By Jeff Birren, Senior Writer
The Richard Dent class action lawsuit against the NFL was filed in 2014, based on allegations that the NFL dispensed painkillers to players to enable them to play despite their injuries. Since that time, it has gone up and down the legal system several times, as has been reported in these pages. A related case, Etopia Evans v. Arizona Cardinals, was filed against the clubs and it, too, has been reported on here.
More recently, several of the Dent plaintiffs, including Dent, Jeremy Newberry, JD Hill, and Marcellus Wiley, filed additional claims for “musculosketal injuries.” Some had claims for “latent internal organ injuries” and there were now “latent internal organ injury claims.” The NFL moved for summary judgment on these new claims. As to the first two claims, it did so based on the statute of limitations. It further argued that the third claim failed for “insufficient proof of medical causation.” Judge William Alsup granted the motion and dismissed the claims. The plaintiffs responded with a motion “to amend the judgment or for relief from judgment under Rules 59(e) and 60(b)(1)” of the Federal Rules of Civil Procedure. Judge Alsup agreed but “only to the extent that the summary judgment record is retroactively augmented to include the correct version of the declaration of plaintiff’s expert” (Richard Dent et al v. NFL, N.D. Cal., Case No. C 14-02324 WHA, (“Order”), at 2 (2-18-22)).
Litigation Update
After the plaintiffs filed their latest amended complaint in 2020, the NFL brought a motion to dismiss. That was denied by the Court on February 2, 2021. The NFL answered on March 19, 2021 and filed their summary judgment motion on October 6, 2021. The plaintiffs’ opposition came on October 27, 2021, with an expert report that they had used in a related case (Order, at 3). The NFL replied on November 10, 2021.
The hearing was on December 2, 2021. Judge Alsop ruled on December 17, 2021, that “all claims of musculoskeletal injuries were barred by the statute of limitations; (2) the claims of some plaintiffs for latent internal organ injuries were also barred by the statute of limitations; (3) the latent internal organ injury claims of the remaining plaintiffs failed for insufficient proof of medical causation” (Order, at 2-3). The Court entered judgment for the NFL that same day.
The Plaintiffs’ Motion
The plaintiffs filed a motion “For Relief From Judgment” on January 13, 2022 (Order at 3). This time counsel Included the expert declaration they had intended to rely upon in their summary judgment opposition. They asserted that they timely disclosed this declaration to the NFL and its counsel. They further stated that they did not discover the error until January 11, 2022. However, they did not file the “correct version” of the declaration until January 13, 2022, and they “offered no explanation whatever for the error, simply stating that counsel ‘mistakenly relied on’ the wrong declaration” in their summary judgment opposition.
Their motion sought reconsideration of the summary judgment ruling under FRCP 59(e) and 60(b)(1), specifically to “have the record augmented” to include the correct expert declaration and to amend or alter the summary judgment order “in light of the new declaration.” The NFL filed an opposition and the plaintiffs replied.
The Ruling
The Court granted the motion in “the interests of deciding the case on the merits and providing a full record for appeal” but only to allow the correct expert declaration into the record. However, the “new declaration would not and does not change the outcome.” Although some plaintiffs had injuries, there were “plausible medical causes not proximately related to the NFL’s alleged negligence. Therefore, under the laws of every interested jurisdiction, to prevail on their claims plaintiffs had to come forward with competent expert medical testimony that to a reasonable medical probability, accounting for the other plausible causes, and contributing factors, the drugs they took while playing in the NFL caused their latent internal organ injuries.”
To begin with, the correct declaration “fails to create a genuine dispute as to specific medical causation.” It stated that the “frequency and amount of medications” given to players “caused significant deleterious effects on the players… particularly with respect to musculosketal morbidity, but also with respect to kidney, liver and cardiac morbidities” (Order at 3-4). That was not enough to change the outcome. As to musculosketal injuries, the correct declaration “is irrelevant because those claims are time-barred” (Order at 4).
Furthermore, the declaration referred to “significant deleterious effects” and “kidney, liver and cardiac morbidities” but failed to “even identify the plaintiffs specifically or their conditions or diseases.” In his deposition, this expert “acknowledged that he did not attempt to rule out the other plausible causes and contributors of plaintiffs’ conditions and he acknowledged that he could not opine to a reasonable medical certainty as to the causes of any of plaintiffs’ conditions.”
Finally, and most importantly to the Court, “it is undisputed” and acknowledged by the plaintiffs and their expert that “the conditions and diseases plaintiffs claim defendant is liable for has plausible causes or contributors not proximately caused by the defendant’s alleged negligence.” The law, however, “required competent medical testimony that to a reasonable medical certainty, accounting for the other factors and contributors the drugs plaintiffs took while playing football caused their ailments. Plaintiffs have not raised a genuine dispute in that regard.”
Conclusion
With that, the Court granted the motion to augment the record with the correct declaration, denied the motion in all other respects, vacated the proposed hearing date, and told the plaintiffs that they “should proceed to perfect their appeal, if that is their intent.” The plaintiffs complied, filing a notice of appeal on February 23, 2022. So once more Dent will head back to the Ninth Circuit, with the plaintiffs again trying to revive a case they filed in 2014. Litigation is usually more suited to the tortoise than the hare.
