In re: National Hockey League Players' Concussion Injury Litigation

MEMORANDUM OPINION AND ORDER denying {{638}} Motion for Class Certification and for Appointment of Class Representatives and Class Counsel. (Written Opinion) Signed by Judge Susan Richard Nelson on 7/13/2018.

District of Minnesota, mnd-0:2014-md-02551

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CASE 0:14-md-02551-SRN-BRT Document 980 Filed 07/13/18 Page 1 of 46 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA In re: National Hockey League Players' MDL No. 14-2551 (SRN/BRT) Concussion Injury Litigation MEMORANDUM OPINION This Document Relates to All Actions AND ORDER Charles S. Zimmerman, Brian Gudmundson, David Cialkowski, and Wm Dane DeKrey, Zimmerman Reed, PLLP, 1100 IDS Center, 80 South Eighth Street, Minneapolis, Minnesota 55402; Bradley C. Buhrow and Hart L. Robinovitch, Zimmerman Reed, PLLP, 14646 North Kierland Boulevard, Suite 145, Scottsdale, Arizona 85254, for Plaintiffs Stephen G. Grygiel, Steven D. Silverman, and William Sinclair, Silverman, Thompson, Slutkin & White, LLC, 201 North Charles Street, Suite 2600, Baltimore, Maryland 21201, for Plaintiffs Jeffrey D. Bores, Bryan L. Bleichner, and Christopher P. Renz, Chestnut Cambronne PA, 17 Washington Avenue North, Suite 300, Minneapolis, Minnesota 55401, for Plaintiffs Janine D. Arno, Kathleen L. Douglas, Stuart A. Davidson, and Mark J. Dearman, Robbins, Geller, Rudman & Dowd, LLP, 120 East Palmetto Park Road, Boca Raton, Florida 33432, and Leonard B. Simon, Robbins, Geller, Rudman & Dowd, LLP, 655 West Broadway, Suite 1900, San Diego, California 92101, for Plaintiffs Lewis A. Remele, Jr., Jeffrey D. Klobucar, and J. Scott Andresen, Bassford Remele, 33 South Sixth Street, Minneapolis, Minnesota 55402, for Plaintiffs Thomas Demetrio, William T. Gibbs, and Katelyn I. Geoffrion, Corboy & Demetrio, 33 North Dearborn Street, Chicago, Illinois 60602, for Plaintiffs Brian D. Penny, Goldman, Scarlato & Karon PC, 101 East Lancaster Avenue, Suite 204, Wayne, Pennsylvania 19087, and Mark S. Goldman, Goldman, Scarlato & Karon, PC, 101 West Elm Street, Suite 360, Conshohocken, Pennsylvania 19428, for Plaintiffs Vincent J. Esades and James W. Anderson, Heins Mills & Olson, PLC, 310 Clifton Avenue, Minneapolis, Minnesota 55403, for Plaintiffs CASE 0:14-md-02551-SRN-BRT Document 980 Filed 07/13/18 Page 2 of 46 David I. Levine, The Levine Law Firm P.C., 1804 Intracoastal Drive, Fort Lauderdale, Florida 33305, for Plaintiffs Daniel E. Gustafson, David A. Goodwin, and Joshua J. Rissman, Gustafson Gluek, PLLC, 120 South Sixth Street, Suite 2600, Minneapolis, Minnesota 55402, for Plaintiffs Thomas J. Byrne, Namanny, Byrne, & Owens, APC, 2 South Pointe Drive, Lake Forest, California 92630, for Plaintiffs Michael R. Cashman and Richard M. Hagstrom, Hellmuth & Johnson, PLLC, 8050 West 78th Street, Edina, Minnesota 55439, for Plaintiffs Robert K. Shelquist, Lockridge, Grindal, Nauen, PLLP, 100 Washington Avenue South, Suite 2200, Minneapolis, Minnesota 55401, for Plaintiffs Shawn M. Raiter, Larson King, LLP, 30 East Seventh Street, Suite 2800, St. Paul, Minnesota 55101, for Plaintiffs Charles J. LaDuca, Cuneo, Gilbert & LaDuca, LLP, 8120 Woodmont Avenue, Suite 810, Bethesda, Maryland 20814, for Plaintiffs 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, Jessica D. Miller, and Geoffrey M. Wyatt, Skadden, Arps, Slate, Meagher & Flom LLP, 1440 New York Avenue, Northwest, Washington, D.C. 20005-2111; Shepard Goldfein, James A. Keyte, Matthew M. Martino, and Michael H. Menitove, Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, New York 10036; Matthew Stein, Skadden, Arps, Slate, Meagher & Flom, LLP, 500 Boylston Street, Boston, Massachusetts 02116; Joseph Baumgarten and Adam M. Lupion, Proskauer Rose LLP, Eleven Times Square, New York, New York 10036, for Defendant SUSAN RICHARD NELSON, United States District Judge. I. INTRODUCTION This matter is before the Court on Plaintiffs' Motion for Class Certification and for Appointment of Class Representatives and