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What’s next for retired NHL players in their quest for brain injury accountability?

Which direction?

Updated July, 2018
Sheilla Dingus & Derek Helling

Part 1 of this series analyzed Judge Susan Richard Nelson’s denial of class certification of a lawsuit brought by a proposed class of National Hockey League players who sought redress of brain injuries incurred by the NHL’s failure to warn then of the risk and consequence of brain damage inherent to their sport.  The lawsuit survived two motions to dismiss on statute of limitations and preemption grounds, resulted in significant discovery which seemed very favorable to the players.  At minimum, the documents and testimony provided a record of callousness and indifference to the well being of the men on the ice, and a shocking disregard of science, and what appears to be feigned ignorance of the vast evidence linking contact sports to brain injury.

Despite these very notable strides, however, the MDL came to a screeching halt when Judge Nelson entered an opinion denying class certification. primarily based on the difficulty of administrating the medical monitoring sought by the players because of the differences in state law.

conclusion

In response to our request for comment, plaintiffs’ attorney Charles Zimmerman replied consistently with statements he has made elsewhere.

“The litigation continues,” Zimmerman said. “We will continue to litigate the players’ claims on a case-by-case basis for all who have incurred injuries and damages. Players with traumatic brain injuries need to file their claims and justice will prevail as we move forward.”

In comments to other outlets, Mr. Zimmerman also emphasized that this ruling, which denied class certification, was not a ruling on the merits of the cases.

If no appeal is filed, the burden of “pushing the puck” of NHL concussion litigation further “up the ice” toward the goal lies even more firmly on the shoulders of the current and former players who feel they have been wronged. In comments to Hockey News, Stuart Davidson, another attorney representing the players stated, “walking away is not an option,” and hinted that the Steve Montador wrongful death suit may be the first individual case to go to trial.  Comments from William Gibbs of Corboy and Demetrio, who individually represents the Montador estate, seemed to confirm.

Gibbs quote

It’s possible that many of the players who would have joined a class might not pursue litigation on their own for a myriad of reasons.  On the other hand, a new lawsuit filed by Daniel Carcillo and Nick Boynton, who have become vocal advocates for players suffering from brain injury may jumpstart other individual litigation.  For those who persist, the road ahead will be long and uncertain.  The silver lining may be, however, as attorney Brad Sohn, who has been involved in similar litigation representing NFL players commented on Twitter, that “the individual cases will probably receive higher value” than what they may have qualified for had a settlement been reached or a jury verdict rendered.

Advocacy for Fairness in Sports queried several attorneys as to how they felt the MDL will be dissolved allowing the players to move forward, and based on their input, the most likely resolutions appear to be that cases that were consolidated will be remanded to their originating courts, or that the cases would be dismissed without prejudice permitting the players to refile their lawsuits.  Another possibility presented by attorney Alan Milstein is that the parties could seek bellwether trials through the MDL, the results of which would be binding on the case tried but not the other plaintiffs in the MDL.  The primary value of bellwether trials is that it allows both the defendant and plaintiffs to test legal theories and gauge how their arguments are received by juries, and generally used as a precursor to a settlement.  Mr. Gibbs’ comments stating that the NHL may not want this to be the first case tried hints that a bellwether case may be under consideration. In the months ahead it will be interesting to follow the paths these cases will take.  An article by Katie Strang in The Athletic also hinted at the possibility of bellwether trials and indicated that Judge Nelson will probably schedule a status conference within the next few weeks to discuss how or if the MDL will move forward and what will become of the consolidated cases.  Zimmerman indicated that in the interim,  the Plaintiffs Steering Committee would be meeting to analyze and discuss the options.

Should the case proceed with bellwether trials, the NHL could possibly be persuaded to settle outside of class status but still within the uncertified MDL.

“Especially deep-pocketed defendants try to avoid a class action litigation because they know if class certification is denied, [t]he cost of enduring litigation is often far greater to each person on the individual basis and plaintiffs may have greater incentive to settle the case for smaller amounts of money to avoid the time and cost that litigating a matter independently or with a small group might entail.” ‏

In Tulane Law Review, Judge Eldon Fallon of the Eastern District of Louisiana, writes: “by establishing a mechanism for conducting ‘bellwether’ or ‘representative’ trials, the transferee [MDL] court can enhance and accelerate both the MDL process itself and the global resolutions that often emerge from that process.”  Judge Fallon presided over both the Propulsid and Vioxx MDLs both of which achieved large settlements after conducting bellwether trials, and in this Fallon viewed the results favorably.

