Final Order on NFL Painkillers Lawsuit

Judge William Alsup issued his final ruling in the NFL Painkiller lawsuit on Friday and it’s clear that he leans more in favor of employers over employees.

Our friend, Sheilla Dingus, posted some interesting initial observations on Alsup’s ruling on her site Advocacy for Fairness in Sports. (Posted here in its entirety with her permission.)

Judge Alsup Denies Remaining Claims in NFL Painkiller Lawsuit

July 22, 2017
Sheilla Dingus

In granting motion for summary judgment in favor of NFL Clubs San Diego/LA Chargers, Denver Broncos and Green Bay Packers, late Friday July 21, Judge Alsup has declared the only provisions available to players for recourse of injury are workers’ compensation and collective bargaining.

Worker beware! In the final pleading from Alphonso Carreker and Reggie Walker – the two remaining plaintiffs in the severely gutted lawsuit – plaintiffs’ counsel argued that if workers’ compensation exclusivity is interpreted as NFL defendants reckoned, “then, virtually no claim by a worker could ever exist outside the workers’ compensation regime.”

Reggie Walker pled concealment claims for permanent injury to his ankle which could have been prevented had the Chargers’ not kept him on the field with prescription painkillers which numbed the pain as he did further and irreversible injury to himself without realizing that he was doing so.

To this claim Judge Alsup ruled:

There is no evidence in the summary judgment record from which a rational trier of fact
could find that the Chargers concealed knowledge of Walker’s own ankle injury from him. Plaintiffs do not dispute that Walker was aware of the ankle injury in question at all times. They point out that “[t]he Chargers did not tell [him] of the risk that the Medications would aggravate the existing injury.” But this would still not suffice to bring Walker’s claim within the fraudulent-concealment exception. Plaintiffs cite no authority for the proposition that merely concealing generalized risks associated with work-related substances that can aggravate a work-related injury — as opposed to concealing knowledge of the specific work-related injury itself — satisfies the first element of the fraudulent-concealment exception. Indeed, Johns-Manville itself rejected that very proposition.

Alphonso Carreker required heart surgery because anti-inflammatories prescribed for an infection in his heart, which occurred long after retirement, were ineffective due to the tolerance to anti-inflammatories that he acquired during his time in the NFL.

In regard to Carreker’s claims against the Broncos, Judge Alsup stated:

3. CARREKER’S CLAIM AGAINST THE BRONCOS (COLORADO).
Plaintiffs contend Carreker’s claim for relief against the Broncos is for “intentionally
harmful employer conduct” that falls outside workers’ compensation exclusivity. See, e.g., Ventura v. Albertson’s, Inc., 856 P.2d 35, 39 (Colo. App. 1992) (“An employer may be subjected to tort liability for intentional torts . . . if the employer deliberately intended to cause the injury.”). Their sole argument as to the Broncos is that the club’s “administration of large amounts of unlabeled, unpackaged controlled substances to [him], coupled with the knowledge that such drugs were dangerous, creates, at minimum, a jury question whether the Broncos intentionally injured [him].”

Colorado has rejected the proposition that “charging a defendant with wanton and/or willful disregard of the rights and safety of others is . . . the equivalent of an allegation of willful or intentional injury” for purposes of workers’ compensation exclusivity. See Schwindt v. Hershey Foods Corp., 81 P.3d 1144, 1146–47 (Colo. App. 2003) (quoting White v. Hansen, 837 P.2d 1229, 1233 (Colo. 1992)). For example, in Ellis v. Rocky Mountain Empire Sports, Inc. — a decision cited by defendants and ignored by plaintiffs — a former NFL player sued the Broncos and its personnel based on allegations that “the Broncos negligently and intentionally required him to engage in contact football drills before he had fully recovered from [an] offseason knee injury, and that this activity caused further injury to his knee.” 602 P.2d 895, 896 (Colo. App. 1979). There, as here, “there [was] no dispute that the injury occurred in the course of and within the scope of . . . employment.” Workers’ compensation exclusivity therefore barred the plaintiff’s claims for relief against the Broncos, including for intentional torts. Id. at 897–98 (applying an older version of Colorado’s workers’ compensation statute). So too here.

And against the Packers:

4. CARREKER’S CLAIM AGAINST THE PACKERS (WISCONSIN).
Plaintiffs similarly contend Carreker’s claim for relief against the Packers is “based on
intentional wrongdoing of a nature and magnitude that falls outside the workers’ compensation exclusivity principle,” again asserting that “[i]njuries are substantially certain to result from repeated massive ingestions of dangerous controlled substances given without warnings or proper medical attention.” Plaintiffs rely on Berger for the proposition that “the  intentional harm exception to workers’ compensation exclusivity is triggered when a defendant’s actions are sufficiently dangerous that injury is substantially certain to result.” Actually, Berger stated, “To avoid the exclusivity provision of the WCA, an employee must show that a coemployee committed an assault intended to cause bodily harm” — referring to an exception to exclusivity in Wisconsin for actions against coemployees, not against employers. 531 N.W.2d at 640 (emphasis added) (applying Wis. Stat. § 102.03(2)). Plaintiffs’ attempts to shoehorn Carreker’s claim into the coemployee exception articulated by Berger are unavailing.

Though Carreker’s counsel asserted that the dangerous and willful over-administration of painkillers “was the equivalent of punching someone in the nose and claiming “I did not intend to do any harm,” Judge Alsup disagreed. He further stated in his ruling, “First, plaintiffs argue that Berger applies here because, “for all material purposes, Carreker and the Packers’ team doctors and trainers were co-employees.” This argument misses the point. Plaintiffs chose to sue the Packers, not the Packers’ team doctors and trainers.”

As I stated in a previous article detailing the final pleadings of these players in the district court case, Judge Alsup tends to lean heavily toward management over labor in his interpretation of law and consequent rulings. In this case, his conclusion was as follows:

With this order, the second in a series of lawsuits arising out of the administration of
painkillers in the NFL comes to an end and proceeds to our court of appeals. See generally Dent v. Nat’l Football League, No. C 14–02324, 2014 WL 7205048 (N.D. Cal. Dec. 17, 2014). This and other orders ruling against the theories advanced by plaintiffs’ counsel in these cases do not diminish the seriousness of the national need to protect the health and safety of our professional athletes. As stated in Dent, “[i]n ruling against the novel claims asserted herein, this order does not minimize the underlying societal issue. In such a rough-and-tumble sport as professional football, player injuries loom as a serious and inevitable evil. Proper care of these injuries is likewise a paramount need.” See id. at *12. Although workers’ compensation and collective bargaining remedies are not gold-plated remedies, they are at least remedies recognized under the law. The sweeping remedy sought herein by plaintiffs is not, on this record, available under the law.

CONCLUSION

For the foregoing reasons, defendants’ motion for summary judgment is GRANTED.
Judgment will follow.

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We uploaded the 9-page order to Scribd to make it easy to print and download. You can also enlarge this document for easier viewing by clicking on the Enlarge button in the lower right corner (and hit ESC to get out of Full Screen mode).

Order Granting Summary Judgment NFL Painkiller Lawsuit by on Scribd

And one more statistic from a Washington University study (click to enlarge in a new tab):


Comments

Final Order on NFL Painkillers Lawsuit — 1 Comment

  1. John Hogan office

    My off-the-cuff reaction is this was the fate which the Concussion Lawsuit plaintiffs faced – dismissal of their claims on the basis that their remedies lied in Workers Compensation and/or Collective Bargaining.

    I hope that those who are not satisfied with the far-from-perfect settlement realize that.

    John Hogan
    Disability Attorney
    Retired Player Advocate

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