By Jeff Birren, Senior Writer
The so-called NFL “painkiller” litigation began with quite a display. The case was filed in the United States Federal Court in San Francisco on May 20, 2014. Richard Dent was the first named plaintiff. The defendant was the NFL, not the individual clubs. Plaintiffs’ counsel includes Mel Owens, the former NFL linebacker. Mr. Owens did not shrink from the media after filing the case. He told the Los Angeles Times that no matter how many such drugs the players might have taken, “there is no culpability for the players” (“NFL illegally gave them pills, painkillers, ex-players allege in suit,” Sam Farmer, Los Angeles Times, 5-20-14). According to the voluble Mr. Owens, it was “the culture of the NFL” that is to blame, and nothing that any player ever did” (Id.). For a description of the case see Sports Litigation Alert: “Former NFL Football Players Sue League Over Use of Prescription Drugs” 5-30-14.
In a highly unusual circumstance, the Miami Herald obtained a working draft of the complaint, labeled “Privileged & Confidential Attorney Work Product Draft: May 18, 2014.” That draft complaint can be found at: https://www.dailyherald.com/assets/pdf/DA133496520.pdf.
United States District Court Judge William Alsup granted the NFL’s motion to dismiss in December 2014 (Judge Grants NFL’s Motion to Dismiss Prescription Drug Claim Brought by Players” Sports Litigation Alert 12-26-14.) That case was argued to the Ninth Circuit on Dec. 15, 2016 and remains under submission.
Mr. Owens and the other plaintiffs’ counsel were unwilling to wait for the results of that appeal, so in May 2015 they filed another class action case. Seeking to avoid Judge Alsup, the case was filed in the United States District Court in Maryland, and named not the NFL as in the Dent case but the individual teams. The first named plaintiff is Etopia Evans, the widow of the late Charles Evans who played in the NFL. Mr. Evans died in a jail cell after he was jailed for failing to pay child support.
However, the best-laid plans of counsel went awry and the case was transferred back to Judge Alsup in San Francisco. In March 2017 Judge Alsup granted much of the NFL’s motion to dismiss, including the claims for conspiracy and RICO claims (See Professional Sports and The Law: Court Dismisses Claims in Pain Medication Litigation” March-April 2017). What remained in the case were claims by two former players against three NFL clubs for intentional misrepresentation.
Plaintiff Reggie Walker alleged that the San Diego Chargers misrepresented to him that it cared about the players’ health and safety when in fact it only cared about getting the players to return to play. Relying on that misrepresentation, he sprained his ankle in a game but continued to play on it after receiving Toradol injections, and as a result, he continues to experience pain. Plaintiff Alphonso Carreker made similar allegations against both the Denver Broncos and the Green Bay Packers.
The three clubs then moved for summary judgment on the simple basis that the respective states’ workers’ compensation exclusivity laws bar such claims. Since the case began in Maryland, the court employed Maryland’s choice-of-law rules. In that state, the courts will “enforce a bar created by the exclusive remedy of any state” (Evans v. Arizona Cardinals et al, U.S.D.Ct. Nor. Cal. Case No. 3:16-cv-01030-WHA, Order Granting Summary Judgment, July21, 2017 (“Order”), at 3).
The court continued: “(i)ndeed, the workers’ compensation statutes in California, Colorado and Wisconsin all provide exclusive remedies, with certain limited exception, for claims by employees against their employers based on industrial injuries” (Id.). Thus in order to maintain their claims, the plaintiffs would have to find cover on one of the limited exceptions to the exclusive remedy laws. They sought cover by claiming that there is such an exception for “intentional harm” but it is not that easy.
In California, the courts often refer to the workers’ compensation system as the “compensation bargain.” Pursuant to this presumed bargain, “the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort” (Vacanti, Inc. v. State Comp. Ins. Fund 24 Cal.4th 800, 811, (2001)).
Walker claimed that he was covered by two separate exceptions, the “aggravation of injury” exception and the “fraud claims” exception. However, the court pointed out that this is really just a single exception that applies when an “employee’s injury is aggravated by the employer’s fraudulent concealment of the existence of the injury and the connection with the employment” (Id. at 4). That exception “is an extremely limited one” (Id.). To prevail, Walker would have to prove that the Chargers knew of his work-related injury, that they concealed it from him and that the injury was aggravated as a result of such concealment.
