Comparing Concussion Lawsuits: NHL vs. NFL - Part 1

Last week, the NHL finally took action and filed a motion to dismiss the class action concussion lawsuit brought against it. A group of former NHL players seek damages from the league and are alleging, in a nutshell, that (a) the NHL knew or should have known about the risks and dangers of traumatic head injuries, and (b) the NHL failed to protect the players and warn them about the issue. According to the documents that the NHL recently filed, the league firmly believes the plaintiffs have no legal claim. For instance, the NHL claims that the collective bargaining agreement govern these issues of player safety, the statute of limitations has expired so that the claim is untimely, and that the plaintiffs never really allege "a duty to disclose or the circumstances surrounding the NHL's alleged omissions with sufficient particularity."

A party is negligent if it acts, or fails to act, in a way that causes injury to another party. For a plaintiff to make a prima facie case for negligence, the plaintiff must show four things: (1) the plaintiff suffered an injury; (2) the defendant owed a duty to conform to a specific standard of conduct for the protection of the plaintiff against unreasonable injury; (3) the defendant breached that duty; and (4) the defendant's breach was both the actual and proximate cause of the plaintiff's injury. "Knew or should have known" is a favorite phrase in the legal world of torts (i.e., the set of named and relatively well-defined wrongful acts that, when committed, generate a right of action in the victim against the wrongdoer) because it implies a duty of care onto one party that it owes to another party. It captures the party's negligence.

Here, the former players use the phrase to argue, basically, that (1) the plaintiffs suffer from a variety of injuries like headaches, memory loss, depression, and anxiety that increases the risk of "developing serious latent neurodegenerative disorders and diseases including, but not limited to, CTE, demetia, Alzheimer's disease or similar cognitive-imparing conditions," (2) the NHL voluntarily assumed the duty "to warn and protect its players of the long-term consequences of repeated head and brain trauma," (3) the NHL failed to act or took insufficient steps in acting, and that (4) it was more likely than not that the NHL's failure to act or insufficient acts caused their injuries (i.e., "cause-in-fact"), and their injuries were foreseeable consequences of the NHL's failure to act or insufficient acts.

The NHL caused or contributed to the injuries and increased risks to Plaintiffs through its acts and omissions by, among other things: (a) historically ignoring the true risks of concussive events, sub-concussive events and/or brain injuries suffered by NHL hockey players; (b) failing to disclose the true risks of repetitive brain injuries to NHL players; (c) refusing to address the issue of brain injuries despite a growing body of medical opinion establishing such a linkage and their own study of the issue; and (d) refusing to amend its rules and procedures and equipment requirements effectively to protect its players, including Plaintiffs.
— Leeman v. NHL, filed 11/25/13

Almost exactly one year ago, 10 former NHL players filed a 47-page lawsuit in the U.S. District Court for the District of Columbia. Since then, about 30 more former players have followed suit by making the same allegations in about a half-dozen cases. So, for judicial efficiency's sake, the Judicial Panel on Multidistrict Litigation ruled back in August that all the concussion-related lawsuits that retired NHL players filed would be consolidated and heard by the U.S. District Court in St. Paul, Minnesota. One reason the federal panel selected Minnesota is due to its closeness to Canada, which is where many of the plaintiffs live.

Note: The allegations parallel that of the NFL concussion lawsuit and is hot on its heels, but that does not mean that the plaintiffs will "win" or receive a large sum of damages. This case could be even more significant than the NFL Concussion lawsuit that reportedly settled for a value just under $1 billion - $765 million to be precise - because the facts are noticeably different. There will be a Part 2 shortly outlining these differences, how they tie in to negligence and concealment, and why the case may end in a different way compared to the NFL case.

[Thumbnail Image Source: Dave Reginek/Getty Images,]