Ex-players sue NHL for improper concussion management

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December 19, 2013

Ex-players sue NHL for improper concussion management 

Steven M. Sellers

Ten former National Hockey League players recently filed a federal class action against the league, alleging that it concealed evidence of severe brain damage risks posed by repeated concussions, failed to protect players from on-ice head trauma, implemented rules that increased risk, and delayed implementing a concussion management program.

Ten former players recently filed a federal class action against the National Hockey League (NHL), alleging the league concealed evidence of severe brain damage risks posed to players by repeated concussions, failed to protect them from on-ice head trauma, implemented rules that increased the risk of concussions, and delayed implementing a concussion management program. The suit seeks compensatory and punitive damages, as well as medical monitoring of players who retired on or before Feb. 14, 2013. At press time, the number of plaintiffs in the class had grown to at least 200 former players. (Leeman v. Natl. Hockey League, No. 13-CV-1856 (D.D.C. filed Nov. 25, 2013).)

The lawsuit, filed in Washington, D.C., contends that the NHL voluntarily assumed a duty of care when it instituted a concussion program in 1997. Under the program, the league recorded baseline brain testing for all players and collected injury data for each season from 1997 to 2004. The plaintiffs allege that the league violated its duty of care in numerous ways, including its delayed implementation of a concussion management program after it completed a study, its refusal to ban fighting and body-checking, and its practice of employing hockey players “whose main function is to fight or violently body-check players on the other team.”

The plaintiffs argued the league engaged in a “long-running course of fraudulent and negligent conduct so as to maintain and improve its economic advantage,” and it intentionally neglected to issue its report on the concussion study results, creating “a climate of silence by which the NHL implied that truthful and accepted neuroscience on the subject was inconclusive and subject to doubt.” The study results, published in the Canadian Medical Association Journal in 2011 (14 years after the concussion program commenced), discussed the number of concussions from 1997 to 2004 but did not address the effects of multiple mild traumatic brain injuries (MTBI) on players’ long-term health. Rather, the study reported that “postconcussion headache, low energy or fatigue, amnesia and abnormal neurologic examination were significant predictors of time loss among professional hockey players.” The study defines “time loss” as “time between the injury and medical clearance by the physician to return to competitive play.”

The NHL exacerbated its negligence, the complaint alleged, by taking steps that increased concussion risks. These steps included a change in 1996 from flexible glass boards to rigid ones, despite “immediate complaints from players that the rigid glass was like hitting a brick wall.” The league returned to flexible glass in 2011, according to the complaint, but also implemented rules changes that increased the speed of the game and therefore increased the risk of concussions. “From 1997 to 2008, an average of 76 players per year suffered a concussion on the ice,” the complaint says. “For the 2011-2012 season, 90 players suffered a concussion on the ice at a loss of 1,779 man games.”

Underlying the plaintiffs’ claims is the core argument that the NHL failed to acknowledge the “growing body of scientific evidence and its compelling conclusion that hockey players who sustain repetitive concussive events, subconcussive events and/or brain injuries are at a significantly greater risk for chronic neurocognitive illness and disabilities both during their hockey careers and later in life.” Other athletes have raised similar arguments in lawsuits filed against the National Football League (NFL) and the National Collegiate Athletic Association (NCAA).

As Trial News reported earlier this year, a lawsuit filed by the parents of Derek Boogaard, who played six seasons as an NHL enforcer until his death in 2011, claimed that his addiction to opioids was the result of his numerous concussions. An autopsy revealed that Boogaard suffered from second-stage chronic traumatic encephalopathy (CTE), a degenerative brain condition caused by repeated head trauma. That lawsuit is pending in Illinois state court.

Similar concussion lawsuits have been filed by former NFL players who suffered from various chronic brain injuries, including CTE, as well as former collegiate players who alleged that the NCAA failed to warn players of the dangers of concussions and properly manage them. As Trial News reported, the NFL class action by 4,500 retired players was settled last August for $765 million after the league agreed to provide all retired players with medical treatment, medical research, and concussion-related compensation. The suit against the NCAA is pending in the Northern District of Illinois and is undergoing mediation, although the court is considering motions to intervene by proposed plaintiffs who claim that the case is improperly being settled for future medical monitoring rather than classwide personal injury claims. (Arrington v. Natl. Collegiate Athletic Assn., No. 1-11-cv-06356 (N.D. Ill. filed Dec. 9, 2013).)

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