On Wednesday TSN’s Rick Westhead reported on an intriguing development in the Derek Boogaard wrongful death lawsuit filed against the NHL by the late enforcer's family. The attorney who represents the Boogaards is battling to delay a court ruling that could dismiss the suit until he has a chance to introduce new evidence that he says will prove the league is responsible for the Rangers enforcer’s death due to a drug overdose in May 2011. Boogaard suffered from the effects of multiple concussions and became addicted to painkillers, many of which were prescribed by team doctors.
According to Westhead, attorney Bill Gibbs sent the court a letter asking that it hold off on ruling on the motion to dismiss that was filed by the NHL last April. His request is based on “relevant … evidence related to the NHL’s duty to its players that was not previously available." The material in question was uncovered during the ongoing but unrelated concussion lawsuit filed by a group of former players. Gibbs is involved in that case and was given access to nearly 250,000 documents totaling 2.3 million pages that have been submitted as evidence.
"Specifically, certain documents and testimony shed light on the NHL’s assumed responsibility for making the game safe for its players and its ability to act unilaterally to eliminate dangerous elements of professional hockey," Gibbs wrote.
Gibbs hopes that this damning information, which is currently under protective order, will be unsealed by the federal judge who is overseeing the concussion case.
The key question, according to attorney Michael McCann of the Sports Law Blog and SI.com, is “Does the NHL have a legal duty to prevent players and former players with health injuries from becoming addicted to painkillers and taking their lives due to their addiction? This is a challenging issue for Boogaard’s family to establish, as the NHL can argue that its only duties on health matters are contained in collectively-bargained policies with the NHLPA and lawsuits about health issues should be preempted by those collectively-bargained policies.
“It’s also true that the argument brought by the Boogaard family is about a fact pattern that is several steps removed from concussions: It’s not just about prevention of concussions but the prevention of players engaging in highly destructive behavior after suffering concussions. It’s thus a longer causal nexus between the NHL and players suffering concussions and the NHL and concussed players who overdose from drugs.”
That seems to be the defense the NHL is employing. Its attorneys have argued that information from the concussion lawsuit should not be admissible in the Boogaard suit because the cases are so different.
“There are, in fact, profound differences in the underlying claims between the two cases,” NHL lawyer Adam Lupion wrote in a court filing. “Allegations concerning drug addiction, substance abuse and the alleged over-prescription of pain medication dominate the [Boogaard case]; there are no such allegations in the [concussions lawsuit.]”
But the discovery of a direct link wouldn’t be the only valuable information that the Boogaards’ attorney could extract from those documents, many of which he says he is still digesting.
“This is complete speculation, but it’s possible that many pages of these documents contain records where NHL officials express concern about concussions and the treatment of concussions and other health issues through painkillers,” McCann says. “It's also possible that even if some of these records wouldn’t win the case for Gibbs, they could embarrass NHL officials—much like NFL officials were embarrassed by some disclosures in their concussion litigation. The threat of their disclosure could make the NHL more willing to offer favorable settlement terms.
“Another motivation for Gibbs in petitioning the court to make these documents admissible in the Boogaard case is that the petition itself will take time and subsequently delay how quickly the NHL can attempt to get the Boogaard case dismissed,” McCann added. “The longer the case goes, the more likely the NHL would be willing to settle. Expanding the clock is a benefit to Gibbs.”
For now, that clock is running. According to Westhead, the judge has said he may rule on the NHL’s motion to dismiss the Boogaard family’s case as soon as Sept. 16.
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