The federal judge presiding over a lawsuit filed by alleged victims of the Aria Resort & Casino Legionnaire’s disease outbreak has granted Plaintiffs’ Motion to Amend their compliant, and refused a defense Motion to Dismiss Loss of Consortium claims levied against the Aria. Plaintiffs named in the lawsuit allege they or a loved one acquired Legionellosis while staying at the Aria between April 24, 2011 and July 2, 2011, and became seriously ill and incurred damages.
Legionnaire’s disease is a potentially fatal form of pneumonia. All of the Plaintiffs involved in the lawsuit claimed the illnesses originated with contaminated water at the Las Vegas resort, where alleged victims had used the showers, faucets, and other water systems. The outbreak was confirmed by the Southern Nevada Health District, which determined that the pathogen had spread through the hotel’s air conditioning and water systems.
Plaintiffs, some of whom are claiming Wrongful Death or Loss of Consortium of a spouse, filed their claims on August 23, 2011, in U.S. District Court, District of Nevada. An amended complaint was filed on October 28, 2011. Plaintiffs subsequently filed the present Motion to Amend Complaint, in which they attached a proposed second amended complaint against three Defendants, Aria, Tutor Perini Corporation, and Tishman Construction Corporation of Nevada. The proposed second amended complaint claimed negligence against all Defendants and punitive damages against Aria.
The Motion to Amend was opposed by the Defense, which argued that Plaintiffs failed to assert complete diversity because the citizenship of each Plaintiff was not identified. However in an Order dated July 27, 2012, U.S. District Judge Kent J. Dawson rejected that argument, pointing out that the second proposed amended complaint clearly identifies the citizenship of each plaintiff and defendant. He also rejected a Defense argument that the second complaint was prejudicial because it names several entities as defendants that had been dismissed or defendants the parties had agreed to dismiss, holding that the second proposed amended complaint cures that defect.
Judge Dawson also rejected Aria’s Motion to Dismiss Loss of Consortium Claims, finding that Plaintiffs’ complaint sufficiently asserts they have lost intangible interests in their respective spouses. However, he did grant Aria’s Motion to Dismiss Punitive Damage Claims, finding that the proposed amended complaint does not sufficiently allege that Aria acted with a culpable state of mind. However, the claims were dismissed without prejudice.
Finally, Judge Kent ruled that a Defense Motion to Dismiss Improper Defendants was moot, as the proposed amended complaint, which supersedes the original complaint, dropped those Defendants.