Former players suing the NHL over the alleged link between brain injuries suffered while playing hockey and long-term cognitive problems charge the NHL is wildly over-estimating the cost of searching and releasing player medical records.
The NHL is also being unfair by comparing privacy concerns related to the release of medical information of players to the issues around the disclosure late-term abortion records, the former players say.
The NHL two weeks ago said it would cost a staggering $13.5 million to produce the medical records for the 5,967 players who have played in the NHL since 1967 and suffered brain injuries.
The NHL charged that the extraordinary cost, combined with former players' right to privacy, should be grounds to deny a request to order the league to turn medical records over to 60 former players who are suing the league.
The group, including Joe Murphy, Bernie Nicholls and Gary Leeman charge that the NHL did not do enough to protect them from head injuries before it created a committee to study head trauma in 1997. Even after that, the players charge that the committee was a "white wash" and that its findings were not adequately shared with players.
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 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 of the case.
Earlier this month, a judge ordered NHL Commissioner Gary Bettman to offer testimony about the case. Bettman is expected to testify in July.
"From a medical science standpoint, there is no evidence yet that one (concussions) necessarily leads to the other (CTE)," Bettman said during a press conference in Chicago last week. "I know there are a lot of theories, but if you ask people who study it, they tell you there is no statistical correlation that can definitely make the conclusion."
Drawing links between concussions and chronic traumatic encephalopathy, the brain disease linked to depression, memory problems, and erratic behavior has split the medical community.
While some researchers have said there is a definitive link, others are more circumspect. Researchers, for instance, who studied the brain of former NHL defenceman Steve Montador and found CTE, also studied the brain of John Forzani, a former CFL player. Forzani did not have CTE even though he suffered multiple concussions during his career.
At about the same time the former players went to court asking that Bettman be ordered to testify immediately, they also asked that the NHL 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 obtained by TSN, 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."
"These concussion injuries were all sustained in public, in hockey games watched by thousands of spectators. In many instances, replays of the injuries were shown during the game, on sports editions of local nightly news programs, on networks like ESPN, and on the NHL's own cable channel and Internet website," lawyers for the players wrote in a court filing. "This is a far cry from the very private and sensitive medical records of women obtaining late-term abortions."
The NHL had earlier written in its own submissions that disclosing players' medical information would amount to a privacy violation, much like that of releasing the records of women seeking abortions.
The NHL has said it 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.
The players said that estimate was "wildly flawed and unrealistic," built on an estimate that's based on a paralegal's review of six medical files and extrapolated on an even basis to 5,967 files.
Rather, the players noted, more than 20 per cent of the 5,967 players who played in the NHL since 1967 played fewer than 10 games. More than half played fewer than 100 games. The six players whose medical files were reviewed averaged more than 750 games.
The medical files of the 1,227 players who played in fewer than 10 games would be considerably smaller than those that played in 750 games, the former players allege. "This alone established the clubs' gross exaggeration," the players allege.
The cost of reviewing and redacting files would be closer to $1.4 million, or an average of $62,369 for each of the 23 U.S.-based clubs involved with the motion record.
Lawyers are also seeking to force the NHL's Canadian based teams to turn over similar material.