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In re National Hockey League Players' Concussion Injury Litigation

United States District Court, D. Minnesota

July 13, 2018

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, 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




         This matter is before the Court on Plaintiffs' Motion for Class Certification and for Appointment of Class Representatives and Class Counsel. (Doc. No. 638.) The Court held a hearing on this motion on March 16, 2018. (See Doc. Nos. 969, 973.) For the reasons set forth herein, Plaintiffs' Motion for Class Certification is denied.


         A. Plaintiff's Allegations

         This action, brought on behalf of a proposed class of former National Hockey League (“NHL”) players, arises from what Plaintiffs describe as the “pathological and debilitating effects of brain injuries caused by concussive and subconcussive impacts sustained by former NHL players during their professional careers.” (Doc. No. 615, Second Am. Class Action Compl. (“SAC”) ¶ 2.) The NHL, according to Plaintiffs, knew or should have known of the growing body of scientific evidence linking repetitive concussive events to long-term neurological problems, such as dementia, Alzheimer's, and Chronic Traumatic Encephalopathy (“CTE”). (Id. ¶¶ 4-5.) The NHL did not, however, warn Plaintiffs or any other member of the proposed class about the dangers of repeated brain trauma. (Id. ¶ 6.)

         1. Promotion of Violence

         Plaintiffs assert that the NHL has permitted, and even promoted, violence in its sport since the League was formed in 1917. (See SAC ¶¶ 274-90.) For “nearly a century, ” the NHL has “developed and promoted a culture of gratuitous violence within NHL hockey.” (Id. ¶ 303.) Part of the NHL's strategy, Plaintiffs allege, has been to promote brutality and violence by glorifying the violent aspects of the game, including, but not limited to, the brutal and ferocious head-snapping checks and the vicious bare-knuckle fights that occur on the ice. (Id. ¶ 304.) The “continued growth” of violence through the NHL's history is best-exemplified by the “enforcers” or “goons” of the 1970s, 1980s, and 1990s--“players known for using intimidating force to protect marquee teammates and respond aggressively to physical or foul play.” (Id. ¶ 278.) The NHL continues to promote violence, Plaintiffs allege, by featuring violent hits and fights in commercials for the game, producing a weekly program segment called “Top 10 Hits of the Week” on the NHL Network, and sponsoring video games that include fighting and vicious body checking. (Id. ¶¶ 315, 320, 323.)

         The growth of violence drew attention from outside observers. (Id. ¶ 280.) In 1974, the Ontario Cabinet appointed Canadian lawyer William McMurtry to issue a report on violence in amateur hockey. (Id.) McMurtry interviewed numerous NHL players as part of his research. (Id.) His report stated:

In talking to numerous players in the NHL and WHA, they all feel that most advertising and selling of the game is over-emphasizing the fighting and brawling at the expense of educating the crowds about the skill and finesse. This past season the advertising for the NBC Game of the Week, showed a film clip of a hockey fight. Can you conceive of any other sport promoting itself in this fashion?

(Id.) In the report, then NHL President Clarence Campbell was quoted as saying: “it is the business of conducting the sport in a manner that will induce or be conducive to the support of it at the box office . . . . Show business, we are in the entertainment business and that can never be ignored. We must put on a spectacle that will attract people.” (Id. ¶ 307.)

         In 1988, then NHL President John Ziegler was quoted in The Miami Herald as stating, “Violence will always be with us in hockey . . . . Anytime you get a situation of high anxiety and frustration in any walk of life, you get violence.” (Id. ¶ 309.) A year later in the Wall Street Journal, Ziegler stated that he would not rid the NHL of fighting because if “you did that, you wouldn't be commissioner for long . . . The view of the 21 people who own the teams, and employ me, is that fighting is an acceptable outlet for the emotions that build up during play. Until they agree otherwise, it's here to stay . . . The main question about fighting is, ‘Does the customer accept it?' The answer, at present, seems to be yes.” (Id. ¶ 310.)

         Current NHL Commissioner Gary Bettman holds a similar view. In a 2007 press conference, Bettman explained that the NHL is “not looking to have a debate on whether fighting is good or bad or should be part of the game, ” and continued, “fighting has always had a role in the game.” (Id. ¶ 311.) In 2011, Bettman highlighted fan support as a reason not to ban fighting: “Our fans tell us that they like the level of physicality in our game, and for some people it's an issue but it's not as big an issue in terms of fans and people in the game to the extent that other people suggest it is.” (Id. ¶ 312.) Bettman later called fighting a “thermostat” that helps cool things down when tensions run high. (Id. ¶ 313.)

