News Brief

Lubin Prevails in Two Wrongful Death Claims against a Fitness Club Operator

December 6, 2011

Rory L. Lubin (Partner-White Plains) prevailed in two wrongful death claims against the same fitness club operator. The team obtained dismissal on summary judgment for a claim that arose from the defendant’s health club in Astoria, NY, and voluntary discontinuance for a claim that arose from one of its Manhattan health clubs. Both cases involved a club patron suddenly collapsing to the ground due to a cardiac arrest and subsequently dying. The theory of liability in each case was that the defendant violated GBL 627-a, which outlines automatic external defibrillator (AED) requirements for health clubs, and that because an AED was not used in the emergency rescue efforts by club personnel, the patrons’ chance of survival was diminished. Both plaintiffs contended that had the AED device been used, the decedents’ lives would have been spared.

Astoria Case:
The plaintiff was the husband of the decedent – a 29 year old woman who suddenly collapsed after using a treadmill for about 20 minutes. 9-1-1 was called immediately and a club trainer certified in CPR and AED-use rushed to aid the victim and asked for the club's AED device to be brought over. The trainer did not immediately start CPR because he believed that the victim was suffering from a seizure. The trainer did, however, monitor her pulse and observed that she was still breathing. Within moments of the seizure activity ending, he administered CPR. Another club patron, an emergency room trained physician’s assistant (PA), rushed over and took command of the rescue response until the 911 responders arrived within 5 minutes. Neither the trainer nor the PA used the AED device on the victim as they both contended that she was showing signs of life and did not need to be connected per advanced cardiac life support (ALCS) protocols. The EMS personnel used their equipment to shock the stricken patron three times to try to re-start her heart.

Wilson Elser moved for summary judgment, arguing that the club's common law duty was satisfied by immediately calling 9-1-1 and that the statute, GBL 627-a, did not impose an obligation to use the AED, only to have one available and personnel trained to use it. Furthermore, the defense argued that the club’s trainer was acting as a Good Samaritan under PHL 3000-b and thus only could be held liable for gross negligence, which the defense argued could not be supported under the facts.

Finally, Mr. Lubin introduced a medical expert's affidavit attesting that the use of an AED would not have changed the outcome and that nothing the defendant did or did not do proximately caused the victim's sudden cardiac arrest or resulting death. The plaintiff put in a voracious opposition arguing that it was an issue of fact whether the “delay” or decision not to use the AED was gross negligence; that the defendant voluntarily assumed the duty of saving the stricken patron; and that the legislative history of GBL 627-a was inconsistent with the defense's interpretation. The trial court adopted Wilson Elser’s arguments and dismissed the case in its entirety.

Prior to filing suit, the plaintiff told his story to the NY Post in an attempt to sway public opinion against the health club. Discovery later revealed that much of what was reported in the article was false.

Manhattan Case:
In this case, a 49 year old taxi driver and sole financial supporter of a wife and two children, suddenly collapsed after using free weights. In this incident, the club responded by calling 9-1-1 and a trainer performed CPR on the stricken patron until EMS personnel took over the rescue efforts within minutes. The AED device was not used during the rescue efforts before EMS personnel arrived and transported the individual to the hospital. The club possessed an AED device as required by GBL 627-a, as well as personnel trained in CPR and AED usage. The patron was pronounced dead several hours later at the hospital emergency room.

Before depositions were taken, Mr. Lubin and Mr. Derrico convinced the plaintiff's counsel that his case lacked merit, and after aggressive discovery motion practice seeking preclusions and striking of pleadings eventually persuaded him to discontinue the case with prejudice.

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