While without a doubt this approach is more efficient than conducting hundreds or possibly thousands of individual trials, settlements achieved outside the protections of class status should be approached cautiously.  In a Vanderbilt Law Review article, UGA law professor Elizabeth Chamblee Burch describes how it is common for plaintiffs attorneys to compromise the interest of their clients by agreeing to a settlement which does not require court approval as “fair, reasonable, and adequate,” as is mandated in certified class actions, instead, permitting large paydays for the attorneys, closure for defendants, but questionable value to the victim plaintiffs.  In fact, judges have very little say in private “global” deals outside the class structure.

One illustration Professor Burch used was the Propulsid  litigation that Judge Fallon deemed successful.  “[I]n the Propulsid litigation, 6,012 plaintiffs traded their lawsuit for the settlement process. Yet, only thirty-seven of them (0.6 percent) recovered any money through the rigorous physician-controlled settlement process, and they received little more than $6.5 million in total. Yet, the court awarded lead lawyers over $27 million in common-benefit fees based on an $87 million-dollar fund,19 the bulk of which reverted back to the defendant.”

If a settlement is reached through bellwether trials outside of class certification plaintiffs’ attorneys should take great care in the negotiations and class members should demand a high degree of transparency, due to the lack of checks and balances in uncertified MDLs.  To be clear, this is not meant to impugn the integrity of the attorneys who have performed admirably in the case thus far.  Indeed, both Zimmerman Reed and Corboy and Demetrio played significant roles in the NFL Concussion settlement, and as such are keenly aware of implementation problems that can result in denied claims for players derived from broad settlement terms such as “generally consistent” which has been used by the NFL to attack numerous claims resulting in massive delays and in my opinion, denial of claims that according to the manner in which the settlement was presented to players, would have been compensable.  These statements should not be viewed as to discourage settlement by way of the MDL, but rather, act as a caution flag to both players and their attorneys, to carefully scrutinize the terms should the NHL agree to negotiate.

Regardless of the forums in which the various cases are tried in or how they arrive there, they will face many common challenges, the most critical of which merit examination.

Preemption

One of the first challenges players are likely to face stems from labor law. Many if not most cases will probably be filed as state law torts.  These state court cases will likely see the NHL move to immediately dismiss or remove the cases to federal jurisdiction for dismissal, claiming that because the players are part of a union their claims are preempted by Section 301 of the Labor Management Relations Act of 1947 (LMRA) which states:

301

Interpretation and confusion regarding the proper application of this clause and the boundaries of ordinary and complete preemption has resulted in inconsistent lower court rulings which have often been detrimental to union employees.  As law professor Phillip Closius writes in Baltimore Law Review:

Although § 301 remains essentially unchanged from the date of its adoption, judicial confusion over the scope of its preemptive effect frequently has broadened an employer’s ability to defeat state tort claims by its employees in the early stages of litigation with a motion to dismiss.   As a result of this evolution and accompanying confusion, the common law rights of unionized workers have been unfairly circumscribed simply because their union entered into a collective bargaining agreement with their employer.  Neither the statute’s framers nor the Supreme Court opinions which delineated § 301’s impact intended such an expansive result in favor of management. A proper understanding of § 301 and its preemptive effect produces a judicial test which protects the common law rights of unionized workers while still ensuring that collectively bargained agreements will be enforced uniformly throughout the country.

The test referred to by Professor Closius asks the questions: 1) do the claims allege any breach of duty arising from the collective bargaining agreement? or 2) does the resolution of the claims rely on interpreting the collective bargaining agreement?

In her denial of the NHL’s motion to dismiss early in the concussion litigation, Judge Nelson applied this test and cited Eighth Circuit precedent to support her decision that their claims did not meet this standard.

Nelson - preemption

In other words, if workers, such as the NHL players plead only state law claims which provide for a safe workplace, or other protections under state law, without reference to medical and safety provisions outlined in the CBA, then state law should be used to evaluate the claims, and references to the CBA standards outside what is lawful according to the state or even federal laws governing the workplace, then the provisions of the CBA should not provide a preemption defense by the defendants.

Unfortunately, this assessment hasn’t been consistently adhered to, especially regarding controversies involving sports leagues.

