United States District Court, D. Minnesota
In re: National Hockey League Players' Concussion Injury Litigation
Charles S. Zimmerman and Brian Gudmundson, Zimmerman Reed, PLLP, for Plaintiffs.
Stephen G. Grygiel and William Sinclair, Silverman, Thompson, Slutkin & White, LLC, for Plaintiffs.
Jeffrey D. Bores and Bryan L. Bleichner, Chestnut Cambronne PA, for Plaintiffs.
Stuart Davidson and Mark J. Dearman, Robbins, Geller, Rudman & Dowd, LLP, for Plaintiffs.
Lewis A. Remele and Jeffrey D. Klobucar, Bassford Remele, for Plaintiffs.
Thomas Demetrio, William T. Gibbs, Corboy & Demetrio, for Plaintiffs.
Brian D. Penny and Mark S. Goldman, Goldman, Scarlato & Penny PC, for Plaintiffs.
Vincent J. Esades and James W. Anderson, Heins Mills & Olson, PLC, for Plaintiffs.
David I. Levine, The Levine
Law Firm P.C., for Plaintiffs.
Daniel E. Gustafson,
Gustafson Gluek, PLLC, for Plaintiffs.
Thomas J. Byrne and Mel
Owens, Namanny, Byrne, & Owens, APC, 2 South Pointe Drive, Lake Forest,
California 92630, for Plaintiffs.
Michael R. Cashman and
Richard M. Hagstrom, Zelle Hofmann Voelbel & Mason LLP, for Plaintiffs.
Daniel J. Connolly, Joseph
M. Price, Linda S. Svitak, and Aaron D. Van Oort, Faegre Baker Daniels, LLP,
2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402; John H.
Beisner and Jessica D. Miller, Skadden, Arps, Slate, Meagher & Flom LLP, 1440
New York Avenue, Northwest, Washington, D.C. 20005-2111; Shepard Goldfein, James
A. Keyte, Matthew M. Martino, Skadden, Arps, Slate, Meagher & Flom LLP, Four
Times Square, New York, New York 10036; James Baumgarten and Adam M. Lupion,
Proskauer Rose LLP, Eleven Times Square, New York, New York 10036, for
MEMORANDUM OPINION AND ORDER
SUSAN RICHARD NELSON, District Judge.
This matter is before the Court on Defendant National Hockey League's Motion to Dismiss Master Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b) [Doc. No. 43]. For the reasons set forth below, the Court denies in part, and denies without prejudice in part, Defendant's Motion.
This litigation was initiated by former National Hockey League players who allege that Defendant National Hockey League (the "NHL") is responsible for "the pathological and debilitating effects of brain injuries caused by concussive and sub-concussive impacts sustained... during their professional careers." (Pl.'s Master Administrative Long-Form and Class Action Compl. [Doc. No. 28] ("Master Compl.") ¶ 1.) The six named Plaintiffs- who seek to represent a class of living and deceased former NHL players who suffered concussions or repeated sub-concussive injuries while playing in the NHL-are Dan LaCouture, Michael Peluso, Gary Leeman, Bernie Nicholls, David Christian, and Reed Larson. (See id. ¶¶ 26-83, 387.) Mr. LaCouture played in the NHL from 1998 through 2008 and suffered roughly twenty concussions and numerous sub-concussive injuries. (Id. ¶¶ 27-28.) Mr. Peluso played in the NHL from 1989 through 1998 and suffered at least five concussions. (Id. ¶¶ 40-41.) Mr. Leeman played in the NHL from 1983 through 1996 and suffered numerous concussions and sub-concussive hits to the head. (Id. ¶¶ 52, 54.) Mr. Nichols played in the NHL from 1982 through 1999 and suffered at least three concussions and numerous sub-concussive hits to the head. (Id. ¶¶ 59-60.) Mr. Christian played in the NHL from 1979 through 1994 and suffered numerous concussions and sub-concussive hits to the head. (Id. ¶¶ 67, 69.) And, Mr. Larson played for the NHL from 1977 through 1989 and suffered numerous concussions and sub-concussive hits to the head. (Id. ¶¶ 74, 76.) These Plaintiffs filed complaints against the NHL in 2014 in the U.S. District Court for the District of Columbia, the U.S. District Court for the District of Minnesota, and the U.S. District Court for the Southern District of New York. (Transfer Order [Doc. No. 1] at Schedule A.) Those lawsuits were transferred to this Court for purposes of conducting coordinated and consolidated pretrial proceedings. (Transfer Order at 1-2.) Thereafter, these Plaintiffs filed a 454-paragraph Master Administrative Long-Form and Class Action Complaint ("Master Complaint"), which is the subject of the pending Motion.
