In re Nat'l Hockey League Players' Concussion Injury Litig., MDL No. 14-2551 (SRN/JSM)

Decision Date16 May 2016
Docket NumberMDL No. 14-2551 (SRN/JSM)
Citation189 F.Supp.3d 856
Parties In re: National Hockey League Players' Concussion Injury Litigation
CourtU.S. District Court — District of Minnesota

Charles S. Zimmerman, Brian Gudmundson, and David M. Cialkowski, Zimmerman Reed, PLLP, Minneapolis, MN; Bradley C. Buhrow and Hart L. Robinovitch, Zimmerman Reed PLLP, Scottsdale, AZ, for Plaintiffs.

Stephen G. Grygiel, Steven D. Silverman, and William Sinclair, Silverman, Thompson, Slutkin & White, LLC, Baltimore, MD, for Plaintiffs.

Jeffrey D. Bores and Bryan L. Bleichner, Chestnut Cambronne PA, Minneapolis, MN, for Plaintiffs.

Stuart A. Davidson, Janine D. Arno, Kathleen L. Douglas, and Mark J. Dearman, Robbins, Geller, Rudman & Dowd, LLP, Boca Raton, FL; Leonard B. Simon, Robbins, Geller, Rudman & Dowd LLP, San Diego, CA, for Plaintiffs.

Lewis A. Remele, Jr. and Jeffrey D. Klobucar, Bassford Remele, PA, Minneapolis, MN, for Plaintiffs.

Katelyn I. Geoffrion, Thomas A. Demetrio, and William T. Gibbs, Corboy & Demetrio, Chicago, IL, for Plaintiffs.

Brian D. Penny and Mark S. Goldman, Goldman, Scarlato & Penny PC, Wayne, PA, for Plaintiffs.

Vincent J. Esades and James W. Anderson, Heins Mills & Olson, PLC, Minneapolis, MN, for Plaintiffs.

David I. Levine, The Levine Law Firm P.C., Fort Lauderdale, FL, for Plaintiffs.

Daniel E. Gustafson, David. A. Goodwin, and Joshua J. Rissman, Gustafson Gluek, PLLC, Minneapolis, MN, for Plaintiffs.

Thomas J. Byrne, Namanny, Byrne, & Owens, APC, Lake Forest, CA, for Plaintiffs.

Michael R. Cashman and Richard M. Hagstrom, Hellmuth & Johnson, PLLC, Edina, MN, for Plaintiffs.

Robert K. Shelquist, Lockridge, Grindal, Nauen, PLLP, Minneapolis, MN, for Plaintiffs.

Daniel J. Connolly, Joseph M. Price, Linda S. Svitak, and Aaron D. Van Oort, Faegre Baker Daniels, LLP, Minneapolis, MN; Geoffrey M. Wyatt, John H. Beisner, and Jessica D. Miller, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, D.C.; Shepard Goldfein, James A. Keyte, Michael H. Menitove, and Matthew M. Martino, Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY; Joseph Baumgarten and Adam M. Lupion, Proskauer Rose LLP, New York, NY, for Defendant.

MEMORANDUM OPINION AND ORDER

SUSAN RICHARD NELSON, United States District Judge

I. INTRODUCTION

This matter is before the Court on Defendant National Hockey League's Motion to Dismiss Master Complaint Based on Labor Law Preemption [Doc. No. 37]1 and Defendant's Motion to Stay Further Discovery Pending Resolution of Its Motion to Dismiss Master Complaint [Doc. No. 344]. In essence, Defendant asks this Court to find that labor law preemption entirely precludes this putative class action strictly on the face of the Master Complaint. In order to so find, Defendant asks this Court to consider numerous meeting minutes, letters, memoranda, and agreements that reflect four decades of collective bargaining between it and the National Hockey League Players Association ("Players' Union"), as well as documents that reflect the history of collective bargaining between the Players' Union and the NHL club teams before the NHL became a party to any collective bargaining agreement ("CBA"), as embraced by the pleadings. This is so, even though not one of the eight CBAs in effect during that forty-year timeframe is mentioned in the Amended Complaint, and even though all Plaintiffs in this class action are retired and are no longer subject to any CBA. According to Defendant, these documents that were neither attached to nor referenced in the pleadings demonstrate that any duties it may have owed to Plaintiffs regarding Plaintiffs' health and safety arise under the CBAs or would require interpretation of the CBAs in order to determine their scope. But, at this stage of the proceedings, the Court must rely only on the pleadings, or documents fairly embraced by the pleadings, and not a cherry-picked record introduced solely to contradict Plaintiffs' allegations.

Furthermore, the pleadings do not support Defendant's argument. Rather, discovery is necessary to shed light on the nature of Plaintiffs' claims, when those claims accrued, and which—if any—CBAs might be relevant. If a full record ultimately reveals that Plaintiffs' claims accrued while they were subject to a CBA, and that those claims are substantially dependent on interpretation of the CBA, then the Court could properly determine that the claims are preempted by labor law preemption. In the meantime, however, Defendant's Motion to Dismiss is premature and must be denied, and, therefore, Defendant's Motion to Stay is denied as moot.

