Often, when lawsuits involve sports-related brain and head injuries (CTE), it’s easy to assume that the NFL is involved. However, concussion-related lawsuits are not solely confined to professional football.
In 2018, the NHL was engulfed in concussion litigation. Kelli Ewen, the widow of former NHL player, Todd Ewen, filed a lawsuit against the NHL in the U.S. District Court for the Central District of California. In her complaint, Ewen alleges that the NHL promotes a culture of “violence and concealment of long-term brain injuries associated with the sport.” The complaint goes on to state that the NHL dismissed the dangers of brain and head injuries, and that it incorrectly analyzed her husband’s brain.
After 11 seasons in the NHL, Todd Ewen retired from the league. He began experiencing memory issues and depression. In 2015, Todd took his own life. Prior to his death, Todd confessed to his wife that he believed he had CTE. Following his death, Kelli took his brain to be analyzed by Lili-Naz Hazrati, a neuropathologist at the Canadian Concussion Centre. The analysis revealed no signs of CTE.
A few years later, Kelli sought a second analysis by neuropathologist, Ann McKee. McKee, a leading authority on CTE, found evidence of CTE in Ewen’s brain. The NHL’s public dismissal of CTE in the league, and the analysis completed by McKee, prompted Ewen to file the suit on April 30, 2019.
On September 11, 2019, Ewen attempted to overcome a procedural hurdle after the NHL argued that Ewen’s claims require an interpretation of the collective bargaining agreements (CBAs) with the players. Ewen asserted that the claims are preempted by federal labor law under the Labor Management Relations Act (LMRA). In addition, Ewen stated that the CBA does not apply to her husband because he was not part of the “bargaining unit to which the CBA applies . . .”
If the court finds that the claims are intertwined with the CBAs, then that will deal a fatal blow to Ewen’s case and possibly result in dismissal. CBAs must be decided in arbitration. However, if the court finds that the LMRA is applicable, then the case is likely to proceed under federal question doctrine.