As defined in the Master Complaint, a "concussion" or "mild traumatic brain injury" ("MTBI"), "consists of trauma to the head and a resulting transient loss of normal brain function." (Master Compl. ¶ 163.) According to Plaintiffs, repeated MTBI can trigger progressive degeneration of brain tissue and can lead to Alzheimer's disease, dementia, and chronic traumatic encephalopathy ("CTE") (a disease caused by the accumulation of a toxic protein in the brain). (See id. ¶¶ 170-74.) In fact, Plaintiffs claim, "scientific evidence has for decades linked head trauma to long-term neurological problems." (Id. ¶ 3; see id. ¶ 178.)
Over the course of almost 40 paragraphs, Plaintiffs detail various medical and scientific studies and literature dating back to 1928 that relate to "sports and concussion[s]" and purportedly "firmly establish that repetitive and violent jarring of the head or impact to the head can cause MTBI with a heightened risk of long term, chronic neurocognitive sequelae." (Id. ¶ 160; see id. ¶¶ 179-213.) Plaintiffs also assert that, since 2001, there have been four international symposia related to concussions in sports (which included reports specific to hockey and which were attended by NHL representatives), as well as multiple conferences in the United States that have focused on concussions in hockey. (See id. ¶¶ 225-35.) According to Plaintiffs, "[i]t is not plausible that the NHL was unaware of this body of literature." (Id. ¶ 221.)
In addition to the medical and scientific information of which Plaintiffs claim the NHL had knowledge or should have had knowledge, Plaintiffs assert that the NHL also had actual knowledge of the "negative repercussions of [violent head] impacts on its players" because of the "infamous incidents" that have occurred throughout NHL history. (Id. ¶ 238; see id. ¶¶ 239-68.) Accordingly, Plaintiffs surmise, "the NHL has known for decades that MTBI can and does lead to long-term brain injury." (Id. ¶ 236.)
Unlike the NHL, Plaintiffs claim that "[they] had no familiarity with or reason to access any medical literature concerning concussions, [MTBI] or other sub-concussive impacts." (Id. ¶ 85.) Rather, Plaintiffs state that they relied on the NHL for information about health and safety, and that they were never informed of the negative long-term effects of sustaining concussions. (Id. ¶¶ 5, 8, 84, 87, 94.) Plaintiffs assert that they "understood [the NHL's] silence as affirmation that they not only could, but should, play in a violent manner and continue to play after a head injury and that doing so posed no danger to their health." (Id. ¶ 142.) Plaintiffs claim that such reliance was reasonable in light of the NHL's superior position and greater resources and ability to obtain information, as well as its dependence on the players to generate revenue. (See, e.g., id. ¶¶ 89, 93, 98-99, 135.) Plaintiffs also claim that such reliance was foreseeable to the NHL because most of the players had limited education, and because they were "taught to trust their coaches and team personnel and League personnel who administer and run the games." (Id. ¶ 137; see, e.g., id. ¶¶ 127-38.)
Not only do Plaintiffs allege that their reliance on the NHL was both reasonable and foreseeable, but they also assert that nothing the NHL said or did put them on notice that they were at risk from the head injuries sustained while playing in the NHL. (See id. ¶¶ 152-57.) They claim that even the NHL's Concussion Program, created in 1997 to research and study concussions affecting NHL players between 1997 and 2004, simply concluded that "more study is needed'" and served to conceal facts required to put Plaintiffs on notice of their claims. (Id. ¶ 15; see id. ¶¶ 9-12, 16, 104-10, 118-19.) Plaintiffs also allege that the NHL has downplayed the risks of head injuries and fighting and-in contrast to "[o]ther elite and professional ice hockey leagues" and other professional sports leagues-has "fostered an unreasonably and unnecessary violent League full of sheer brutality by... promoting fighting." (Id. ¶ 290; see id. ¶¶ 274-89, 291-300, 332-35.) According to Plaintiffs, the NHL glorifies this culture of violence in order to increase its profits at the box office. (See id. ¶¶ 303-29.)
