February 18, 2019
Update: This action has been appealed to the Ninth Circuit. The appellant brief is due August 22, 2019.
Everything about the dismissal of the Evans painkiller lawsuit raises questions. The only answer it provides is that this particular lawsuit has reached its end. Why this happened may never be satisfactorily answered but it’s time to take a look.
The short, non-published opinion issued on February 6 barely spanned six pages. To read it, and to have listened to oral arguments, one has to wonder if the judges even read the briefing. Judges Consuelo M. Callahan, N. Randy Smith and Mary H. Murguia are not newcomers to the bench. Callahan was nominated to the Ninth Circuit by George W. Bush in 2003; Smith was another Bush nominee who joined the Ninth Circuit in 2007. He was part of the panel that favorably overturned Judge William Alsup’s ruling in Dent, another painkiller lawsuit against the NFL. Murguia was nominated to federal judicial service in 2000 by William Clinton and nominated to the Ninth Circuit in 2010 by Barack Obama. Experienced, well educated judges, all, yet they failed to grasp a brief that should be understandable to a fifth grader. This was puzzling to me. When I inquired of University of Baltimore Law School Professor Phillip Closius, who argued on behalf of the plaintiffs, he seemed puzzled as well.
The appellant brief began as follows:
The main points of the case are introduced here.
- NFL doctors and trainers illegally administered painkillers to players to keep them on the field securing profits for their teams and the league.
- The mass quantities of drugs created latent health problems for the players which they had no awareness of at the time their careers ended. (They weren’t seers who could peer into the future and know the health problems they would face because of the drugs.)
- They became aware of the reckless manner in which the NFL had administered the medications and the impact it had on their careers in 2014.
As Professor Closius brought out in oral arguments, it was the Dent lawsuit that brought awareness of the impact the medications had on their lives and careers. At the time their careers ended, they thought their bodies had seen normal wear and tear. They thought the doctors and trainers were looking out for their best interest. When they were cut, they more than likely didn’t even grasp that they had retired. Often it takes two or three years of unemployment before it sinks in that an NFL career is truly over. Most guys who’ve been injured continue to rehab and seek a return to the league.
What the players didn’t realize when they were cut and tried to rehab their way back was the impact painkillers had on their bodies. Physical injuries that would have healed with proper rest became permanent injuries, the pain of which often precluded steady employment in other occupations post-NFL retirement. This seems to be a simple concept, yet, none of the panel seemed to grasp it.
The recurring themes in both oral arguments and the written opinion by the panel focused on only three things. Players were injured. Players retired. Players knew they retired.
In reading this statement, it’s clear that the judges missed the entire point of the lawsuit. They correctly identify a primary business injury—that of a shortened career—but they never recognized the secondary injury—that of long-term physical conditions which cost them post-retirement employment opportunities.
More importantly they completely ignored the impact of the painkilling drugs in masking physical injuries until they became permanent disabilities. As I stated previously, unless a player makes a conscious decision to retire, it takes time for reality to set in that he is indeed retired. The judges’ fixation on “he knows he retired,” is incorrect and shows a fundamental misunderstanding of NFL culture, and also the effect of painkillers on the body.
In an interview I conducted with one of the plaintiffs, Darryl Ashmore in January 2017, Ashmore related that you really don’t feel your body until after you’re out of the league. He knew he’d been injured but he had no clue as to how severely he’d been injured and how the painkillers masked this from him. He had no way of knowing how this would impact him for the rest of his life. Ashmore was an eleven-year offensive lineman; his recollections are worth revisiting:
“I had my share of injuries. So I kind of look back on it and think, what kept me from being a full-time starter in this league. And I look at my injury list, injured at times during the year, and would I be able to overcome some of the injuries in the first parts of the years.”
He recalled that in college, he’d been given ample time to regroup from injury at Northwestern.
“You can come back if you want to, but it’s up to you type of thing. And I’d worked and worked and had some setbacks. I had to have a clean-up surgery real quick. I could pick my time, and I was able to slip over to—I could have come back my true senior year and played one game, and I wasn’t ready. I obviously had swelling and stuff . . . I red shirted my senior year and came back as a fifth-year senior.”
He found the NFL culture to be much different. In the pros, the name of the game is returning to the field as soon as possible.
“You get through it with painkillers and what they give you, anti-inflammatories, and you never really get to feel your body because they give you painkillers during the offseason to offset some of the pain. So after my fourth, fifth year, with the knee injury, the pain and the knee injuries I had with the Rams, two consecutive ones in my first few years, my body really was never the same to start with. It went downhill from there.”
