April 22, 2019
On April 19, Judge William Alsup of the Northern District of California dismissed the only remaining cause of action against the NFL regarding its misuse of powerful painkilling drugs, ending litigation that spanned two-lawsuits over the course of five years.
Hall of Famer Richard Dent filed his class-action lawsuit against the NFL in 2014, claiming physical damage from the NFL’s reckless use of painkillers aimed at keeping badly injured players on the field. Within months, the lawsuit was dismissed on preemption and appealed to the Ninth Circuit. Judge Alsup opined that Dent and the other players in the suit were suing the wrong party since the teams and their doctors and trainers were responsible for dispensing drugs to players.
In 2015, another group of plaintiffs led by NFL widow Etopia Evans filed suit against the 32 member clubs of the NFL making the same allegations but rather than seeking damages for personal injury, this group of retired players and Mrs. Evans pled conspiracy and fraudulent concealment seeking remuneration for economic losses through RICO claims.
Oral arguments for Dent were held at the Ninth Circuit on December 15, 2016, and afterward, the case appeared to disappear into a black hole. Meanwhile, discovery was underway in the Evans lawsuit with numerous emails and depositions disclosing illegal handling of prescription drugs, confirming the players’ allegations.
Despite this, on February 3, 2017, Judge Alsup dismissed the RICO and conspiracy claims in Evans and on May 15, 2017, dismissed the fraudulent concealment and misrepresentation claims of all but nine players.
Finally, on July 21, 2017, those remaining claims were dismissed through summary judgment with Judge Alsup holding that the claims were time-barred and plaintiffs’ only relief was through workers comp or CBA benefits.
As the Evans plaintiffs were filing their appeal at the Ninth Circuit, on September 6, 2018, following a twenty-one month wait a ruling was finally issued in Dent. The Ninth Circuit reversed Judge Alsup’s dismissal on preemption, holding that parties to a CBA cannot bargain for what is illegal.
On December 5, 2018, the Dent plaintiffs filed an amended complaint, utilizing a great deal of discovery obtained in Evans, and describing in detail the musculoskeletal and internal injuries to the players as a result of the misuse of powerful drugs. Later that month, oral arguments for Evans were heard at the Ninth Circuit. Less than a month and a half after arguments, the Ninth Circuit upheld the district court, ending the Evans litigation. Since I wrote in detail about the Evans dismissal, I won’t rehash that lawsuit, here, but instead will review some of the commonalities and the particularities on which Dent was dismissed.
Both lawsuits went into great detail about the NFL’s profit machine and how the advent of large TV deals along with smaller roster sizes increased the demands on players including those who are injured. In order to keep men in play, they were administered powerful painkillers and other drugs to keep them going. Because injuries were not allowed to heal players suffered the dual harms of permanently damaged knees, backs, shoulders, and other body parts, often coupled with organ damage because of the reckless quantities of drugs consumed. The players experienced lost income, partially from early retirement and partially from the inability to do post-retirement work, and these causes of action were asserted in Evans. The Dent suit was a personal injury suit seeking to recover damages from bodily harm caused by deceptive practices regarding the drugs administered and, in some cases, honesty regarding the severity of injuries that were masked by drugs. You can read stories of individual players here and here.
What went wrong?
Dent sought recovery from the NFL whereas Evans sought recovery from the teams. While numerous factors come into play, the single biggest reason for dismissal seems to be that the wrong defendants were named in each suit. Early in the Dent proceedings, the NFL Defendants pled that the league itself was not responsible for administering medications and that Dent should be suing the teams rather than the league. Judge Alsup agreed.
After that case was dismissed, the attorneys filed a suit against the teams on behalf of a different set of plaintiffs, but instead of pursuing the same counts against the teams, they changed the lawsuit to seek accommodation for financial losses due to the impact of the medications. While the allegations were for all practical purposes nearly identical the damages sought and causes filed against the defendants should have been reversed.
Judge Alsup wrote in his order:
Likely unhappy about being overturned at the Ninth Circuit, Judge Alsup zeroed in on this portion of the appeals court’s decision:
Because team doctors and trainers directly provided players with drugs, Alsup deemed there was no direct liability.
Had the same counts been levied against the teams in a personal injury context, the judge most likely would have been forced to rule differently, as the governing statutes are not identical to those for RICO claims, which are among the most stringent.
On the other hand, the plaintiffs made an excellent case for the NFL’s complicity in creating the environment which led teams to consider it necessary to put player health and wellbeing on the sideline to keep the player on the field in order to keep the team competitive. In addition, the plaintiffs provided ample evidence of the NFL’s awareness of drug violations and their inaction in reining in illegal activity. The plaintiffs also noted supervision and guidance on the part of the NFL through the establishment of the physicians’ society, research, and implementation of a league-wide Toradol waiver which provided evidence of conspiracy, had the players’ attorneys elected to pursue this path against the NFL and assert RICO claims against the league.
It’s extremely unfortunate for the players that the correct defendants were not charged with the appropriate violations. Had this taken place, it’s possible the outcomes of the two cases would have been much different.
I say possible rather than probable in that both Judge Alsup and the Ninth Circuit seemed to have difficulty differentiating the players’ initial on-field injuries from the latent injuries exacted by the medications. Regardless of the legal statutes involved and whether or not they were correctly applied, the facts presented in the painkiller lawsuits seem easy enough to understand, and for that reason, it’s troubling that two different courts failed to grasp the actual injury players claimed.
In denying the Evans appeal, the Ninth Circuit panel opined:
This echoes Judge Alsup’s reasoning that players knew they were injured and ups the ante in concluding that they knew their injuries had ended their careers.