Class Counsel. (Doc. No. 638.) The Court held a hearing on this motion on March 16, 2018. (See Doc. Nos. 969, 973.) For the reasons set forth 2 CASE 0:14-md-02551-SRN-BRT Document 980 Filed 07/13/18 Page 3 of 46 herein, Plaintiffs' Motion for Class Certification is denied. II. BACKGROUND A. Plaintiff's Allegations This action, brought on behalf of a proposed class of former National Hockey League ("NHL") players, arises from what Plaintiffs describe as the "pathological and debilitating effects of brain injuries caused by concussive and subconcussive impacts sustained by former NHL players during their professional careers." (Doc. No. 615, Second Am. Class Action Compl. ("SAC") ¶ 2.) The NHL, according to Plaintiffs, knew or should have known of the growing body of scientific evidence linking repetitive concussive events to long-term neurological problems, such as dementia, Alzheimer's, and Chronic Traumatic Encephalopathy ("CTE"). (Id. ¶¶ 4–5.) The NHL did not, however, warn Plaintiffs or any other member of the proposed class about the dangers of repeated brain trauma. (Id. ¶ 6.) 1. Promotion of Violence Plaintiffs assert that the NHL has permitted, and even promoted, violence in its sport since the League was formed in 1917. (See SAC ¶¶ 274–90.) For "nearly a century," the NHL has "developed and promoted a culture of gratuitous violence within NHL hockey." (Id. ¶ 303.) Part of the NHL's strategy, Plaintiffs allege, has been to promote brutality and violence by glorifying the violent aspects of the game, including, but not limited to, the brutal and ferocious head-snapping checks and the vicious bare-knuckle fights that occur on the ice. (Id. ¶ 304.) The "continued growth" of violence through the NHL's history is best- exemplified by the "enforcers" or "goons" of the 1970s, 1980s, and 1990s––"players known 3 CASE 0:14-md-02551-SRN-BRT Document 980 Filed 07/13/18 Page 4 of 46 for using intimidating force to protect marquee teammates and respond aggressively to physical or foul play." (Id. ¶ 278.) The NHL continues to promote violence, Plaintiffs allege, by featuring violent hits and fights in commercials for the game, producing a weekly program segment called "Top 10 Hits of the Week" on the NHL Network, and sponsoring video games that include fighting and vicious body checking. (Id. ¶¶ 315, 320, 323.) The growth of violence drew attention from outside observers. (Id. ¶ 280.) In 1974, the Ontario Cabinet appointed Canadian lawyer William McMurtry to issue a report on violence in amateur hockey. (Id.) McMurtry interviewed numerous NHL players as part of his research. (Id.) His report stated: In talking to numerous players in the NHL and WHA, they all feel that most advertising and selling of the game is over-emphasizing the fighting and brawling at the expense of educating the crowds about the skill and finesse. This past season the advertising for the NBC Game of the Week, showed a film clip of a hockey fight. Can you conceive of any other sport promoting itself in this fashion? (Id.) In the report, then NHL President Clarence Campbell was quoted as saying: "it is the business of conducting the sport in a manner that will induce or be conducive to the support of it at the box office. . . . Show business, we are in the entertainment business and that can never be ignored. We must put on a spectacle that will attract people." (Id. ¶ 307.) In 1988, then NHL President John Ziegler was quoted in The Miami Herald as stating, "Violence will always be with us in hockey. . . . Anytime you get a situation of high anxiety and frustration in any walk of life, you get violence." (Id. ¶ 309.) A year later in the Wall Street Journal, Ziegler stated that he would not rid the NHL of fighting because if "you did that, you wouldn't be commissioner for long. . . The view of the 21 people who own the 4 CASE 0:14-md-02551-SRN-BRT Document 980 Filed 07/13/18 Page 5 of 46 teams, and employ me, is that fighting is an acceptable outlet for the emotions that build up during play. Until they agree otherwise, it's