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April 20, 2014

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Wynn seeks dismissal of second-hand smoke suit

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Attorneys for Wynn Las Vegas are seeking dismissal of a lawsuit claiming its casino workers are exposed to dangerous second-hand tobacco smoke.

In court papers filed Friday, Wynn's attorneys argued:

--The suit appears to be part of a union campaign involving Wynn casino dealers.

--Wynn is in compliance with the Nevada Clean Indoor Air Act, which specifically allows smoking in casinos.

The lawsuit was filed Oct. 20 in federal court in Las Vegas by dealer and Transport Workers Union officer Kanie Kastroll.

The suit, filed by Chicago class-action lawsuit firm KamberEdelson LLC, seeks an order requiring Wynn "to take reasonable measures to protect its employees from second-hand smoke" and unspecified costs and attorney's fees.

Kastroll claims in the lawsuit that exposure to smoke is causing eye irritation, coughing, sore throat, sneezing, shortness of breath, dizziness, wheezing, tightness in the chest, asthma, headache, nausea and ingestion of cancer-causing chemicals and toxins.

But after her lawsuit was filed, the Transport Workers Union Gaming Division issued a press release distancing itself from the lawsuit and praising Wynn Las Vegas for its efforts to reduce second-hand smoke.

The TWU Local 721 in 2007 won the right to represent some 1,100 dealers at Wynn and Caesars Palace, but has not yet signed contracts with either casino.

A similar smoking lawsuit was filed by KamberEdelson against Caesars Palace this year, but it was dismissed this month after KamberEdelson said unspecified "outside forces" interfered with its ability to represent the plaintiff, former dealer Tomo Stephens.

In the Wynn case, attorneys for the Las Vegas Strip resort with the law firm Brownstein Hyatt Farber Schreck LLP argued Friday: "The real basis for this action appears by all measures to be the pursuit of a political agenda."

"Although not specifically disclosed in her pleading, plaintiff is the president of a local union who has fought for years to unionize a certain group of Wynn's casino workers. In what appears to be either a retaliatory lashing out at the Wynn or an otherwise shameless grab for publicity, plaintiff has filed this action with no real causes of action under Nevada law, and no jurisdiction whatsoever for this court," Wynn said in its filing.

"Plaintiff's complaint reads more like a union rally speech than a legal pleading. Whether her baseless and inflammatory allegations are really designed to simply garner support and appreciation from the people plaintiff hopes to represent in her union is an obvious and fair question," Wynn's filing said.

The Wynn attorneys also asserted that with "the Nevada Legislature's specific endorsement of Wynn's conduct, Wynn has no duty to shield its employees from second-hand smoke and plaintiff's claims must therefore fail."

Wynn's filing noted that the 2006 ballot measure creating the Nevada Clean Indoor Act, as codified by the Legislature, specifically exempts from regulation areas within casinos where loitering by minors is already prohibited.

"In essence, plaintiff asks this court to override the Nevada Legislature's judgment on these very issues and judicially legislate how the gaming industry conducts its business," Wynn's response said.

Wynn's attorneys also noted there's debate in the scientific community about at what level second-hand smoke becomes dangerous and that it would be impossible to determine whether injuries associated with such smoke were sustained in a casino -- or elsewhere.

"Due its ubiquitous nature, the court can never be certain about the source of any individual claimant's exposure to second-hand smoke. Indeed, Wynn cannot control its employees' exposure to tobacco smoke outside of the workplace. It may be true that many of its employees are exposed to second-hand smoke on a regular basis while at home or other places they frequent," Wynn's filing said.

The Wynn attorneys pointed out the Nevada federal court has dealt with proposed casino dealer second-hand smoke class-action lawsuits before.

In 2001, a proposed class-action involving four lawsuits filed in 1997 and 1998 was rejected when a judge found the dealers' lawsuits were "replete with individual issues" rather than issues common to all the dealers. For instance, smoke levels vary by casino and employees in different areas of the same casino are likely subject to different levels of second-hand smoke.

The Wynn attorneys also said certifying the Kastroll lawsuit as a federal class-action would be impossible under the so-called home state controversy rule, which prohibits federal courts from considering class actions that involve disputes limited to a single state.

In this case, Wynn's filing said, 99.56 percent of its 12,264 employees are Nevada residents. Kastroll's suit seeks to represent all former, current and future non-smoking Wynn employees.

In other cases, plaintiffs have dealt with this home state controversy rule by transferring proposed class-actions to state courts.

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