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Sued by NJ Casino in NJ SCP


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Hello all,

Have an interesting case for you. I am being sued by a NJ casino in Special Civil Part. Here is the complaint:

1. Defendant issued his/her check(s) to the plaintiff in exchange for a credit slip(s), while at the plaintiff's casino in New Jersey, conferring minimal contacts jurisdiction Yes they spelled contracts wrong!

2. Said check(s) have been dishonored by the bank upon which they have been drawn, having been deposited within the statutory time period.

3. There remains owing to the plaintiff the sum of $xxxx

4. Demand for payment has gone without heed

5. . boilerplate stuff

So my answer and defense relies on mental incapacity to contract, I was on Mirapex for Parkinsons and I suffered horrible side effects, including ruinous gambling, by the time I pulled out of it, we were nearly broke, and I had to stop paying all the credit cards anyway so it seemed insane to keep paying off this casino marker which I had already paid about half. And they beat me out of at least 10x as much as the amount in dispute.So now about a year later they're suing me for the rest. I'm also seeking rescission of the funds I already paid with the stipulation they be donated to a Parkinson disease charity.

Here's my proposed Answer and Counterclaim so far, what do you think?

The Defendant, xxxxxxxxx, answers and says:

1. He denies the allegations in paragraph (1), except to admit that he entered into a casino credit agreement with Plaintiff, and to that end signed markers to play slot machines.

2. He denies the allegations in paragraph (2), except to admit that Plaintiff’s attempt to withdraw funds from the Defendant’s bank account was dishonored.

3. He denies the allegation in paragraph (3).

4. He denies the allegation in paragraph (4).

5. He lacks sufficient knowledge as to the truth of the allegation in paragraph (5).

FIRST SEPARATE DEFENSE

1. He suffers from young onset Parkinson disease.

2. He has been under the care of a physician specializing in neurology since xxxxxxxx.

3. He has been taking, under doctors orders, the prescription drug Mirapex (pramipexole).

4. He cites medical research stating that Mirapex has been shown to cause uncontrollable obsessive-compulsive behavior including gambling:

a. “Frequency of New-Onset Pathologic Compulsive Gambling or Hypersexuality After Drug Treatment of Idiopathic Parkinson Disease”, J. Michael Bostwick M.D. et al, Mayo Clinic Proceedings, April 2009

b. “Pathological Gambling Caused by Drugs Used to Treat Parkinson Disease”, M. Leann Dodd, M.D. et al, Archives of Neurology, September 2005

6. He opened a casino credit account with Plaintiff with a credit limit of $xxxxxx.00.

7. He signed casino marker(s) totaling $xxxxxx.00 on or about xxxxx, 2008, and played slot machines, losing the entire amount.

8. He made a payment arrangement with Plaintiff and made three payments for $xxxx.00 each on xxxxxx, 2008, xxxxxxx, 2008, and xxxxxxxxx, 2008 totalling $xxxx.00.

9. He stopped taking Mirapex approximately xxxxxxxxxxxxx 2008.

10. He subsequently refused to make additional payments on the casino credit account.

11. He explained his medical condition to Plaintiff, and his belief that he did not have legal capacity to contract when signing the marker(s), and requested an adjustment of the balance in recognition of prior gambling losses, which relief Plaintiff has refused.

12. His gambling losses at Plaintiff’s casino were tracked through a player card, and totaled $xxxxxx.00 for the calendar year 2007 and $xxxxxx.00 for the calendar year 2008.

13. He at all times acted in good faith and complied with terms of the contract until such time as he recognized his own prior mental incapacity.

14. By reason of Defendant’s mental condition, the Defendant lacked the capacity to enter into enforceable contracts, when signing the credit application, when signing the markers, or when making payments.

15. The contract did not involve the purchase of necessities.

16. Plaintiff knew, or should have known, that Defendant suffered from a mental disorder, While we might not reasonably expect casino employees to be experts in neurology, we might reasonably expect that such employees would by experience, and perhaps even by formal training, be capable of recognizing obsessive-compulsive gambling behavior, or other mental disorder, without having to know the explicit reason for the disorder, in the same manner that we expect a police officer to develop probable cause for a traffic stop and sobriety test based on his observations of a driver’s erratic behavior.

