Boogaard v. Nat'l Hockey League

Decision Date05 June 2017
Docket Number13 C 4846
Citation255 F.Supp.3d 753
Parties Len BOOGAARD and Joanne Boogaard, Personal Representatives of the Estate of Derek Boogaard, Deceased, Plaintiffs, v. NATIONAL HOCKEY LEAGUE, National Hockey League Board of Governors, and Gary B. Bettman, Defendants.
CourtU.S. District Court — Northern District of Illinois

Joshua D. Branson, David C. Frederick, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, DC, Thomas A. Demetrio, William T. Gibbs, Corboy & Demetrio, Chicago, IL, for Plaintiffs.

Adam M. Lupion, Joseph Baumgarten, Andrew A. Smith, Howard Z. Robbins, Proskauer Rose LLP, New York, NY, Steven Ross Gilford, Bradley James Lorden, Proskauer Rose LLP, Michael Frederik Derksen, Dykema Gossett PLLC, Chicago, IL, for Defendants.


Gary Feinerman, United States District Judge

Len and Joanne Boogaard, the personal representatives of the estate of Derek Boogaard, bring this suit against the National Hockey League and its Board of Governors and Commissioner (collectively, "NHL"), alleging tort claims connected with Boogaard's death. Docs. 1–1, 62, 174. (For ease of reference, and except where context requires otherwise, the court will refer to Plaintiffs as "Boogaard.") As matters now stand, Counts V–XII of the second amended complaint have been dismissed, and Counts I–IV remain in the case. Docs. 168–169, 174. The NHL has moved to dismiss the remaining claims, Doc. 177, while Boogaard has moved to remand the case to state court, Doc 182. The NHL's motion is granted, and Boogaard's motion is denied.


The previous personal representative of Boogaard's estate, Robert Nelson, filed this suit in the Circuit Court of Cook County, Illinois. Doc. 1–1. The NHL removed the case to this court under 28 U.S.C. § 1441 on the ground that the original complaint's claims, which purportedly rested on state law, were completely preempted by § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, and thus in fact were federal claims. Doc. 1; see Caterpillar Inc. v. Williams , 482 U.S. 386, 393, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). The court denied Boogaard's motion to remand, holding that at least some of his claims were completely preempted. Docs. 37–38 (reported at 20 F.Supp.3d 650 (N.D. Ill. 2014) ). Boogaard then filed an amended complaint, which set forth eight counts. Doc. 62. After discovery, the court granted summary judgment to the NHL on all eight counts, holding that they were completely preempted by § 301 of the LMRA and that the § 301 claims—which is how the preempted claims had to be characterized—were barred by the applicable statute of limitations. Docs. 140–141 (reported at 126 F.Supp.3d 1010 (N.D. Ill. 2015) ).

Boogaard moved for leave to file a second amended complaint, which set forth twelve counts. Docs. 135, 143. The NHL opposed that motion on the ground that the second amended complaint's claims, like those of the first amended complaint, were completely preempted by § 301 of the LMRA and, as § 301 claims, were time-barred. Docs. 151–152. The court granted in part and denied in part the motion for leave to amend. Docs. 168–169 (reported at 211 F.Supp.3d 1107 (N.D. Ill. 2016) ). Specifically, the court held that eight of the second amended complaint's counts, Counts V–XII, were "essentially identical to the first amended complaint's eight counts ... and are therefore completely preempted and time-barred for the reasons set forth in the court's earlier opinions." 211 F.Supp.3d at 1111. But the court held that portions of the other four counts, Counts I–IV, stated non-preempted—and thus true state law—claims. Ibid. Accordingly, the court dismissed with prejudice Counts V–XII and the completely preempted portions of Counts I–IV; ordered the NHL to answer or otherwise plead to the surviving portions of the complaint; and stated that if the NHL "move[s] to dismiss any of the surviving claims, [it] should not do so on preemption grounds." Doc. 168.

Now before the court are the NHL's motion to dismiss the second amended complaint's surviving claims, Doc. 177, and Boogaard's motion to remand the case to state court, Doc. 182.

I. The NHL's Motion to Dismiss

In moving to dismiss, the NHL contends that the second amended complaint's state law claims—the NHL actually continues to argue that Counts I–IV include no true state law claims, Doc. 178 at 11–17, but proceeds to assume for the sake of argument that they do—are governed and defeated by Minnesota law. Id. at 18–27. The NHL argues in the alternative that, regardless of which State's law applies, Boogaard has no viable claim. Id. at 27–40.