Richard Dent, a retired NFL football player, along with six other plaintiffs filed a proposed class action lawsuit against the NFL in the Northern District of California in May 2014, alleging improper use of powerful prescription painkillers as well as negligence, deception and concealment in regard to the dangers over-use presented to their long-term health.  Unfortunately, in dismissing the players’ claim, Judge William Alsup’s interpretation of § 301 read, “Unlike ordinary contracts, collective-bargaining agreements enjoy preemptive effect over state law common duties… Congress intended that the rights and duties created through collective bargaining…should ordinarily trump common law remedies.”  In his view, the purpose of the provision was to protect collective bargaining agreements, and he cited several decisions to support that assumption.  The case has been appealed to the Ninth Circuit, where oral arguments were held in December 2016 and a decision is still pending.

Judge James Holderman of the District Court for the Northern District of Illinois ruled similarly in the wrongful death lawsuit of ex-NFLer Dave Duerson, who committed suicide by shooting himself in the chest so that his brain could be studied.  Judge Holderman reasoned that a duty of care had to be established and to establish that duty, the CBA must be interpreted.

Because of the variance in lower court interpretations of what is preempted and what isn’t, this issue is ripe for Supreme Court review, but it’s impossible to estimate when that might take place.  Perhaps one of these cases will eventually open the door to SCOTUS interpretation.

Statute of Limitations

Another obstacle the retired NHL players will have to face is claims the NHL will make of their injuries being time-barred.  Laws governing statute of limitation vary from state to state allowing plaintiffs to file claims only within a certain time frame that for personal injury cases is typically 2-3 years from the time of injury, although exception is sometimes made to extend the clock to when a plaintiff becomes aware of the injury and the defendant’s responsibility for it. If the plaintiff does not act within the designated time, he is forever barred from filing a lawsuit.  The same principle applies to wrongful death lawsuits.

Because of the latency of many symptoms associated with brain injury, and the fact that it could take many years for a player to become symptomatic, this has been a gray area within the courts.

Sports leagues including the NHL argue for a very narrow reading of statute of limitations, starting the clock at the time of a known injury, which for the vast majority of players who file a lawsuit of this nature, are not aware of the existence of long-term brain disease until it has progressed for a number years and the time for filing a lawsuit, according to the league, has expired.

On the flip-side, players must demonstrate that they were not reasonably aware until symptoms presented and were diagnosed.  In her denial of the NHL’s motion to dismiss on statute of limitations grounds, Judge Nelson applied Minnesota law for the two plaintiffs whose lawsuits were initially filed in Minnesota, and rejected the NHL’s argument.

Nelson - SOL

In her ruling she presented similar law for the states which governed the claims of other named plaintiffs.  The plaintiffs’ assertions that permanent brain injury results from cumulative blows to the head as opposed to a single blow or series of hits that resulted in concussions, with symptoms of long-term damage surfacing later in life, convinced her to allow the case to proceed.  “Thus, when such injuries ‘occurred’ or ‘resulted’ are matters that cannot be determined from the face of the Master Complaint and are proper subjects of discovery,” she wrote in her opinion.

Little if any case law exists governing sports related brain injury due to the relative newness of science linking concussions and sub-concussive hits sustained in contact sports such as football and hockey to permanent brain damage.  Since Dr. Bennet Omalu published his findings on the discovery of CTE in Mike Webster’s brain in 2005, an enormous amount of research has been done, increasing understanding of brain injury and numerous lawsuits have been filed but none have actually been tried to date, either ending in settlement or dismissal on some type of procedural grounds, or are still in play within the court system.

The individual cases moving forward from the dissolved class-action will probably be viewed in a similar manner as asbestos exposure cases which also take years for disease to manifest.  Applying the “discovery rule” exception, the filing deadline clock would start ticking at the time a diagnosis was made, and the cause of the illness was linked to the defendant.

This standard was applied in a wrongful death lawsuit filed by the family of retired NFL player Art DeCarlo who was posthumously diagnosed with CTE.  In that case, the judge started the clock at the family’s receipt of a pathology report that provided the CTE diagnosis.  Shortly after the ruling the NFL agreed to settlement talks and a settlement with the family was reached.  Because most of the documents in the case following Judge Mendez’s decision were filed under seal, it is difficult to ascertain what other elements may have factored into the settlement.

Judges have not consistently abided by this rule, however.  Shortly after the Dent painkiller lawsuit was dismissed on preemption, a similar proposed class action, headed by Etopia Evans, the widow of deceased NFLer Charles Evans, was filed against the 32 clubs of the NFL as a strategy to avoid preemption since the team franchises are not a party to the CBA.  Judge Alsup, who presided over the Dent case was also assigned to Evans.  After permitting substantial discovery, he dismissed the case and granted summary judgment in favor of the defendants based primarily on his agreement with the NFL that the statue of limitations began with the physical injuries the players incurred in their careers and had long since expired.