         In contrast to the NHL, other elite and professional ice hockey leagues successfully promote a completely different style of play, including Olympic and European ice hockey, in which finesse, speed and skill, and power without violence dominate, and fighting is almost nonexistent. (Id. ¶ 290.) For example, fighting is prohibited by the International Ice Hockey Federation (“IIHF”), which governs Olympic hockey and most international leagues. (Id. ¶ 291.) IIHF Rule 141 penalizes any player who “punches an opponent during game action, after a whistle, or any time during the regular course of a game during a prolonged player confrontation.” (Id.) Instigators of fights are penalized with immediate ejection from the game, and IIHF authorities are given discretion to issue further suspensions. (Id.) Amateur hockey leagues such as the National Collegiate Athletic Association (“NCAA”) similarly punish fighting much more harshly than the NHL. (Id. ¶ 292.) The National Basketball Association (“NBA”) and the National Football League (“NFL”) also prohibit fighting. (Id. ¶¶ 295-97.)

         2. Knowledge and Failure to Warn

         Despite “mounting evidence” establishing the “link between brain injuries and subconcussive impacts suffered by, among others, hockey players, ” Plaintiffs allege that “for decades” the NHL “either took no steps to protect and educate its players or took insufficient steps to make players aware of the real risks of playing in the NHL, which would have protected players from unnecessary long term effects of brain trauma.” (SAC ¶¶ 7-9.)

         In 1928, for example, pathologist Harrison Martland published a study of boxers[1]that was the first to link subconcussive impacts and “mild concussions” to degenerative brain disease. (Id. ¶¶ 178-79.) Another study of boxers in 1973 outlined the neuropathological characteristics of “Dementia Pugilistica, ” including loss of brain cells, cerebral atrophy, and neurofibrillary tangles. (Id. ¶ 190.)[2] Between 1952 and 1994, numerous additional studies were published in medical journals including the Journal of the American Medical Association, Neurology, the New England Journal of Medicine, and Lancet warning of the dangers of single concussions, multiple concussions, and sports- related head trauma from multiple concussions. (Id. ¶ 196.) In 1982, the Canadian Medical Association Journal published an article titled “Return to athletic competition following concussion, ” which concluded that “return to training and competition should be deferred until all associated symptoms such as headaches have completely resolved. The decision to return must take into account the nature of the sport, the athlete's level of participation and the cumulative effect of previous concussions. Some athletes will have to avoid any further participation in their sport.” (Id. ¶ 193.) In 1986, the Physician and Sportsmedicine Journal published an article by Dr. Robert Cantu[3] titled “Guidelines for return to contact sports after cerebral concussion.” (Id. ¶ 194.) Dr. Cantu established a system to grade the severity of concussions based on clear and obvious symptoms and corresponding guidelines for when players should return to play. (Id.) Dr. Cantu added to the concussion grading scale in 2001. (Id.)

         Plaintiffs allege that in the last decade, numerous published peer-reviewed scientific studies have demonstrated that playing professional sports is associated with significant risk for numerous negative long-term effects, including depression, cognitive disorders, and brain injuries such as dementia, Alzheimer's and CTE. (Id. ¶ 200.) This includes multiple published studies regarding the negative long-term effects of head impacts on current and former football players. (Id.) Plaintiffs assert that NHL players are five times more likely to suffer a concussion than NFL players, which according to Plaintiffs is not surprising since NFL players play on average four pre-season games, a sixteen-game regular season, and engage in only 11-15 minutes of actual playing time per game, while NHL players on average play six pre-season games and an 82-game season, and except for fourth-liners and spare defensemen, play an average of 18-25 minutes per game. (Id. ¶ 214.) Head injuries can also occur in practice and in the training camps leading up to the regular season. (Id. ¶¶ 270-73.)

         Rather than take immediate measures to protect its players from these known dangers, Plaintiffs allege that the NHL for decades failed to disclose to its players relevant and highly material health information it possessed regarding the significant risks associated with concussions. (Id. ¶ 237.) At the same time, the NHL promoted and encouraged violent blows to the head as a routine part of the game. (Id.)

         3. Medical Monitoring Relief

         Plaintiffs assert that by virtue of playing in the NHL, all retired players have sustained concussive or subconcussive impacts, resulting in cellular and subcellular neurological injury. (SAC ¶ 388.) The unresolved accumulation of such cellular and subcellular injuries places players at an increased risk of developing neurodegenerative diseases and conditions that occur earlier, and with greater severity, than they otherwise would occur. (Id.) This cellular and subcellular damage often does not result in any concurrent symptoms. (Id. ¶ 389.) Thus, some players had no reason to suspect or investigate their cellular and subcellular injury until very recently, when news about the root causes of neurodegenerative diseases and conditions in professional athletes became widespread. (Id.)

