NHL, Players Face Off in Next Round of Concussion Litigation

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By Steven M. Sellers

Lawyers for the National Hockey League and more than 150 retired players will spar March 16 at a crucial juncture in litigation over the league’s alleged failure to warn players of brain injury risk.

The hearing at the U.S. District Court for the District of Minnesota precedes a decision on whether the players’ claims will be litigated as a class.

Certifying two proposed classes could ratchet-up the NHL’s liability exposure, while a denial would leave players to litigate claims individually, sapping their collective leverage.

The potential price tag for the NHL also looms if class certification is eventually granted.

The National Football League settled a similar class action for $1 billion in 2016—a deal criticized by some players as inadequate and unfair. But the pro hockey league takes in much less than what the NFL earns in revenue.

In 2014-15, for example, the NFL earned $11.1 billion in revenue, while the NHL earned approximately $4 billion.

Class certification could increase pressure on the league to settle the cases, but with the hefty settlement floor built by the NFL deal, the NHL may be less able to afford anything short of a full-on legal defense in court.

The players, who allege degenerative brain diseases or the risk of developing them, contend they’ve met the requirements for certification.

They propose two classes: one for medical monitoring of retired players at risk of developing chronic traumatic encephalopathy (CTE) and related brain disorders, and another for retirees already diagnosed with a neurological disease, disorder, or condition.

The NHL, however, argues the establishment of a class that includes players in Canada and other countries would be unmanageable and unwarranted, in terms of the controlling law and because each player’s career is unique.

“Virtually every element of plaintiffs’ claims will turn on individualized evidence,” the NHL argues in the multidistrict litigation.

That includes, the league says, “when each player played in the NHL, the scientific information available during that time, the information he was provided by the League, the information he had from other sources,” as well as each player’s medical history and play in other leagues.

The NHL also opposes the proposed class for players who allege diagnosed brain disorders, including CTE, Alzheimer’s, Parkinson’s and dementia.

The personal injury class is unworkable because each of the alleged common issues cited by the plaintiffs is “enmeshed with highly individualized ones,” according to the league.

But the NHL’s opposition is also based on its view that the players can’t establish a science-based causal connection between the repetitive head impacts in ice hockey and CTE.

That argument relies on “alternative facts” and ignores the long-recognized dangers posed by repetitive brain traumas, including CTE findings in deceased pro hockey players, the plaintiffs said in a March 7 court filing.

“The NHL opposes plaintiffs’ class motion on the backs of nineteen experts who reiterate variations of the themes: that CTE is fabricated; CTE is unrelated to hockey; repetitive brain trauma may not have any long-term risks at all; and the NHL was unaware of these risks even as it promoted fist-fighting for decades,” the plaintiffs say.

“The NHL simply ignores that the medical community—and the courts—have long recognized the dangers posed by repetitive brain trauma, particularly with respect to CTE.”

Representation of the players includes Zimmerman Reed, as well as Silverman, Thompson, Slutkin & White, and Robbins Geller Rudman & Dowd.

Skadden, Arps, Slate, Meagher & Flom, as well as Faegre Baker Daniels, and Proskauer Rose represent the NHL.

The case is In re Nat’l Hockey League Players’ Concussio Injury Litig. , D. Minn., No. 14-md-02551, hearing ordered 2/21/18 .

To contact the reporter on this story: Steven M. Sellers in Washington at ssellers@bloomberglaw.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bloomberglaw.com

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