17. Should the casino fail to act on such knowledge or belief, particularly because of the understanding that it derives substantial profit from such customers, it surely accepts the risk of loss from non-payment as much as it craves the benefit of the profit from gambling.

18. The Defendant argues that payments made on the contract while lacking capacity to contract do not ratify the contract and are subject to rescission, as the Defendant’s mental condition was continuous and ongoing, unlike defects in mental condition based on intoxication.

SECOND SEPARATE DEFENSE

Plaintiff seeks Unjust Enrichment, and has significant gambling profits from Defendant to offset its loss from granting credit to Defendant, and has not suffered any actual damages. Plaintiff advanced $xxxxxx.00 to Defendant and Defendant lost the entire $xxxxxx.00 gambling, therefore, Plaintiff’s position is the same as it was before the Contract. Defendant has already made payments of $xxxx.00 towards the alleged debt.

THIRD SEPARATE DEFENSE

Contract is Unconscionable, Plaintiff had full knowledge of Defendant’s financial condition at the time of entering into the contract and that Defendant’s gambling losses for the year, only four months old at the time, exceeded his take-home salary, yet Plaintiff continued to extend credit for Defendant to gamble, without regard to Defendant’s ability to repay.

WHEREFORE, Defendant demands that the complaint against him be dismissed with prejudice.

COUNTER-CLAIM

1. He suffers from young onset Parkinson disease.

2. He has been under the care of a physician specializing in neurology since xxxxxxxx.

3. He has been taking, under doctors orders, the prescription drug Mirapex (pramipexole).

4. He cites medical research stating that Mirapex has been shown to cause uncontrollable obsessive-compulsive behavior including gambling.

c. “Frequency of New-Onset Pathologic Compulsive Gambling or Hypersexuality After Drug Treatment of Idiopathic Parkinson Disease”, J. Michael Bostwick M.D. et al, Mayo Clinic Proceedings, April 2009

d. “Pathological Gambling Caused by Drugs Used to Treat Parkinson Disease”, M. Leann Dodd, M.D. et al, Archives of Neurology, September 2005

5. He opened a casino credit account with Plaintiff with a credit limit of $xxxxxx.00.

6. He signed casino marker(s) totaling $xxxxxx.00 on or about xxxxx, 2008, and played slot machines, losing the entire amount.

7. He made a payment arrangement with Plaintiff and made three payments for $xxxx.00 each on xxxxxx, 2008, xxxxxxx, 2008, and xxxxxxxxx, 2008 totalling $xxxx.00.

8. He stopped taking Mirapex on or about xxxxxxxxxxxx, 2008.

9. He subsequently refused to make additional payments on the casino credit account.

10. He explained his medical condition to Plaintiff, and his belief that he did not have legal capacity to contract when signing the marker(s), and requested an adjustment of the balance in recognition of prior gambling losses, which relief Plaintiff has refused.

11. His gambling losses at Plaintiff’s casino were tracked through a player card, and totaled $xxxxxx.00 for the calendar year 2007 and $xxxxxx.00 for the calendar year 2008.

12. He at all times acted in good faith and complied with terms of the contract until such time as he recognized his own prior mental incapacity.

13. By reason of Defendant’s mental condition, the Defendant lacked the capacity to enter into enforceable contracts, when signing the credit application, when signing the markers, or when making payments.

14. The contract did not involve the purchase of necessities.

15. Plaintiff knew, or should have known, that Defendant suffered from a mental disorder, While we might not reasonably expect casino employees to be experts in neurology, we might reasonably expect that such employees would by experience, and perhaps even by formal training, be capable of recognizing obsessive-compulsive gambling behavior, or other mental disorder, without having to know the explicit reason for the disorder, in the same manner that we expect a police officer to develop probable cause for a traffic stop and sobriety test based on his observations of a driver’s erratic behavior.

16. Should the casino fail to act on such knowledge or belief, particularly because of the understanding that it derives substantial profit from such customers, it surely accepts the risk of loss from non-payment as much as it craves the benefit of the profit from gambling.

17. The Defendant argues that payments made on the contract while lacking capacity to contract do not ratify the contract and are subject to rescission, as the Defendant’s mental condition was continuous and ongoing, unlike defects in mental condition based on intoxication.

