By Jon Heshka — Associate Professor of Law at Thompson Rivers University
Derek Boogaard played in the National Hockey League from 2005 to 2010. Standing at 6’7” and weighing approximately 270 pounds, he was a prized pugilist. Over six seasons with the Minnesota Wild and the New York Rangers, Boogaard played in 277 regular season games, scoring three goals, participating in at least 66 fights and accruing 589 minutes in penalties. After five seasons with the Wild, his final contract was a four year $6.5 million deal contract with the Rangers.
His chosen craft, however, came with a cost. Boogaard’s complaint, filed by his surviving parents, listed the dozens of injuries he sustained while playing in the NHL including concussions and sub-concussions, broken noses, torn shoulder tissues, facial lacerations, contusions, muscle strains, herniated disks and teeth fractures.
Boogaard died of an accidental overdose of Percocet and alcohol on May 13, 2011. He was posthumously found to have chronic traumatic encephalopathy (CTE) — the same neuro-degenerative disease at the core of the now settled $1 billion class action lawsuit against the National Football League.
Boogaard’s parents filed suit against the National Hockey League, its Board of Governors and Commissioner Gary Bettman (collectively, “NHL”) alleging — amongst other things — that the NHL negligently failed to prevent Boogaard from becoming addicted to opioids and sleeping pills, that the NHL breached its voluntarily undertaken duty to curb and monitor Boogaard’s drug addiction while he was enrolled in the league’s Substance Abuse and Behavioral Health Program (“SABH Program”), and that the NHL was negligent in failing to protect Boogaard from brain trauma during his career.
The complaint alleged that Boogaard returned to play and to fight prematurely while still recovering from concussions which subsequently caused, contributed or exacerbated his CTE. It purported that the 2005 Collective Bargaining Agreement does not address the NHL’s duties or responsibilities to its players vis-à-vis controlled substances or to keeping its players safe or to monitoring players’ general health.
Boogaard’s estate brought the suit in the Circuit Court of Cook County, Illinois against the NHL alleging claims grounded in tort. The NHL removed the suit to the United States District Court for the Northern District of Illinois, Eastern Division on the basis that the claims were completely preempted by §301 of the Labor Management Relations Act and thus in fact arose under federal law.
The District Court granted summary judgment to the NHL on all eight counts, holding that they were completely preempted by §301 of the LMRA and that the §301 claims were barred by the applicable statute of limitations. The court evaluated the substance of Boogaard’s claims and, citing the United States Court of Appeals, Seventh Circuit in Crosby v. Cooper, found that a state-law claim is completely preempted only when it is inextricably intertwined with consideration of the terms of a labor contract.
Boogaard moved for leave to file a second amended complaint which set forth 12 counts. The court granted in part and denied in part the motion for leave to amend. It held that eight of the second amended complaint’s counts were essentially identical to the first amended complaint’s eight counts and were therefore completely preempted and time-barred. But the court held that portions of the other four counts stated non-preempted and thus true state law claims.
The four counts were survival and wrongful death claims alleging that the NHL cultivated a “culture of gratuitous violence” which caused him to get into fights, which in turn caused him to develop CTE and become addicted to opioids, which in turn caused his death and also that the NHL “actively and unreasonably” harmed Boogaard by implicitly communicating that head trauma is not dangerous.
The District Court noted that Boogaard was an “Enforcer/Fighter” who in the NHL fought at least 66 times often leaving him with painful injuries which team physicians, dentists, trainers and staff treated using “copious amounts of prescription pain medications, sleeping pills and painkiller injections” and that “[a]s a result of the fights, he suffered brain injuries, which eventually developed into chronic traumatic encephalopathy, or “CTE,” a brain disorder characterized by deteriorating judgment, inhibition, mood, reasoning, behavior, and impulse control.”
The court granted the NHL’s motion to dismiss and denied Boogaard’s motion to remand. In so doing, the court noted that Boogaard has had three opportunities to plead his claims, with one coming after the NHL was granted summary judgment, “and those three are enough.”
Firstly, the court held that because the plaintiffs, Derek Boogaard’s parents Len and Joanne, were personal representatives and not court-appointed trustees as required under the statute that governs Boogaard’s survival and wrongful death claims (Minn Stat § 573.02), their claims are not viable under Minnesota law which the court found to be the choice of jurisdiction by a “wide margin”. The court further found that it was too late for Boogaard to cure this defect by having them appointed as trustees because of the expiration of the three year statute of limitations which means that the wrongful death claims can no longer be pursued even if the parents were to be appointed as trustees in the future.
Secondly, the court said that by failing to respond on the merits to the NHL’s argument that the second amended complaint did not plead viable state law negligence and misrepresentation claims, Boogaard forfeited his claims, and a plaintiff who forfeits his claims does not get a chance to replead. The NHL had argued that Boogaard failed to allege facts that satisfy the elements of negligence and negligent misrepresentation. The NHL contended that Boogaard’s promotion of violence claims do not plausibly allege that the league had a legal duty not to promote violence or that the league’s conduct proximately caused Boogaard’s injuries. The NHL contended that Boogaard’s negligent representation claims do not plausibly allege that the league had a duty to study or disclose the long-term effects of concussions, that the league breached that duty by communicating false information or that Boogaard relied on that information. The court found those arguments eminently reasonable and was dumbstruck by Boogaard “utterly and inexplicably” failing to address them noting that judges are busy people who are not going to do the plaintiff’s research for them (Alioto v. Town of Lisbon, 651 F. 3d at 721).
Thirdly and lastly, Boogaard did not request a chance to replead in the event the court dismissed his claims and so with that, the court dismissed Boogaard’s claims with prejudice.
Postscript: the Boogaards filed a notice of appeal to the Seventh Circuit on June 30, 2017. They asked the court on September 25, 2017 to revive their lawsuit saying US District Judge Gary Feinerman incorrectly applied Minnesota laws that required trustees to sue on his behalf. The NHL has yet to respond.