The father of the late Steve Montador, who has been embroiled in a six-year fight with the National Hockey League, opened a new front in the legal battle by filing a wrongful death lawsuit against the NHL in Cook County court in Chicago.
The lawsuit was filed Oct. 26 and comes 10 months after a judge terminated Paul Montador’s five-year-old wrongful lawsuit filed in U.S. federal court.The judge in that case wrote that some claims made by Paul were preempted by the NHL’s collective labour agreement with the NHLPA, which directs players with medical-related grievances to pursue private arbitration.
However, the federal court judge allowed Paul to proceed in state court to pursue negligence claims against the NHL that allege the league has unreasonably promoted a culture of violence, and led Steve to believe that the repeated brain trauma he suffered was not dangerous.
In his new 34-page claim, Paul Montador claims that his son sustained “thousands of sub-concussive brain traumas and multiple concussions, many of which were undiagnosed and/or undocumented.”
“The NHL, armed with vastly superior managerial, medical, legal, and other resources to gather, analyze, and understand sub-concussion, concussion and head injury data, failed to keep Steven Montador reasonably safe during his career and misled him on the permanent ramifications of brain trauma,” the lawsuit says.
Steve was 35 when he died on Feb. 15, 2015. Three months after his death, researchers with the Canadian Sports Concussion Project at Toronto’s Krembil Neuroscience Centre disclosed the former NHL defenceman had suffered from chronic traumatic encephalopathy (CTE).
The lawsuit alleges that Steve suffered at least 11 documented concussions in the NHL, including four in 12 weeks in 2012.
Steve played 10 NHL seasons with six teams and had a well-documented history of concussions, depression, memory problems and erratic behaviour. He played 571 NHL games during a 14-year pro career that included stints with Calgary, Florida, Anaheim, Boston, Buffalo and Chicago.
Steve also fought 69 times during NHL games, according to his father’s legal claim.
The lawsuit says, "In 2007, during Steven Montador’s sixth year in the league, the NHL was queried on the juxtaposition of 'knocked out' boxers sitting out from further fights for 60-90 days, while the NHL Enforcers/Fighters, even when knocked out, can come back into the game almost immediately. The NHL thought this was a good question, but did nothing to act on the provocative reality."
On March 23, 2007, Toronto Sun columnist Steve Simmons emailed NHL executive Colin Campbell to ask why NHL players are permitted to return to the ice days after being knocked out while boxers are typically suspended 60-90 days if they are knocked unconscious in a fight.
"Just like me...asking another good question," Campbell responded to Simmons.
Further, the lawsuit claims that fighting in the NHL "is an easily identifiable and readily eliminated cause of concussive and sub-concussive brain traumas.”
“Eliminating fighting obviously and necessarily reduces the incidence of trauma to the brain," the claim says. "Reducing the incidence of concussions... obviously and necessarily reduces the risk of long-term neurodegenerative diseases and conditions. But, fully aware of this common sense logic, and aware that fighting results in brain injuries that lead to the tragedy of long-term neurodegenerative diseases and their consequences, the NHL has steadfastly continued to permit and promote fighting in its game because it cares more about profit than players’ long-term health.”
While the NHL has yet to file a statement of defence in the state court case, the league argued previously in the federal case that Steve’s injuries were “caused, in whole or in part, by [Montador's] own lack of due care and fault, and/or by pre-existing conditions; and/or the lack of due care of others for whom the NHL has no responsibility or control.”
Toronto neurosurgeon Dr. Charles Tator told a government hearing in Ottawa in 2019 that he examined Montador’s medical records and discovered that he had actually suffered 19 documented concussions.
Dr. Tator later told TSN that the total included brain injuries Montador suffered in junior hockey, the NHL and in his final season (2013-14) as a professional in Zagreb, where he played 11 games for a Croatian-based team in the KHL.
Montador’s new lawsuit describes how the NHL in 1997 promised to study the issue of concussions and brain injuries among its players.
The league "supposedly studied the frequency, timing, duration of symptoms" and other data for brain traumas suffered by NHL players from 1997 through 2004.
"NHL players highly anticipated the results of the NHL’s study," the claim says. "During and after this study period, the NHL had a duty.. [to] inform its players of the findings – including, but not limited to, long-term risk exposure to its players... Once it finally published the data, the NHL downplayed the effects of repetitive brain trauma."
The league published findings from its NHL-NHLPA Concussion Working Group in 2011, although it didn't pass a rule insisting players who suffer concussions do not return to the same games in which they sustained the injury until 2013.
The lawsuit also assails the NHL for continuing to market and profit from fighting.
The National Hockey League Competition Committee, established by the collective bargaining agreement that ended the 2004-05 lockout, is now responsible for making recommendations about rules and related issues to the NHL Board of Governors and the National Hockey League Players' Association (NHLPA) executive board. The NHLPA and NHL are represented on the committee by an equal number of voting members, who are joined by club officials and a non-voting supervisor.
In November 2009, the NHL contemplated a long-term study of brain injuries and cognitive problems. Rather than pursuing that study, NHL lawyer Julie Grand wrote in an email to colleagues that she would prefer to "leave the dementia issues up to the NFL!"