Bally Total Fitness is the largest health club chain in the United States, with approximately 3.5 million members nationwide.
On November 7, 2005, 46-year old Gary Fowler collapsed from Sudden Cardiac Arrest while exercising at a Bally club in Gaithersburg, Montgomery County, Maryland. Club employees did not immediately begin CPR when responding to Mr. Fowler’s collapse; instead, club members, realizing that staff would not do so, performed CPR. The club did not have an AED on the premises. Despite the members’ efforts, and those of the local EMS, Mr. Fowler died.
A Montgomery County ordinance in effect at the time required the installation of AEDs in health clubs, but may have exempted the town of Gaithersburg by virtue of a Home Rule amendment. No Bally club in Montgomery County had an AED, even in the two towns where they were required by the ordinance.
In July, 2006, Weinberg & Garber filed suit on behalf of Mr. Fowler’s family in Cook County, Illinois, where Bally has its headquarters. This is at least the sixth case against Bally for its failure to deploy AEDs and/or to perform CPR. Four of these suits were settled before trial.
Bally filed a motion to dismiss the Fowler suit. Bally argued it had no legal duty to have an AED at its Gaithersburg club and that, in any event, the membership agreement, signed by Mr. Fowler in 2003, had a waiver and release which immunized Bally from liability. Weinberg & Garber opposed the motion with three primary points:
• The membership waiver and release signed by Mr. Fowler did not apply because it covered typical health club injuries, such as dropped weights or slippery floors, and did not contemplate a negligent response to a foreseeable emergency such as cardiac arrest;
• Regardless, the waiver and release didn't encompass gross negligence, i.e., where a defendant is “...so utterly indifferent to the rights of others that he acts as if such rights did not exist.”
In a written decision, the Cook County Circuit Court judge, Judge James Egan, denied Bally's Motion to Dismiss. Judge Egan agreed that the legal standard of care had evolved by the time of Mr. Fowler's death and cited favorably an opinion from the Middlesex Superior Court in Massachusetts where the court saw “...no reason why the standard of care, even for emergency services, should not be regarded as an ever-evolving concept, measured in some way by the acceptance of the need for and efficacy of new emergency treatment, procedures and equipment.” (See, page 10 of Judge Egan's opinion).
Furthermore, under a traditional duty analysis, the Court found that all factors considered weighed in favor of finding a duty on the part of Bally. Judge Egan wrote that “common sense dictates that heart-attacks are a reasonably foreseeable type of injury likely to occur in instances where strenuous physical activity and exercise is encouraged... and societal standards... were trending towards mandatory AED requirements at the time of decedent's death....” Moreover, the Court noted that “most interestingly, when it comes to the question of the ‘moral blame attached to Defendant's conduct,’ Bally never once addresses why it has been and continues to be so adamantly opposed to the use of AEDs in their healthclubs.”
Although the Court ultimately found that the waiver and release signed by Mr. Fowler barred a simple negligence claim (a point with which the Plaintiff disagrees), the Court found that the waiver and release did not bar a claim for gross negligence. The Court found that “Plaintiff has more than met her burden of demonstrating gross negligence on the part of Bally in refusing to maintain or deploy an AED at its Gaithersburg, Maryland facility....” Even where there was no statutory obligation to do so, Judge Egan stated that
Weinberg & Garber has developed an excellent working relationship with lawyers around the country who have sued major health club chains including Bally. As a result, before suit was even filed, the firm had an extensive archive of internal Bally documents and sworn testimony obtained in those other lawsuits.
Richard Eng v. 24 Hour Fitness
Weinberg & Garber were co-counsel in this California case against 24 Hour Fitness which, along with Bally's, is one of the biggest health club chains in the United States. The basic claim is that 24 Hour Fitness failed to have an automated external defibrillator (“AED”) on the premises so as to effectively respond to member suffering cardiac arrest, and failed altogether to perform any CPR, in which its employees were trained and which would have forestalled brain damage.
