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In re National Hockey League Players' Concussion Injury Litigation

United States District Court, D. Minnesota

April 26, 2017

In Re National Hockey League Players' Concussion Injury Litigation This Document Relates to All Actions

          Charles S. Zimmerman, Brian Gudmundson, David Cialkowski, and Wm Dane DeKrey, Zimmerman Reed, PLLP, Bradley C. Buhrow and Hart L. Robinovitch, Zimmerman Reed, PLLP, for Plaintiffs

          Stephen G. Grygiel, Steven D. Silverman, and William Sinclair, Silverman, Thompson, Slutkin & White, LLC, for Plaintiffs

          Jeffrey D. Bores, Bryan L. Bleichner, and Christopher P. Renz, Chestnut Cambronne PA, for Plaintiffs

          Janine D. Arno, Kathleen L. Douglas, Stuart A. Davidson, and Mark J. Dearman, Robbins, Geller, Rudman & Dowd, LLP, and Leonard B. Simon, Robbins, Geller, Rudman & Dowd, LLP, for Plaintiffs

          Lewis A. Remele, Jr., Jeffrey D. Klobucar, and J. Scott Andresen, Bassford Remele, for Plaintiffs

          Thomas Demetrio, William T. Gibbs, and Katelyn I. Geoffrion, Corboy & Demetrio, for Plaintiffs

          Brian D. Penny, Goldman, Scarlato & Karon PC, and Mark S. Goldman, Goldman, Scarlato & Karon, 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, David A. Goodwin, and Joshua J. Rissman, Gustafson Gluek, PLLC for Plaintiffs

          Thomas J. Byrne, Namanny, Byrne, & Owens, APC, for Plaintiffs

          Michael R. Cashman and Richard M. Hagstrom, Hellmuth & Johnson, PLLC, for Plaintiffs

          Robert K. Shelquist, Lockridge, Grindal, Nauen, PLLP, for Plaintiffs

          Shawn M. Raiter, Larson King, LLP, for Plaintiffs

          Charles J. LaDuca, Cuneo, Gilbert & LaDuca, LLP, for Plaintiffs

          Daniel J. Connolly, Joseph M. Price, Linda S. Svitak, and Aaron D. Van Oort, Faegre Baker Daniels, LLP, John H. Beisner, Jessica D. Miller, and Geoffrey M. Wyatt, Skadden, Arps, Slate, Meagher & Flom LLP, Shepard Goldfein, James A. Keyte, Matthew M. Martino, and Michael H. Menitove, Skadden, Arps, Slate, Meagher & Flom LLP, Matthew Stein, Skadden, Arps, Slate, Meagher & Flom, LLP, Joseph Baumgarten and Adam M. Lupion, Proskauer Rose LLP, for Defendant

          Lawrence S. Elswit and Kristin L. Bittinger, for Non-Party Trustees of Boston University/CTE Center

          MEMORANDUM OPINION AND ORDER

          SUSAN RICHARD NELSON, United States District Court Judge

         This matter is before the Court on Defendant's Motion to Compel the Production of Documents from the Boston University CTE Center [Doc. No. 666] and Plaintiffs' Motion to Strike Defendant's Exhibits A & D Filed in Support of its Motion to Compel Production of Documents from the Boston University CTE Center [Doc. No. 696]. For the reasons set forth herein, Defendant's motion is granted in part and denied in part. Plaintiffs' motion is denied.

         I. BACKGROUND

         Plaintiffs are former National Hockey League (“NHL”) players who contend that they suffer from, or will suffer from, neurological damage caused by concussive and sub-concussive impacts sustained during their professional careers. (Pls.' Second Am. Consolidated Class Action Compl. ¶ 1 [Doc. No. 615].) They allege that the NHL knew or should have known of a growing body of scientific evidence showing that persons who experience repetitive concussive and subconcussive events, or other brain injuries, are at a greater risk for neurodegenerative illness, disease, and disabilities. (Id. ¶ 5.) Plaintiffs contend that the NHL failed to tell them about the dangers of repeated brain trauma. (Id. ¶ 6.) One neurodegenerative disease identified by Plaintiffs is chronic traumatic encephalopathy (“CTE”). (Id. ¶ 38.)