I was aware of a neck injury he suffered after being traded to the Redskins in 1996 and asked him about it.
“I had that neck injury and I had a back injury with the Redskins, neck injury with the Rams. My neck was never the same. I had trouble sleeping. Luckily, I was going into the offseason with the neck injury with the Rams and had a chance to rehab it, but I was never physically a hundred percent strong strength-wise and the feeling in the arms never came back all the way. But compared to one side of my body, I probably was minus 10 percent strength and some reflexes on that side because of the neck injury and pain. I had pain all the time. I had to wear special pads and stuff just for my neck out there. I had an option of having surgery, which would have ended my career with the Rams, where they would have fused my vertebrae, but I chose to rehab it.”
With the aid of painkillers, he continued to play, but said that he had to try to compensate for the injuries, for the remainder of his career, using the special pads to ensure that his neck didn’t “bend back too far,” and that pain was a constant during the latter part of his time on the gridiron. Ashmore was traded to the Raiders in 1998 and played for Oakland until 2002.
“The moment I retired, I did have surgery. I did tend to the injury, and I never recovered. I tried to come back, but the Rams’ doctor, from what I hear, didn’t perform the surgery properly. He kind of botched it, and my quad wasn’t connected properly. I never regained the strength in my quad.”
Ashmore’s story isn’t unique—he tried to rehab and come back. Painkillers kept him on the field for a time, but had his injuries been allowed to heal he could have been a full-time starter, which of itself would have earned him additional money, and it’s likely he would have not retired when he did. After he was cut by the Raiders, he sought medical help to no avail.
“Well, I’m going through different physicians, asking for surgeries on my back. But they said the minute you open yourself up it’s going to be worse, and I was a fairly young man, 33, 34. But I sought out medical professionals from when I lived in the D.C. areas, consultations.”
He told me he got to the point where he just wanted “to leave it alone.”
“You always think you’re not going to be that someone. You think, ‘hey, I’m going to get better, I can beat this, I can get my body stronger, I can overcome.’ But at the end of the day, I’m regressing, and my body is getting worse, and my condition, little by little, I’m like, ‘hey, this isn’t better. You’re never getting better.”
Ashmore knew he wasn’t getting better but he didn’t know why. He had yet to connect the dots between the medications and his constant pain. He was only 47 years old when I interviewed him, yet he suffers from chronic pain in his neck, knees, back, wrist, and shoulders, herniated discs, and degenerative arthritis. He is unable to work or even drive a car. Ashmore is also experiencing kidney problems due to the painkillers he took while playing in the NFL. The cost of his life insurance had increased because of the elevated serum creatinine levels in his body. On top of this he deals with hypertension, frequent and severe migraines, memory loss, depression, anxiety, impaired concentration, and nausea. Fortunately, his wife’s business sustains their family, but not all players are this lucky—if you can call it that.
The lawsuit was dismissed in the Northern District of California, as being time-barred on the statute of limitations. The Ninth Circuit panel agreed.
Because they viewed only the physical injuries and not the effects of the medications, they calculated that the statute of limitations ran out in 2004 based on the career end-date of the most recently employed player in the lawsuit.
Professor Closius made every attempt to explain at oral arguments, what should have already been abundantly clear from the appellant brief, but he had little opportunity—he was constantly interrupted by one of the judges or another to the point of absurdity. I timed it. Professor Closius was not permitted to speak for an entire uninterrupted minute, so it’s little wonder he wasn’t able to explain as thoroughly as he would have liked. While it’s good and reasonable for judges to ask questions on points they’re unclear on, It seemed as if they didn’t want to hear what he had to say. He was barely able to complete a sentence without interruption.
In contrast, Gregg Levy, who argued on behalf of the NFL Clubs spoke for three minutes without interruption to begin his argument. Levy pounded home the same points the judges seemed fixed on—physical injuries and retirement dates.
Professor Closius tried to get into latent injury and the discovery rule in stating, perhaps for his longest uninterrupted moment, “Your honor, equitable tolling usually takes affirmative fraud and we do allege affirmative fraud. Answering questions about side-effects truthfully, statements about the NFL gives the best healthcare in the world, telling people that broken legs are just sprains…” Unfortunately, he didn’t get any further before he was interrupted again.
The appellant brief, however addressed this.
Closius tried to explain that the players did not have notice of fraud until they learned of the first painkiller lawsuit in 2014, which was also the date cited in the appellant brief.
Many people don’t connect the dots of their problems until reading about others who face similar concerns, whether it’s an adverse reaction to medical device, a gardener who finally figured out his cancer was due to prolonged exposure to weed killing chemicals, or an NFL player who didn’t know why he was suffering until he read about others in his position who’d figured it out.
