June 23, 2017
A lawsuit that began with numerous accusations against all 32 NFL Clubs by 14 former players was whittled down to what Judge Alsup deemed “sufficiently pled” allegations against 14 teams by 9 players last month, but in accordance with Alsup’s interpretation of the statue of limitations he found all but the misrepresentation claims of 2 players against 3 teams to be time barred. The only surviving claims are those of Alphonso Carreker against the Green Bay Packers and Denver Broncos and Reggie Walker’s claims against the Chargers. Earlier this month the NFL Clubs filed for Summary Judgment against the players stating that Workers’ Compensation is the only recourse for their injuries but in a response filed on Wednesday, Carreker and Walker fired back at the NFL Clubs’ assertions.
Defendants base their summary judgment argument entirely on the principle of workers’ compensation exclusivity under California, Colorado and Wisconsin law. Defendants contend that Carreker’s resistance to anti-inflammatory medication, which did not surface until he experienced a heart problem some 22 years after he played NFL football, is a workers’ compensation injury uncompensable under Colorado (Broncos) and Wisconsin (Packers) common law. Defendants similarly argue that Walker’s ankle injury, a separate aggravation of a different, earlier injury, is compensable exclusively by California’s (Chargers) workers’ compensation law.
The players state that the NFL Clubs “erroneously overread the exclusivity principle” and in doing so negate the exceptions of fraudulent and illegal conduct, actions constituting or reflecting a deliberate intent to injure, and deliberate aggravation of existing injuries. While the Broncos, Packers and Chargers contend the players are seeking redress for injuries sustained during their playing careers, the players point out that this is not the case. They are seeking compensation for medication-based claims that are “separate and distinct” from the on-field injuries they suffered while playing football. The players response chides the NFL and its Clubs for “rewriting the Plaintiffs’ actual allegations,” and says that these “rewrites” have been occurring consistently since the prior painkiller lawsuit filed by Richard Dent.
Illustrating the wild overbreadth of Defendants’ arguments, Carreker’s sole remaining claim is for a single injury – resistance to anti-inflammatory medications from years of Defendant provided medications – that arose some 22 years after Carreker last played NFL football. Defendants say that Carreker’s claim for that injury – for which no team ever treated Carreker and that did not even exist when Carreker was playing – is barred by the workers’ compensation exclusivity rule. By Defendants’ reckoning, then, virtually no claim by a worker could ever exist outside the workers’ compensation regime.
The players point out that the issue is one of causation – “did the medications administered by the teams cause the current injuries?” – and this should be determined by a jury. They contend that the defendants knew the medications were risky. and that their administering of the drugs was to keep them on the field, knowing from a medical perspective that this was dangerous and wrong. The players meanwhile say they trusted their doctors and trainers and were unaware of the hazards and consequences to their long-term health. They also remind the court that the manner in which the medications were handled and administered was illegal and that the defendants’ conduct has caused them later in life injuries and placed them at risk for additional injury.
Workers’ compensation exclusivity is inapplicable where, as here, Defendants deliberately chose to, and did, harm their workers and violated federal law in doing so.
In Walker’s case, the brief states that his claim is proper outside of workers’ compensation because under California law an employer who “engages in intentional misconduct following a compensable injury may be held liable in an action at law for aggravation of the injury.” Walker states that this exception of law should be recognized in that he is pursuing a claim that medication aggravated his ankle injury and is not suing because of the initial injury. The following California legal precedent is cited to support this assertion:
The brief also counters the Clubs’ contention that Walker’s deposition testimony supports that his claims are not viable outside workers’ comp:
Similar laws in Wisconsin and Colorado govern workers’ compensation exceptions as noted in California law and these would apply to Alphonso Carreker’s injury claims. As with Walker, the Clubs argue that Carreker’s deposition testimony “argues away” any intentional harm exceptions.
The new brief points out, however, that the opposite conclusion should be inferred. Carreker simply related that he trusted the team doctors and trainers and had no reason at the time to question their actions.