here to stay. . . The main question about fighting is, 'Does the customer accept it?' The answer, at present, seems to be yes." (Id. ¶ 310.) Current NHL Commissioner Gary Bettman holds a similar view. In a 2007 press conference, Bettman explained that the NHL is "not looking to have a debate on whether fighting is good or bad or should be part of the game," and continued, "fighting has always had a role in the game." (Id. ¶ 311.) In 2011, Bettman highlighted fan support as a reason not to ban fighting: "Our fans tell us that they like the level of physicality in our game, and for some people it's an issue but it's not as big an issue in terms of fans and people in the game to the extent that other people suggest it is." (Id. ¶ 312.) Bettman later called fighting a "thermostat" that helps cool things down when tensions run high. (Id. ¶ 313.) In contrast to the NHL, other elite and professional ice hockey leagues successfully promote a completely different style of play, including Olympic and European ice hockey, in which finesse, speed and skill, and power without violence dominate, and fighting is almost nonexistent. (Id. ¶ 290.) For example, fighting is prohibited by the International Ice Hockey Federation ("IIHF"), which governs Olympic hockey and most international leagues. (Id. ¶ 291.) IIHF Rule 141 penalizes any player who "punches an opponent during game action, after a whistle, or any time during the regular course of a game during a prolonged player confrontation." (Id.) Instigators of fights are penalized with immediate ejection from the game, and IIHF authorities are given discretion to issue further suspensions. (Id.) Amateur hockey leagues such as the National Collegiate Athletic 5 CASE 0:14-md-02551-SRN-BRT Document 980 Filed 07/13/18 Page 6 of 46 Association ("NCAA") similarly punish fighting much more harshly than the NHL. (Id. ¶ 292.) The National Basketball Association ("NBA") and the National Football League ("NFL") also prohibit fighting. (Id. ¶¶ 295–97.) 2. Knowledge and Failure to Warn Despite "mounting evidence" establishing the "link between brain injuries and subconcussive impacts suffered by, among others, hockey players," Plaintiffs allege that "for decades" the NHL "either took no steps to protect and educate its players or took insufficient steps to make players aware of the real risks of playing in the NHL, which would have protected players from unnecessary long term effects of brain trauma." (SAC ¶¶ 7–9.) In 1928, for example, pathologist Harrison Martland published a study of boxers1 that was the first to link subconcussive impacts and "mild concussions" to degenerative brain disease. (Id. ¶¶ 178–79.) Another study of boxers in 1973 outlined the neuropathological characteristics of "Dementia Pugilistica," including loss of brain cells, cerebral atrophy, and neurofibrillary tangles. (Id. ¶ 190.)2 Between 1952 and 1994, numerous additional studies were published in medical journals including the Journal of the American Medical Association, Neurology, the New England Journal of Medicine, and Lancet warning of the dangers of single concussions, multiple concussions, and sports- 1 Martland, H., Punch Drunk, Journal of American Medicine (1928). (See Doc. No. 789-3.) 2 Corsellis, J.A. et al., The Aftermath of Boxing, Psychol Med (1973) (See Doc. No. 789-7.) 6 CASE 0:14-md-02551-SRN-BRT Document 980 Filed 07/13/18 Page 7 of 46 related head trauma from multiple concussions. (Id. ¶ 196.) In 1982, the Canadian Medical Association Journal published an article titled "Return to athletic competition following concussion," which concluded that "return to training and competition should be deferred until all associated symptoms such as headaches have completely resolved. The decision to return must take into account the nature of the sport, the athlete's level of participation and the cumulative effect of previous concussions. Some athletes will have to avoid any further participation in their sport." (Id. ¶ 193.) In 1986, the Physician and Sportsmedicine Journal publis