A federal judge from the District of Minnesota has resolved a discovery dispute by ordering the National Hockey League (NHL) and its teams to turn over certain documents related to the ongoing concussion litigation between the former players and the league.
In so ruling, the Court found that the NHL’s “blanket application of the physician-patient privilege — protecting all medical data from disclosure — is inapplicable.”
The plaintiffs represent a class of living and deceased former NHL players who suffered concussions or repeated sub-concussive injuries while playing in the NHL.
In filing their claim last year, they alleged that the NHL was responsible for “the pathological and debilitating effects of brain injuries caused by concussive and sub-concussive impacts sustained . . . during their professional careers.”
Critical to the plaintiffs’ claim was their contention that “scientific evidence has for decades linked head trauma to long-term neurological problems.” They added that it is “not plausible that the NHL was unaware of this body of literature.” The plaintiffs also asserted that the NHL also had actual knowledge of the “negative repercussions of [violent head] impacts on its players” because of the “infamous incidents” that have occurred throughout NHL history. They also claimed that they trusted and relied on the NHL, which was “both reasonable and foreseeable.”
The plaintiffs asserted six counts against the NHL.
In count I, they seek a declaratory judgment that the NHL knew, or reasonably should have known, that the head impacts Plaintiffs and class members endured were likely to expose them to substantially-increased risks of neurodegenerative disorders and diseases; that the NHL had a duty to advise Plaintiffs and class members of that risk, but willfully and intentionally concealed material information from, and misled, Plaintiffs concerning that risk; and that the NHL recklessly endangered Plaintiffs and class members.
In Count II, they allege that, as a result of the NHL’s misconduct, they have experienced injuries that have increased their risk of developing neurodegenerative disorders, and that costly medical monitoring procedures are necessary to enable Plaintiffs and class members to obtain early detection and diagnosis of those conditions. Accordingly, Plaintiffs “seek the creation and funding of a Court-supervised, NHL-funded medical monitoring regime.”
Counts III and IV assert negligence-based causes of action. In Count III, Plaintiffs allege that the NHL owed its players a duty of reasonable care to manage player safety and to act in the best interests of its players’ health and safety—including to keep players informed of the neurological risks associated with head injuries suffered while playing hockey in the NHL—and that the NHL breached that duty by, for example, promoting a culture of violence and failing to inform or warn players of the potential negative effects of such head injuries. Plaintiffs allege that, as a result of these breaches, they have suffered or are suffering long-term neurological damage.
In Count IV, Plaintiffs assert a claim for negligent misrepresentation by omission. They allege that a special relationship existed between the NHL and Plaintiffs by virtue of the NHL’s superior knowledge of material medical information that was not readily available to players and by virtue of the NHL’s undertaking to communicate some safety information to players and the public, such that the NHL had a duty to disclose accurate information to Plaintiffs. According to Plaintiffs, the NHL breached its duty by negligently omitting material information regarding the link between the type of head injuries sustained in the NHL and cognition-impairing conditions. Plaintiffs assert that they justifiably and reasonably relied to their detriment on these negligent misrepresentations by omission.
Finally, Counts V and VI assert fraud-based causes of action. In Count V, Plaintiffs assert a claim for fraudulent concealment based on the NHL’s alleged knowing concealment of material information regarding the risks of head injuries suffered while playing in the NHL, the NHL’s alleged intent and expectation that Plaintiffs would rely on its silence and fraudulent concealment, and Plaintiffs’ alleged reasonable reliance on that silence to their detriment. And, in Count VI, Plaintiffs assert a claim for fraud by omission and failure to warn. Specifically, Plaintiffs allege that “[t]he NHL had a duty to promptly disclose and speak the full truth regarding the health risks caused by concussion and sub-concussive blows to the head.” Plaintiffs assert that this duty arose by virtue of the NHL’s superior knowledge of material medical information that was not readily available to players and by virtue of the NHL’s undertaking to communicate some safety information to players and the public. (Id.) According to Plaintiffs, the NHL breached this duty by fraudulently and intentionally failing to disclose material information regarding the link between the type of head injuries sustained in the NHL and cognition-impairing conditions, and that Plaintiffs justifiably and reasonably relied on these fraudulent omissions to their detriment.