The suit alleged that, beginning in the late 1990s, the company resisted any suggestion or requirement that AEDs be placed in its clubs, despite its knowledge that 20 to 40 of its members were dying of cardiac arrest each year.
Mr. Eng was a member of a 24 Hour Fitness club in the San Francisco area. For lack of prompt response to his cardiac arrest in June, 2003, he is severely brain damaged and requires around-the-clock medical care. Weinberg & Garber worked with the San Francisco law firm Minami Tamaki in representing Mr. Eng and his family.
The suit further alleged that, if the ability to prevent these catastrophic outcomes weren't enough, 24 Hour Fitness had every reason to acquire AEDs long before Mr. Eng's arrest:
• It knew that all applicable published standards which it professed to embrace — those of the American Heart Association, American College of Sports Medicine, YMCA, etc. — had recommended AEDs in health clubs as early as 1986 and no later than March 2002;
• It claims to have recognized a duty to take “all reasonable steps” to protect member safety, to stay abreast of industry developments and timely respond to medical emergencies, duties it never even pretended to meet;
• It knew AEDs were required by law in similar environments like schools and airplanes and that by 2001 federal and California legislation had been enacted to promote AED use through Good Samaritan immunitities and similar laws;
• It says it budgeted the money for AEDs in all clubs in 2003, based on the clear industry trend toward AEDs, but did not begin to deploy and use AEDs in its clubs until the Fall of 2005.
Discovery in the case showed that 24 Hour Fitness successfully evaded responsibility for its indifference to preventable customer death through a general emphasis on low costs and liability avoidance:
• The Defendant requires broad releases and maintains elaborate policies for ensuring that all members sign one (this case is unusual for 24 Hour Fitness because it is undisputed that Mr. Eng never signed one).
• 24 Hour Fitness actually refused an offer, as part of an American Heart Association program, of free AEDs and training in 2001 at its northwest clubs. The admitted reason: it might have been a basis to argue that all of its clubs should be similarly equipped.
• 24 Hour Fitness requiring CPR training of employees, which it touts in its marketing, but does not “require” that employees so trained actually use CPR to help a stricken member. 24 Hour Fitness' founder and long-time President admitted that this policy was designed to avoid potential liability under the California Good Samaritan statute, which does not apply to assistance given as part of an employee's duties.
This case was resolved shortly before trial in April, 2006.
In the fall of 2005, 24 Hour Fitness installed AEDs throughout its company. At least one life has already been saved.
Insurance Coverage Cases: “Personal Injury Protection” May Provide Defense and Indemnity for Businesses in Tenant Disputes
The standard General Liability policy in Massachusetts, by which most businesses are insured, contains a little-known and rarely litigated part, the policy's “Personal Injury Protection” coverage. This is distinct from “bodily injury” and “property damage” coverage. The typical provision provides defense and indemnification for “personal injury” claims which are defined as:
Both recent and older precedent in Massachusetts indicates that claims for trespass, wrongful eviction, wrongful entry, and interference with quiet enjoyment are potentially covered claims under this “personal injury” provision. See, Dilbert v. Hanover, 63 Mass. App Ct. (2005); Titan Holdings Syndicate, Inc. v. City of Keene, New Hampshire, 898 F.2d 265 (1st Cir. 1990).
In 2004 and 2005, Weinberg & Garber had a series of four cases with different clients in which coverage was sought under the “personal injury” provision:
• A boundary dispute between two construction companies, where gravel was mined on the disputed parcel. The client was alleged to have trespassed and converted gravel.
• An apartment complex owner of a building which sustained a roof collapse, flooding many units and displacing tenants. The owner was sued by the tenants for wrongful eviction and replacement units.
• A commercial property landowner who was made party to a dispute between two tenants of a large commercial space over making modifications to a common entry way.
Weinberg & Garber sued on behalf of the Fruh family in a lawsuit against the health club in which father and husband Herb Fruh had been a member. The basis for the claim was the club’s failure to have an AED available. The case proceeded before Judge Patti Saris in the federal court in Boston.