Based on these allegations, Plaintiffs assert six counts against the NHL. (See Master Compl. ¶¶ 399-454.) In Count I, Plaintiffs seek a declaratory judgment that the NHL knew, or reasonably should have known, that the head impacts Plaintiffs and class members endured were likely to expose them to substantially-increased risks of neurodegenerative disorders and diseases; that the NHL had a duty to advise Plaintiffs and class members of that risk, but willfully and intentionally concealed material information from, and misled, Plaintiffs concerning that risk; and that the NHL recklessly endangered Plaintiffs and class members. (Id. ¶ 401.) In Count II, Plaintiffs allege that, as a result of the NHL's misconduct, they have experienced injuries that have increased their risk of developing neurodegenerative disorders, and that costly medical monitoring procedures are necessary to enable Plaintiffs and class members to obtain early detection and diagnosis of those conditions. (See id. ¶¶ 408-09, 415-16.) Accordingly, Plaintiffs "seek the creation and funding of a Court-supervised, NHL-funded medical monitoring regime." (Id. ¶ 417.)
Counts III and IV assert negligence-based causes of action. In Count III, Plaintiffs allege that the NHL owed its players a duty of reasonable care to manage player safety and to act in the best interests of its players' health and safety-including to keep players informed of the neurological risks associated with head injuries suffered while playing hockey in the NHL-and that the NHL breached that duty by, for example, promoting a culture of violence and failing to inform or warn players of the potential negative effects of such head injuries. (Id. ¶¶ 421-24.) Plaintiffs allege that, as a result of these breaches, they have suffered or are suffering long-term neurological damage. (Id. ¶¶ 425-26.) In Count IV, Plaintiffs assert a claim for negligent misrepresentation by omission. (See id. ¶¶ 428-37.) They allege that a special relationship existed between the NHL and Plaintiffs by virtue of the NHL's superior knowledge of material medical information that was not readily available to players and by virtue of the NHL's undertaking to communicate some safety information to players and the public, such that the NHL had a duty to disclose accurate information to Plaintiffs. (Id. ¶ 429.) According to Plaintiffs, the NHL breached its duty by negligently omitting material information regarding the link between the type of head injuries sustained in the NHL and cognition-impairing conditions. (See id. ¶¶ 430, 435.) Plaintiffs assert that they justifiably and reasonably relied to their detriment on these negligent misrepresentations by omission. (See id. ¶¶ 432-33, 436.)
Finally, Counts V and VI assert fraud-based causes of action. In Count V, Plaintiffs assert a claim for fraudulent concealment based on the NHL's alleged knowing concealment of material information regarding the risks of head injuries suffered while playing in the NHL, the NHL's alleged intent and expectation that Plaintiffs would rely on its silence and fraudulent concealment, and Plaintiffs' alleged reasonable reliance on that silence to their detriment. (See id. ¶¶ 438-45.) And, in Count VI, Plaintiffs assert a claim for fraud by omission and failure to warn. (See id. ¶¶ 446-54.) Specifically, Plaintiffs allege that "[t]he NHL had a duty to promptly disclose and speak the full truth regarding the health risks caused by concussion and sub-concussive blows to the head." (Id. ¶ 447.) Plaintiffs assert that this duty arose by virtue of the NHL's superior knowledge of material medical information that was not readily available to players and by virtue of the NHL's undertaking to communicate some safety information to players and the public. (Id.) According to Plaintiffs, the NHL breached this duty by fraudulently and intentionally failing to disclose material information regarding the link between the type of head injuries sustained in the NHL and cognition-impairing conditions, and that Plaintiffs justifiably and reasonably relied on these fraudulent omissions to their detriment. (See id. ¶¶ 448-51, 453.)
The NHL filed its Motion to Dismiss Master Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b) on November 18, 2014. The Motion has been fully briefed [Doc. Nos. 46, 52, 76], and the matter was heard on January 8.
The NHL seeks dismissal of Plaintiffs' Master Complaint, or certain claims therein, on three grounds. First, the NHL argues that the Master Complaint must be dismissed as time-barred. Second, the NHL asserts that Plaintiffs' fraud-based claims must be dismissed because they are not pled with particularity. Third, the NHL argues that Plaintiffs' medical monitoring claim must be dismissed because none of the relevant jurisdictions, as determined by choice-of-law rules, recognizes medical monitoring as a stand-alone cause of action. The Court finds each of these arguments insufficient to warrant dismissal because: (1) it is not clear from the face of the Master Complaint that Plaintiffs' claims are untimely; (2) 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.
