By JAMES SWIFT
An ongoing lawsuit against a Cartersville fitness center looks to be in limbo following a civil non-jury hearing in Bartow Superior Court Wednesday.
Legal representation for both the plaintiffs and defendants in a negligence suit filed against Real Life Fitness were angling for a motion to waive mediation in the case.
Attorney Morgan Akin represented the four plaintiffs, three women who said they required hospitalization after a gym workout, and one of their husbands.
“They allege they were improperly overtrained by the defendant fitness center, and as a result of that overtraining came down with rhabdomyolysis,” he said. “They came down with this disease which is a condition in which the muscles break down and release toxins into your bloodstream and damage your kidneys.”
According to Akin, the three plaintiffs sought hospital care after the workout at the business located at 650 Henderson Drive in the West End Commons shopping center. He said their combined medical expenses totaled approximately $75,000. One of the plaintiffs, he said, is “still treating” more than 13 months after the suit was initially filed.
“The defense has denied liability and haven’t offered us any money,” he said, “and so we think mediation would be a waste of time.”
Attorney Gillian Crowl represented the defendant, Fitness Center of Cartersville Inc., which is doing business as Real Life Fitness. She likewise considered a waiver of mediation to be necessary.
About 30 people, she said, took that particular class at Real Life Fitness on the day the plaintiffs allege to have sustained their injuries. Yet no one else involved in the workout, she said, reported any of the same symptoms as the plaintiffs.
“The disease itself is not something that we can see or detect, or is even preventable,” she said. “And it was actually days later, so it’s not something the trainer can fix in the moment … because of that, there’s just no issue liability here.”
Cherokee Judicial Circuit Judge David K. Smith quickly put the brakes on the waiver motion, however, ordering both parties to engage in mediation.
A second motion — a plaintiffs’ counsel request to allow the use of a video deposition at trial — didn’t fare any better.
Akin said the motion was filed earlier this summer, several months before one of the plaintiffs is set to embark on a mission trip to Africa for the next two years.
“She’ll be incognito, cannot tell where she is, has to use an assumed name and will be, generally, unavailable,” he said. “We want to take her deposition for use at the trial.”
Judge Smith asked Akin if that videotaped deposition would represent his client’s “be-all and end-all testimony.” Then he asked him if any expert witnesses had been deposed.
While the lawsuit was filed July of last year, Akin said he had yet to track down an expert witness on either rhabdomyolysis or fitness center workout safety.
“That’s 13 months and a day,” Smith said. “If you haven’t identified the experts yet, I am not going to let this case go to trial with one of your three injury claimants physically [absent].”
If something as common as a broken bone doesn’t constitute “lay witness material,” Smith said a syndrome as obscure and complicated as rhabdomyolysis certainly requires someone on the stand who can break down its complexities for jurors.
“The defense counsel gets to cross-examine [the plaintiff] as to her symptoms, the onset, the aftereffects,” he said. “It’s probably harder to find an expert witness on a syndrome like this than it is an orthopedist.”
With both motions denied, the plaintiffs and defendants find themselves at an impasse.
Crowl suggested the plaintiff who intends on traveling abroad for the next two years be “split out” from the case. Smith said that was certainly a viable option to keep the suit moving forward.
“Why could she not be separate as a plaintiff?” he said. “What Crowl proposed sounds very reasonable to me, to dismiss without prejudice, or something even more creative than that.”
But Smith was less receptive to another idea thrown out by the defense attorney — waiting until the plaintiff returns from Africa to resume the lawsuit proceedings.
“Crowl mentioned setting the case out for a couple of years,” he said. “But I’m unwilling to do that unilaterally.”