MGM Grand ordered to pay gambler

Tuesday, March 4, 2003 | 11:15 a.m.

CARSON CITY -- An appeals court Monday ordered the MGM Grand hotel-casino to pay a $3.3 million judgment to an unruly customer who suffered a heart attack after being detained by hotel security officers.

A three-judge panel of the 9th U.S. Circuit Court of Appeals overturned a decision of U.S. District Judge Howard McKibben, who had granted a new trial to the MGM.

The plaintiff in the case is Fernando Duk, a Mexican citizen and San Diego business owner. Duk was drinking and gambling heavily at the casino in October 1994, according to court records.

After he and his wife had a free meal provided by the hotel, Duk became disruptive, banging on wooden dividers between booths and blowing kisses at female customers, according to records.

When Duk refused to leave, a citizen's arrest was made and police were summoned. While in the detention room at the hotel, Duk's wife informed security that her husband was an insulin-dependent diabetic.

Duk complained of lung pains and an ambulance was called. Duk was examined but the attendants did not find any medical problem except that Duk was intoxicated. The paramedics did not evaluate his heart rate or blood pressure.

Duk was taken to the Clark County jail, booked and released the next day. He then went to the hospital, where it was discovered he had suffered a heart attack. He ultimately required a heart transplant in April 1995.

Duk sued MGM claiming damages and said he was unable to work following the transplant.

In Nevada, if the plaintiff in a suit is found to be more than 50 percent negligent, then the verdict must be in favor of the defendant. Despite being told that, the federal court jury found that Duk was 65 percent negligent and still awarded him $3.3 million. The judge found the verdict was inconsistent with the law and directed the jurors to continue their deliberations.

The jury returned with a second verdict finding the MGM 51 percent negligent and reaffirmed the $3.3 million award.

The judge ordered a new trial because of the discrepancy. At the second trial the jury returned a verdict for MGM.

The appeals court, in a decision written by Judge Michael Hawkins, reinstated the second verdict of the first jury.

"Allowing the jury to correct its own mistakes conserves judicial resources and the time and convenience of citizen jurors, as well as those of the parties," Hawkins said.

The appeals court said the jury did what it was instructed -- to further consider the question and come back with a new verdict. It said McKibben's decision to disregard the second verdict and order a new trial was an abuse of discretion.

Duk reached out-of-court settlements with American Medical Response, the ambulance company, and Metro Police, which paid him $50,000 and $10,000, respectively.

MGM Grand can appeal the decision to the rest of the appellate court. Attempts to reach the MGM Grand's attorney were unsuccessful.