The National Hockey League and lawyers for former players suing the league over its approach to concussions have proposed to a U.S. federal court that the lawsuits of four yet-to-be-determined former players head to trial in the spring or summer of 2019.
U.S. District Court Judge Susan Nelson ruled in July that the former players’ head trauma-related lawsuits would not move forward as a class action, meaning that players will be required to pursue claims against the NHL individually.
Judge Nelson gave the league and plaintiffs a deadline of Sept. 26 to propose a path forward for the 140 concussion lawsuits that have been filed to date. Cases must have been originally filed in Minnesota to be considered as a bellwether case. Bellwether trials are held in the hopes they can serve as an indication of how other trials with similar claims might unfold.
Former NHL players whose cases could be considered for trial in the new year include Joe Murphy, Reed Larson, Mike Peluso, Daniel Carcillo and Nick Boynton. It’s unlikely that the case filed by the family of the late Steve Montador, who died in February 2015 and was posthumously diagnosed with CTE (chronic traumatic encephalopathy), a degenerative brain disease that’s been linked to repeated brain trauma, will be considered for trial soon because it was filed in Illinois.
In a Sept. 26 letter to Judge Nelson, NHL lawyer Daniel Connolly proposed the league and plaintiffs each nominate eight player cases to establish an initial trial pool of 16 by Oct. 19. After collecting the medical records of the former players involved in those cases, the NHL proposed each side would select three finalist candidates for trial.
Both the NHL and the plaintiffs would be allowed to strike one of the other side’s final three cases, leaving four cases that would head to trial. The judge should draw names from a hat to determine the order of trial of those remaining four cases, Connolly wrote.
Jeffrey Klobucar, a lawyer for the plaintiffs, wrote in a separate letter to Judge Nelson that lawyers for the former players want to begin with an initial trial pool of 12 former players, instead of the 16 proposed by the NHL.
Klobucar wrote that the initial trial pool should be decided by Oct. 19 and that after the final four cases are decided for trial, discovery would take place over a period of 150 days.
Discovery would mean the NHL would be required to turn over documents and emails related to specific players whose cases are moving forward. It’s possible discovery would also include more depositions of NHL team owners, coaches and other executives, players, doctors and trainers.
In a five-part series called NHL Under Oath, TSN reported in June on a series of NHL deposition transcripts and videos. The series documented how a top NHL lawyer watered down a warning to players about the long-term dangers of repeated head trauma on a poster displayed in every NHL team dressing room, and how years into the concussion litigation, Boston Bruins owner Jeremy Jacobs, chair of the league’s board of governors, was among several NHL owners who denied knowing about CTE.
In a declaration unsealed last week, Dr. Robert Cantu, a founder of the Chronic Traumatic Encephalopathy Center at Boston University, condemned the NHL for denying a link between the head hits suffered by NHL players and neurodegenerative diseases.
“It is clear, and has been for many decades, that NHL hockey players face an increased risk of long-term neurodegenerative diseases such as CTE because of the head trauma they experience in the NHL,” Dr. Cantu wrote in the Feb. 6, 2018, declaration.
Dr. Cantu compared the NHL’s stance on concussions and brain disease to the “smoking saga.”
Dr. Cantu agreed to testify on behalf of more than 150 NHL players who are suing the league, alleging its officials should have done more to warn them about the dangers of repeated head trauma and returning to play too soon after suffering a brain injury.
The NHL has argued that there is no definitive proof that repeated head trauma leads to brain disease. One of its medical experts has claimed CTE doesn’t exist as a disease. More medical research is needed before drawing any conclusions, the league says.
The NHL refuses to fund any research into head trauma, USA Today reported in 2017.
Even so, Dr. Cantu wrote in his affidavit that if the NHL and NHL Players’ Association funded and immediately began a study of retired players to determine whether head trauma they suffered in their careers increases risks of neurological diseases, the study would not be completed before 2030, at the earliest.