         Plaintiffs therefore seek medical monitoring relief on behalf of a class of all living retired NHL players. (See SAC ¶ 1; Doc. No. 665, 1/19/17 Ltr. from C. Zimmerman to Hon. S. Nelson (“Zimmerman Ltr.”) 1.) Plaintiffs claim that medical monitoring would provide “immense relief to retired players” because “[e]ven when neurodegenerative diseases and conditions are timely diagnosed and the patient is fortunate enough to be in a supportive environment, the diseases have a profound impact on patients and their families.” (SAC ¶ 391.) If left undiagnosed, neurodegenerative diseases and conditions “can lead to severe consequences, including debilitating depression, the breakdown of family and employment relationships, and suicide, not to mention the devastating physical impact of the diseases.” (Id.) Plaintiffs request medical monitoring of present cellular and subcellular injuries allegedly caused by the NHL's negligence, fraudulent concealment, fraud by omission, and failure to warn of the enhanced, long-term risk of contracting a Neurological Disease, Disorder, or Condition (“NDDC”), [4] or the symptoms thereof, from concussive and subconcussive impacts that occurred when they played in the NHL. (Id. ¶ 1.) Plaintiffs allege that “[s]erial testing of cognitive functioning for early signs or symptoms of neurologic dysfunction and serial brain imaging for signs of injury or disease is medically necessary to assure early diagnosis and effective treatment of brain disease, ” and that “[m]onitoring procedures exist that comport with contemporary scientific principles and make possible early detection of the neurodegenerative diseases and conditions that Plaintiffs and members of the Class are at increased risks of developing or have developed.” (Id. ¶¶ 420-21.)

         B. NHL's Response to Class Action Allegations

         The NHL disputes the assertion of Plaintiffs and their experts and argues that there is no definitive causal link between players sustaining concussions and later developing NDDCs such as CTE. (Doc. No. 787, Def.'s Mem. 6-20.) The NHL also explains that it and the NHLPA “have always had a strong commitment to player safety within the context of a physical, contact sport, ” and “their approaches to improving player safety with respect to head injuries have changed over time as information regarding the potential risks of head hits has evolved.” (Def.'s Mem. 20.) To support its opposition to class certification, the NHL offered twenty-three expert opinions on a variety of topics. (See Doc. No. 732, Declaration of John Beisner (“Beisner Decl.”), Attached Exhibits; see also Doc. Nos. 733- 49.)

         The NHL asserts that the scientific community's understanding of CTE is still in its “infancy.” (Def.'s Mem. 6 (citing Doc. No. 789-1, Stern R. et al., Long-term Consequences of Repetitive Brain Trauma: Chronic Traumatic Encephalopathy, Physical Medicine and Rehabilitation Journal (2011).) As stated by one of the NHL's experts, there is “much more to learn about the potential cause and effect relationships of repetitive head impact exposure, concussions, and long-term brain health . . . . More research on the long-term sequelae is needed to better understand the incidence and prevalence of CTE or other neurodegenerative conditions among former athletes.” (Doc. No. 732-7, Declaration of Paul McCrory (“McCrory Decl.”) ¶ 96.) Plaintiffs' expert Dr. Cantu testified at his deposition that “‘a cause-and-effect relationship has not as yet been demonstrated between CTE and concussions or exposure to contact sports.'” (Doc. No. 773, Cantu Dep. 335:8-16 (citation omitted).) Thus, the NHL strongly disputes Plaintiffs' theory that “there has been a clear association . . . between repeated blows to the head in sports” and CTE since 1928. (Doc. No. 787, Def.'s Mem. 7 (quoting Doc. No. 644, Casper Decl. ¶ 19; see also Doc. No. 646, Cantu Decl. ¶ 95; Doc. No. 642, Comstock Decl. ¶ 119; SAC ¶¶ 178-79).)[5]

         The NHL also contests the relationship between mild Traumatic Brain Injury (“mTBI”)[6] and other NDDCs, such as ALS, Alzheimers, and Parkinson's. (Def.'s Mem. 16.) “While the scientific research related to these diseases has similarly progressed over distinct timelines, there is no consensus in the medical literature that mTBI increases the risk of any of the NDDCs specified by plaintiffs, and research concerning any relationship between mTBI and some of these diseases is nonexistent.” (Id. (citing Doc. No. 749, Declaration of Kristine Yaffe (“Yaffe Decl.”) ¶¶ 14, 42-61).) NHL expert Dr. Yaffe explains that the diseases identified by Plaintiffs have numerous risk factors, including age, education level, family history of neurodegenerative disease, cardiovascular disease, stroke, diabetes, high blood pressure, obesity, substance abuse, depression and sleep conditions. (Yaffe Decl. ¶ 39.) The potential causes of “cognitive, mood, or behavioral conditions, ” they argue, are even more varied. Depression, for example, is associated with alcoholism, drug abuse, traumatic or stressful life events, negligent/traumatic childhood, and financial and psychological stressors. (Doc. No. 736, Supplemental Declaration of Jennifer Finkel (“Finkel Suppl. Decl.”) ¶ ...

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