“I trusted those guys,” he testified. “Those were my friends. I believed in them. . . but I can’t say what was true and what was not true. They never explained anything to me but other than the fact that they were going to help me with my pain, manage my pain. . . The biggest thing I know I can say right now is that I wish I knew by taking a lot of stuff, at one point would be damaging to a person…At that time in my life, I had no idea about side effects or what side effects did to you. . . I think all doctors or trainers in the NFL should have something on the wall or have a meeting with these guys to inform them if you are taking certain medications for—heavily the way we take them at a certain time, that you are at risk for certain other diseases that can pop up or whatever. . . The warning labels need to be there. . . That’s something that needs to be talked about. That’s something that needs to be shared with these guys, because I don’t think they know. Because you’re taking painkillers. You’re taking muscle relaxers. You’re taking anti-inflammatories…you don’t know, if by taking all this stuff together, what it can do to you. You don’t know the side effects, so I think all that stuff need[s] to be discussed.”
When asked, “Is there anything that, had you been told about it with Green Bay, you would not have taken the medication?” Carreker replied:
“Absolutely. Especially when I really had a serious injury, I would have just requested that let me heal properly, naturally; and I cannot play in pain with this injury. If it takes me two weeks to–to heal. . . I need to have that instead of having me go right back out there and play and knowing I’m out there high or taking all this stuff. . . just to play. . . If it took me a month for stuff to heal, let it heal on its own, instead of giving me stuff to get me back on the field.”
Carreker was also asked, “Is there any specific side effect of a particular drug that, had you known about it, you would have refused to take the medication?” to which he answered:
“I think that could go with all of them. . . I wouldn’t have took as much…If I’m taking 60, 70 of these pills a week, is that too much? Well, that’s excessive. I don’t know what was excessive. . . I would have liked if someone would have told me what would have been excessive. I mean, don’t just hand me a bag of pills and say take them as needed; and you’ve got three different ones. . .”
Numerous times he repeated that he thought the doctors and trainers were his friends and that he wished they’d kept him informed of risks of the medications he received.
But. . .
While only the government can bring criminal charges against the teams – or the league – documents disclosed in discovery and deposition testimony of team doctors and trainers confirms the illegal activity the plaintiffs in this lawsuit have alleged. In their response Carreker and Walker remind the court that their injuries are in fact the end result of illegal handing of medications, and using court precedent demonstrate that the conduct exhibited by the Clubs delves far beyond an acceptable worker/employer relationship and because the Clubs disregard for safe medical practices is the equivalent of willfully inflicting injury upon the players.
The Defendant’s behavior here goes far beyond the simple “failure to assure that. . . the physical environment of a workplace is safe.” . . . Supplying Plaintiffs with inordinate amounts of dangerous drugs has “no proper place in the employment relationship [and] may not be made into a ‘normal’ part of the employment relationship merely by means of artful terminology.” . . . “What matters, then, is not the label that might be affixed to the employer conduct, but whether the conduct itself, concretely, is of the kind that is within the compensation bargain.” . . . Providing massive quantities of controlled substances is outside Defendant’s “proper role.” . . . Fermino’s rule, that intentional conduct that is not a normal risk of employment, is outside the employer’s proper role, or is contrary to public policy falls outside workers’ compensation exclusivity. . . applies here. The Defendants’ illegal and dangerous pharmacological free-for-all was the equivalent of punching someone in the nose and claiming “I did not intend to do any harm.” [Emphasis mine]
Previously the 14 plaintiffs in this case asked the court to place Carreker and Walker’s claims on hold in order to appeal the vast portions of the lawsuit that were gutted. Judge Alsup denied that request. A casual reading of the initial and amended complaints paint an ugly picture of disregard for players’ long-term health and well-being – a picture of disregard for human life. A technical reading, however gives “wiggle room” to the defendants from a legal perspective, and the DEA’s attempts at accommodation of the NFL rather than prosecution of offenses doesn’t help the plaintiffs’ civil case. In Dent, the previous painkiller lawsuit which was filed against the NFL as a legal entity, Judge Alsup ruled that player health provisions are governed by the league’s collective bargaining agreement. That case was appealed to the Ninth Circuit and is now awaiting a decision. In the typically liberal circuit, the research that I’ve done on Judge Alsup’s decisions (at least in regard to cases involving the NFL – and he’s presided over several) indicates that he tends to lean heavily toward the employer in his interpretation of law. I’m hoping this one will be the exception.