Casino dealers lose ruling on tobacco smoke

Wednesday, Jan. 31, 2001 | 11:07 a.m.

CARSON CITY -- The Nevada Supreme Court on Tuesday rejected casino dealers' demands for a medical monitoring program to be paid by tobacco companies to detect the onset of tobacco-related illnesses as a result of their exposure to secondhand tobacco smoke at work.

The casino dealers, including nonsmokers and former smokers, filed four class action lawsuits in U.S. District Court against tobacco companies asserting various claims including liability, negligence, fraud and misrepresentation.

The plaintiffs contend that medical monitoring would mitigate the costs of serious future illnesses resulting from exposure to tobacco smoke, prevent the "inequitable allocation of medical intervention costs and deter future public exposure to hazardous substances."

But the tobacco companies argued against granting medical monitoring claims, saying that would unleash a flood of litigation because people in modern society live in a "sea of toxins."'

"Granting medical monitoring claims to large numbers of asymptomatic plaintiffs, who may never become ill, will divert and possibly even deny limited resources to plaintiffs with meritorious claims of serious illness," the defendants argued. "Being awarded a medical monitoring claim will preclude plaintiffs from filing a claim for damages if they later develop physical injuries."

While the Supreme Court acknowledged scientific reports that link tobacco use with the higher incidence of lung cancer and heart disease, it said it was "unpersuaded on the facts of the case to recognize a (legal) cause of action for medical monitoring for exposure to hazardous substances" in part because the defendants' contribution to the problem isn't "clear-cut."

"(Legal) causality and proof are complicated by potential mitigating factors such as individual medical history and other co-existing health behaviors," the ruling said.

Also, the Supreme Court noted: "Altering common law rights, creating new causes of action, and providing new remedies for wrongs is generally a legislative, not a judicial function. This court possesses the power to create a common law cause of action. However, we construe such power narrowly and exercise it cautiously."

The court, which received the case from U.S. District Court, said it ruled on questions regarding Nevada law. It said the federal court determined that class certification of the dealers for medical monitoring hinged on whether medical monitoring is provided for in Nevada law.

The case will now likely be returned to federal court, where its prospects appear dim because of the state court ruling.