The court succinctly stated Walker’s problem. “There is no evidence in the summary judgment record from which a rational trier of fact could find that the Chargers concealed knowledge of Walker’s own ankle injury from him. Plaintiffs do not dispute that Walker was aware of the ankle injury in question at all times” (Id. at 5). It was not sufficient for Walker to allege “the Chargers engaged in some type of fraudulent concealment. Counsel’s muddling of plaintiffs’ own theories concerning the specific alleged misconduct at issue does not substitute for actually satisfying each and every element of the fraudulent-concealment exception to exclusivity” (Id., emphasis in the original). To lose the protection of the workers compensation law, the Chargers must have concealed the injury from Walker, and that was not alleged, anywhere.
Walker made another argument to stay in court. He alleged that the Chargers acted with a specific intent to injure him and this also took the case out of the workers’ compensation exclusivity. This was done, apparently, by “[p]roviding dangerous Medications, contrary to both legal requirements and good medical practice, without providing information or warnings. This is a different theory of liability than the one actually underlying plaintiffs’ remaining claims. Indeed, it is a throwback to plaintiff’s dismissed concealment claims” (Id. at 6).
The fundamental problem with this argument is that it is based on cases that have found an exception when the employer engages in a willful physical assault. This reed was so thin that in the sole case that plaintiffs cited in opposition to the motion the argument failed “because ‘no facts adduced indicated that the employer intended to injure the employee’” (Id.).
As the court noted, the exclusivity provisions can apply “notwithstanding that the injury resulted from… intentional conduct [that] might be characterized as egregious” (Id. at 7, citing Vacanti, 24 Cal. 4th at 813). California law barred Walker’s claims.
The same result awaited Alphonso Carreker’s claims against the Broncos. He also argued that the intentional nature of the club’s behavior took it out of the workers’ compensation exclusivity. As the court pointed out: “Colorado has rejected the proposition” that charging the employer with willful disregard of the rights and safety of workers is the legal equivalent of an allegation of willful or intentional injury for purposes of workers’ compensation exclusivity. The court cited Ellis v. Rocky Mountain Empire Sports, Inc., “a decision cited by defendants and ignored by plaintiffs” (Id.). In Ellis, 602 P.2nd 895, 896 (Colo. App. 1979), the workers’ compensation exclusivity laws barred Ellis’s claims against the Broncos, even his claims for intentional torts, (Id. at 8). “So, too here”(Id.).
The last claim to be disposed of was Carreker’s claim against the Packers. Once again, Carrecker argued that intentional wrongdoing by the employer takes the case out of the workers’ compensation exclusivity. To do so, it relied on selective quoting from a Wisconsin case, leaving out the critical language from the case. That portion stated that in order to “avoid the exclusivity provisions of the WCA, an employee must show that a coemployee committed an assault intended to cause bodily harm” (Id., emphasis in the original).
As the court pointed out, Carreker has sued the team, and not the alleged co-employees. He could not defeat the exclusivity provisions by merely characterizing the doctors and trainers as co-employees. Furthermore, Carreker made “no argument whatsoever that the Packers assaulted Carreker. Either of the foregoing problems would independently defeat plaintiff’s attempt to exempt Carreker’s claim for relief against the Packers from workers’ compensation exclusivity under Wisconsin law” (Id. at 8/9).
The court ended its nine-page order by stating that although “workers’ compensation and collective bargaining remedies are not gold-plated remedies, they are at least remedies recognized under the law. The sweeping remedy sought herein by plaintiffs is not, on this record, available under the law” (Id. at 9).
It is ironic that workers’ compensation laws defeated Owens as he has practiced California workers’ compensation law for decades. In that venue, however, he was dealing with a code that stated that the statute “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” (Cal. Lab. Code § 3200). In federal court, Owens had no such statutory home-field advantage.
Should counsel persist and take another shot at an early-retirement payday, it will be interesting to see how many members of the plaintiffs’ aggregation have gone through their respective state’s workers compensation system, or filed related grievances against their former clubs. For those that have done so it will be fascinating to see how they can explain their way out of collateral estoppel. One must also wonder how many of this plaintiff class were previously represented by Owens in such workers’ compensation cases.
One apparent result of the litigation was that the NFL Players Association filed a non-injury grievance against the NFL that makes similar allegations. The grievance was filed on April 28, 2017. Paul Clement, lead appellate counsel for the NFL in the Dent case, wrote to the Ninth Circuit on May 8, 2017, informing the Court of that development. The docket entry for the letter, and the attached grievance, can be found in the Dent appeal file at: Case: 15-15143, 05/08/2017, ID: 10426042, DktEntry: 47. That would seem to be a far more appropriate venue for the NFL Players Association and the NFL to take their disputes, and it is consistent with more than 45 years of collective bargaining agreements between them.
Birren is the former general counsel of the Oakland Raiders.