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Bally Denies Negligence in AED Lawsuit

CHICAGO -- In a court filing last week, Bally Total Fitness 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 on Nov. 7, 2005. Fowler, 46, collapsed from sudden cardiac arrest while exercising at a Gaithersburg, MD, Bally club, which did not have an automated external defibrillator (AED).

Bally’s responses were filed last Tuesday in the Circuit Court of Cook County (IL), where the lawsuit was filed in July 2006. 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 had signed in 2003 had a waiver and release which immunized Bally from liability. Cook County Circuit Court Judge James Egan 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 has been announced.

“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.

“By the time [Fowler] died, [Bally] had already been sued three times,” Weinberg says.

On the day Fowler died, several patrons performed CPR on Fowler after he collapsed, and Bally employees called 911, according to the lawsuit. Emergency medical service personnel arrived approximately six to eight minutes later and began applying electric shocks with a defibrillator to Fowler, but they were unsuccessful.

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. On more than one occasion, however, Bally claims that most cardiovascular fatalities are not the result of sudden cardiac arrest, and an AED would not be appropriate treatment for all cardiovascular attacks.

“It’s surprising some of the things they claim to be without knowledge of, but we’ll have to flesh it out in discovery,” Weinberg says.

According to the International Health, Racquet and 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. Also, legislation requiring clubs to have AEDs is pending in Indiana and Missouri.

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