Bally Denies Negligence in AED Lawsuit

Chicago — In a court filing last month, Bally Total Fitness, Chicago, denied allegations that it was negligent in the death of a Maryland man who collapsed and died in a Bally club.

Bally responded to written questions regarding the fourth count of a complaint in a lawsuit filed by plaintiff Lois M. Fowler, the mother of Gary Fowler, who died in 2005. Fowler died of sudden cardiac arrest while exercising at a Gaithersburg, MD, Bally club despite the effort of members to perform CPR on him and the call by staff to 911. The club did not have an automated external defibrillator (AED).

Bally had filed a motion to dismiss the case, arguing that it had no legal duty to have an AED at its Gaithersburg club and that the membership agreement that Fowler signed in 2003 had a waiver and release that immunized Bally from liability. The judge denied the motion, upholding only the fourth of six counts — gross negligence — in the suit. The case is in the discovery process. No trial date had been announced as of press time.

“The judge made it pretty clear that if we prove what we allege, we'd have a case of gross negligence that would go to the jury,” says Paul Weinberg, the attorney representing Lois Fowler. “Because of the age of Mr. Fowler's parents, the judge has told us that he will look kindly upon a shortened discovery period.”

Weinberg says this is the sixth case that he's aware of against Bally for failure to have an AED. All but one of the cases was settled before trial, he adds.

In January 2005, the Montgomery County (MD) legislature passed an ordinance requiring the placement of AEDs in all health clubs in that county by July 1, 2005. Gaithersburg, which is located in Montgomery County, had an exception to the rule by virtue of a home rule amendment. None of the Bally clubs in Montgomery County had AEDs at the time of Fowler's death, but several non-Bally clubs in Gaithersburg had AEDs despite the home rule amendment, according to the lawsuit.

In several responses, Bally stated it did not have sufficient knowledge to either admit or deny the plaintiff's allegations. In more than one response, however, Bally stated that most cardiovascular fatalities are not the result of sudden cardiac arrest, and an AED would not be appropriate treatment for all cardiovascular attacks.

According to the International Health, Racquet & Sportsclub Association's Web site, 10 states have passed legislation mandating the placement of AEDs in health clubs: Massachusetts, New Jersey, Michigan, California, Oregon, Rhode Island, Louisiana, New York, Arkansas and Illinois. Legislation requiring clubs to have AEDs is pending in Indiana and Missouri.

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