The widow and nine children of attorney Benjamin Greene filed a wrongful death lawsuit against the Bakersfield Track Club today, on the one-year anniversary of Greene's death.
The lawsuit, filed Wednesday morning in Kern County Superior Court by the Irvine-based Dubin Law Firm, alleges gross negligence and willful misconduct by the club in that organizers ignored weather warnings regarding extreme heat, and instead recklessly operated an outdoor 5K run at Hart Park in extreme temperatures expected to reach well over 100 degrees.
It was during the event in question that Greene collapsed and died.
The event should have been cancelled or postponed, the law firm said in a press release. And, barring that, an ambulance and other medical precautions should have been in place before and during the event, the plaintiffs argue in the document.
"Defendants outrageously chose not to have any life saving devices on site, had no persons hired for medical care or attention, had no plan for emergency, had no ambulance on site, and even did not allow phones of fitness bands in the deadly 110-degree heat," the lawsuit states.
"The delay, lack of any medical staff or equipment, and lack of having any medical transportation was a direct cause of death, the gross negligence of refusing to cancel or postpone the event without taking any meaningful safety precautions."
But Greene, who was 48 at the time, was found to have had drugs in his system at the time of death, the Kern County Coroner's Office said last year.
The coroner's postmortem examination found that the cause of death was hypertensive and atherosclerotic cardiovascular disease, but that methamphetamine, found in Greene's system, was a contributing factor.
The prescription drug phentermine was also detected. That drug is usually prescribed for weight loss.
Friends and supporters of Greene said in the wake of the autopsy report that Greene was on a prescription weight loss drug when he collapsed in 107-degree heat — that he was not taking any illegal drug.
And this morning, Eric Dubin, the attorney representing the Greene family, had this to say:
"There was no meth found in his system, and he was not on any illegal drugs."
Local doctors consulted by The Californian said the two medications can create complications for people with heart issues.
Dr. Jan Trobisch, of Synergy Wellness in Bakersfield, said there is a legal prescription drug, Desoxyn, which is essentially methamphetamine.
It is used, primarily, to treat ADHD, he said. Its secondary use is to help patients lose weight.
Desoxyn would come out in a blood test as methamphetamine, Trobisch said.
Greene's death on June 20, 2017 raised questions in the community about why the run was held during a heat wave and whether or not the temperature caused Greene's collapse.
The Bakersfield Track Club, which put on the event, had five aid stations available to runners providing water and other items due to the high heat. Typically, there are only three aid stations during events.
Phone messages left for club board members were not immediately returned Wednesday. But in a private message sent through the club's Facebook page, a spokesperson said club leadership would have no comment as they had not had a chance to read the lawsuit.
"Gross negligence" by the track club is pointedly alleged by the plaintiffs. It's a legal term that may be central to the case.
Two local attorneys not connected to the case reached by The Californian following Greene's death agreed that proving gross negligence can be difficult.
According to the track club's website, every person who participates in such events is required to sign a waiver, which reads as follows:
"In consideration of this entry acceptance, I hereby for myself, my heirs, executors, and administrators, waive all of my rights for damages I may have against the County of Kern, the Bakersfield Track Club, the race sponsors, or any individual associated with the above and for all injuries sustained by me in this event. I attest and verify that I am physically fit and have sufficiently trained for this race."
Daniel Rodriguez, a Bakersfield attorney who specializes in civil cases, said if gross negligence can be proved, even a well-written waiver can become ineffective.
"Legally speaking, "Rodriguez said, "a claim for gross negligence cannot be waived. So, the question would be whether there is enough evidence to prove gross negligence to a jury."
He and Bakersfield attorney Matthew Clark agreed that is not easy.
"It's very, very rare you find a circumstance of gross negligence," Clark said.
"It's a pretty tough row to hoe, legally speaking," Rodriguez added.
The "assumption of risk" doctrine was established from the foundational case, Knight vs. Jewett. It involved a woman who joined to play in a co-ed flag football game.
As one point she fell, someone stepped on her hand and seriously injured it, and she sued.
The court found that the game of football is one in which players can fall down and be stepped on. These are risks inherent to the sport, the court found. In such cases, the participants are making an assumption of risk.
"The question is, can you get over this assumption of risk?" Clark said.
There are risks inherent to running long distances. Turned ankles, blown knees, torn hamstrings — and, and the Greene case shows, much worse.
But everyone who participated knew it was going to be brutally hot. The weather could not have been a surprise.
However, on the other side of the ledger, Rodriguez said, there apparently was no portable defibrillator, no ambulance on scene on one of the hottest days of the year at a time of day when summertime air quality is often less than pristine.
Neither attorney makes a judgment. They merely raised questions, on both sides, that could be germane in a court of law.
Greene was survived by his wife Michelle; children Erica, Jacob, Destiny, Tayler, Tyler, Joseph, Cyrus, Laila and Bella; parents Donald and Georgeann Greene; and brother Andrew.