During Playoffs, the Ongoing Battle Over Traumatic Brain Injury in the Courts

New York, NYWhile hockey players and fans alike focus on the current rounds of playoffs that lead up to the iconic Stanley Cup Final later this spring, an issue that constantly simmers behind the drama of play is the potential for serious injuries related to the physical nature of the game. To that end, while the playoffs continue, and with fans caught up in the fever that is the road to Lord Stanley’s Cup, hovering just below the radar is yet another brain injury lawsuit alleging the National Hockey League (NHL) could have done more to prevent concussions, and the traumatic brain injury that often results.

“Through the sophisticated use of extreme violence as a commodity, from which the NHL has generated billions of dollars, the NHL has subjected and continues to subject its players to the imminent risk of head trauma and, as a result, devastating and long-term negative health consequences.” This, according to court records related to a complaint filed by nine former players of the NHL, in New York last month.

Many a brain injury lawsuit has been filed by current and former players of professional sport, alleging that leagues just as the NHL and the National Football League (NFL), knew of the potential for brain trauma stemming from concussions, but failed to act in either preventing concussions from occurring, or failing to allow a player to be properly diagnosed - and given the opportunity to properly heal - before the player reengaged in the sport.

Late last summer the NFL announced that it had reached a settlement with thousands of former football players involved in a class-action lawsuit against the venerable league. The settlement was worth $765 million.

A serious concussion can cause brain swelling and other symptoms that require immediate treatment. Symptoms can become exacerbated if the player returns to play too soon. One plaintiff in the NHL brain injury lawsuit, Dan LaCouture, suffered a concussion when he engaged in fisticuffs with another player.

According to court records supplied by the plaintiff’s TBI lawyer, LaCouture played for a collection of teams between 1998 and 2009 and currently suffers from “headaches, irritability, sensitivity to light, change of personality, and depression,” according to the complaint.

Plaintiffs allege leagues could do more

There is little doubt that professional hockey is a physical game, where hard body checking and other examples of extreme physicality are major frameworks for the game - especially during the playoffs. Recent reports of concussions, and the traumatic brain injury that can result, have fueled much debate on the subject of concussions and player safety, and various efforts have been undertaken to attempt to make the game safer. Critics, however, claim leagues have not done enough.

“What changes the NHL made to its violent construct were purposefully ineffective and solely calculated by the NHL to fool and mislead plaintiffs, the class and the public into ceasing investigation into the risks and consequences of head trauma, that the NHL’s wrongdoing was taking place, that there was not and is not an imminent threat of head trauma for NHL players, and that there were not and are not risks and consequences of head trauma,” the complaint says.

In response, NHL Deputy Commissioner Bill Daly had this to say:

“In short, we are completely satisfied with our record on player safety, including as it relates to head injuries and brain trauma,” Daly said, in published comments. “We do not believe the new complaint provides any valid basis for liability or damages against the National Hockey League, and we intend to defend the case and others that may follow it vigorously.”

Daly was referring to two other brain injury lawsuits, both of which were filed against the NHL in 2013 - one this past November in DC federal court, with the other appearing in May 2013 and involving the late Derek Boogaard.

Participants in this most recent proposed class action are Dan Keczmer, Jack Carlson, Richard Brennan, Brad Maxwell, Michael Peluso, Tom Younghans, Allan Rourke and Scott Bailey. The plaintiffs are suing on behalf of themselves and all other current and former NHL players, and seek compensatory and punitive damages.

The plaintiffs also want the NHL to provide ongoing medical monitoring to all current and former players of the league, according to brain injury law.

While symptoms stemming from a recent concussion can be vigorous, ongoing symptoms from multiple concussions over time can affect a former player long after retirement from the game. Many a brain injury lawyer is familiar with Chronic Traumatic Encephalopathy (CTE), a disease that is characterized by the slow, ongoing degeneration of brain tissue thought to be linked to multiple concussions. CTE can foster headaches and changes to personality, amongst other symptoms.

The brain injury lawsuit is LaCouture et al. v. National Hockey League, Case No. 1:14-cv-02531, in the US District Court for the Southern District of New York.