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NHL Concussion Litigation – The Backstory and Potentially the Players’ First Victory

The past twelve to eighteen months have without a doubt been the busiest and most interesting for both sports lawyers and fans alike. In the past calendar year alone: Aaron Hernandez was charged with and is being tried in his first of two murder trials; the NBA forced Donald Sterling to sell the Los Angeles Clippers; a number of players, Greg Hardy, Ray Rice, and Ray McDonald were punished by the NFL for domestic violence; Adrian Peterson was charged with child abuse; and the NFL is close to settling its concussion lawsuit with a class of former players. But there is one legal battle that has essentially avoided major headlines – the ongoing concussion litigation against the National Hockey League (NHL).

This legal battle first began in November of 2013 when a class of former players filed the first concussion lawsuit against the NHL. This same issue made headlines again in April of 2014 when a second concussion lawsuit was filed against the NHL. However, since then it has essentially gone unnoticed, until last month when former New York Islanders great Butch Goring joined a class action concussion lawsuit filed against the NHL.

Originally I thought Goring’s lawsuit was only the third class action concussion lawsuit filed against the NHL. Much to my surprise, I found this most recent case was not the third concussion lawsuit filed against the NHL, it was the ninth. Since November of 2013, nine different classes of former players have sued the NHL over concussion related injuries:

  • Leeman v. NHL, filed 11/25/2013 in the United States District Court for the District of Columbia
  • LaCouture v. NHL, filed 4/09/2014 in the United States District Court for the Southern District of New York
  • Christian v. NHL, filed 4/15/2014 in the United States District Court for the District of Minnesota
  • Fritsche v. NHL, filed 7/252014 in the United States District Court for the Southern District of New York
  • Rohloff v. NHL, filed 7/29/2014 in the United States District Court for the District of Minnesota
  • Larose v. NHL, filed 9/08/2014 in the United States District Court for the District of Minnesota
  • Populok v. NHL, filed 9/17/204 in the United States District Court for the District of Minnesota
  • Murphy v. NHL, filed 10/02/2014 in the United States District Court for the District of Minnesota
  • Adams v. NHL, filed 2/19/2015 in the United States District Court for the District of Minnesota

Each of these cases has their own individual nuances due to their respective laws. But, when you boil it down, all off these cases essentially allege the same cause of action: due to the vast amount of scientific research and studies the NHL knew, or should have known, that hockey players who sustain repetitive concussive, sub-concussive events and/or brain injuries are a significantly greater risk for chronic neuro-cognitive illness and disabilities both during their hockey careers and later in life.

Looking at these nine cases, three stand out from the crowd: Leeman v. NHLFritsche v. NHL; and Adams v. NHL. These cases are different from the other six cases because they are the only ones in which the plaintiffs seek declaratory relief. This distinction is important in regards to the NHL’s likely motion to dismiss. Declaratory relief essentially means a party wants the court to answer a number of certified questions and no damages of any form are requested. In Leeman, Fritsche and Adams the plaintiffs seek declaration of a handful of specific questions. Some of these questions include:

  1. the NHL knew or should have known, at all times material, that the repeated, traumatic and unnecessary head impacts the Plaintiffs endured while playing NHL hockey were likely to expose them to neuro-degenerative disorders and diseases, including but not limited to CTE, Alzheimer’s disease or similar cognitive-impairing conditions;
  2. based on the NHL’s voluntary undertaking to study the issue of MBTI, it had a duty to advise Plaintiffs of that heightened risk;
  3. the NHL willfully and intentionally concealed from and misled Plaintiffs concerning that risk; and 
  4. the NHL recklessly endangered Plaintiffs

In August of 2014, the NHL moved for consolidation and centralization of these cases to a single jurisdiction in response to the number of separate, but related, class action lawsuits filed. After considering arguments from both sides, a panel of judges for the District of Columbia agreed that centralization in the District of Minnesota will serve the convenience of both parties because there are already two pending cases in that district. The order was filed on August 25, 2015; as a result, any and all additional concussion lawsuits will be tried in the District of Minnesota. Henceforth, the litigation will proceed pursuant to multidistrict litigation, or MDL. As a result, Minnesota law will not be applied to all nine cases, each case will have the laws of their respective jurisdiction apply. Traditionally MDL favors the defendants because they are not forced to fight a number of different legal battles in a number of different jurisdictions; it allows them to streamline litigation. Conversely, it requires the NHL to educate themselves and the judge on the jurisprudence of each jurisdiction where a complaint was filed.

Although the NHL may be favored under the application of MDL, the consolidation of these cases in the District of Minnesota may actually be the first real victory for the players because any and all NHL concussion litigation was assigned to Judge Susan Nelson. Judge Nelson is no stranger to sports law litigation; she momentarily ended the NFL lockout in 2011 by ruling in favor of the players in Brady v. NFL. Ultimately, this is only the tip of the iceberg. A large legal battle is about to take place in the District of Minnesota. It will be interesting to follow along and see how things play out.