Judge allows case against Bally Fitness to go forward

Suit alleges Kentlands club was negligent for not having a defibrillator

No trial date has been set yet; pre-discovery documents are due next week, said Weinberg, an attorney with Weinberg and Gerber, P.C. of Northampton, Mass., a law firm specializing in catastrophic injury and wrongful death litigation.

‘‘This is the sixth case against Bally for failure to have AEDs and in at least four of them Bally settled for confidential amounts,” he said. ‘‘And there may be others that I don’t know about.”

Fowler’s son, Gary Fowler, 46, collapsed of a heart attack on Nov. 7, 2005, in the Gaithersburg Bally Total Fitness Club. The club did not have a defibrillator available that day.

Fowler’s complaint alleges that by the time emergency medical services arrived and applied shocks with a defibrillator — six to eight minutes after a 911 call from Bally employees — it was too late.

In January 2005, the Montgomery County Council passed an ordinance requiring defibrillators in local health clubs by July 1, 2005. Gaithersburg, a local municipality, was exempt from the ordinances due to a ‘‘home rule” exception.

Bally filed a motion to dismiss the Fowler v. Bally Total Fitness lawsuit filed by Weinberg and Garber in Cook County, Ill., home to Bally headquarters.

The fitness club chain argued it had no legal obligation to have a defibrillator at its Gaithersburg location and that a membership agreement signed by Fowler in 2003 released the company from liability.

The Fowler team opposed the motion, saying that the legal opinions Bally cited were outdated at the time of Fowler’s death and that Fowler’s waiver did not include a grossly negligent emergency response.

‘‘We know that they knew already how many people were dying, because in the early 1990s Bally’s employees participated in a study to see how frequent cardiovascular events were in fitness clubs, and they found that at least 35 people a year in the clubs were dying,” Weinberg said Monday. By 2003 Bally had decided to begin deploying defibrillators in clubs over the next two years, beginning in states that mandated them in fitness clubs.

Cook County Circuit Court Judge James Egan denied Bally’s motion to dismiss, citing a case that ruled there is ‘‘... no reason why the standard of care, even for emergency services, should not be regarded as an ever-evolving concept,” and that Fowler’s waiver did not preclude a gross negligence claim.