Nonetheless, this is what the Ninth Circuit panel wrote:
Somehow, the Court was unable or unwilling to comprehend the most critical factors of the case—that plaintiffs did not know their careers had been cut short at the time they were cut from their teams, not did they have any indication at that time that they’d been conned out of both a longer, more lucrative career and future earning potential.
I attended a University of Georgia Law Review symposium on February 7 and had the opportunity to sit and chat with one of the presenting professors for a bit. This decision had been issued the day prior. I asked him, “Do you think that sometimes judges fail to comprehend the cases they’re adjudicating.” He said, “Absolutely.” We discussed the topic for a bit and considered heavy caseloads, philosophical bias and tossed around a few more ideas, but didn’t find a definitive answer.
When the Dent painkiller lawsuit was argued by Professor Closius (against Paul Clement, no less) it was almost two years until a decision was issued; in Evans, it was less that two months. It almost seems as if the panel had decided without out ever hearing oral arguments or perhaps even reading the briefs. I’m baffled as to why experienced judges and their well-educated clerks have trouble comprehending what is clearly written.
This isn’t the only case I’m following where this seems to be taking place. Recently the lawsuit filed by the daughter of the late Aaron Hernandez was dismissed on claims she never pled and a failure to acknowledge disputed facts that required discovery to resolve. Judge Sullivan, who is presiding over Lane Johnson’s lawsuit against the National Football League Players Association seems poised to grant summary judgment while merely taking the word of people whom Johnson accuses of withholding documents he is entitled to by law, that they’ve now provided them while Johnson claims otherwise. It’s also odd that one of his causes of action has been completely ignored by the judge while the NFLPA claims in one sentence he never pleaded what’s clearly in his complaint and in another sentence points out that it “was not a new allegation in the second amended complaint,” to apparently try to make it appear that Johnson’s lawyer didn’t know what he wrote.
It’s difficult zero in on why this is happening. Are judges becoming fixated on certain points and allowing confirmation bias to cloud their reasoning? At least one researcher, Anna Spain Bradley of the University of Colorado-Boulder seems to think so. In her article, The Disruptive Neuroscience of Judicial Choice, she writes:
Most of the procedural rules in modern courts were put in place to help defendants and it seems harder and harder for plaintiffs to prevail yet these procedures tend to go unnoticed by much of the public. University of Connecticut Law professor Alexandra Lahav explains this in her book, In Praise of Litigation.
Procedural limitations are little noticed or discussed, even when they profoundly diminish people’s ability to enforce rights they rely on and care about. Perhaps this is why instead of explicitly limiting individual rights, legislatures and courts have made changes to procedure that reduce our ability to enforce those rights—a tactic largely invisible to most. These procedural changes happened gradually, often with the justification of reducing the costs of the court system or making that system more beneficial to certain classes of litigants. The fact that the assault on litigation remains largely invisible only heightens the dangers it poses to the core values of democracy.
Sometimes I wonder if the courts have become distracted with their large caseloads and somehow lost sight of the fact they belong to the American People. Not the corporations and the powerful but all people from the least to the greatest. It is their responsibility to listen to all litigants and provide reasoned opinions so that we understand their thoughts even if we disagree with them.
In the Evans case, the Ninth Circuit sorely neglected to address the points of argument and provide any reasoned analysis as to their decision. Instead, they simply echoed the defendant and ignored the plaintiffs’ well pleaded assertions.
“I disagree with the reasoning of the court in the Ninth Circuit but we’ve accepted that [and] we’re now focusing our efforts on Dent,” Professor Closius told me.
The NFL has filed a motion to dismiss on statute of limitations in that case, as well and a hearing, previously scheduled for March 7, has been reset for March 21. For more on the Dent case, click here.
Professor Closius indicated that the plaintiffs in Evans are also un-named plaintiffs in Dent. Hopefully at long, last, Judge Alsup will look at the seriousness of the confirmed illegal use of painkillers and other potent prescription drugs, and the high toll of this abuse on the retired NFL community, and see fit to allow the case to proceed. According to us.courts.gov, motions to dismiss civil tort claims were granted for either part or an entire case at 71.8% in 2010, which is the most recent data I’ve been able to find, my best guess is that since Twombly tightened the noose on plaintiff claims, this rate has held steady placing substantial burdens on plaintiffs and for all practical purposes requiring them to litigate their case in their initial or amended lawsuit, generally without the burden of discovery. Fingers crossed that Dent survives the odds. To disallow the case to move forward serves only to reward criminal behavior.