Walking away from concussion lawsuit 'not an option' after judge denies class-action status

A Minnesota judge denied class-action status to a lawsuit brought by former players against the NHL that accuses the league failing to protect them from head injuries and concealing information about the long-term effects of concussions, but walking away isn't an option for players and their lawyers.
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There is no denying the NHL scored a major victory last Friday when a Minnesota judge denied class-action status for a lawsuit by former players accusing the NHL of failing to protect them from head injuries and concealing information about the long-term effects of concussions, but a lead lawyer for the 138 plaintiffs said that does not change the core issue and that this action is far from dead.

Stuart Davidson of Robbins, Geller, Rudman and Dowd, one of the firms representing the former players, said the plaintiffs have until July 27 to appeal the ruling, but said the lawsuits will go ahead with or without a class action. “I suspect that no matter what we do on the appeal front, we will move forward with individual trials,” Davidson said. “At this point, we lawyers have been living with this case for four years now. We care deeply about this case, we care deeply about our clients, we care deeply about the moral issues and we’re not just going to walk away. That’s just not an option for us.”

But when U.S. District Judge Susan Nelson came down with her ruling, it struck a major blow to the former players who, along with their lawyers, are now faced with the prospect of pursuing cases individually and bearing the costs associated with each one. That means the NHL will likely be looking at the insides of courtrooms all over North America for the next few years instead of facing one trial, but the lawyers representing the former players will have to decide whether each case is worth the expense of pursuing.

“It made and continues to make literally no sense to us or our clients why every retired player would have to prove the exact same thing over and over and over again, and that’s essentially what this ruling says to do,” Davidson said. “Each player is now required to file his own individual lawsuit and…that is, unfortunately, a very expensive proposition. You have to have epidemiologists and neurosurgeons and neurologists and neuropsychologists and the world’s most renowned experts. You can imagine how much they charge on an hourly basis.”

In her ruling the judge said, “widespread differences in applicable state laws” that govern the kind of medical monitoring sought by the players as a remedy, saying such disparities would pose “significant case management difficulties.” But Davidson disagreed with that assessment, saying that their side argued that in terms of whether or not the league was negligent, New York State law should apply since the league has been based there since 1977. Then, if they had been able to prove their allegations, the medical monitoring remedies should be applied according to Minnesota laws because that’s where the jury would have been empanelled. He also said there is obviously no one venue where the injuries took place.

“No single elbow to the head that took place in Quebec or Hartford or Buffalo is at issue in this case,” Davidson said. “The issue is what were (the players) told and whose responsibility was it? We argued that there is no specific location of the injury. In this case, there is no one, single injury. The injuries took place over the course of multiple years, multiple seasons, multiple locations. The issue isn’t the injury as much as it is what the NHL did or did not say. She is now looking at if from a manageability standpoint. How manageable will this trial be? And if she’s saying ‘I need to figure out what the law is on medical monitoring and negligence is for all 50 states, plus the provinces in Canada…that is unmanageable for me and, therefore, class action is not the best way to handle this.’ ”

Davidson vehemently disagreed with the judge’s ruling and said the plaintiffs will now decide whether or not they have a case to appeal it. One thing that is certain is that the ruling in Minnesota last Friday does nothing to address what is at the heart of the case and that is whether or not the league had a duty to inform the players of the potential dangers of repeated head trauma and whether they were negligent in not doing so.

“The more I think about it and the more I read her decision, the more it irks me and angers me because to now require individual plaintiffs to spend millions of dollars to prove the exact same thing…that makes zero sense to me,” Davidson said. With all due respect to the judge whom I think so highly of, she is brilliant, she should be at an appeals court at some point because she is just that good of a judge, but not every judge gets it right. And we’re allowed to have respectful disagreements with judges just like they’re allowed to respectfully disagree with the lawyers.”

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