Alsup ruling

In reviewing deposition testimony in the Evans case, it is clear that in order for players to stand their best chance of prevailing in this area, they must clearly distinguish their current brain disease from any specific injuries they incurred during their careers and articulate how and why they came to understand their current situation is a result of the NHL’s concealment and misrepresentation.

Causation

While preemption and statute of limitations arguments are obstacles that the players must overcome in order to reach trial, causation is the element that will need to be addressed once a case finally makes its way to a jury.

Ploetz vs. NCAA was the first CTE case to have this distinction.  In the wrongful death lawsuit, Debra Ploetz, widow of former Texas Longhorns player Greg Ploetz argued that the NCAA was responsible for the horrific dementia that her husband suffered in his latter years, explained by pathology revealing CTE after his death.  The Ploetz case was expected to be a landmark decision in how a jury might weigh the evidence of latent brain injury and the degree of responsibility they would place on the governing league.  Three days in to the trial, in which substantial damning testimony was presented against the NCAA, a settlement was reached, ending the case and leaving jury reaction a mystery yet to be unraveled.

Archie vs. Pop Warner may be the first case to see a jury.  In that action, a group of mothers whose sons who never played football past high school, hold the youth leagues Pop Warner and USA Football responsible for their sons’ premature death, based on pathology revealing CTE.  The lawsuit, which was filed in 2016 continues to make its way through the Central District of California.  If this case doesn’t reach trial because of settlement or early dismissal, it is possible that one of the opt-out cases from the NFL settlement may emerge from the black hole they are currently submerged in, still under jurisdiction of the Eastern District of Pennsylvania, and become first sports brain injury case to see trial.  If not, Steve Montador’s case appears to be a likely frontrunner to be heard before a jury.

Once the Montador, or any other related case achieves a trial date, the crucial objective will be to convince the jury that actions and inactions taken by the defendant are the direct cause of the plaintiff’s complaint, whether it is wrongful death or latent injury to the living.

The NHL and its teams would have the upper hand since the NHL wouldn’t have to prove a negative. The NHL or any franchise involved in such as case wouldn’t have to prove that there isn’t any correlation between playing hockey professionally and developing neurological diseases. It would simply have to create doubt that such a correlation exists, and for this reason, it will be a battle of experts representing the NHL whose objective is to create doubt, and the plaintiff’s experts, presenting the enormous body of evidence connecting the many mTBIs they experienced on the ice to their current brain diseases and disorders, and that the NHL acted illegally in this regard.

The standard of proof in a civil trial may tilt in the favor of players, however.  Unlike the “beyond a reasonable doubt” standard applicable in criminal proceedings, in a civil trial “preponderance of the evidence” generally applies.  In this standard, the jury will weigh the arguments of both sides and determine which is most likely to be correct.  In other words, a jury could see it as a near toss-up but conclude that one side’s evidence was slightly more convincing than the other. If a jury was to determine a 51% chance that the NHL’s behavior caused injury to the player, then the case would be decided in favor of that player.

While in our opinion the “preponderance of evidence” standard will help to tilt the odds in favor of players, based on the enormity of scientific data on CTE, but unless a definitive and widely accepted test to diagnose CTE in the living is developed prior to trial, players exhibiting symptoms of earlier stages of the disease will find their burden of proof heavier than those who have been diagnosed with Alzheimer’s disease or dementia, which tends to present in later stages.  The NHL will argue that symptoms like depression, addiction, impulsivity and suicidal ideation are present in a large part of the general population as a result of mental, rather than neurological disorders.  Indeed, the NFL is currently using this argument to defeat claims against its 88 Plan Neurocognitive Benefit and refused to cover these symptoms under the class action settlement it eventually agreed to.

Players who are not experiencing full-blown dementia, will have to argue convincingly that their condition did not exist prior to exposure to head trauma, and it was the brain injuries they sustained, and damage to the frontal lobe that triggered chemical imbalances in the brain. If addiction is an issue they will need to demonstrate how their neurological damage increased susceptibility to addiction to the medications that were administered to treat their orthopedic injuries.

Is another class action possible?

The short answer to this question is “yes” but it would almost certainly be of a different scope and form.

Collateral Estoppel

The doctrine of collateral estoppel is derived from criminal proceedings which prohibit trying a defendant for the same issue in more than one criminal trial, but it also has application to civil procedure.  In the instance of proposed class actions that fail certification, it seeks to keep the same plaintiffs from filing the same lawsuits in multiple courts, taking as many bites of the apple as they need in order to finally get a class certified.