WHEREFORE xxxxxxxxx, Counter-Complainant, in the interest of an equitable resolution, which does not unjustly enrich either party, seeks judgment as follows:

Rescission of $xxxx.00 paid under the casino credit contract, further ordered that the full amount of such award paid by casino will be contributed to a nationally-recognized Parkinson disease charity, xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx or any other Parkinson disease charity that pleases the court, and that proof of such contribution will be provided to the court and all parties.

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Very creative ...

However, your claim looks vulnerable to a dismissal motion. You have not alleged all the necessary elements to establish a claim under your alleged considions. You might want to consult with an attorney if you're serious about this.

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Very creative ...

However, your claim looks vulnerable to a dismissal motion. You have not alleged all the necessary elements to establish a claim under your alleged considions. You might want to consult with an attorney if you're serious about this.

Thank you for your comments. Are the elements you mention missing from both the answer and the counterclaim or just the counterclaim? Could you elaborate further? My backstop on this is filing bankruptcy a few months down the road but this creditor is known to object and try and complicate debtors bankruptcies, they have one case now (ch13) that they have appealed to the US Court of Appeals. To me protecting the BK is more important than winning the counterclaim otherwise I might have to pay them just to avoid having to spend the money on adversarial proceedings with the BK court, in other words I assume if I win here I don't have to include them in my BK as a creditor.

Incidentally this is all very much the truth..my wife can tell you, that drug brought about serious personality changes. It was like being a crack whore.

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16. Plaintiff knew, or should have known, that Defendant suffered from a mental disorder, While we might not reasonably expect casino employees to be experts in neurology, we might reasonably expect that such employees would by experience, and perhaps even by formal training, be capable of recognizing obsessive-compulsive gambling behavior, or other mental disorder, without having to know the explicit reason for the disorder, in the same manner that we expect a police officer to develop probable cause for a traffic stop and sobriety test based on his observations of a driver’s erratic behavior.

While I understand what you are trying to do, I have issues with this.

Just HOW did the plaintiff know or should have known? You are an adult (I assume). Did they force you to gamble? Did they force you to take credit with them? Were you obvious drunk or obviously impaired while on drugs?

You wouldn't want me sitting on your jury.

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I think that under contract law when you, as the breaching party, claim incapacity and prove it then the burden falls on the other side (the non breaching party) to prove that a reasonable man would not have known the incapacity existed.

Usually these kind of cases involve alcohol which is more obvious.

When these cases are just for recoupment of gambling losses, the casino always wins because they rule the person who got intoxicated and lost had a greater duty to themselves than the casino did. In other words those cases are torts not contracts.

My point being they observe gamblers all day long and should be able to eventually figure out who's behaving self destructively, but they don't, because they have a profit motive to ignore it.

You're right, clearly I don't want you on my jury. Maybe this is just too much of an uphill battle trying to convince people what I've been through. If you don't believe me you should look up the Multi-District-Litigation on Mirapex in the US District Court of Minnesota.

People who haven't lived through this really don't know how much it sucks.

And the doctors really do not adequately prepare you for this, a lot of information is suppressed probably because people feel so much shame.

This drug makes you feel and act like a crack whore. I know a guy who has had PD for about 15 years, uses a wheelchair/power scooter, is on 6mg a day of mirapex (max dose), and his wife put him in adult day care in a nursing home. He's in his late 50's/early 60's. What does he tell me about at lunch one day? About how one of his other PD drugs enables multiple male orgasms. I hate to think what's going on over at that nursing home. This guy can barely freakin move and he's bragging about multiple orgasms.

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I have to agree with NASCAR, if you really think you have a chance see a atty asap.. sounds to me like you should be suing Mirapex makers instead, sounds like if there is That many problems a class action suit is probally already underway..

How would the casino know what meds people are taking?? and you admit you got money and spent money

did you TELL the casino you where taking meds? I would also vote against ya Sorry.

