Mr. James Bogden

James Bogden wanted to use the courts to force Virginia restaurants to become smoke-free, but he could never find the right plaintiff to file a lawsuit.

Until one day in 2006, when Bogden had a heart attack and realized he had his man: himself.

"My heart attack happened, and voilà ," said Bogden, a public health educator and anti-smoking activist. "I decided to make some lemonade out of a lemon."

Bogden is the plaintiff in a lawsuit filed against four local restaurants in U.S. District Court in Alexandria. The suit seeks to require the restaurants to become smoke-free, arguing that they must accommodate Bogden's disability, coronary artery disease, and eliminate secondhand smoke so he can eat at them. Each of the restaurants allows smoking in designated areas.

Lawyers said that it's rare to ask a judge to intervene in the debate over smoking in restaurants and bars and that the suit is unusual because Bogden is not seeking monetary damages beyond his court costs. After his doctor warned him to avoid secondhand smoke, all Bogden wants is an order requiring the restaurants to ban smoking.
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Bogden, 51, works for the National Association of State Boards of Education in Alexandria , where his specialty is helping schools design policies to promote better health.

He is a board member of Smokefree DC , which pushed for the restaurant smoking ban in the District. A few years ago, before the D.C. ban was enacted, Bogden and the group's attorney, J.P. Szymkowicz, began discussing a strategy to use the courts to force such a ban in the District.
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Without a plaintiff, there was no lawsuit until after Bogden began feeling chest pains while running on a treadmill in January 2006.

"I thought I had strained my chest muscles," said Bogden, who walked around for four days with intermittent chest pains before going to George Washington University Hospital in the District, where he lives.

The diagnosis was a moderate heart attack. Doctors performed an angioplasty and warned Bogden to avoid secondhand smoke because he had coronary artery disease. The smoke is especially dangerous for him, doctors said, because of his family history. His father developed heart disease at age 45, and his mother died of a heart attack at 61.

Through the lawsuit, Bogden also thought he could help publicize the results of a 2006 report by the U.S. surgeon general. It found that the health effects of secondhand smoke are much more pervasive than previously thought and that it dramatically increases the risk of heart disease and lung cancer in nonsmokers.

For his targets, Bogden chose restaurants where he had eaten before his heart attack. He liked them, he said, but is now reluctant to patronize the establishments because he thinks they are too smoky.

"He has had to decline invitations from co-workers and business associates to go to these restaurants," said Szymkowicz, who is representing Bogden in the case.
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The lawsuit says Bogden "attempted to patronize" each of the restaurants on various occasions since his heart attack but had to leave because he could smell smoke.

"There was no immediate physical effect apart from sensing that there was smoke," he said, "but it was the knowledge that I'm walking around with this ticking time bomb in my heart, and smoke is one of the things that could trigger it."

Bogden said he was able to eat at Mike's American on one occasion since his heart attack, when there apparently was no secondhand smoke.

The lawsuit also cites information from an air-pollution specialist working for Bogden's team who covertly measured the air quality at the four restaurants using a device about half the size of a shoebox.

The expert found that all the restaurants "were contaminated with secondhand smoke" and that "the smoke levels which Mr. Bogden would encounter by patronizing these venues would place him at risk," the lawsuit said.
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James Bogden, 51, says four Northern Virginia restaurants are violating the Americans with Disabilities Act (ADA) by allowing smoking. Mr. Bogden has suffered a heart attack and has coronary artery disease. He says he can't safely patronize the restaurants because secondhand smoke can increase his risk of another heart attack.

He claims the disease limits his "major life activities," as defined by the ADA, and that by allowing smoking, the restaurants discriminated against him on the basis of his disability, according to his complaint.

The suit was filed against Harry's Tap Room of Arlington, Mike's American Grill of Springfield and Denny's and Clyde's of Alexandria.

The restaurants argue in their motion to dismiss the suit that Mr. Bogden is not disabled under the ADA definition. They also say they aren't discriminating because if secondhand smoke is harmful to everyone, as Mr. Bogden says, then everyone is exposed to risk if they enter the restaurant.
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Mr. Bogden's suit is an unusual legal move, but there have been a few similar cases in the past, according to a Connecticut Law Review article published last month.