A. All Claims-Statute of Limitations
When evaluating a motion to dismiss under Rule 12(b)(6), the Court assumes the facts in the complaint to be true and construes all reasonable inferences from those facts in the light most favorable to the plaintiff. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). However, the Court need not accept as true wholly conclusory allegations, see Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir. 1999), or legal conclusions the plaintiff draws from the facts pled, Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). In addition, the Court ordinarily does not consider matters outside the pleadings on a motion to dismiss. See Fed.R.Civ.P. 12(d). The Court may, however, consider exhibits attached to the complaint and documents that are necessarily embraced by the pleadings, Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003), and may also consider public records, Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007).
To survive a motion to dismiss, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although a complaint need not contain "detailed factual allegations, " it must contain facts with enough specificity "to raise a right to relief above the speculative level." Id. at 555. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). In sum, this standard "calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the claim]." Twombly, 550 U.S. at 556. And, "when it appears from the face of the complaint itself that the limitation period has run, ' a limitations defense may properly be asserted through a Rule 12(b)(6) motion to dismiss." Varner v. Peterson Farms, 371 F.3d 1011, 1016 (8th Cir. 2004) (citation omitted).
The NHL seeks dismissal of all of Plaintiffs' claims on the grounds that: (1) the claims are untimely because they accrued-and the applicable statutes of limitations expired-long ago; and (2) Plaintiffs' allegations of tolling are not adequately pled.
The NHL first argues that the relevant statutes of limitations periods began running on the dates on which the head injuries that Plaintiffs allegedly suffered occurred, and the fact that those injuries may have progressed into more complicated medical conditions does not re-start the limitations periods. (Def.'s Mem. of Law in Supp. of Mot. to Dismiss Master Compl. Pursuant to Fed.R.Civ.P. 12(b)(6) and 9(b) [Doc. No. 46] ("Def.'s Mem.") at 1.) The NHL points out that, when cases have been transferred for consolidation, the transferee court must apply the state law of the transferor courts. (Id. at 3 (citing In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 97 F.3d 1050, 1055 (8th Cir. 1996) (citing In re Air Crash Disaster Near Chi., Ill., 644 F.2d 594, 610 (7th Cir. 1981)).) Accordingly, the NHL argues, Minnesota law governs the statute-of-limitations analysis for claims brought by Mr. Christian and Mr. Larson, both of whom originally filed suit in the District of Minnesota, (id. at 4); District of Columbia law governs the statute-of-limitations analysis for claims brought by Mr. Leeman and Mr. Nicholls, both of whom originally brought suit in the District of Columbia, (id. at 7); and New York law governs the statute-of-limitations analysis for claims brought by Mr. LaCouture and Mr. Peluso, both of whom originally filed suit in the Southern District of New York, (id. at 8). Also according to the NHL, each of these states treats statutes of limitations as procedural matters and, therefore, applies its own statute of limitations to substantive claims. (See id. at 4, 7, 8.)
Plaintiffs, on the other hand, argue that the injuries at issue are not the discrete head injuries they suffered while playing in the NHL, but rather are the increased risk and development of permanent degenerative brain diseases that resulted from the repeated head injuries and "which arose and of which Plaintiffs became aware only after Plaintiffs retired from the NHL." (Pls.' Mem. of Law in Opp. to Def.'s Mot. to Dismiss Master Compl. Pursuant to Fed.R.Civ.P. 12(b)(6) and 9(b) [Doc. No. 52] ("Pls.' Opp.") at 9; see id. at 7.) Plaintiffs assert that there is a "fundamental dispute" about the NHL's and the players' knowledge of the risks and the link to the players' damages, rendering the question of whether the relevant limitations period has run a fact question that cannot be resolved on a motion to dismiss. (See id. at 7-9.)
The Court agrees with Plaintiffs. "Under Minnesota law, a plaintiff must file suit for personal injuries on claims of negligence, fraud, [and] misrepresentation... within six years after the claim accrues." Klempka v. G.D. Searle & Co., 963 F.2d 168, 170 (8th Cir. 1992) (citing Minn. Stat. § 541.05). Although, "[a]s a general rule, the cause of action accrues when the accident occurs, " the Minnesota Supreme Court has held that "[a]n action for negligence cannot be maintained, nor does the statute of limitations begin to run, until damage has resulted from the alleged negligence." Dalton v. Dow Chem. Co., 158 N.W.2d 580, 583-84 (Minn. 1968) (citations omitted). And, "for relief on the ground of ...