February 23, 2019
A hearing is set for March 21, in which the NFL’s motion to dismiss the painkiller lawsuit filed by Hall of Famer, Richard Dent, will be argued before Judge William Alsup at the U.S. District Court for the Northern District of California.
The Dent case, alleging illegal and deceptive use of powerful prescription painkillers that left players with permanent health problems was dismissed by Judge Alsup in December 2014, only seven months after it was filed, and then revived by the Ninth Circuit in September 2018, when the panel concluded that the claims were not preempted by the NFL/NFLPA Collective Bargaining Agreement. During the brief time the Dent lawsuit was before Judge Alsup in 2014, the NFL argued that the teams were responsible for medical care and that the NFL was the wrong defendant; Judge Alsup seemed persuaded.
In May 2015 another lawsuit was filed, alleging similar misdeeds on the part of NFL Clubs, with Etopia Evans, the widow of retired NFLer Charles Evans as lead plaintiff. The second case produced substantial discovery, uncovering a volume of emails in which team doctors and trainers admitted to illegal conduct regarding the manner in which they dispensed drugs, along with some damning statements in depositions. In spite of this Judge Alsup granted the NFL Clubs’ motion to dismiss in July 2017, stating that the claims were time-barred. This case was also appealed to the Ninth Circuit where oral arguments were held on December 19, 2018. Less than two months later, on February 6, the Ninth Circuit issued a short opinion upholding Judge Alsup’s statute of limitations ruling.
Now Dent must meet the statute of limitations test, as noted in the NFL’s motion to dismiss as well as surviving their Rule 12(b)(6) defense of “failure to state a claim,” in which the NFL has thrown everything but the kitchen sink into their arguments. Here’s what to expect and what the plaintiffs must convince Judge Alsup of in order for their case to continue.
FAILURE TO STATE A CLAIM
The NFL bases its failure to state a claim argument on their assertion that the “Third Amended Complaint (“TAC”) ignores the Ninth Circuit’s mandate in Dent v. National Football League, that limits any further proceedings on remand to claims arising from the conduct of the NFL and NFL personnel only.” Instead, the NFL tries to deflect all of the responsibility to team doctors and trainers.
To this, plaintiffs responded on February 5 through an opposition brief:
This is a concern for the players. Courts increasingly ask plaintiffs to plead with great particularity without any benefit of discovery in order to survive a 12(b)(6) motion. Fortunately for the Dent plaintiffs, they have the benefit of discovery that was conducted during Evans. The NFL, does, correctly assert, however that the Ninth Circuit’s mandate limits claims to rising from the conduct of the NFL and NFL personnel as opposed to teams.
In my opinion Dent’s legal team has demonstrated in the Third Amended Complaint, the complicity and responsibility the NFL has in player medication harms. While much testimony and documentary evidence has come by way of team doctors and trainers, and there is an enormous body of evidence supporting that players were heavily and recklessly medicated in violation of drug laws, there is also a good bit of evidence supporting the NFL’s position at the top of that food chain.
As attorney William Sinclair wrote in his opposition, “The NFL completely ignores its role in the creation, implementation and maintenance of the Return to Play Business Plan (“Business Plan”). It addresses the same in a single footnote, claiming that the “baseless allegations” regarding the Business Plan “are irrelevant to the single claim in this lawsuit – that the NFL allegedly provided players with controlled substances in a manner that violated the law.” Sinclair argues that if not for the NFL’s business plan, doctors and trainers would not have felt compelled to violate drug laws to keep players on the field. “Put simply,” he writes, “it matters not who actually put a pill in a player’s hand, but rather, how it came to be that, despite a comprehensive and thorough regulatory scheme designed to prevent the abuses at issue, those abuses nonetheless occurred.”
On February 14, the NFL submitted their reply:
The NFL claims plaintiffs are not addressing the NFL’s “primary duty at issue” to abide by applicable drug laws.
It’s difficult to predict how Judge Alsup will view the arguments. The NFL implies a bait and switch on the part of the plaintiffs’ negligence claims to the Ninth Circuit which reversed Judge Alsup’s preemption ruling.
Let’s take a look at what plaintiffs have demonstrated:
- They have demonstrated that the NFL has had a formal drug program since 1973, to which team doctors must report.