II. BACKGROUND
A. The Parties and the Underlying Factual Allegations

This litigation was initiated as a class action by retired National Hockey League players who allege that Defendant National Hockey League ("NHL") is responsible for "the pathological and debilitating effects of brain injuries caused by concussive and subconcussive impacts sustained ... during their professional careers." (Pl.'s First Am. Consolidated Class Action Compl. [Doc. No. 351] ("Am. Compl.") ¶ 1.) The NHL is an unincorporated association that operates the major professional hockey league in North America and that consists of separately-owned member teams ("Club Teams") in various States and Canada. (Id.¶ 161.)

There are now six named Plaintiffs who seek to represent retired NHL players. (See id.¶¶ 27–85, 400–01.) Dan LaCouture, Michael Peluso, Gary Leeman, Bernie Nicholls, David Christian, and Reed Larson seek to represent Class 1:

All living Retired NHL Hockey Players who have not been diagnosed with dementia, ALS, Alzheimer's, Parkinson's, CTE, or other neurodegenerative disease or conditions (collectively, "Brain Disease").

(Id.¶ 400; see id.¶¶ 27–79, 387.) Although Stephen Ludzik was identified as the representative of Class 2, he intends to withdraw from that capacity. Class 2 constitutes:

All living and deceased Retired NHL Hockey Players who have been diagnosed with a Brain Disease, and their Representative Claimants and Derivative Claimants, where such Brain Disease was not diagnosed at the time the player retired or otherwise permanently ceased playing professional hockey.

(Id.¶ 401; see id.¶¶ 80–85.) Mr. LaCouture played in the NHL from 1998 through 2008 and suffered roughly twenty concussions and numerous sub-concussive injuries. (Id.¶¶ 28–29.) Mr. Peluso played in the NHL from 1989 through 1998 and suffered at least five concussions. (Id.¶¶ 40–41.) Mr. Leeman played in the NHL from 1983 through 1996 and suffered numerous concussions and sub-concussive hits to the head. (Id.¶¶ 51, 53.) Mr. Nichols played in the NHL from 1982 through 1999 and suffered at least three concussions and numerous sub-concussive hits to the head. (Id.¶¶ 56–57.) Mr. Christian played in the NHL from 1979 through 1994 and suffered numerous concussions and sub-concussive hits to the head. (Id.¶¶ 63, 65.) Mr. Larson played in the NHL from 1977 through 1989 and suffered numerous concussions and sub-concussive hits to the head. (Id.¶¶ 70, 72.)

According to Plaintiffs, former NHL players "signed up to play hockey knowing that they might get injured and dinged, but they did not sign up for avoidable brain damage." (Id.¶ 2.) Plaintiffs allege that, unbeknownst to them, decades' worth of scientific evidence links brain trauma to long-term neurological problems, and that Defendant knew or should have known of this evidence but did not sufficiently protect the players or inform them of the dangers of repeated brain trauma. (E.g., id.¶¶ 4–6, 9; see id.¶¶ 182–243.) This inaction persisted, Plaintiffs claim, despite Defendant's assumption of "a duty as a guardian against head-trauma in players" by virtue of instituting a helmet requirement in 1979 and creating a Concussion Program in 1997 to research and study brain injuries in players. (Id.¶ 10; see, e.g., id.¶¶ 13–14.) Plaintiffs claim that they and their families looked to Defendant for guidance on issues regarding player health and safety because of Defendant's vastly superior resources, knowledge, and access to medical and health-related information; because Defendant's fortune depended on Plaintiffs; and because Plaintiffs were brought up and trained to trust their coaches and teams' medical personnel. (E.g., id.¶¶ 15, 89, 91, 94–95, 98–100, 103, 129–30, 133, 135–36, 138, 141, 148–49, 151–54, 156, 336–37, 342–49, 351–54, 358–62, 364.) Plaintiffs also allege that Defendant has caused injuries and increased risks to Plaintiffs by refusing to cease its glorification of fist-fighting and violence in the NHL. (See, e.g., id.¶¶ 20, 296, 306, 309–11.)

B. Plaintiffs' Claims

In their First Amended Consolidated Class Action Complaint ("Amended Complaint"), Plaintiffs assert eight counts against the NHL. (See id.¶¶ 412–477.) In Count I, Plaintiffs seek a declaratory judgment that the NHL knew, or reasonably should have known, that the head impacts Plaintiffs and class members endured were likely to expose them to substantially-increased risks of developing neurodegenerative diseases and conditions; that the NHL had a duty to advise Plaintiffs and class members of that risk, but willfully and intentionally concealed material information from, and misled, Plaintiffs concerning that risk; and that the NHL recklessly endangered Plaintiffs and class members. (Id.¶ 414.) In Count II, Plaintiffs allege that, as a result of the NHL's misconduct, they experienced injuries that have increased their risk of developing neurodegenerative disorders, and that costly medical monitoring procedures are necessary to enable Plaintiffs and class members to obtain early detection and diagnosis of those conditions and to enable effective treatment. (See id.¶¶ 421–29.) Accordingly, Plaintiffs "seek the creation and funding of a Court-supervised, NHL-funded medical monitoring regime." (Id.¶ 430.)

Counts III and IV assert claims for negligence and negligent misrepresentation by omission, respectively. In Count III, Plaintiffs allege that the NHL has "historically and...

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