As with other points of law, however, various courts have taken different approaches in this regard.  Cases in the Seventh and Eighth Circuits previously held that both named and absent class members were subject to collateral estoppel, thus barring any attempts to relitigate for class certification.  In 2014, however, the Supreme Court, in a unanimous opinion authored by Justice Kagan in Smith vs. Bayer Corp. found that absent class members are not bound to a class until it is certified.

This opinion does at least in theory open the door for another proposed class action against the NHL with punitive class members from the first action becoming named plaintiffs in another, however given the diversity of opinion among circuit courts as to who should be precluded from rolling the dice in another venue the success of such an attempt could be, shall we say for lack of a better word, dicey.

In an Iowa Law Review article entitled “Death by A Thousand Cuts,” written shortly after the decision in Smith vs. Bayer, a proposal was made to bar the attorneys who led the original case, under privity concerns from refiling and seeking certification elsewhere.

privity

Advocacy for Fairness in Sports was unable to find any case law to support that such an assertion would be legally viable, however, the title of the article in which it is proposed likely sums up the defendant’s position on the Supreme Court ruling, and it seems a fair bet that high dollar attorneys representing high dollar defendants are looking for a workaround and coupled with the high premium courts place on judicial efficiency that door could be opened.

On the other hand, plaintiffs lawyers don’t relish the task of having to litigate the same issues hundreds of times either.  In comments to Hockey News, Stuart Davidson said, “It made and continues to make literally no sense to us or our clients why every retired player would have to prove the exact same thing over and over and over again, and that’s essentially what this ruling says to do.  Each player is now required to file his own individual lawsuit and…that is, unfortunately, a very expensive proposition. You have to have epidemiologists and neurosurgeons and neurologists and neuropsychologists and the world’s most renowned experts. You can imagine how much they charge on an hourly basis.”

Potential strategies that might be utilized to achieve certification include presenting the case against different defendants such as the NHL Clubs.  The Evans vs. Arizona Cardinals case referenced earlier took this approach and progressed further than its predecessor, Dent, but in the end, was dismissed without receiving class certification.

Another possible strategy could be to pursue action on behalf of players linked to a particular state, for example, those who played for the Blackhawks, might choose to consolidate their efforts and file against either the team or the NHL with Illinois law governing.

This approach was engineered by the Klamann Law Firm in Missouri, in which a lawsuit was filed against the Kansas City Chiefs and Arizona (formerly St. Louis) Cardinals by retired NFL players who spent at least a portion of their careers playing for Missouri teams.  All claims in the lawsuit stem from Missouri law.  This case came to a halt during the NFL Concussion Litigation and is still, even though an opt-out case, under the jurisdiction of Eastern District of Pennsylvania, and in the process of dodging NFL attempts at dismissal as it seeks remand to Missouri state court.

Conclusion

The arguments and strategies examined in this article are based on our projections of what NHL retirees will most likely encounter and employ as they continue to seek accountability, but there will almost certainly be unanticipated twists and turns along the way as these players navigate their road to justice.

The one upside, aside from Mr. Sohn’s inference of potentially higher awards is that proceeding individually will allow the players to plead with great specificity that can only bolster their claims.

This is where the authors of this analysis diverge.

Derek opines that the best hope for future and current NHL players may lie at the bargaining table, where increased benefits for retired players who suffer from the symptoms of neurological diseases as well as an improved protocol for treatment of active players might be more likely to be won. The NHLPA appears to be preparing its strategy already for the next round of CBA negotiations, and it seems TBIs are on the agenda.

Both writers concur that in battles between billionaires and people who are possibly millionaires, the former usually win out over the latter.

While Sheilla agrees with Derek in that the owners tend to hold the best cards at the bargaining table, she wonders just how motivated the current players might be in bargaining for these types of benefits, since active players tend to focus on salary issues and are often in denial regarding the need for better assurances against brain injury.  This coupled with the difficulty of attaining disability type benefits even if they are bargained for leaves her skeptical and believing that the players’ best shot is still in a court of law.  Once a legal victory is achieved, or a large settlement reached, it seems more likely that the NHL will be receptive to implementing changes to mitigate future liability.

Whatever paths the retirees may travel, we wish them success in their ernest quest for accountability and relief.

This article was updated on July 20, to include new information derived on comments from The Athletic article referenced in the text, and elaboration on bellwether trials and non-class certified settlements.

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