The Discovery Battle
The origins for the discovery dispute was the NHL’s refusal to produce documents unless specific players gave their consent. It claimed the information was protected by the Health Insurance Portability and Accountability Act (HIPAA), the Americans with Disabilities Act (ADA), physician-patient privilege, and the NHL collective bargaining agreement.
The judge, however, concluded that the disclosure of such information was permissible as long as identifying information was redacted, including player names, jersey numbers, and team names.
“Since the chief concern of the U.S. clubs and defendant is that the requested information will somehow be connected to an individual player, anonymizing information appropriately addresses this legitimate concern.”
Specifically regarding HIPAA, the court cited the “litigation-use exception,” which permits disclosure of the requested information.
As for the ADA, the court explored case law to reach the following conclusion: “(T)he ADA does not create a privilege that wholesale bars the discovery of the requested information under the circumstances of this case.”
With the above parameters in mind, she ordered the clubs “to produce any internal reports, studies, analyses and databases in their possession (whether initiated by the U.S. clubs, NHL, or retained researchers) for the purpose of studying concussions in de-identified form. The U.S. clubs shall produce any responsive correspondence and/or emails between themselves, themselves and the NHL, or with any research or other professional about the study of concussions.”
In Re: National Hockey League Players’ Concussion Injury Litigation; D. Minn.; MDL No. 14-2551 (SRN/JSM), 2015 U.S. Dist. LEXIS 100608; 7/31/15
Attorneys (for plaintiffs) Charles S. Zimmerman and Brian Gudmundson, Zimmerman Reed, PLLP, 1100 IDS Center, 80 South Eighth Street, Minneapolis, Minnesota 55402.
Stephen G. Grygiel and William Sinclair, Silverman, Thompson, Slutkin & White, LLC, 201 North Charles Street, Suite 2600, Baltimore, Maryland 21201.
Jeffrey D. Bores and Bryan L. Bleichner, Chestnut Cambronne PA, 17 Washington Avenue North, Suite 300, Minneapolis, Minnesota 55401.
Stuart Davidson and Mark J. Dearman, Robbins, Geller, Rudman & Dowd, LLP, 120 East Palmetto Park Road, Boca Raton, Florida 33432.
Lewis A. Remele and Jeffrey D. Klobucar, Bassford Remele, 33 South Sixth Street, Minneapolis, Minnesota 55402.
Thomas Demetrio, William T. Gibbs, Corboy & Demetrio, 33 North Dearborn Street, Chicago, Illinois 60602.
Brian D. Penny and Mark S. Goldman, Goldman, Scarlato & Penny PC, 101 East Lancaster Avenue, Suite 204, Wayne, Pennsylvania 19087.
Vincent J. Esades and James W. Anderson, Heins Mills & Olson, PLC, 310 Clifton Avenue, Minneapolis, Minnesota 55403.
David I. Levine, The Levine Law Firm P.C., 1804 Intracoastal Drive, Fort Lauderdale, Florida 33305.
Daniel E. Gustafson, Gustafson Gluek, PLLC, 120 South Sixth Street, Suite 2600, Minneapolis, Minnesota 55402.
Thomas J. Byrne and Mel Owens, Namanny, Byrne, & Owens, APC, 2 South Pointe Drive, Lake Forest, California 92630.
Michael R. Cashman and Richard M. Hagstrom, Zelle Hofmann Voelbel & Mason LLP, 500 South Washington Avenue, Suite 4000, Minneapolis, Minnesota 55415.
(for defendant)
Daniel J. Connolly, Joseph M. Price, Linda S. Svitak, and Aaron D. Van Oort, Faegre Baker Daniels, LLP, 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402; John H. Beisner and Jessica D. Miller, Skadden, Arps, Slate, Meagher & Flom LLP, 1440 New York Avenue, Northwest, Washington, D.C. 20005-2111; Shepard Goldfein, James A. Keyte, Matthew M. Martino, Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, New York 10036; James Baumgarten and Adam M. Lupion, Proskauer Rose LLP, Eleven Times Square, New York, New York 10036.
