Secondhand Smoke Claims Fall Flat

Last year, a federal class action lawsuit was filed against Caesars Entertainment Corporation alleging that the casino corporation failed to safeguard its employees from secondhand smoke. The named plaintiff in the case, Denise Bevrotte, alleged that her son died of cancer from inhaling secondhand smoke at work. Bevrotte’s son was employed as a dealer at Caesars’ Harrah’s New Orleans Hotel and Casino for over 15 years. Bevrotte brought the suit on behalf of all non-smoking employees of Harrah’s New Orleans Casino. The case filed in the U.S. District Court for the Eastern District of Louisiana is captioned Bevrotte v. Caesars Entertainment Corp. d/b/a Harrah’s New Orleans Hotel and Casino, No. 2:11-cv-00543-SSV (E.D.La. 2011). The class claims were dismissed in October for failure to allege a common issue. Last week, Bevrotte’s remaining wrongful death claim was dismissed for failure to allege facts sufficient to demonstrate that she was her son’s statutory beneficiary. While these dismissals were a clear win for Caesars, they offer little fodder for legal bloggers on the validity of secondhand smoke claims. Undeterred, we now offer our thoughts.

As frequent casino visitors, we here at Abnormal Use empathize with the concern over secondhand smoke. When we discard our money, we could do without that pleasant aroma of Virginia Slims. On the other hand, we understand why casinos allow smoking. Casinos are big business. If people want to smoke while pouring their money into slot machines, casinos are glad to accommodate. For those who don’t enjoy smoke, casinos offer many other vices.

Even though we ourselves disdain smoke, we would never sue a casino because of it. First, we have never knowingly been injured as a result of casino smoke. Sure, any secondhand smoke has undoubtedly blackened our lungs beyond repair, but so too has the smoke from every other bar and restaurant into which we have ventured over the course of our wearisome lives. How do we single out the casino?

We recognize that Bevrotte’s son served as a Harrah’s employee for over 15 years. As a result, his smoke exposure at the casino is far more significant than that on our casual weekend vacation. Even if Harrah’s is a more identifiable tortfeasor for Bevrotte, we share one thing in common. We each made a choice. While our reasons for entering the casino may have been different, nobody forced us to go. By entering the casino, we know we will be exposed to secondhand smoke, yet we continue to go. While we continue to learn about the impact of smoke inhalation, the dangers of secondhand smoke are not a new discovery. We assume the risk and shouldn’t sue others for our own perilous decisions.

Comments

  1. I wonder what expert testimony on an issue such as this will look like?

    On the science side of things, the best evidence against second hand smoke comes from studies involving people exposed in closely confined locations, e.g. the increased rate of cancer amongst children whose parents smoked inside. The analogies here which may work well with small bars start to break down when one considers very large indoor spaces such as Harrah’s. (Which I have visited personally, in the company of your own Jim Dedman, no less.)

    The pertinent questions now become issues of smoke dispersal and causality in cancer acquisition. In the former case, the evidence is completely ambiguous. Anecdotally, I once knew a statistician working on models of smoke dispersal. In private conversation, he told me it was surprising how little they supported the claim that outdoor smoking was dangerous. When the paper was published, however, the conclusion it voiced was that the data supported claims of the danger for outdoor smoking. How can the exact same data support both claims? Because we have no idea what counts as “a lot” of smoke for the inhaler of second hand smoke.

    On the latter issue, more attention needs to be directed toward causal factors in the acquisition of non-smoking-related cancer. If Bevrotte was a nonsmoker who worked in a smoking environment, we need to know if there are other causal factors for explaining his lung cancer than the smokiness of his environment. Here again I have personal experience. A close family member of mine who was never in her life exposed (to my knowledge, certainly not in her usual working or social environments) to substantial amounts of second hand smoke died from lung cancer. In her case, doctors failed to make the diagnosis for years since whenever she told them she didn’t smoke, they looked for potential causes other than lung cancer.

    Of course, I don’t know anything about the law, just about inferences of causality from data. The case of second hand smoke in a large indoor environment such as Hurrah’s poses an interesting indeterminate case.

  2. We each made a choice. While our reasons for entering the casino may have been different, nobody forced us to go.

    By that line of reasoning, employers have little incentive (especially at the lower tiers) to protect the safety of workers at all, as long as they do not attempt to hide the risks.

    More to the point, they may have the incentive to raise the safety risk to employees as long as it can increase output, as employees at the very bottom rungs rarely have the option of saying no to an employment opportunity.

    In other words, for many the “choice” to take a job is barely a choice at all.

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