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NHL Loses Motion To Dismiss Concussion Cases

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The National Hockey League has had its motion to dismiss class action concussion-related lawsuits filed by former NHL players denied by U.S. District Judge Susan Richard Nelson. The ruling should allow the NHL player plaintiffs to proceed in seeking discovery from the NHL, which is something the league may want to avoid if there is damning evidence therein.

"[D]iscovery is necessary to shed light on the nature of Plaintiffs' claims, when those claims accrued, and which -- if any -- CBAs might be relevant," reads the court's order rejecting the motion to dismiss. "If a full record ultimately reveals that Plaintiffs’ claims accrued while they were subject to a CBA, and that those claims are substantially dependent on interpretation of the CBA, then the Court could properly determine that the claims are preempted by labor law preemption. In the meantime,  however, Defendant’s Motion to Dismiss is premature and must be denied, and, therefore, Defendant’s Motion to Stay is denied as moot."

The NHL, through its motion to dismiss, asked the court to find that labor law preemption precluded the class action from moving forward. It referenced four decades of collective bargaining between the NHL and the NHL Players Association. The court was not willing to buy the NHL's argument that the case is preempted by labor law. At least not before discovery is conducted.

The players' case emanates from a basic claim that 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.” It includes a class of players who have not been diagnosed with dementia, ALS, Alzheimer’s, Parkinson’s, CTE, or other neurodegenerative disease or conditions as well as a separate class of those players who have been diagnosed with a brain disease, where such brain disease was not diagnosed at the time the player retired or otherwise permanently ceased playing professional hockey.

Assumption of risk is not ignored by the plaintiffs. They admit that they signed up to play in the NHL knowing that they could be injured and dinged, but that they did not sign up for avoidable brain damage. The players claim that the NHL knew or should have known of scientific evidence that links brain trauma to long-term neurological problems, and that the league had a duty to sufficiently protect the players or inform them of the dangers or repeated brain trauma.

In April, an estimated $1 billion settlement between the National Football League and former NFL players concerning similar litigation was upheld by a federal court of appeals. The NFL admitted no fault as part of the negotiated settlement. An early settlement also avoided disclosing information and providing players with requested documents during a possible discovery period. The league is still fighting a battle, this time against its insurer, against engaging in discovery related to the concussion lawsuits.

The NHL will likely not be pleased with the court's decision to allow for discovery, which may cause the league to come to the table to discuss possible settlement.

Darren Heitner is a lawyer and the Founder of South Florida-based HEITNER LEGAL, P.L.L.C., which has a focus on Sports Law and Entertainment Law.