In hockey terms, the gloves are off. There is a legal phrase that’s just as apt.
See you in court.
The NHL concussion lawsuit filed by retired players against the league continues to march toward a Minnesota courtroom. Its arrival seems inevitable.
“If it goes to trial, it’s going to be the first concussion and sports case that will ever see the inside of a courtroom,” said Charles “Bucky” Zimmerman, a lawyer for the players. “The others have settled, and this one at this point is looking like it may get tried. We’re looking forward to that because we think the law and the facts are on our side.”
The case, which began in November 2013, has slowed during the past year. A motion for class certification was scheduled for last September, but it has been pushed to July as both sides continue to take depositions from experts.
Don’t mistake lack of progress for lack of drama. In fact, the case has taken several nasty turns:
• The NHL has accused the former players of being “puppets” who don’t have the mental capabilities to write stories about their deteriorating health or injuries.
• Doctors representing each side have accused their counterparts of using failed and unscientific practices while delivering unprofessional accusations.
• The NHL is challenging the work done by the Boston University CTE Center. The center studies whether concussions and repetitive blows to the head can lead to chronic traumatic encephalopathy, a progressive and degenerative brain disease.
• The league has ramped up its attack on CTE itself.
“Has this litigation become more contentious?” Zimmerman said by phone. “Honestly, I think the NHL has contested every single issue the entire way. I can’t think of an issue where they’ve been cooperative. I wish they would be, but they’ve been fighting very hard on every issue.”
The NHL has declined to comment on the case.
The league lost the latest ruling in the legal battle this week. Presiding Judge Susan Richard Nelson of U.S. District Court in Minnesota has declassified more NHL emails that put the league, its employees and Commissioner Gary Bettman in a negative light.
Like previously released documents, the emails detailed tense concussion debates among team doctors and showed league executives making derogatory comments toward the anti-fighting community.
In one exchange, Bettman asked Deputy Commissioner Bill Daly if the league could stop paying Kerry Fraser his severance after the former referee was critical of the league’s failure to suspend a player for an elbow.
“It wouldn’t be nice but maybe he should understand it’s not nice to bite the hand that feeds you,” Bettman wrote according to court documents obtained by TSN. “Please have someone check to see if there are any grounds to withhold. Don’t want to hurt him – maybe just get his attention.”
Bettman’s stance that concussions have not been proven to cause CTE is the defense tactic drawing the most attention. The NHL lawyers are following that avenue.
Prominent player agent Allan Walsh, a critic of the league and its concussion policies, has watched with increased dismay. Formerly a prosecutor in Los Angeles, Walsh sees similarities between the NHL and one of the most infamous corporate defendants – Big Tobacco.
"The NHL has attacked the retired players in the concussion lawsuit using a multipronged strategy,” Walsh said via email. “They have belittled the players’ intellectual capacity to write op-ed articles in newspapers. They have used friendly media to portray the players as greedy and seeking handouts. Most disheartening, the NHL has stated repeatedly that no causation exists between concussions, sub-concussive blows to the head and CTE.
“Similar to the defense used by the tobacco industry in the ’80s and ’90s, the NHL retained an 'expert witness' who flaunts medical and scientific consensus by questioning the very existence of CTE."
CHALLENGING THE SCIENCE
The fight over CTE has been the NHL’s biggest.
“The science regarding CTE … remains nascent, particularly with respect to what causes CTE and whether it can be diagnosed by specific clinical symptoms,” Bettman wrote to Sen. Richard Blumenthal after the Connecticut politician questioned the NHL’s approach to head injuries. “The relationship between concussions and the asserted clinical symptoms of CTE remains unknown.”
In an attempt to back Bettman’s claim, the NHL’s lawyers are demanding that the CTE Center turn over the research it has done on the brains of deceased athletes. The defendants say the center’s methods may be faulty despite going through the peer-review process.
The physicians have declined to comply, arguing it would take years to catalog the data, halting their research while infringing on their patients’ privacy.
“Plaintiffs' counsel rely extensively on the Center's research for both merits and class certification arguments,” John H. Beisner, a lawyer for the NHL, said during the last motions hearing in February. “What plaintiffs are saying here is that they can use that research as a sword in this case, but we have to accept that because it was peer-reviewed it's perfectly OK. We can't challenge it. We can't ask any questions about what lies beneath that.
“With BU playing such a central role in the prosecution of this litigation and being the linchpin of the litigation, to allow reasonable inquiry into what underlies the research the Center has done … and what the internal analyses have been to arrive at the conclusions that they've reached in these studies is critically important.”
The judge is considering whether the CTE peer reviews should stand or if the league should get the files.
“My opinion is there’s really no plausible belief or scientific support for the proposition that CTE doesn’t exist,” Zimmerman said. “The NHL is trying to create an issue that doesn’t exist. They’re trying to say it’s not absolutely certain, it hasn’t been proven in science with double-blind placebo prospective studies, but I think the association – the strong, overwhelming association – between head hits in hockey and CTE has been proven to exist over and over and over again.
“The Center’s findings have been subjected to extremely rigorous scientific scrutiny. The NHL has not identified a single material flaw in the Center's research or that it lacks scientific integrity. The scientific peer-reviewed process and peer experts in the field would have identified any issues long ago if they existed.”
CHALLENGING THE WRITING
The NHL has accused the media of being “hysterical” about concussions and fighting. Many retired players who are part of the case have spoken out in the media – including former Sabres defenseman Mike Robitaille during a four-part series by The Buffalo News last year – and the league claimed some had too much help.
After multiple players wrote first-person stories, the NHL asked the court for help in obtaining correspondence between those players and a public-relations firm. The league felt the players didn’t have the “mental faculties to write lucid and sophisticated op-eds for publications.”
The judge denied the request, ruling the players authorized the pieces after being interviewed and reading the final drafts.
“When I sign a brief, I don’t write every word of it,” Zimmerman said. “I read it and approve it, and it’s my work product. But to think that I wrote every word is ridiculous. That’s not how the world works.
“They’re drawing at straws with that."
Based on the past couple of years, additional debates will be coming in the case. More than 100 former players are claiming the league was negligent in its care and fraudulently concealed the long-term risks of head injuries. They are seeking medical monitoring and compensatory damages.
The sides are scheduled to have two more formal status conferences before the July 11 hearing on class certification. If the motion is approved, the case would include every retired NHL player, not just the ones who joined the lawsuit. A similar case with retired NFL players resulted in a $765 million settlement.
There is no timeline for a conclusion to this legal fight.
“We’re trying to see how good each party’s claims that it should or shouldn’t be a class stand up under discovery,” Zimmerman said. “We’re still fighting it out in the trenches. It’s kind of the ground war of this litigation.”
Our 2016 NHL concussions series by John Vogl