NHL Concussion Litigation Documents Ordered to be Made Public: Judge Unseals 28 Documents

A U.S. Federal Judge has unsealed certain documents in the long-running lawsuit over the National-Hockey League’s handling of concussions sustained by players, as the public benefit and need for the information outweighs any of the NHL’s interests in keeping the documents confidential.

The judge’s order required that one of the documents, an internal email regarding fighting and rules, to be kept confidential, because the league’s privacy interest in the notes and the prejudice that it would face if the notes were released outweighed the public’s need for disclosure.

However, the judge’s order made 28 other documents attached to the class certification motion, which were designated confidential at the time, available to the public. The players argued that the documents must be made public, as they are judicial records.

Notably, the court rejected the NHL’s argument that the former players had to prove that the court relief on them when making its decision to certify the class in order for the documents to be made public. However, Judge Nelson held “[i]f the court were to adopt the NHL’s position, plaintiffs would be held to an impossible-to-meet standard—providing evidence that this court relied on each document in its decision on class certification.” The order continued, “[m]oreover, such a standard would impose on the court the untenable duty of citing each document it considered, weighed and relied upon in making its decision on the class certification motion.

The order unsealed documents stemming from a series of emails between NHL Commissioner, Gary Bettman, and other top officials from 2006, which discussed the death of a non-NHL Canadian hockey player who died from a head injury.

The most damaging unsealed document is a 2009 email chain among the league and league-doctors, which discussed an unnamed team doctor expressing his dissatisfaction with other league-affiliated doctors’ handling of concussion management. The email stated, “I am once again disappointed in my colleagues in the [NHL Team Physicians Society].” His email continued, “[w]e all sit around and talk and talk about concussion management. Then it’s the playoffs, someone suffers an obvious loss of consciousness and is back playing in less than 48 hours.”

Dr. Willem Meeuwisse, commented on the email, and forwarded it to the co-chair of the Concussion Working Group and to an NHL lawyer, who subsequently sent in to the deputy commissioner, Bill Daly. While there is no record of Daly’s response, this can be seen as proof that doctors were unhappy about the League’s treatment of its players’ head injuries, and provided explicit warnings to the league. Thus, the league cannot claim that its medical experts were unaware of the dangers of head traumas, nor the NHL’s improper treatment of such injuries.

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