- They have shown that NFL doctors, independent of team physicians sought ways to treat pain and promote profitability.
- They have demonstrated that the NFL audits team medications.
- They have shown that the NFL has funded studies relating to medication.
- They have shown that the NFL formed a task force to counter negative press about the league’s use of painkillers.
- They have shown that the NFL must approve doctors hired by teams.
- The NFL imposed a uniform Toradol waiver
- Finally, in 2015, the NFL instituted a program for visiting teams to avoid illegally transporting controlled substances as they’d done prior to that time.
THE NFL SEEKS TO BLOCK FURTHER DISCOVERY
The NFL just doesn’t like discovery unless they’re the ones seeking it.
Hopefully Judge Alsup will see through the NFL’s ruse. While voluminous discovery was obtained in Evans, that lawsuit was against NFL Clubs. Discovery taken was specifically targeted at clubs and it strongly confirmed the reckless ways in which players were medicated by team doctors and trainers. Some discovery incidentally uncovered the points mentioned previously against the NFL. If targeted discovery was served on NFL corporate offices and security personnel, there is likely much more to be found that points directly to the organization.
The plaintiffs point out that while some of the lines between the league and its clubs are blurry, there is no doubt that the NFL sits at the top of the hierarchy, including provisions for removal of an owner for “conduct detrimental” to the league, and just about everything else on down.
INTERPRETATION OF THE NINTH CIRCUIT OPINION
The NFL has tried to shrink the scope of the Ninth Circuit opinion as narrowly as possible—obviously since preemption has been a strong defense for them in the past.
The Dent opinion was cited in the Hernandez lawsuit in the Third Circuit, in that unlawful behavior cannot be preempted by a CBA. There, the NFL also tried to narrow “unlawful” to physical distribution of pills in the Evans case, but that issue wasn’t addressed when Judge Brody dismissed the case earlier this month and it would seem that any unlawful behavior would be applicable.
These are probably the most important lines in the Ninth Circuit opinion.
The clear reading of the first line would indicate that parties to a CBA can’t bargain for any illegal activity, not just certain illegal acts.
It would also seem that the entity at the top level of the organization would be ultimately responsible for how business is conducted at the branch levels. When seated at the highest position of U.S. government, President Harry S. Truman kept a plaque on his desk that said, “The buck stops here.” Perhaps Commissioner Goodell should purchase a replica.
Many opioid lawsuits are taking place across the United States. One in Kentucky against Purdue Pharmaceuticals saw their former president Dr. Richard Sackler deposed in 2015. It seems highly unlikely that Sackler ever planted himself in a clinic writing prescriptions for Oxycontin, but discovery indicates that he deceived doctors as to its potency, causing many millions of prescriptions to be written and an addiction epidemic to explode. A current lawsuit has brought out many other disturbing allegations, many, if not most of which have been substantiated.
Sound familiar? How about a slight re-write?
This lawsuit claims in new and rather damning evidence—that the NFL Organization not only knew about the illegal and loathsome activities carried out by their Clubs, but they personally directed them. The NFL aggressively pushed for extreme profits—which they accomplished in part by bullying their medical staffs and targeting vulnerable players, suggesting that the medications they were given were safe and in their best interest, and encouraging doctors to write hand out longer and higher dose prescriptions. All the while, the NFL allegedly dismissed evidence of the medication harms and blamed the players for their addictions and health problems.
Ironically Skadden Arps who is representing the NFL here, is defending one of the pharma defendants in the opioid litigation.
DUTY OF CARE
As with every injury case I can think the defendant tends to plead “no duty of care.” The NFL has not broken with that pattern. The players, however, hold that the NFL owes a duty of care through “special relationships.” Cases are cited in which schools have been found to owe a duty of care to their students, through their special relationships with them, which is explained below:
Employment would seem an adequate measure of control.
The NFL, dances through various laws which the tend to place causation elements on club doctors, while deflecting the identified roles the NFL plays regarding medications, such as conducting studies and audits, which they say caused Dent and his fellow players no harm.
Aside from the fact that causation should be evaluated in the latter stages of a case or during trial, the NFL seeks to litigate the case in one brief and convince Judge Alsup to toss it without further investigation.