In resolving the NHL's Rule 12(b)(6) motion, the court assumes the truth of the operative complaint's well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N. Am. Power & Gas, LLC , 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider "documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice," along with additional facts set forth in Boogaard's brief opposing dismissal, so long as those additional facts "are consistent with the pleadings." Phillips v. Prudential Ins. Co. of Am. , 714 F.3d 1017, 1019–20 (7th Cir. 2013). The facts are set forth as favorably to Boogaard as those materials allow. See Pierce v. Zoetis, Inc. , 818 F.3d 274, 277 (7th Cir. 2016). In setting forth those facts at the pleading stage, the court does not vouch for their accuracy. See Jay E. Hayden Found. v. First Neighbor Bank, N.A. , 610 F.3d 382, 384 (7th Cir. 2010).

Boogaard played hockey for the NHL for six years—five for the Minnesota Wild, and one for the New York Rangers. Doc. 174 at ¶¶ 2, 11. As an "Enforcer/Fighter," Boogaard's principal job during games was to fight opposing players. Id. at ¶¶ 2–3. As a result of the fights, he suffered brain injuries, which eventually developed into chronic traumatic encephalopathy, or "CTE," a brain disorder characterized by deteriorating judgment, inhibition, mood, reasoning, behavior, and impulse control. Id. at ¶¶ 4–7. Boogaard routinely suffered other painful injuries as well, and team doctors treated his symptoms with opioids, a class of highly addictive pain medications. Id. at ¶¶ 4, 119–122, 127–137. Boogaard became addicted to opioids, went to rehab, relapsed, and returned to rehab. Id. at ¶¶ 138, 140, 156–160. In May 2011, while on weekend release in Minnesota from his second stay in rehab, he accidentally overdosed on Percocet and died. Id. at ¶¶ 164–165, 206. He was 28 years old. Id. at ¶ 1.

Counts I–II—a survival claim and wrongful death claim, respectively—rest on the following allegations. During Boogaard's career, the NHL cultivated a "culture of gratuitous violence," which caused him to get into fights, which in turn caused him to develop CTE and become addicted to opioids, which in turn caused his death. Id. at ¶¶ 44, 75, 78. The NHL encouraged violence by, among other things, promoting an HBO documentary glorifying the "Broad Street Bullies," a Philadelphia Flyers team known for fighting; creating promotional films "that focus on the hardest hits that take place on the ice"; displaying on its website stories about enforcers and on-ice fights "on a nightly basis"; producing on an affiliated television network "a weekly program segment called ‘Top 10 Hits of the Week’ "; and sponsoring video games that "include[ed] fighting and vicious body checking." Id. at ¶ 57.

Counts III–IV—also a survival claim and wrongful death claim, respectively—allege that the NHL actively and unreasonably harmed Boogaard by implicitly communicating that head trauma is not dangerous. The NHL communicated this message by suggesting that it was "study[ing] ... repetitive concussive and/or sub-concussive brain traumas amidst its player population," which caused NHL players to "reasonably believe[ ] that the NHL's findings would apprise them of any and all long-term risks" of playing professional hockey. Id. at ¶¶ 81, 83. It was not until after Boogaard's death that the NHL reported its findings. Id. at ¶ 90. By publicizing the fact that it was studying the effects of brain trauma, the NHL's silence on the issue during Boogaard's career implicitly conveyed that it had found that those effects were minor. Id. at ¶¶ 89, 94. Boogaard relied on that implied message when he continued playing in a way that would give him concussions. Id. at ¶ 108.

A. Minnesota Law Governs Boogaard's Non–Preempted Claims

In pleading Counts I–IV, Boogaard expressly invokes Illinois and Minnesota law. Id. at ¶¶ 77, 80, 115, 118. Counts I and III—the survival claims—are brought "pursuant to Minn. Stat. § 573.02 and 755 ILCS 5/27–6, commonly known as the Survival Acts of the States of Minnesota and Illinois." Id. at ¶¶ 77, 115. Counts II and IV—the wrongful death claims—are brought "pursuant to the Minnesota Wrongful Death Statute, Minn. Stat. § 573.02, and the Illinois Wrongful Death Statute, 740 ILCS 180/1, et seq. ," id. at ¶¶ 80, 118. Despite invoking Illinois and Minnesota law in the operative complaint, and despite having nearly three years to think about his claims before moving for leave to file that complaint, Boogaard asserts for the first time in his opposition brief that New York law applies. Doc. 185 at 13–15, 20–21. In poker, that would be called a "tell"; as will soon become clear, the NHL's motion to dismiss advanced compelling arguments for dismissing Boogaard's claims under Illinois law and particularly Minnesota law, and Boogaard's extraordinarily belated retreat to New York law is an obvious signal that his lawyers no longer think much of his prospects under Minnesota or Illinois law.

Because this case was filed in Illinois, Illinois choice-of-law rules guide the inquiry into which state law applies. See Klaxon Co. v. Stentor Elec. Mfg. Co. , 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) ("[T]he prohibition...

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