The roughly 80 former players who are suing the NHL, including Bernie Nicholls, Gary Leeman and Butch Goring, allege NHL and team executives knew or ought to have known about the links between head trauma and long-term cognitive problems but failed to do enough to protect players, all the while profiting from the violence of hockey.
The NHL has argued interested players could have read medical research and news reports on their own and put “two and two together” about the dangers of repeated head hits and concussions.
In an order released late Friday, U.S. Federal Court judge Susan Nelson agreed to some but not all of the requests for discovery filed by the former players’ lawyers.
“The Court finds that the (NHL's) blanket application of the physician-patient privilege – protecting all medical data from disclosure – is inapplicable here,” the judge wrote in her ruling.
"The clubs are ordered to produce any internal reports, studies, analyses and databases in their possession (whether initiated by the U.S. clubs, NHL, or retained researchers) for the purpose of studying concussions in de-identified form. The U.S. clubs shall produce any responsive correspondence and/or emails between themselves, themselves and the NHL, or with any research or other professional about the study of concussions."
Players’ names will be redacted from any data disclosed and lawyers for the former players have been ordered not to re-identify or “reverse engineer” any data to try to discern the identity of players.
Since 2006, the NHL has maintained a so-called video analysis spreadsheet that includes video footage of particular players sustaining hits to the head.
The NHL had argued the video clips should be privileged and not included in the data the league will have to turn over.
"The Court disagrees that the video clips are privileged,” the judge wrote. "They are several steps removed from the physician-patient privilege and statutory privileges."
The former NHL players filed the suit in November 2013 after a group of nearly 4,500 former NFL players reached a settlement with the NFL over similar concussion-related complaints. The NHL case is being heard in Minnesota.
The hockey lawsuit has not been certified as a class action. If a judge does grant the case class-action status, which some lawyers say is uncertain, the case could involve several thousand former NHL players, unless they opt out.
Earlier this year, lawyers for the former players suing the NHL asked that the league be forced to turn over any records – whether they be emails, reports, telegrams or phonographs – that relate to head trauma records since 1967.
In court filings, the players claim they are not seeking the "wholesale discovery of player medical files, but rather documents that simply relate to player concussions including data compilations, data analyses, internal memos, policies and emails between non-medical personnel. These documents, by nature, do not constitute private medical records."
The NHL had earlier written in its own submissions that disclosing players' medical information would amount to a privacy violation. The league also said any disclosures might have a chilling effect on players’ participation in the league’s concussion program, and said players might be reluctant to disclose medical information to doctors if information were disclosed.
The NHL has said even if a judge ordered the league to produce all of the relevant documents, compliance would be extremely difficult and expensive, totaling about $13.5 million for the 23 U.S.-based clubs involved with the court motion.
The judge’s ruling also detailed how contentious the legal battle between the NHL and its former employees has become - the two sides even battled over whether a player’s native language and playing position should be disclosed or redacted in the concussion data turned over by the league and its teams.
"Regarding language, the NHL likewise argues that because English and French are the most common language spoken by the players, a player’s identity could be determined by revealing a specific language other than English or French,” the judge wrote, adding that the NHL "therefore proposes to de-identify language data as ‘other’ for those languages in which there are fewer than 100 database entries. The Court orders that a player’s position is not sufficiently ‘identifying’ to warrant redaction. With respect to language spoken, (the NHL’s) proposal is acceptable."
NHL commissioner Gary Bettman was deposed for eight hours in New York as part of the lawsuit on Friday. Stephen Grygiel, a Baltimore lawyer who also worked on the NFL concussion litigation, questioned him. Bettman's sworn testimony is under seal for now.