irrelevant since she was allegedly pushed down the chute by a different flight attendant than was Axelrad. "I basically was able to say, "I'm Sally Barker, and I was on that flight,' and that's all," Barker says. "They would not let me tell the truth. I could not tell them that I was hurt."
Williams also kept the jury from hearing the tape recording of the bomb threat or any details about the 23-minute time lapse. And Hager was prevented from submitting to the jurors Harcourt's report contradicting chief flight attendant Gardiner's claim that he didn't know about the bomb threat.
Axelrad and her attorney complain that the Delta cover-up was essentially kept from the jury. "They didn't get to hear the tape, they didn't get to hear how many other people were hurt, they didn't get to see anything good about me," Axelrad says. "They didn't get to hear about any of it."
The jury took less than an hour, on November 8, to rule against Axelrad. But she still has a chance. Hager, during the trial, filed a motion requesting that the judge punish Delta for concealing facts during discovery in what the plaintiff alleges amounted to fraud. "Delta intentionally and contumaciously refused to provide ordered discovery, and improperly and unlawfully concealed critical information from the plaintiff," Hager alleged in the detailed, 71-page motion.
In his response, O'Hara claims Hager simply failed to try the case properly and is now mounting a "smoke-and-mirrors campaign" to keep it alive. "The allegations in that motion are not true," he says. "And those same arguments were universally rejected by the court. The plaintiff was given all of that information a year, two years, before this case was tried. The information they claim they were not given, they were given. They got the FBI information themselves; they got it before we did."
Williams, however, has yet to rule on the motion and could still levy as-yet-unspecified sanctions against Delta, including fines. The judge has also yet to rule on Hager's request for a new trial, which she filed November 19. In it, the lawyer argues that much of the testimony was prejudicial to her client and that Barker should have been allowed to testify at greater length.
Though the odds against Axelrad may be growing longer, she's confident she will get another day in court. "Why couldn't they have helped me in the first place?" Axelrad asks of Delta. "Why? I didn't do anything to them. I was just their passenger. The whole system was messed up from the very beginning to the very end. We are going to get a retrial. We have to."
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