The plaintiffs, however, remind the court, “California recognizes that negligence is the failure to use reasonable care to prevent harm to others; a person is thus negligent if they do something that a reasonably careful person would not do in the same situation or fail to do something that a reasonably careful person would do in the same situation.”
The plaintiffs have sufficiently shown that the NFL was aware of drug law violations and improper distribution of medications, and as such, they were in a position to correct the abuses as they did in 2015 in making alternate arrangements for visiting teams regarding medications. They also implemented the Toradol waiver via Park Avenue. If they could implement this, it would seem probable they could implement any policies or ban any bad practices undertaken by club personnel at will. Failure to do so implies explicit or implicit approval. Further discovery could possibly indicate even more involvement.
STATUTE OF LIMITATIONS
Finally, the league argues the case should be dismissed on statute of limitations. This was their prevailing argument in Evans, so they attempt to insert the same argument in Dent.
Notice the disclaimer: “Absent any tolling.” Tolling is the key and it’s also an element where Dent stands a better chance of prevailing than the Evans plaintiffs did, due to the different natures of the lawsuits.
As expected, the NFL claims the discovery rule doesn’t apply since the clock begins to tick when “the plaintiff discovers, or has reason to discover, the cause of action.” The plaintiffs elaborate on this however to show they fit well within California’s recognition of the discovery rule.
While the NFL tries to start the clock at the time physical injuries occurred and medications were administered, this is not the time injuries claimed by Dent and the other players took place. Just as brain injury doesn’t typically manifest immediately, neither does drug injury, it’s latent; therefore, internal organ injury doesn’t tend to manifest until years later when organs begin to fail because of progressive damage due to prior abuse.
“With regard to knowledge”, the complaint states, “California, like most states, looks to whether the plaintiff had either actual knowledge or constructive knowledge of the injury and wrongdoing. The statute of limitations in this case thus would begin when Plaintiffs had actual or constructive knowledge of their complained-of injuries and the NFL’s associated wrongdoing.”
Most of the plaintiffs who complain of organ damage, only began experiencing it in the years just before the lawsuit was filed. They didn’t initially know that the damage was caused by improperly administered medication during their NFL careers. It took time for them to investigate the cause.
The Dent case is a personal injury case based on the physical problems players are suffering due to the NFL’s negligence.
Evans was a RICO case seeking to compensate for shortened careers and lost income. The threshold for equitable tolling is higher for a RICO claim than for personal injury.
Since the Supreme Court’s Rotella decision in 2000, in order for pattern discovery to apply beyond the four-year statute of limitations on a RICO claim, the following factors must be met:
(1) the defendant wrongfully concealed material facts relating to defendant’s wrongdoing; (2) the concealment prevented plaintiff’s ‘discovery of the nature of the claim within the limitations period’; and (3) the plaintiff exercised due diligence in pursuing the discovery of the claim during the period plaintiff seeks to have tolled.
In Evans, much emphasis was placed on players’ premature retirement and this seemed to cloud the issue for the panel of judges. They looked at the player’s physical injury and concluded that he knew he was injured. They also stated that players knew they retired and therefore should have been on notice that their retirement was premature.
I wrote about the Evans dismissal, and wondered how the Judges missed the point of the lawsuit, but in retrospect, what may have happened was that there wasn’t enough focus on future, post retirement earnings due to problems caused by overuse of painkillers as the actual “retirement.”
Professor Phillip Closius, who delivered oral arguments tried to explain that the players didn’t realize they were retired when they were cut from their teams, but came to accept that their careers had ended after they tried to rehab and return unsuccessfully for a couple or three years, but he was interrupted frequently and unable to accurately portray the true culture of NFL football, and the impact of the progressive nature of the harms.
Personal injury is, however, evaluated differently from RICO economic damage so hopefully, Judge Alsup will be more open to delayed discovery here.
I spoke with an attorney not involved in the case who agreed with the Ninth Circuit on the Evans RICO application but felt the claims made in Dent should survive the discovery pattern test.
Again, this will hinge on the Judge identifying the latent injury and not the physical injury sustained during play. While he dismissed Evans as time barred, he may be more cautious with, Dent, in that it’s unlikely that he wants to risk being reversed a second time by the Ninth Circuit on same lawsuit.
These are issues set for arguments on March 21, before Judge Alsup. Hopefully the hearing will bring the players harmed one step closer to relief.