February 7, 2017
On February 3, Judge William Alsup ruled on a Motion to Dismiss filed by the member clubs of the NFL, granting in part and denying in part, thus allowing a proposed class-action painkiller suit filed by retired NFL players to move forward. The lawsuit, one of two currently in the Ninth Circuit, claims that the NFL and its member clubs created a “return to play” culture that placed players at greater risk of permanent injury and potential organ damage by administering high dosages of pain medications over a prolonged period of time without issuing any warning of adverse effects.
As I reported in a previous article, while one lawsuit awaits a decision from a three-judge appellate panel, after having been batted down by Judge Alsup because he feels the National Football League is not the correct party, an amended complaint in a lawsuit against the NFL team franchises was filed to correct possible deficiencies in other litigation.
In the amended complaint, the players filed RICO (racketeering) charges against the NFL’s member clubs along with conspiracy allegations. In a January 26 hearing Alsup seemed poised to grant the Clubs’ motion, but on Friday, he tossed the RICO and conspiracy claims but ruled that sufficient evidence has been presented against certain teams, namely the Lions, Raiders, Broncos, Packers, Seahawks, Dolphins, Chargers, and Vikings, and will allow the case to proceed against these teams as well as giving leave to Plaintiffs to amend the complaint with specific allegations against the other member Clubs. In addition to this, he will also allow them another shot to demonstrate a conspiracy among the franchises.
While a shared culture and interest in keeping players on the field is difficult to dispute, lack of a formal “agreement” in this regard appears to be at the root of Judge Alsup’s denial of conspiracy allegations. Alsup says that there “may be a good citizen” among the franchises and has informed Plaintiffs’ counsel that he must see specific particularities against each team named in the lawsuit. Allegations against the teams named above are as follows:
In 1994, while playing for the Detroit Lions, plaintiff Robert Massey hurt his right ankle during a game against the Atlanta Falcons. He finished playing the game after the club doctor injected him with Toradol, a non-steroidal anti-inflammatory drug. Afterwards, head coach Wayne Fonts saw Massey’s swollen ankle in the training room and said “You know we didn’t pay you that kind of money to miss games.” Before the Lions’ next game against the Minnesota Vikings, a club trainer gave Massey Indocin, another non-steroidal anti-inflammatory drug, and told him the pills would “help his ankle.” The club doctor also gave Massey another Toradol shot and wrapped his ankle. Massey played that game and the rest of the season with a swollen ankle. He now lives in constant pain from, among other things, his ankles.
In 1998, while playing for the Oakland Raiders, plaintiff Darryl Ashmore hurt his wrist during practice. With an important game against the Seattle Seahawks approaching, the club doctor, Warren King, told Ashmore “that the injury was only a sprain and that he would be fine with painkillers and anti-inflammatories.” Ashmore played the game. The next morning, Dr. King told him his wrist was broken. Ashmore played the rest of the season with a wrist cast, painkillers, and anti-inflammatory drugs. His wrist is now permanently damaged.
While playing for the Green Bay Packers and the Denver Broncos from 1984 to 1991, plaintiff Alphonso Carreker regularly consumed “enormous quantities” of anti-inflammatory drugs, which trainers for “each Club for whom he played” made readily available and “frequently volunteered.” In 2013, Carreker underwent heart surgery to drain inflammation from an infection in his heart after anti-inflammatory drugs proved “ineffective due to the resistance he had built up to such drugs . . . during his playing career.”
In 2003, plaintiff Jerry Wunsch played for the Seahawks. Before a game against the Baltimore Ravens, a coach named Holmgren approached him and asked if he could play. Wunsch replied “I do not think so.” Holmgren asked the club trainer, Sam Ramsden, “what can we do to help Mr. Wunsch play today?” Ramsden summoned club doctors who gave Wunsch Vicodin and Tylenol-Codeine #3 to take on top of the Indocin he was already taking. Around halftime, Wunsch “told anyone who would listen that he could not play anymore,” and Ramsden gave him more Vicodin so he could continue for the second half of the game. Wunsch now suffers from a host of medical problems, including constant joint and nerve pain.
In 1976, while playing for the Miami Dolphins, plaintiff Duriel Harris sprained ligaments in his ankle during a game against the Buffalo Bills. The following week, before a game against the Vikings, “Harris limped on to the field for pre-game warmups, not expecting to play.” Two coaches, Don Shula and Howard Shellenberger, approached him and said “We need you — you need to play. We’ve talked to the doctors and they will give you a shot and you can play.” Harris “was afraid he would be cut if he objected.” He got a cortisone injection from the club doctor in the training room and played the game. Afterwards, his ankle “ballooned up” and prevented him from running or working out for approximately six months. Now, Harris is in “constant pain from all of his joints,” including from “football injuries in his . . . ankles.”
In 2000, while playing for the San Diego Chargers, plaintiff Jeffrey Graham played all but “one or two games” of the season with a broken transverse process in his back while managing the pain with medications from club doctors and trainers. He “now lives in constant pain,” which he believes “is completely attributable to various injuries suffered during his NFL career” that were “masked” by “painkiller injections” and “numerous drugs.”
In 2003, while playing for the Vikings, plaintiff Cedric Killings sprained his right ankle during practice. The next morning, head coach Mike Tice said he “would be released from the Club” if he was not able to practice that day. Killings “wanted to keep his job” and “took [medications] given by the Club to ensure that he could practice in spite of the pain in his right ankle.” He now “has constant pain in his . . . ankles,” among various other health problems.
In 2014, while playing for the Chargers, plaintiff Reggie Walker sprained his ankle during a game against the Bills. Following that injury, the club doctor gave him Toradol injections for every game until he retired from the NFL. Since retiring, Walker “often experiences pain in his ankles,” among various other health problems.
In the order, Judge Alsup wrote, “The foregoing specific allegations indicate that the Lions, Raiders, Broncos, Packers, Seahawks, Dolphins, Chargers, and Vikings drove certain plaintiffs to return to play at the cost of their health or safety, contrary to the clubs’ representations that they would prioritize the latter. The amended complaint therefore must plead claims of intentional misrepresentation and concealment as to those specific clubs and plaintiffs with similar particularity.
At the hearing on January 26, Phillip J. Closius, lead attorney for the players told Judge Alsup that he had only conducted two player depositions when the amended complaint was filed but as of the hearing date he has gathered an additional twenty. He also stated that he was approximate three-quarters of the way through documents that had obtained through discovery.
One of these was an email chain originating with an Atlanta Falcons trainer, which included many high-ranking Falcons employees all the way up to owner Arthur Blank and centered on concern regarding a “culture of dependency” on painkillers; one which Blank seemed to agree was “excessive.” The emails also revealed that the Falcons spend an average of $30,000 per year, and as much as $81,000 in 2009 on painkillers. I’d expect more news of this nature to surface in the near future as discovery proceeds and more information is revealed.
In November Judge Alsup approved deposition of Cowboys owner Jerry Jones, to take place at the end of the football season, so if this deposition has not been done, it is likely to occur in the near future. Deposition of former Chargers’ doctor David Chao was ordered to take place on February 6; and following the deposition, a hearing to address “any remaining issues” was also scheduled to take place.
Plaintiffs’ counsel did not immediately respond for request for comment regarding the Feb. 6 depostion and hearing. Should this change, I will be posting an update.
For more detailed information about this and another painkiller lawsuit, please check out my three-part series:
Part III: A Tale of Two Lawsuits