On April 15, 1999, Herbert Fruh suffered a witnessed cardiac arrest in the locker room of the Wellbridge Fitness Center in Boston. Nine minutes elapsed from the time of the cardiac arrest to the administration of the first shock by an automatic external defibrillator (AED) brought to the scene by Fire Department personnel after the staff dialed 911. Though Mr. Fruh’s heart was finally restored to a normal rhythm, he suffered severe brain damage as a result of oxygen deprivation.
The club had made promises to its members, including Herb Fruh. In its Members Handbook, Wellbridge promised its members that its staff would be “trained to respond in a timely manner to any reasonably foreseeable medical emergency event that threatens the health and safety of club users.” Wellbridge professed to be an industry leader providing medically-based programs, catering largely to middle-aged members.
Also in its Members Handbook, the club had also promised its members that it would comply with published standards of health and safety. In addition to a wealth of published standards from the American Heart Association strongly recommending AEDs in health clubs and elsewhere, the evidence in the case also included a Recommendation of the YMCA of the USA Medical Advisory Committee from November, 1997, endorsing the American Heart Association’s position on the use of AEDs in health clubs and other locales.
There was also evidence of an industry practice of having AEDs, at least in a minority of health clubs. By the spring of 1999, a small but significant minority of clubs had already installed AEDs in their facilities, with a larger percentage planning to do so in the near future. This is discussed in a position paper on defibrillators in health clubs prepared in the fall of 1999 by the International Health and Racquet Sports Association (IHRSA), a large trade group for for-profit health clubs.
In March, 2002, the American Heart Association (AHA) issued a joint recommendation with the American College of Sports Medicine (ACSM), strongly recommending AEDs, especially for large health clubs.
After extensive discovery, Wellbridge’s attorneys sought summary judgment against the Fruhs, on the grounds that the club had no duty to have an AED. Paul and John filed a Memorandum of Law in Opposition to the Defendants’ Motion for Summary Judgment and Statement of Facts in Support of the Opposition. In a victory for the Fruhs, Judge Saris denied the motion without opinion.
Virginia and Herb Fruh were recently featured in a program that aired on Fox 25 News in Boston.
Weinberg & Garber contributed information to an article discussing health club/AED litigation. That article appeared in the June, 2004 issue of Trial magazine, a publication of the American Trial Lawyers Association.
The case was resolved shortly before trial in February 2004.
Storozuk v. Cumberland Farms, Inc.
The firm represented Roger and Marion Storozuk and sued Cumberland Farms, a large chain of convenience stores on the east coast. In July, 2001, Roger Storozuk was struck and crippled by a car as he walked out of the front door of a Cumberland Farms store in South Deerfield, Massachusetts. The store's surveillance camera watched as a pickup truck driven by another customer pulled into a parking space directly in front of the door and directly facing the narrow pedestrian walkway. There were no curbs, wheel blocks, or bollards (vertical barriers) between the parking space and the walkway. The driver lost control of her truck, which lurched forward. The truck struck Mr. Storozuk and drove him through the plate glass of the storefront window. His various severe injuries included amputation of his left leg above the knee. Paul was retained because he had successfully represented clients in two almost identical cases. In the first case, Paul and attorney Jim Rabbitt obtained a judgment of $8.6 million for a client in 1988. In the second case, Paul represented a man who was seriously injured when struck by a car while using a wall-mounted pay phone in the parking lot of a Cumberland Farms.
Investigation and discovery in the Storozuk lawsuit yielded several disturbing facts. First, Cumberland Farms had originally recognized the need for a barrier. There had once been barriers between the parking spots and the sidewalk, but these were inexplicably removed by Cumberland Farms as part of a remodeling years before Mr. Storozuk's accident.
