September 15, 2000

Dealers take case against tobacco to Supreme Court:

By Cy Ryan 
<cy@lasvegassun.com>
SUN CAPITAL BUREAU

CARSON CITY -- Constant exposure to secondhand smoke entitles casino dealers to regular check-ups paid for by the tobacco industry, an attorney for dealers told the Nevada Supreme Court on Thursday. 

  Daniel Polsenberg, attorney for the dealers, argued the tobacco companies should foot the bill because they are "deceptively hiding the risk." 

  But Dennis Kennedy, attorney for the tobacco companies, said such a policy would affect every company and casino in Nevada where smoking is permitted. Asked by Chief Justice Bob Rose what the cost might be in this case, Kennedy said it was "unpredictable." 

  Kennedy suggested the check-up proposal goes beyond Nevada law, which permits a person to collect if he has been damaged or injured. In this case, the individual would only have to be subject to "increased risk," Kennedy said. 

  This issue was referred to the Nevada Supreme Court by U.S. District Judge Philip Pro, who is handling four cases involving secondhand smoke -- three of them filed by casino dealers led by Tony Badillo, president of the Nevada Federation of Gaming Employees. 

  Pro wants the Supreme Court to answer whether common law in Nevada allows these "medical monitoring" programs. If the court decides they are permitted, the case returns to Pro to determine whether to certify the suits as class actions and determine if the programs should be permitted and under what conditions. 

  Kennedy told the court the issue should be sent to the Nevada Legislature, where it can be debated. 

  Permitting a medical monitoring program, Kennedy said, would make the owner of every building where smoking is permitted liable for employee health problems. 

  Polsenberg responded that the Supreme Court has already ruled that companies are not liable for the results of secondhand smoke. He said these programs would be set up only in the most serious cases. 

  "The judges would not do it for slight exposure ... they would only do it in extreme cases. We're not asking to open the floodgates to more suits," he said. 

  Polsenberg likened his case to an accident involving nuclear waste. Residents who were exposed should be allowed to be tested to determine the ill effects, he said. 

  "I'm not asking for compensation" for the casino workers, Polsenberg said. "I want a program set up by the University of Nevada Medical School to take care of these employees, not to compensate them." 

  Lawyers for the casino workers said the suit could involve thousands of dealers in Southern Nevada if it is declared a class action.
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