By Jeff Birren, Senior Writer
Soon after the NFL Concussion Case Litigation entered settlement discussions, another NFL class action was filed in federal court in San Francisco, (Richard Dent et al v. NFL, (“Dent”) N.D. Cal. Case No. C 14-02324 WHA). It was assigned to Judge Alsup. Dent was based on the theory that the NFL, and not the clubs, gave pain medication to players to allow them to continue to play. These pages have followed its progress (SLA, “Former NFL Football Players Sue League over Use of Prescription Drugs” (5-30-14)). After the District Court dismissed Dent, (SLA,“Judge Grants NFL Motion to Dismiss Prescription Drug Claims”(12-26-14)), the same counsel, but different plaintiffs, filed similar claims not against the NFL but against the member clubs, Etopia Evans et al v. Arizona Cardinals et al. That case was filed in Maryland but was transferred to Judge Alsup. Much of Evans was tossed on a motion to dismiss (SLA, “Court Dismisses Claims Brought by Ex-NFL Players in Pain Medication Litigation” (3-17-17)). The finalclaims were dismissed on summary judgment, based on workers compensation exclusive remedy statutes (SLA, “Judge Grants Summary Judge on the Few Remaining Claims in NFL ‘Painkiller’ Case” (9-1-17)). The Ninth Circuit affirmed (761 F. App’x 701 (9th Cir. 2019)).
The Ninth Circuit revived the Dent claims that had been dismissed based on preemption (902 F. 3d 1109 (9th Cir. 2018)). Judge Alsup later granted the NFL’s motion for summary judgment, but the Circuit reversed as to one cause of action (SLA, “Richard Dent v. NFL: The Ninth Circuit Revives a Single Dismissed Claim in Workers Comp Case” (9-11-20)). The NFL filed a motion to dismiss, but perhaps to the surprise of all, Judge Alsup denied the motion (SLA, “Dent v. NFL: The Plaintiffs Survive a Motion to Dismiss” (4-23-21)).
The sole remaining cause of action was a common law claim for negligent voluntary undertaking for a supposed failure to ensure the proper recordkeeping, administration and distribution of painkillers and other prescription medications. The purported class included all NFL players who played between January 1, 1973, and December 31, 2008, and who received various medications from an NFL club including opioids, non-steroidal anti-inflammatory drugs, corticosteroids, or local anesthetics.
The plaintiffs recently sought class certification. The Court held the hearing on the motion on 8-5-21 and ruled 26 days later (“Order Denying Class Certification (“Order”) (8-31-21). (The first six pages recites in vastly greater detail the history of the litigation summarized above).
The Court’s “Analysis”
The plaintiffs sought certification under FRCP 23(b)(c), which requires showing that “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy” (Id. at 8). The court “must do a rigorous analysis to determine if the requirements” are satisfied.
The Court stated that even after two Ninth Circuit opinions, “the precise nature of plaintiffs’ theory of the NFL’s liability remains elusive.” Originally the theory was that the NFL “itself illegally distributed controlled substances and therefore its actions directly injured players” (quoting Dent I, 902 F3d. at 1118). The plaintiffs later “admitted those allegations were incorrect.” They then asserted a voluntary undertaking theory. The Ninth Circuit articulated that theory as: the NFL voluntarily undertook a duty to ensure proper recordkeeping, administration, and distribution of the medications; that it created a drug oversight program; audited clubs’ compliance with federal drug laws; mandated procedures to control the drug distribution system; oversaw the administration of that system; and it was within the NFL’s control to “promulgated rules or guidelines that could improve safety for players across the league” (Order at 8/9).
To determine whether the NFL breached that duty, the Court “must by definition looks at the actions of the clubs.” Class counsel asserted at oral argument that Dent II “precluded consideration of the conduct of the clubs.” The Court responded that this was not so, as the items listed above support a duty by the NFL, but those “items necessarily turn in part of the propriety of the conduct of the clubs.”
Common Questions of Law?
The class included all NFL players who played “at any time during the 35-year period from 1973 to 2008 and who received any drugs from his team.” Class counsel argued that New York should apply to all claims, or, if not New York, then the law of the named plaintiffs’ states, California, Arizona, and Illinois, should apply to the entire class. At oral argument class counsel “misstated that plaintiffs’ briefing had done a comprehensive survey” of the law and “virtually all 50 states follow” the Restatement (Second) of Torts. In fact, counsel had only compared the law of those four states. The Court responded that it could not “rely merely on the assurances of counsel” (Id. at 10). “Plaintiffs’ counsel has simply assumed away the problem and provided an inadequate record for certification.”
In California, “the situs of the injury remains a relevant consideration.” Here, “at least 23 states are implicated.” The putative class includes “thousands of current and former NFL players spanning 35 years of plays, 32 different teams, and medications administered and distributed (and injuries suffered) in at least 23 different states.” (Note that eight of the clubs have permanently moved from jurisdiction to another during the relevant time frame.)
Plaintiffs’ brief admitted that the class was “harmed in dozens of different cities during the course of their NFL careers.” Therefore the “potentially affected jurisdictions” are the states where the class members sustained injuries and the states where they currently reside. California requires comparing each non-forum state’s law with California law. Plaintiffs cited a Wyoming District Court opinion but that dealt with one medication. Here, the plaintiffs “have not met their burden to show that a single body of law can be applied to the entire class, or even that the differences among the states would be manageable” (Id. at 11). A case involving the laws of 23 different states could “become a sprawling trainwreck. Variation in the law from state to state might make the case unmanageable.” Although it might work, plaintiffs “have not met their burden to show it.”
