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NHL Concussion Litigation — The Boogaard Family Strikes First

2013 May 13
by Paul D. Anderson Consulting, LLC

It was just a matter of time before the NHL was facing a flock of lawsuits relating to concussions. As predicted, on Friday, the family of the late Derek Boogaard filed an explosive wrongful death lawsuit against the league alleging that the NHL failed in multiple respects.

Boogaard’s lawsuit, which was obtained by NFLConcussionLitigation.com, can be summed up in a few words: painkillers, alleged gross negligence, concussions, CTE, fighting and Toradol. A wicked combination that led to the demise of a powerful enforcer.

His lawsuit could be the impetus that forever bans fighting from the NHL, and all of hockey. His lawyers say as much, “This League needs to adapt and change so that a preventable tragedy like this never happens again.”

Although Boogaard’s case is unique, in that he was obviously overprescribed with drugs (i.e. 190 pills within a 16 day period), his lawsuit could open the floodgates to the start of the NHL Concussion Litigation.

In framing the allegations, Boogaard’s lawyer not only alleges that the NHL failed to warn Boogaard of the consequence of playing through concussions, but he also alleges the NHL failed to warn all NHL players.

Just like the NFL Concussion Litigation, other lawyers may start recruiting former NHL enforcers to take on the league. Only time will tell if this is the start of something much bigger, or if it is an isolated lawsuit limited to its tragic facts.

The initial roadmap of Boogaard’s lawsuit will follow the legal trajectory of the NFL Concussion Litigation.

First, the NHL will remove Boogaard’s lawsuit to federal court. Currently, his lawsuit is pending in Cook County, Illinois. Within 30 days the NHL will file a Notice of Removal and argue that the federal court has jurisdiction under Section 301 of the Labor Management Relations Act.

Boogaard’s lawsuit will then be removed to the federal district court in Chicago.

Second, Boogaard’s lawyer will file a Motion to Remand seeking to send the case back to Cook County.

Like the NFL, the NHL will argue that this is fundamentally a labor dispute that must be decided by an arbitrator pursuant to the grievance procedures in the CBA, as opposed to a future jury.

Third, the NHL will borrow a play out of the NFL’s playbook and argue that Boogaard’s lawsuit must be dismissed because the CBA and federal labor law preempt his claims.

Anticipating this argument, Boogaard’s lawyer asserts that the 2005 CBA “does not address the NHL’s duties to its players to monitor their general health.” In other words, like the former players in the NFL Concussion Litigation, a judge will not be required to interpret various provisions of the CBA.

Fourth, a federal judge in Chicago will be tasked with deciding whether Boogaard’s claims are preempted by the CBA, or if his case can return to Cook County for the discovery process and an eventual trial.

This will be a close call. Judge Brody’s soon-to-be-published decision may provide persuasive precedent to allow or disallow Boogaard’s lawsuit to remain in court.

Of course, the NHL will vigorously oppose any attempt at early discovery and will also forcefully seek to slam the courtroom door shut on Boogaard’s claims, and any future lawsuits by former NHL players.

If Boogaard’s lawyer defeats the NHL’s preemption argument, his case will eventually be teed up for trial to take place in Cook County in approximately 1.5-3 years.

If there ever were an ideal test case to determine whether the NHL had a duty to warn players about the long-term risks of concussions, Boogaard’s case certainly provides that avenue.

Though Boogaard’s family will face several legal hurdles, even if he gets past the preemption argument, his case could change hockey forever.

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