.AND you say your wife saw the changes,,why didnt SHE step in somewhere?? "Incidentally this is all very much the truth..my wife can tell you, that drug brought about serious personality changes. It was like being a crack whore. " i would doubt that she wasnt aware of what was going on for over almost TWO years? and could have CALLED and Talked to the Casino long before it came to this point..

wish you good luck on this, maybe you will have better luck than in the casino

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The question here is the validity and thoroughness of your legal argument not how much you've been through. It sounds you've been through a lot. I don't think anyone is doubting that. What you're asking the court to do is invalidate a contract based on voluntary drug or alcohol use. The general is that the K is valid unless: 1) you can show you were incapable of understanding what you were doing at the time you made the contract AND 2) that the plaintiff knew or should have known of your mental incapacity.

Even if you can show #1, I think you've got a long uphill road to show #2. Hindsight is 20/20. Expecting a casino or other plaintiff to recognize incapacity to contract is quite a burden to put on 'em.

I wish you luck. The best thing I can say is that NJ courts tend to be quite liberal.

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Actually I'm thinking of submitting a couple of public statements like this into evidence and then during discovery asking how many customer referrals to problem gambling treatment have their employees actually made over the years? It helps that the industry's spokesman is general counsel at my adversary.

A Decade of Responsibility

The AGA celebrates the 10th anniversary of Responsible Gaming Education Week

by Joseph A. Corbo, Jr.

The week of August 6-10 marked the 10th anniversary of the American Gaming Association’s Responsible Gaming Education Week. The kickoff for this year’s event occurred at Caesars Atlantic City.

AGA President Frank Fahrenkopf, Jr., Harrah’s Entertainment CEO Gary Loveman and Linda Kassekert, chair of the New Jersey Casino Control Commission, made opening remarks to set the tone for the week.

The AGA created Responsible Gaming Education Week on behalf of our industry to educate all casino employees about disordered gambling. While this problem impacts only a small percentage of our customers (1 percent), dealing with this issue sensitively, seriously and responsibly has become an important part of our industry’s culture.

While our casinos operate in a responsible manner 365 days a year, for one week each year we re-emphasize responsible gaming issues and initiatives for the purpose of increasing awareness of this important topic.

The theme of this year’s campaign is “Responsible Gaming: In Your Own Words.” According to the AGA’s Fahrenkopf, this theme was devised as a way to energize the level of employee and public involvement in RGEW and to encourage all to maintain the momentum of this week throughout the entire year. It is also a celebration of a decade during which responsible gaming education and training have been made available, and our employees have taken the responsibility to educate themselves and apply that education by understanding the needs of those who experience problems with gambling.

-- text removed for brevity--

While this kickoff event was important, perhaps more important were the various awareness events that were held at each Atlantic City casino throughout the entire week, given that the thousands of gaming employees in Atlantic City are at the heart of any responsible gaming effort. These employees are on the front lines, interacting with casino guests and able to identify indications that there might be a problem with a gambler that should be addressed.

The industry wants everyone who visits our casinos to have fun, as we are in the entertainment business. However, we do not want people who do not gamble responsibly to play in our casinos. It is as simple as that.

Joseph A. Corbo, Jr. is president of the Casino Association of New Jersey, and general counsel of the Borgata Hotel Casino & Spa.

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Well maybe I've seen you at the Borgata. I play poker there quite frequently. 1-2 no limit. Sometimes when I've smoked someone I'll peel off five hundred and sit at a 2-5 no limit. Twice I sat at a 5-10 limit table. It was mayhem. The pots are routinely over a $1000. I couldn't last more than an hour.

Have you been to the Waterclub? The bar around the pool is fantastic. The rooms are even nicer.

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You're right, clearly I don't want you on my jury. Maybe this is just too much of an uphill battle trying to convince people what I've been through.

The point is, I do understand. I work in a large LTC facility that has many residents with parkinson's. The point I was trying to make was that its not up to the casino to "know" you are on this medication. Did you or your wife ever tell them you were taking meds and have a compulsive gambling issue? You have an obligation to mitigate your damages.

Now, in this day and age, you just might find a jury who agrees with you. A favorite site of mine, Overlawyered.com, is filled with examples of this.

Good luck with whatever you do! :)++

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Well thanks for your advice. I guess I opened myself up to the criticism by asking for help on my defense. But as a result I looked at it a little harder and made some improvements. It puzzles me why people are so pro-casino, the reference to overlawyered is funny, this case didn't happen cause I sued them.