As I pointed out shortly after the Ninth Circuit ruling, the reasoning here lacks a realistic knowledge of NFL culture. When most NFL careers end, it’s not because a player has made a grand announcement of his decision to retire. In most instances, injured players are cut from teams and have every intention of seeking employment with another one. If immediate employment doesn’t present itself and there is an injury standing in the way, the player typically focuses his time and energy on rehabbing that injury and conditioning himself for a return to the NFL.
Often, it is only after, two or three years in which the player seeks, but is unable to find employment that he realizes that his career is over. Once they cross over into this phase, they often seek out medical opinions regarding the injuries they sustained and learn that the severity of injuries was concealed from them—for instance, a break represented as a sprain.
The claims made in both lawsuits are completely divorced from these physical injuries, however, and this is the point that neither Judge Alsup nor the Ninth Circuit panel managed to grasp.
It is only in retrospect after the player has learned the extent of damage to his body that he might possibly conceive that the pain medications he was given exacerbated the degree of injury from moderate to severe. And because organ damage is latent, it typically many years later when he has begun to grasp the reasons behind organ failure and only if his doctors is adept at connecting the dots.
The above excerpt from Judge Alsup’s summary judgment ruling in Evans makes it clear that Judge Alsup didn’t fully comprehend the role medications played in a player’s future suffering.
While I believe plaintiffs’ attorneys did good work, it clearly wasn’t good enough for Judge Alsup, who has the reputation of a perfectionist. Above the Law blog referred to Judge Alsup as “hard-ass” and noted that he has taken offense at people coughing in his courtroom and reporters typing too loudly. Lawdragon quotes Judge Alsup, who spent the first 28 years of his career as a trial attorney, as commenting, regarding two fundamentals on which he tries every case; The first, “according to the law and the instructions, and every good lawyer is going to have a good argument on the law and the facts that support the elements and so forth.”
Alsup seemed to double down on this during the painkiller litigation.
Rather than reading the complaints and evaluating the message that was easily inferred for even a casual reader, it seems he evaluated each word as if it were a post-Miranda interrogation. Many players sat for depositions and while their meaning seemed clear, their inclinations toward being polite were turned upside down. Here’s an example:
It’s unclear how well the players were prepared for their depositions but when interrogated by cunning and experienced lawyers, how you relate the truth can be just as important as telling the truth. This player didn’t want to badmouth his team doctors and trainers, despite the fact they deceived him through illegally administered drugs. Some players failed to express exactly how the drugs harmed them outside of their on-field injuries even though they went into detail about how the injuries were worsened because they were forced to play through them. Perhaps they failed to elaborate on this likely assuming since it was a painkiller lawsuit that the drug impact was understood.
Others didn’t specifically state that they relied on the misinformation and would have made different choices had they not been deceived. I think they inferred as much but, not wanting to paint their trainers as evil villains because they were nice to them as they numbed their bodies they didn’t pound the issue as forcefully as they might have, had they realized that depositions aren’t the forum for niceties. In doing so, they failed to communicate the specific conditions Judge Alsup was looking for.
Finally, the judge seemed particularly fixed on specific details.
I’ve embedded the Third Amended Complaint which gives ample details of the misconduct taking place as confirmed through the Evans discovery. Beginning on page 8 you will find 6 pages that detail Richard Dent’s career, injuries, and the drugs he was given. You can read it for yourself, but I think it’s abundantly clear what Mr. Dent is trying to communicate. The other players in the suit follow Dent in a similar manner.
Apparently, Judge Alsup was looking for the trainer, the injury, the drug, where the game was played how the drug was administered. And then how the particular incident led to his medication injuries later in life. Such is post–Twombly life in federal court, I suppose, since it seems exponentially more difficult to plead with the level of particularity some judges demand to advance from possible to plausible.
While I could be wrong, it seems unlikely that the attorneys will appeal Dent, yet again. UPDATE: In this instance, I was wrong. Dent has appealed to the Ninth Circuit a second time. Opening briefs are due on August 22. This case represents the litigation risk for attorneys working on a contingency fee basis. The two cases have involved numerous filings over the course of five years, including six 90+ page complaints and amended complaints and a barrage of pretrial motion responses. The Evans lawsuit obtained substantial discovery which is one of the more expensive elements of a case, in which documents must be produced or reviewed by the thousands. Meanwhile, depositions are taking place in which attorneys must often fly to a distant location in order to avoid inconveniencing the witness, and experts charging between $1,000 and $2,000 per hour must be consulted.
Costs to plaintiffs attorneys in the NHL Concussion injury litigation, which produced a similar amount of discovery, was estimated at $4 million in attorney expenses. That’s a lot of time and money to lose without recovering a single dime. Sadly, for all the work invested, the players are still living with their injuries with no expectation of financial relief.
The possibility of appeal hasn’t been exhausted, though it does seem remote at this point. Attorneys handling the case did not respond to my request for comment and did not respond to other media that reported on the dismissal, so they are likely weighing their options.
I inquired of noted litigator Alan Milstein as to whether res judicata would prevent the filing of another lawsuit and he said there would be no claim preclusion if the suit was brought by different plaintiffs. He also agreed that the teams and trainers would be the correct parties to pursue for the medication injury claims.
Since teams are not parties to a CBA, it would seem that preemption would be unlikely, as the Evans suit withstood the preemption bid. If the plaintiffs are able to file in a different court and remain there, I also see that as a plus. Hopefully, there will be a third time and third time will be the charm.