Club by Club Factual Questions Predominate
The NFL developed its annual prescription drug audit system in the early 1970s based on widely publicized dispensing of controlled substances and practices among certain teams. A 1990 NFL report acknowledged that there was still “variations among the clubs in terms of recordkeeping” and this would “affect not only the lack of common proof but the substantiative lability of the NFL.” If a club “maintained good drug records, the NFL did not breach its duty to the players of that club”. Conversely, players of a club “who negligently maintained drug records might have claims” (Id. at 12). But even then, “we don’t have a method of common proof to show that such failure caused injury to the player, given the lack of records.”
A 1992 NFL report stated that the range of use of such drugs “is quite wide.” In 1986 the “maximum number of controlled substances dispersed by a team was 15.” In 2012 the average was 9.3 different types of NSAIDS and 13.6 different types of controlled substances per club.” These differences continued over time. Moreover, there were wide differences in the use of the same drug. In 2005 the Jets dispensed 320 tablets of Toradol and 148 Toradol injections. The previous season the Colts dispensed 651 doses of Toradol and 249 Toradol injections.
Plaintiffs “would have us wave our hand at these inter-team differences as merely a question of damages, not liability, because, they say, the volumes were all unreasonable. At oral argument, plaintiffs’ counsel brazenly compared the differences in volumes of medications dispensed by the NFL teams to the difference in the number of victims between ‘a serial killer who killed 20 people and a murderer who committed 1.’” However, they “provided no reason or evidence, other than exaggerated rhetoric, to believe that the least volume of medications was equally unreasonable to the most and that such differences are immaterial.” In fact, they “have made no showing whatsoever that the wide variety of painkillers and non-steroidal anti-inflammatory drugs (NSAIDSs) posed a uniform risk of injury in terms of excessive use. The inter-team differences in volumes and varieties of drugs cannot be ignored.”
Furthermore, plaintiffs’ evidence showed a substantial variation over time within a single team. In 2006 the Jets dispensed 511 Vicodin tables but in 2007 they dispensed 1275 Vicodin tablets. Plaintiffs have “provided no reason to believe that such differences are a matter of damages only rather than liability versus non-liability.”
The NFL program did not and could not “provide a unform standard of medical care for the team” physicians and trainers. A 1986 report emphasized that it did not “dictate how physicians should practice medicine. That was controlled by state law in the place of the practicing physicians.” Consequently, a court would “need to look at the reasonableness of the conduct of the club physicians and trainers” and that is “governed by state law.”
Moreover, “the NFL has frequently modified the audit program over time. Plaintiffs alleged that by voluntarily undertaking the program, the NFL assumed a duty to conduct the audits with reasonable care for the benefit of the players.” The relevant factors, however, “have changed significantly over the 35-year period from 1973-2008” (Id. at 13). In a 2011 study, 48% of the retired players “reported using no prescription opioids during the NFL careers.” The cited study also “shows that a significant number of putative class members received opioids from sources other than their clubs” such as a teammate or family member. Plaintiffs admitted that this “factor would have to be accounted for” but “there is no practical way to do so on a class-wide basis. For the foregoing reasons, a Rule 23(b)(3) class will not be certified.”
The Class Seeks Large Damages
One class certification factor in FRCP 23(b)(A) is the class members’ interest in damages. Small individual damages weigh in favor of certifying a class, but relatively large damages weigh against class action. Several putative class members “claim damages created than two million dollars” (Id. at 14). Thus, “individual class members have substantial incentive to pursue individual claims weighing against the class action.”
FRCP 23(c)(4) Class?
The plaintiffs last assertion was that class status was appropriate for certification of the duty and breach elements of the negligence claim. The Court disagreed. In evaluating the NFL’s conduct, “we would still need to have evidence concerning what the NFL itself knew about the extent of the problems, if any, at the club level.” A club “by club probing of the NFL’s knowledge would still devolve into a myriad set of club issues.” Even if that happened, the “state courts would have a devil of a time trying to dovetail that finding into the specifics of a follow-up trials by individual players in state courts.”
Consequently, the “most effective and efficient way to litigate this case is to proceed to trial on a non-class basis.” Should plaintiffs win, that “would have collateral estoppel effect that would benefit their teammates” while a loss “would not prejudice other class members suing on their own.” Plaintiffs cited a case that the Court thought was inapposite because all the properties at issue were in a single state. Finally, the duties related to the distribution and administration of medications is “governed by a professional standard of care” and not ordinary negligence (Id. at 15). The “complexities raised by the differences in law are compounded” by “the necessity of examining both the NFL’s conduct towards the clubs under 23 different bodies of law, and the clubs’ conduct towards the players under the medical professional standards of 23 different jurisdictions.” FRCP 23(c)(4) class status was denied.
A California workers compensation firm started the case, and in that venue, applicants have a massive home field advantage. California Labor Code §3202 states that the code “shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.” Things do not work that way in federal court. The annual drug audit was a voluntary undertaking created to help the players. It led to this lawsuit, proving again that no good deed goes unpunished. It is now on to summary judgment before heading back to the Ninth Circuit.