You'd think they'd be happy with the 75k they beat me out of and not sue for the last 5k. But they are an extremely aggressive creditor. And they can outspend anybody on lawyers, and you know that in spite of their pious "we don't want compulsive gamblers here" talk that it is exactly the opposite. Here is an example of their shining behavior, I'm sure overlawyered would get a laugh out of this too, I guess other people's suffering is always funny.

Four years ago, Donald Carroll asked state regulators to prohibit Atlantic City's casinos from giving him credit. It was one of the few safeguards compulsive gamblers like Carroll had at the time to help keep them from losing big money in case of a relapse.

Early last year, Carroll said a casino host invited him to the Borgata casino in Atlantic City. When he got there, however, the host told Carroll he couldn't give him any credit until he had his credit privileges restored, according to court records.

The host was more than willing to help him out. He arranged for a limousine to take Carroll from Borgata to the Boardwalk offices of the N.J. Casino Control Commission to have his credit privileges reinstated, court records say. After a ride back to the casino, Carroll, 65, was able to obtain $150,000 in credit to fuel a gambling binge that earned him a free hotel suite, meals and drinks worth $3,000, the court records show.

Along the way, Carroll lost $130,000. When he didn't repay the money, Borgata won a default judgment for the $130,000, plus $2,524.32 in interest.

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Please don't take it as critism. I certainly understand where you are coming from and I am certainly not "pro-casino." Honestly, I've never been to one, never wanted to go to one. While I like a friendly came of cards, I would lose my fanny if I went to a casino. I'm not the Cincinnati kid, as much as we all dream of it. I referred to Overlawyered becuase there is some good information on that site.

The good news ws that Carroll was able to vacate the judgment because of sewer service. Borgata may go after him again, but he has a good defense and may just win in court.

The difference between Carroll and you is that the casino KNEW Carroll was a compulsive gambler and went after him anyway.

Youre right, with the money the casino rakes in ever single hour, I would think they would want to look at what you are telling them and just call it even.

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The casino is really overplaying their hand. The more facts I put down on paper the harder it is for me to believe that I could lose this.

It's funny, one of the writings I discovered on the internet was an article by I. Nelson Rose, who is a law professor in California who is an expert on gambling law. He wrote a paper in 1991 that said we had begun the Third Wave of casino gambling in America, and he expected that in 40 years time, after various corruption and scandals, it would eventually be outlawed again. We're almost halfway there already, and I couldn't agree with him more. Certainly in Penna it looks like the politicians are bought and paid for, and I'm wondering how desperate things are going to get in NJ, there is going to be tremendous pressure for slots in the Meadowlands, the casinos are already paying money to the tracks to supplement their purses in exchange for keeping slots out for a few more years.

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I wish you luck in your argument. I think its a tough one to make. That was my criticism. No one is pro-casino. Boyd Gaming is going to fight you tooth and nail. They will poke holes through every aspect of your case so you better establish all elements and stick with all required procedure.

I'm in PA. From a policy perspective, I think the introduction of casinos across this state is a fool's paradise. They get these passed by the flawed idea that they will increase tax revenues (haha). The problem is they collect revenues from the people that primarily use public services. Most of the NJ casinos are filled with senior citizens that came in on a tour bus with the social security check. With the intro into Philly, the tour bus gets nixed so access is increased. The idea that casinos are a wonderful way to fill revenue holes is short-sighted and absurd. It ignores the social and economic loss that accompanies them.

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Thanks for your comments. My emotions swing between confidence and despair over this. Fortunately the amount in question isn't going to have a major impact on my life one way or another. (the impact has already happened for the most part).

The casinos in PA are really going to jam up NJ in a big way. Besides the obvious impact on AC, it's going to force the issue of racinos here as well as wreck a lot of people's lives who have easy access to PA across the river.

A lot of people can disappear from home or work over to Phila Park or Chester more easily than they could hide a trip to AC. The worst thing about compulsive gambling is the lying. The absolute best idea I saw was a proposal in Penna to require the casinos to mail monthly account statements (statement of loss, presumably) based on player cards. Boy are they going to fight that one tooth and nail.

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