NHL Concussion Litigation Continues to Grow

Former NHL defenseman Grant Ledyard has become the latest of 115 players to join multi-district litigation against the National Hockey League for damages resulting from concussions. Filed on August 26, 2014 in the United State District Court of Minnesota, the claim alleges that the NHL knew, or should have known, that constant head impacts were likely to expose players to a substantial risk of disorders and diseases. However, the league failed to warn or protect players from permanent injury.

Ledyard is but one of several players involved in the NHL concussion litigation. He is suffering from the effects of constant concussive injuries causing severe trauma to the brain. These injuries have been linked to a multitude of degenerative conditions including Alzheimer’s disease, dementia and Parkinson’s. The development of these conditions and associated risks have also been conclusively linked to the chronic degenerative brain disorder known as chronic traumatic encephalopathy. Otherwise known as “CTE.”

After playing 1028 games over eighteen years and experiencing eight concussions, Ledyard now suffers from headaches, mood swings, uncontrollable temper, sensitivity to light, and depression on a daily basis. Another plaintiff in the NHL concussion MDL, retired player Mike Peluso, has suffered eight grand mal seizures since retiring in 1998. He now suffers from depression as well as suicidal thoughts. Ledyard must take 4-5 pills daily in order to control his seizures. He claims he would have never played in the league had he known of the risk of permanent injury.

The current NHL concussion MDL is not the first time players have joined in litigation against the NHL for injuries suffered during the course of their careers. The first lawsuit against the league was filed in the district court for the District of Columbia in 2013 by ten former players. The league immediately responded by releasing a statement to the public. They stated, “We are completely satisfied with the responsible manner in which the League and the Players’ Association have managed Player safety over time, including with respect to head injuries and concussions.”

Originally filed in 2013, about 115 hockey players are now part of the multi-district litigation against the NHL. They are seeking damages for the “pathological and debilitating effects of brain injuries caused by concussive and sub-concussive impacts sustained…during their professional careers.”. The most recent complaint in the NHL concussion litigation alleges that the league’s failure to warn players of concussion risks constitutes fraudulent concealment because the League had specialized knowledge of material medical information. Specifically, plaintiffs assert that there has been extensive literature and research available on the subject. This is including four international symposia that included medical reports specific to hockey and multiple conferences in the United States focusing on concussive injuries in professional hockey.

NHL representatives did attend the international symposia. Plaintiffs contend there is little chance that the League was unaware of the degenerative and long-term debilitating effects of these repeated mild traumatic brain injuries, or “MTBIs.”. By withholding information, plaintiffs claim they justifiably relied on the League’s omissions and misrepresentations regarding the degree of risk associated with playing for the League. The plaintiffs allege that the NHL downplayed the risks of head injuries. They fostered an unreasonable and unnecessarily violent league in order to increase its profits.

One of the NHL’s legal defenses is that players could have read medical research and reports on their own in order to figure out that repeated head hits can cause concussions. Contrary to the NHL’s position, plaintiffs maintain that “[they] had no familiarity with or reason to access any medical literature concerning concussions, or other sub-concussive impacts.” Rather, plaintiffs state that they relied on the League for information about health and safety, and that they were never informed of the negative long-term effects of sustaining concussions.

In 2011, the NHL published an analysis of the risk of concussions faced by its players in the Canadian Medical Association Journal. The analysis, which evaluated traumatic brain injuries over the course of several regular seasons, found 559 concussions during regular season games. This equates to a 5.8 concussion rate per every 100 players, or 1.8 concussions per 1,000 player hours. The most common symptoms found in the study were headache, dizziness, nausea, neck pain, blurred vision, amnesia, and loss of consciousness. More serious concussions have similar symptoms, but also included fatigue and memory loss, resulting in abnormal neurologic exams.

In response to at least eight players being forced to retire between 1993 and 2002 due to sports-related injuries, the NHL created the National Hockey League Player Association (NHLPA) in 1997. This was to research and examine the science of concussions in order to educate themselves and players. Retired players who have reached out to the NHLPA are now referred to specialists based on their injuries. They also have access to substance abuse and behavioral health programs for two years after retirement. This season, the NHL also introduced “spotters” who would attend games and work with the team in identifying and tracking players who might have concussions.

Players allege that their exposure to constant bodily impact and injury throughout their professional careers put them at serious risk for serious neurodegenerative disorders like dementia, Alzheimer’s, and CTE. Also that the league benefited from the game’s reputation as a violent sport. Since last June, the NHL has been seeking to have plaintiffs receive extensive medical examinations. These have included PET scans – which measure brain function – CT scans, and spinal taps. They seek to subject the players to blood work, and neuropsychological or psychiatric examinations that could take up to 12-14 hours to conduct. Former players have argued that many of these tests are too invasive. Consequently, according to the plaintiffs’ expert Robert Cantu, there is no “medical or legal justification” for conducting the tests on players because they are not basing claims on their present illnesses.

In January, the judge presiding over the suit demanded the unsealing of emails between NHL executives. The communications are allegedly evidence of their indifference towards player concussions. They are therefore relevant to the plaintiffs’ theory that the NHL did not invest an appropriate level of due care to the health of it’s players. The unsealing of the emails is a victory for the plaintiffs. However, insensitive communications will not be enough to establish liability under the law.

The recent notoriety of the $765 million settlement against the NFL for similar allegations may pave the way for future for NHL concussion litigation. Especially as it becomes more difficult to contest the science behind the linkages to CTE and other diseases. Currently, CTE can only be diagnosed postmortem. However some doctors predict that within 5-10 years there will be an approved method to diagnose CTE while patients are alive.

The NHL denies the allegations. However, the negative publicity surrounding the case and the outcome of the NFL settlements, may steer them away from trial. Moving towards a more favorable settlement for players.