Second, two years prior to Mr. Storozuk's crippling, another customer had driven his vehicle through the same storefront window from the same parking space. Third, Cumberland Farms had ample prior knowledge that the design of its premises was unsafe and posed a danger to the lives and limbs of its customers. Documents produced in the lawsuit by Cumberland Farms reveal at least 165 incidents in the previous five years where vehicles had driven into Cumberland Farms stores, (in some stores more than once). About 90 of these were vehicles losing control and driving into the front of the store, unimpeded due to the lack of any barriers, poles or meaningful curbs. On several occasions over the years, the result was the same: severe injuries or death to the customer. Weinberg & Garber engaged nationally-recognized experts on safety, design, medical and life-care issues as part of its preparation for trial. Attorneys Weinberg and Garber also took up for interlocutory appeal a ruling on the issues of whether M.G.L. c. 93A applies to the case. On January 6, 2004, after one day of trial, the parties settled the case.
After the case settled, the Storozuks, along with Paul, did not give up in their attempts to have bollards installed at the store. Paul met with Cumberland Farms' risk manager, as well as the Town of Deerfield's building inspector. During the course of these discussions, a third accident happened at the site, at which point the Building Inspector ordered that bollards be installed. The store complied with the order.
The firm's experience in the Storozuk case led to representation of a young woman who lost her right leg as the result of being crushed against a storefront wall by a parked car in a small parking lot in Beverly, Massachusetts. The parked car had been struck from behind by a pickup truck which careened into the parking lot after being involved in a collision in thes treet. Extensive research and briefing, including the engagement of recognized parking lot safety engineers, resulted in the denial of the Defendant store owner's motion for summary judgment on the issue of the duty to have protective barriers in place. The case was subsequently resolved for a significant settlement.
Margo Heller-Levy v. Egilius Spierings, M.D.
More than 23 million people in the U.S. suffer from migraines. Of those 23 million, approximately 75% are women. 80% of migraine sufferers also have nausea associated with an attack. Compazine is one medication that may be prescribed to alleviate the nausea.
Margo Levy is one such migraine sufferer. As such, she approached Dr. Spierings for treatment options. Over the course of eight years, Dr. Spierings prescribed Compazine. He failed, however, to inform Mrs. Levy that long-term use could lead to some serious side effects, namely tardive dyskinesia, which is marked by involuntary, irreversible movements of the face, lips, eyes, and extremities. Due to Compazine use for eight years, without the benefit of a "drug holiday," or similar break from use, or sufficient warning against prolonged use, Mrs. Levy has developed tardive dyskinesia.
Through collaboration with Daniel McGlynn, of McGlynn, Glisson & Koch in Baton Rouge, Louisiana, Paul and John were able to obtain a $400,000 recovery for Mrs. Levy prior to filing suit.
Frontier Airlines is a low-cost national carrier based in Denver, Colorado. Brett Stone suffered a cardiac arrest, in mid-sentence, while talking with his wife on a Frontier flight from Boston to San Francisco on July 27, 2000. Frontier followed its standard procedure, encouraging medical professionals to come forward and diverting the course of the plane to the nearest airport, Denver. Both a doctor and an EMT came forward. Both requested an AED because they had heard that airlines were carrying such equipment. Brett Stone died for lack of effective treatment. He was a 28 year old investment banker and a former NCAA champion swimmer.
His widow, Christy Stone, engaged attorney Weinberg, then at Robinson Donovan, to file a wrongful death action in U.S. District Court in Boston seeking compensatory and punitive damages against Frontier for failing to have an automatic external defibrillator (AED) on board to resuscitate Brett Stone.
Preparation for trial encompassed extensive motion practice on a variety of issues. The parties engaged economics, industry, and medical experts from across the country and around the world. After a year of pretrial proceedings, in Winter 2002/03, Frontier brought trial counsel from Honolulu into the case. As in the Somes case, Frontier raised the preemption defense, which was extensively briefed and rejected by Chief Judge William Young in a lengthy opinion featured on the cover of Massachusetts Lawyers Weekly in May, 2003. Frontier also filed a motion for summary judgment to knock Stone's punitive damages claim out of the case. Stone prevailed on this issue. A copy of Stone's brief opposing the motion for summary judgment can be found by clicking here.
