Las Vegas Sun

March 27, 2017

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Casino dealer’s suit over smoking dangers at Wynn moves forward

A lawsuit claiming Wynn Las Vegas doesn’t do enough to protect employees from second-hand tobacco smoke has survived an early court test, with federal Judge Lloyd George in Las Vegas denying Wynn’s motion that the case be dismissed.

Attorneys for Kanie Kastroll filed suit in October 2009, seeking class-action status and charging that --- unlike some competitors -- Wynn Las Vegas and its parent Wynn Resorts Ltd. haven’t been proactive in dealing with smoke dangers.

For instance, the suit charged Wynn has not designated certain sections of the casino as smoke-free, doesn't allow dealers to have fans on their tables, hasn't monitored the health of employees subjected to smoke and hasn't helped employees harmed by smoke.

Attorneys for Wynn sought dismissal of the case, saying Wynn is in compliance with the Nevada Clean Indoor Air Act, which specifically allows smoking in casinos.

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 last year said, 99.56 percent of its 12,264 employees at that time were Nevada residents. Kastroll's suit seeks to represent all former, current and future non-smoking Wynn employees.

In his Sept. 23 ruling, George indicated the issues of whether the case can be certified as a class action and proceed in Nevada federal court can be dealt with later.

The judge noted Wynn’s position that it “cannot be made liable [to its employees] for allowing its patrons to smoke freely in a place where the law specifically says that they can.”

"This position, however, ignores the potentially intricate interrelationship between this statute and common law duties," George wrote in his ruling.

George noted that under controlling case law, in order to dismiss a complaint, “it must appear to a certainty that plaintiff would not be entitled to relief under any set of facts that could be proved.”

Also, when considering a motion to dismiss, the court must accept the allegations of the complaint as true and construe them in the light most favorable to the plaintiff.

"Construing the allegations in the light most favorable to the plaintiff, Wynn has failed to establish 'to a certainty’ that Kastroll 'would not be entitled to relief under any set of facts that could be proved,’” the judge wrote.

Kastroll’s attorney, Jay Edelson of the Chicago law firm Edelson McGuire LLC, said in a statement today on the ruling: "Worker safety is critical and well-recognized under the law. This is a tremendous decision for not only Wynn's employees, but also for workers at other casinos who for years have been unreasonably subjected to secondhand smoke."

"Although this was not a final decision that says 'you win' to the plaintiffs, it has incredible importance. Wynn can't escape responsibility now by merely filing a motion to dismiss and wiping its hands clean. Wynn will now have to answer and justify its policy that requires its workers to allow patrons to blow cigarette smoke in their faces without protest and to man smoking tables for prolonged periods of time," Edelson said in his statement. "We look forward to discovery and putting on our case."

Wynn’s attorneys seem prepared to mount a vigorous defense.

After George’s ruling, attorneys for Wynn with the Las Vegas law firm Pisanelli Bice PLLC filed their first answer to the lawsuit, reiterating in the Oct. 8 filing that "plaintiff's allegations concern conduct specifically permitted under Nevada law" and "plaintiff has failed to allege a duty under Nevada law."

The Wynn attorneys also said in the filing:

--"Dealers in the gaming area are not authorized to designate tables as 'smoke free.’ Dealers are required to forward any patron request for a non-smoking table to a casino service team lead who may, under certain conditions, designate a table as non-smoking."

-- "Wynn admits that its employees are instructed not to direct guests regarding their smoking or ashtrays or to fan their hands at a guest's tobacco smoke. However, should a guest purposefully direct smoke toward a dealer, the dealer may communicate such action to a casino service team lead who is then authorized to ask the guest to redirect their smoke."

-- "Wynn admits that it requests that dealers not protest smoking by guests if they are in a smoking area of the casino. Additionally, Wynn may counsel dealers who express that the habits or actions of a guest are in any way negative to them. However, should a dealer witness or experience behavior by a guest that is counter to the policies and ethics of Wynn, such behavior should be immediately brought to the attention of a casino service team lead or casino manager who will then take appropriate action toward the guest."

-- "Wynn admits that it will bring cigars or cigarettes to a guest depending on their level of play but only at that guest's request. Wynn also admits that it provides ashtrays within the gaming area and matchbooks with Wynn's logo emblazoned on the cover."

The Wynn attorneys have previously complained the lawsuit appears to be part of a casino dealer organizing drive at Wynn and, if successful, could result in the "staggering remedy of an injunction requiring Wynn to redesign its operations and reconstruct its facilities."

The defense attorneys also noted uncertainties about the definition of "unsafe'' levels of second-hand smoke.

"Plaintiff's proposed class is described as those employees 'exposed to unsafe levels of second-hand smoke,'" the Wynn attorneys wrote in a February filing. "The question of whether Wynn's employees have been, are, or will be exposed to unsafe levels of second-hand smoke is a legal determination that cannot be made without first determining an ultimate issue in this case (i.e., whether Wynn exposes its employees to levels of second-hand smoke which are unsafe)."

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