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NHL Concussion Litigation: What’s Next After Judge Nelson Rejects The NHL’s First Attempt to Dismiss Lawsuit

On March 25, 2015, Judge Susan Nelson denied the NHL’s first motion to dismiss, potentially strengthening the former players’ case. Prior to that decision, on January 8, 2015, Judge Nelson heard arguments from both the NHL and former players in regards to two motions to dismiss: (1) motion to dismiss the Master Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b); and motion to dismiss the Master Complaint based on labor law preemption.

It is very important to note that Judge Nelson’s order only addresses the first motion to dismiss – under Federal Rules of Civil Procedure 12(b)(6) and 9(b) – it does not address the labor preemption argument.

In her order, Judge Nelson broke down the NHL’s arguments very eloquently. In sum, the NHL’s arguments were: (1) the Master Complaint must be dismissed as time-barred; (2) the Plaintiffs’ fraud-based claims must be dismissed because they were not pled with particularity; and (3) the Plaintiffs’ medical monitoring claim must be dismissed because none of the relevant jurisdictions, as determined by choice-of law rules, recognize medical monitoring as a stand-alone cause of action.

In response to these arguments, Judge Nelson specifically held: (1) it is not clear from the face of the Master Complaint that the Plaintiffs’ claims are untimely; (2) the Plaintiffs’ claims are adequately pled; and (3) it is not possible on the present record to determine which jurisdictions’ laws apply to Plaintiffs’ medical monitoring claim. As a result, the NHL’s first two arguments were dismissed and the third was dismissed without prejudice.

When a claim is dismissed without prejudice, it signifies that none of the rights or privileges of the individual involved are lost or waived. As a result, a decision on the merits has not been made and the parties are free to litigate the matter in a subsequent action.

While this dismissal should be considered a win for the former players, I wouldn’t expect the NHL to come to the bargaining table and write a check to settle this case anytime and I wouldn’t expect the NHL to comply with the plaintiffs’ likely forthcoming discovery requests. Judge Nelson still needs to rule on the NHL’s second motion to dismiss on the labor law preemption issue, which in my opinion is the far stronger argument.

The crux of the NHL’s second motion to dismiss is that the former players’ claims are preempted by section 301 of the Labor Management Relations Act because their claims either arise out of a collectively bargained agreement or are substantially dependent on an analysis of such an agreement.

When parties collectively bargain rights and duties, it allows them to avoid various types of scrutiny (i.e. antitrust and various labor laws) others are susceptible to. As a result, the NHL makes the argument that the former players collectively bargained away their causes of action.

I will not opine on the outcome of this pending motion, but it is worth noting the NFL filed the same motion to dismiss against their former players, which was ultimately denied and led to settlement talks.

What is worth analyzing is why the NHL wants to dismiss the former players’ claims and to avoid discovery.

After reading the Master Complaint, it appears the NHL wants to mainly avoid the discovery of information such as: (1) why the NHL did not have a concussion protocol until 1997 when there was a vast amount of scientific data and research indicating repeated concussive and sub-concussive impacts, which occur in hockey, could have dangerous long-term effects; and (2) why it took 14 years to issue an inconclusive report analyzing their concussion program.

The Master Complaint and the original complaints establish lengthy timelines about knowledge of concussions in sports back to 1928. Some of the strong findings are:

  • In 1928, pathologist Harrison Martland described the clinical spectrum of abnormalities found in almost 50 percent of boxers if they kept at the game long enough
  • In or about 1965, the Journal of the American Medical Association published a study of encephalopathic changes in professional boxers
  • A 1963 study by Dr. Mawdsley and Dr. Ferguson found that some boxers sustain chronic neurological damages as a result of repeated head injuries. This damage manifested in the form of dementia and impairment of motor function
  • A 1975 study by Dr. Gronwall and Dr. Wrightson looked at the cumulative effects of concussive injuries in non-athletes and found that those who suffered two concussions took longer to recover than those who suffered a single concussion. Those authors noted that these results could be extrapolated to athletes given the common occurrence of concussions in sports
  • In 1982, the University of Virginia and other institutions conducted studies on college football teams that showed that football players who suffered MTBI [Mild Traumatic Brain Injury] also suffered pathological short-term and long-term damage
  • By 1991 the NCAA and individual collegiate teams’ medical staffs, along with many pre-college groups, had disseminated information and adopted criteria to protect hockey players even remotely suspected of having sustained concussions
  • Four “International Symposia on Concussion in Sport” have convened: Vienna (2001), Prague (2004) and two times in Zurich (2008 and 2012). The NHL had representatives at all four symposia
  • Following from the 2001 conference were two reports focused specifically on hockey:
    • Procedures after Minor Traumatic Brain Injury MTBI in Ice Hockey to Prevent Neurological Sequelae
    • Concussion Experience: Swedish Elite Ice Hockey League

In the instance case, the complaints cite a number of other studies and their findings. But these timelines show repeated concussive and sub concussive blows to the head can have detrimental long-term effects, and the damage can likely be exacerbated in the realm of sports. If this case goes to discovery, the NHL will need to explain how it incorporated these findings; but if they did not use this information, they will need to explain why they did not.

Conversely, the NHL only created a concussion program in 1997. Starting in the 1997-1998 season, the NHL mandated all NHL team physicians to document all concussions sustained during the regular season games; this study continued through the 2003-2004 season. The concussion program did not release a report until 2011 – 14 years after it was commissioned. After analyzing all the data, the report merely concluded: “more study is needed.” If this case goes to discovery, the NHL will not only need to defend the outcome of the report, but it will need to explain why no study was commissioned until 1997, when there are studies dating back to 1928 that indicate concussions can create long-term health concerns.

If Judge Nelson denies the NHL’s last motion to dismiss, these are in my opinion the two main hurdles the NHL faces in discovery.

Lastly, and maybe most importantly, in the NHL’s two motions to dismiss, they never moved to dismiss the former players’ claim of declaratory relief. It will be interesting to see if Judge Nelson addresses this claim. If the NHL’s last motion is granted, this case may move on to discovery regardless.