Shortly before trial was scheduled to begin, the Stone case was settled at a last-minute meeting in May, 2003, attended by Frontier's president and the insurer's vice president.
In the Spring of 2001, the FAA belatedly issued a regulation requiring most domestic passenger planes to carry AEDs and train crew members in their use by 2004.
The partnership of Paul Weinberg and John Garber began as colleagues at the Springfield Massachusetts firm of Robinson, Donovan, Madden & Barry, P.C. As members of the 14-attorney litigation department of that firm, Paul and John worked together on several complex litigation cases, including:
Veterans Administration Hospital nurse Kristen Gilbert was accused of killing dozens of patients through injection of epinephrine, a heart stimulant. She was formally charged with four first degree murders and three assaults in 1999. Because the alleged crimes took place on federal property, the Gilbert case represented the first death penalty case in Massachusetts in over 50 years. Paul was asked by the two original lead trial counsel, David Hoose and Harry Miles, to join them in the preparation and trial of the case.
John assisted with trial preparation in the form of research and preparing briefs and motions, including collaboration with Attorney Hoose in responding to the government's pre-trial interlocutory appeal to the Court of Appeals for the First Circuit on evidentiary issues, in which a decision favorable to Gilbert was obtained.
Paul and John also addressed the many complicated Daubert issues presented by the hotly disputed medical and forensic expert testimony in the case, including the opinion of a nationally prominent forensic medical examiner, Dr. Frederic Rieders, that traces of epinephrine by-products were found in the exhumed bodies of the victims. Although a pretrial challenge to the opinion was initially unsuccessful, continued intensive investigation of the basis for Dr. Rieders' opinion ultimately led the government to take the extraordinary step of withdrawing the testimony during the course of the trial.
Somes v. United Airlines, Inc.
In 1995, 39 year old Steven Somes died of a cardiac arrest on a United Airlines flight from Boston to San Francisco. The claim against United was based on the failure to have an automatic external defibrillator ("AED") on board Mr. Somes' plane, which would have saved his life. Several obstacles stood in the way of successful resolution: AEDs had not been required by the federal government in 1995; no major U.S. airline carried them in 1995; and the extensive regulation of airlines by the federal government gave basis to a defense that federal law preempted state law, such that no claim was available.
Paul, John, and colleagues at the firm made extensive investigation into the medical aspects of cardiac arrest, the technological history of AEDs, the U.S. passenger airline industry, and use of AEDs by foreign airlines beginning in the early 1990s. On behalf of Steven Somes's widow Jamie, a wrongful death action was filed against United in January 1998.
The memorandum of law against preemption was prepared by John and Paul. Federal District Court Judge Morris Lasker largely adopted its reasoning in his lengthy written opinion. Pre-trial discovery included extensive motion practice and depositions in England and France. In the course of obtaining complete records of the airline industry's internal deliberations on the subject of AEDs, Paul and John obtained substantial sanctions against the principal lobby group of the U.S. domestic airline industry, the Washington D.C.-based Airline Transport Association. Somes' lawyers were prepared to prove that United - like most other major U.S. airlines - was well aware in 1995 of the inexpensive, reliable, and proven life-saving capacity of AEDs, but refused to install them on grounds of cost. United settled the case before trial, the terms of which remain confidential.
According to a recent New York Times assessment, the Somes case was instrumental in prompting the U.S. airline industry to carry AEDs on passenger planes. The case has also been recognized as a milestone in the cause of Public Access Defibrillation ("PAD"), countering the wide-spread but misguided perception that supposed liabilities associated with AEDs outweigh the benefits of installing them. Paul and John also handled other wrongful death claims against airlines for failure to have an AED, including suits filed in Chicago against Continental Airlines, which was settled in the summer of 2002, against Northwest Airlines in Minneapolis (settled in 2003) and against Frontier Airlines, which settled shortly before trial in 2003.
