On July 13, 2018, United States District Judge Susan Richard Nelson declined to certify a class of thousands of former NHL players who are suing the NHL. As we have previously reported, several former NHL players sued the NHL claiming that the NHL failed to inform them of the health risks caused by concussions and head-related trauma even though the league had knowledge of such information. The players filed for class certification, but Judge Nelson refused to certify the class because the applicable law between the various states and provinces is too varied to administer under one class.
Under the Federal Civil Rules of Procedure, “[a] party seeking class certification must affirmatively demonstrate his compliance with the Rule –– that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Under the rule, the potential class must “must meet all of the Rule 23(a) requirements and must satisfy one of the three subsections of Rule 23(b).” According to the memorandum, the former NHL players argued that New York law applied on a class wide basis to the issues of negligence and negligent misrepresentation and Minnesota law applied on a class wide basis to the issue of medical monitoring.
According to Rule 23(b)(3), certification is permissible where “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” However, Judge Nelson found that the former NHL players did not meet their burden under Rule 23(b)(3).
Specifically, the former players argued that New York tort law should apply on a class wide basis because New York is where the NHL is headquartered and incorporated. However, according to Judge Nelson, case law suggests that “where a potential class member lived and played during most of his career, or, for players whose career was not focused on a particular team, where they now live in retirement” is more applicable. According to Judge Nelson, conflicts exist between the laws of New York, the other forty-nine states, the District of Columbia, and the various Canadian provinces with respect to negligence and negligent misrepresentation.
Further, the former players argued that Minnesota law should apply to the issue of medical monitoring. Medical monitoring claims are considered a “non-traditional tort.” According to Judge Nelson, because of their irregularity, medical monitoring law in other jurisdictions is greatly varied, resulting in conflicts between Minnesota law, the other forty-nine states, the District of Columbia, and the various Canadian provinces. For example, Judge Nelson noted five different ways that various U.S. state courts treat and handle medical monitoring claims.
Deciding to permit or deny class certification is a “rigorous analysis.” According to Judge Nelson, in this case there are widespread differences in applicable state exist which means that resolving the claims in a single class action would present significant case management difficulties and as such class certification is not appropriate.