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November 24, 2014

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Suit in Orleans worker deaths allowed to proceed

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A judge Friday issued an order that could allow family members of workers who died two years ago at the Orleans to continue with a lawsuit against the hotel-casino's owner, Boyd Gaming.

The lawsuit was brought by Debi Fergen, the mother of Travis Koehler, and Seth Andrew Luzier and Gabriel Thomas Luzier, the sons of Richard Luzier. Both Koehler and Luzier died February 2, 2007 when they entered a toxic manhole at the Orleans Hotel. A third worker, David Snow, was seriously injured in the accident.

Fergen and the Luziers had separately claimed that Boyd was responsible for wrongful death because, they allege, Boyd supervisors ordered the employees to enter the manhole even after knowing it could be fatal.

Workplace accident lawsuits against Nevada employers are extremely difficult for workers and workers' families to win. That's because state courts have held that workers' compensation laws bar employees from holding employers responsible for workplace injuries and fatalities unless they can prove that the employer intentionally caused the act.

In its motion to dismiss the suits and subsequent hearing last Monday, Boyd attorneys said the Luziers and Fergen did not show they could meet that standard, set by the 2000 Supreme Court case Conway vs. Circus Circus.

But in his decision, District Judge Mark Denton said that although he was granting the motion to dismiss the complaint, he was allowing the plaintiffs' lawyers to amend their original complaint to include the language from the Conway lawsuit: "deliberate and specific intent to injure."

If the lawyers file that amendment, the court can go forward with determining whether there are "genuine factual issues," Denton said.

The judge pointed out that it appeared there could be enough differences between the Conway case and the Boyd case to allow an opening for Fergen and Luzier to proceed.

Attorneys involved said they believed the Boyd case could help test the limits of the Conway decision, which has often been assumed to bar nearly every attempt to bring a lawsuit involving injury in the workplace.

Most workplace injury complaints are quickly dismissed, said George Bochanis, Fergen's attorney. The fact that this appears headed to the next phase is significant, he said.

"This shows that you can file an intentional tort case in workers' compensation and survive a motion to dismiss," Bochanis said. Boyd spokesman Rob Stillwell said the company did not want to comment on an ongoing dispute.

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