         A. Boston University's CTE Center

         In their Second Amended Class Action Complaint (“SAC”), Plaintiffs refer to the research of the Boston University (“BU”) Center for the Study of Traumatic Encephalopathy (hereinafter, “BU CTE Center”). (Id. ¶ 211.) BU is not a party in this litigation. The BU CTE Center maintains a brain bank of approximately 400 donated human brains and spinal cord tissue, studied by researchers to understand the impact of trauma on the human nervous system. (McKee Aff. ¶¶ 5, 19 [Doc. No. 682].) The BU CTE Center brain bank was created in 2008 in collaboration with the Edith Nourse Rogers Memorial Veterans Hospital in Bedford, Massachusetts (“VA Hospital”). (Id. ¶ 5.) The research findings of the BU CTE Center are published in a variety of peer-reviewed publications.[1] (Id. ¶6.)

         In their pleadings, Plaintiffs refer to the BU CTE Center's research findings which suggest a significant risk of developing CTE “‘for persons who suffer repetitive mild traumatic brain injury.'” (SAC ¶ 211) (citing Brandon E. Gavett, Ph. D. et al., Chronic Traumatic Encephalopathy: A Potential Late Effect of Sport-Related Concussive and Subconcussive Head Trauma, CLINICAL SPORTS MED., 1, 2 (Jan. 1, 2012).) In the SAC, Plaintiffs also specifically cite the work of a BU professor and principal investigator on several CTE research projects, Dr. Ann McKee. (Id. ¶ 382.) Plaintiffs allege that Dr. McKee has found “overwhelming evidence that [CTE] is the result of repeated sublethal brain trauma.” (Id.) Further, the SAC quotes Dr. McKee for the proposition that decreasing the number of concussions would be the “‘the easiest way to decrease the incidence of CTE [in contact sport athletes].'” (Id.)

         In addition to references in the SAC to the research performed at BU, Plaintiffs' concussion expert, Dr. Robert Cantu, co-founded BU's CTE Center. (Cantu Decl. ¶ 8 [Doc. No. 646].) He currently works or holds appointments in the following capacities: (1) Chief of Neurosurgery Service at Emerson Hospital in Boston, Massachusetts; (2) Adjunct Professor of Exercise and Sports Science at the University of North Carolina, Chapel Hill; (3) Senior Advisor to the Brain Injury Center at Children's Hospital in Boston; and (4) Clinical Professor of Neurology and Neurosurgery at BU. (Id. ¶¶ 7-8].) As an appointed clinician at BU, Dr. Cantu does not receive a salary, (McKee Supp'l Aff. ¶ 22 [Doc. No. 717]), does not speak on behalf of the BU CTE Center, nor does he have access to data from the Center's laboratory for purposes of this litigation. (Second Supp'l McKee Aff. ¶ 3 [Doc. No. 728].) Dr. Cantu does not personally consult at BU or the VA Hospital, but instead offers clinical observations on conference calls and web discussions from Emerson Hospital. (Id. ¶ 6.) In Dr. Cantu's role as a study co-author, Dr. McKee attests that “he does not provide, analyze or interpret any of the neuropathology data.” (Id.) Nor does he access the BU CTE Center's original laboratory slides, photographs, or other data generated in the Center's laboratories. (McKee Supp'l Aff. ¶ 21.)

         B. NHL's Subpoenas

         In September 2015, the NHL served its first subpoena duces tecum on non-party the BU CTE Center, seeking, among other things, “All documents related to sub-concussive head injuries, concussions, brain injuries, post-concussion syndrome, second-impact syndrome or long-term neurological problems, including CTE, for hockey players generally or NHL players specifically.” (See Sept. 2015 Subpoena, Ex. B to Connolly Decl. [Doc. No. 670-2].) While BU lodged several objections, it nevertheless produced documents related to individual research subjects whose families had provided medical release authorizations. (See BU's Opp'n Mem. at 4 [Doc. No. 680].) The BU CTE Center has conducted five autopsies on NHL players. (See Def.'s Mem. Supp. Mot. to Compel at 8 n.5 [Doc. No. 669].) The families of four of the players authorized the release of neuropathology reports, medical records, and clinical interviews, which BU provided to the NHL. (BU's Opp'n Mem. at 5; McKee Supp'l Aff. ¶ 3.)

         On October 11, 2016, the NHL served on the Center a second subpoena duces tecum-the subpoena on which the instant motion to compel is based. (Oct. 2016 Subpoena, Ex. A to Connolly Decl. [Doc. No. 670-1].) Defense counsel indicated that the addition of Plaintiff Lawrence Zeidel to this litigation prompted the need for the requested information, because the BU CTE Center had examined Zeidel's brain. (Ex. 5 to Elswit Decl. [Doc. No. 681].) BU objects to the production of information with respect to Requests 2, 3, 6, 7, 8, 11, 14, 15, 18, and 19. (Def.'s Mem. at 9.) These requests seek the following information:

• Request 2: Documents sufficient to show what persons were examined by the BU CTE Center and ...

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