The National Hockey League and its legal team have engaged in settlement talks over a concussion lawsuit brought by former players who claim the league lied to them about the dangers of repeated head trauma and concussions, according to a bombshell report by TSN. The move appears to be in response to pressure from U.S. District Court Judge Susan Nelson.
Nelson pushed both parties to “talk about a path forward.” Retired Minnesota federal court judge Jeffrey Keyes, who runs a mediation company in Minnesota has been involved in the talks, according to papers obtained by TSN.
More than 100 former players, including former Penguins centers John Cullen and Dan Quinn, have filed suits against the league. In July, U.S. District Court Judge Susan Richard Nelson denied their motion to certify the case a class-action lawsuit. Had the plaintiffs been granted class-action status, nearly 5,000 former NHL alumni would have automatically become plaintiffs, as well. With the ruling, each former player must seek damages, individually.
In depositions, NHL owners have denied knowing about CTE or the dangers of head contact during most of the plaintiff’s careers.
Daniel Carcillo and former Chicago Blackhawks teammate are also suing. Carcillo has become a crusader against the NHL’s refusal to settle with players and against head contact.
Many legal analysts believe the NHL gained the upper hand when Nelson refused to certify a class-action, but trying the cases individually also has pitfalls for the NHL. The league would be forced to try each case separately, in front of new juries. Former congresswoman and current lawyer based in Pittsburgh, the Hon. Melissa Hart has closely followed the lawsuit.
“The NHL won (the rejection of class-action certification), and I believe it bought them time to get science on their side. They haven’t,” said Hart. “They should settle before the science goes harder against them.”
Hart also explained the dangers and labor-intensive process of going through discovery in over 100 lawsuits, “more and more of the NHL’s dirty laundry could come out,” she warned.
Personal injury lawyer (and Pittsburgh Hockey Now sponsor) Joshua Lamm of Meyers, Evans, Lupetin, & Unatin LLC generally spoke on the jury system and personal injury cases. Lamm also helped PHN look at the legal process.
“At trial, the first step is ‘liability’–was the harm the defendant fault,” Lamm said. “You can go to trial and figure you’re going to win, you can even think you have slamdunk case, but will the jury agree?”
Lamm also pointed out jurors bring their own experiences and bias with them, “Bias could affect not only the liability determination but also (if the plaintiff wins) the award. You don’t know what a jury thinks is a fair verdict. An acceptable sum to a jury is not necessarily what a lawyer or client thinks is fair.” Geography and local culture could play a role, too. A jury in New York may value money differently than a jury in Minnesota.
“Although it’s not a perfect system, and although there are biases even a well-seasoned lawyer cannot account for, the jury system is a fair and just system, if unpredictable,” said Lamm.
However, the settlement talks are a positive sign for both sides. The NHL does not have the Billion-dollar deep pockets of the NFL, and cannot afford big loses, and some former players need help, such as Boynton and Carcillo. The NFL allowed players to form a class-action suit for the purpose of settlement, and according to some analysts, the NHL may follow that path now that they’ve established a position of power, however tenuous it may be.