To Preempt or Not to Preempt: The Boogaard Wrongful Death Action v. the NHL

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In recent weeks, the NHL has busily defended two cases involving the league’s alleged liability for player safety issues. Although the plaintiffs in each individual case have filed distinguishable allegations against the league, discovery in the two suits may become intertwined.

The first case is a multidistrict litigation (MDL) in which the plaintiffs — former NHL players — have claimed that the league is liable for their concussion-related medical problems. In the second case, the plaintiffs, parents of the late Derek Boogaard, alleged that the NHL is responsible for their son’s sudden death due to a drug overdose.

Recently, the judge in the MDL case ordered the NHL to disclose thousands of documents involving league testimony and players’ medical records. The plaintiffs hope the information will provide them with evidence relevant to the league’s alleged failure to mitigate concussions. However, the disclosure may also aid the Boogaards.

Regarding the lawsuit for the alleged wrongful death of their son, Boogaard’s parents hope to introduce evidence from the recent document disclosure in the MDL case. While his death was caused by a drug overdose from prescription painkillers, Boogaard’s team doctors introduced him to such medication in order to treat his many post-concussion problems. Therefore, a link between the NHL’s knowledge of concussions and its doctors’ chosen treatment thereof (i.e. painkillers) could be influential in the Boogaards’ wrongful death action. But, the Boogaards may not get the chance to introduce the evidence they hope for.

The Boogards are now facing the NHL’s motion seeking to dismiss the suit, which argues that the action is preempted under the Labor Management Relations Act. The Boogaards have moved to stay the case in order to amend the complaint and add allegations stemming from the MDL disclosure documents. However, this information may not be sufficient to rebut the reasons for dismissing the case under preemption; at the motion to stay hearing, the district court judge informed the parties that he may deny the Boogaards’ request if they could not prove they were denied discovery on the preemption issue.

As it now stands, both parties in the Boogaard case have made their arguments and are awaiting the court’s decision. Attorneys for the NHL have contended that the documents disclosed in the MDL litigation are not necessary to oppose their motion for dismissal due to preemption—they claim that the issue is within the confines of collective bargaining. Alternatively, the Boogaards argued the disclosed documents could show how the league operates, in a sense that they hope to prove the league owed a duty to Boogaard (i.e. via a connection between concussions and drug treatment), which they claim is separate from collective bargaining and preemption.


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