The U.S. federal court judge overseeing the National Hockey League’s concussion litigation wants the lawsuit, in some fashion, to go to trial this year.
Lawyers and Judge Susan Richard Nelson discussed the future of the case during a November court hearing, a transcript of which was unsealed this week.
“As your Honor said last year, or earlier this year, the court wants to try something in this case in 2017,” Stephen Grygiel, a lawyer for the plaintiffs, told the court during a Nov. 29 hearing. “I assure you, the plaintiffs would like to do the same thing.”
One of the plaintiffs’ lawyers told TSN that Nelson has said repeatedly that she wants the case in a courtroom sometime this year.
The NHL concussion lawsuit started in 2014 when a group of players filed suit against the league in Washington, charging the NHL willfully ignored science in its pursuit of profits.
The league has alleged players are ultimately responsible for their own health, that no one has forced them to play hockey, and that players could “have put two and two together” about the long-term health consequences from repeated concussions.
The lawsuit has expanded to include more than 150 players, lawyers involved in the case say, and has been transferred to Minneapolis.
The plaintiffs' lawyer said that a jury trial in the case would probably take two weeks. The lawyers would likely have a bellwether case involving just one player – possibly Minnesota resident Mike Peluso – and the verdict from that case would be used for further litigation involving other players, the lawyer said.
A bellwether case would give a glimpse into the wider issues in the case while allowing lawyers and the judge to focus on the facts of one particular player's situation, rather than navigating though the claims made by the 150-plus plaintiffs in a single case.
Besides calling Peluso to testify, plaintiffs would call expert witnesses to testify about the science of head injuries and about the NHL’s alleged negligence. It’s possible that NHL executives and owners such as Ted Leonsis and Mario Lemieux, who have already been deposed in the case, might be called as “adversarial witnesses” to testify for the former players, the lawyer said.
The NHL would then call witnesses to make its own case, possibly including commissioner Gary Bettman and deputy commissioner Bill Daly.
If the plaintiffs win the bellwether, the NHL would likely ask the court to set aside the verdict and file an appeal.
The plaintiffs would take the factual findings used in the case that outline the NHL's conduct and would use those to streamline a second trial.
It’s unclear how much money the NHL might ultimately be forced to pay if it loses a class-action case.
The plaintiffs’ lawyer said that the crux of the case is a demand for medical monitoring for players, covering the costs of medication and regular medical attention and brain scans. The league would also face having to pay potential damages to players such as Peluso who say they are now permanently disabled.
The plaintiffs’ lawyers recently questioned NHL senior vice-president of hockey operations Kris King and NHL vice-president and director of officiating Stephen Walkom under oath. A deposition with Dave Dryden, a former NHL goalie and head of the NHL’s injury analysis panel from 2000 to 2004, is scheduled for March 17.