UPDATE: Dismissal of Late NHL Player’s Wrongful Death Suit Affirmed by 7th Circuit
Since May of 2013, the Sports and Entertainment Law Insider has been tracking a wrongful death suit filed on behalf of the late NHL player, Derek Boogaard. The suit may have reached the end of its long road with the Seventh Circuit affirming the dismissal of the case.
In the midst of ongoing litigation against the NHL for their conduct relating to the risks of head injuries, the result in the Boogaard case is temporary victory for the league which is seeking to avoid the type of liability the NFL has been subjected to for its treatment of head injuries. However, dismissal in this case was largely based on procedural and technical defects, rather than the merits and alleged facts of the case.
Boogaard died in 2011 following an accidental overdose of pain medication and alcohol. He was 29 years old. A posthumous diagnosis revealed that Boogaard suffered from “chronic traumatic encephalopathy” (CTE), a degenerative brain condition often caused and exacerbated by blows to the head.
In a wrongful death suit filed by Boogaard’s family, it was alleged that Boogaard became addicted to pain killers and sleeping medication while playing the NHL. Despite his addictions, league doctors continued to prescribe the drugs and allow Boogaard to continue playing. Boogaard’s addiction ultimately led to his death. The attorney for the family provided a summary of the allegations, saying:
“To distill this to one sentence, you take a young man, you subject him to trauma, you give him pills for that trauma, he becomes addicted to those pills, you promise to treat him for that addiction, and you fail.”
In 2015, despite the discovery of new evidence, the district court granted summary judgment for the NHL, holding that Boogaard’s claims were preempted by the Labor Management Relations Act (LMRA) because they were founded directly on rights created by the NHL collective bargaining agreement. In its ruling, the court noted, “although judgment is entered in the NHL’s favor, this opinion should not be read to commend how the NHL handled Boogaard’s particular circumstances – or the circumstances of other NHL players who over the years have suffered injuries from on-ice play.”
After summary judgment, the Boogaards were permitted to file an amended complaint, adding state tort claims that were not preempted by the LMRA. The NHL moved to dismiss the amended complaint, this time on grounds other than preemption. The NHL argued that a wrongful death claim brought under Minnesota law could only be brought by a court-appointed trustee, which the parents of the late Boogaard were not. Alternatively, the NHL argued that the new complaint failed to state a claim, regardless of which state law was being applied by the federal district court.
In their response, the Boogaards focused on the NHL’s first argument relating to requirement for a court-appointed trustee. The Boogaards made other arguments, encouraging the court to apply Illinois law rather than that of Minnesota. However, the plaintiffs failed to address the NHL’s alternative argument that no claim was stated and no relief could be granted even if the allegations were true.
The district court granted the motion to dismiss, holding that Minnesota law applied and an appointed trustee was required to bring the action. Also, the court held that the plaintiffs had forfeited their claims by failing to respond to the NHL’s argument that the amended complaint failed to state a claim on which relief could be granted under the law of either state. In September 2017, the Boogaards appealed to the United Stated Court of Appeals for the Seventh Circuit.
On Friday, May 25, 2018, the Seventh Circuit affirmed the district court’s dismissal. The court noted, “[t]he Boogaards devote almost their entire brief to attacking the district court’s ruling that the Minnesota trustee requirement bars their suit. But that was not the only ground on which the district court dismissed the case – it held in the alternative that the Boogaards had forfeited their claims by failing to respond to the NHL’s argument that they failed to state a claim under the law of either Minnesota or Illinois.”
By failing to respond to the NHL’s motion to dismiss for failure to state a claim, the Boogaards forfeited their argument against it, and in turn, their claims. The district court acted within in its authority to dismiss the case based on forfeiture and the Seventh Circuit verified that authority, adding that “[it] is hard to fault the Boogaards for lodging a weak challenge … because there are no strong arguments against it.”
The Seventh Circuit would not entertain the Boogaards’ request to remand the case to the district court to allow them to file an amended complaint, stating that amending the underlying complaint would not cure the forfeiture and the Boogaards had not sufficiently explained what effective amendments would be made.