They’ll Let Anyone File One Of These: Examining The Latest NHL Concussion Lawsuit

17
Apr

This wasn’t meant to be an exercise in critiquing and editing. I plan to be doing enough of that over the next few months. But reading the latest NHL concussion lawsuit, LaCouture et al v. NHL, brought me to the point of tears.1

Fraught with photographs of bloodied players and punches flying, LaCouture et al v. NHL reads more like a parody of either the first NHL concussion lawsuit2 or the NFL concussion lawsuit.3 It definitely doesn’t give a good showing of a serious legal document.

To better understand what is so wrong with LaCouture, it’s best to start with Leeman v. NHL and In re NFL to get a better idea of the points these lawsuits are supposed to and do hit that LaCouture does not.

While the exact requirements do vary, some of the general points that must be accounted for in this type of complaint are that the governing body (in this case the NHL or NFL) was responsible for informing the players of risk and protecting the players’ bodies. The NHL and NFL must also have actively hidden findings that would possibly protect the players or it must be shown that their ignorance of the issue was negligent because it was so clearly evident that they weren’t doing their job to protect the players. Finally, the injuries must have resulted from their time playing the sport at that level.

The NFL lawsuit is the most clear on these issues because they likely had the most useful evidence. It is noted in the complaint that starting in 1994, the NFL commissioned reports and studies to find out about the effects that hits to the head have on players. These reports came back either inconclusive on the issue, implying there was no significant connection, or firmly on the side of the NFL with statements like:

“Drs. Pellman and Viano stated that because a ‘significant percentage of players returned to play in the same game [as they suffered a concussion] and the overwhelming majority of players with concussions were kept out of football-related activities for less than 1 week, it can be concluded that mild [TBI]4 in professional football are not serious injuries.’”5

This bit of evidence shows that they were using substandard research on a subject that already had high levels of research completed.

In re NFL also shows a strong correlation between NFL Films’, owned by the NFL, actions in creating videos that glorify the violent side of the game for the purposes of earning money, the sole purpose of NFL Films.6

While not quite to the level of In re NFL, in my humble opinion, Leeman has a solid logical progression throughout and does a good job of eliminating the excess information in order to keep the information that is needed and actively used.

The NHL lawsuits have a harder time attributing fault to the league because they don’t have the repeated research and findings issues that the NFL does. The NHL created a dedicated MTBI Committee in 1997, however the findings were not “finished” for more than 14 years. At that point, the NHL-funded MTBI Committee found that more research would be needed to have a conclusive decision. That leaves those filing the lawsuits to have a higher burden of proof in order to show that the league simply should have known about the risks and should have informed the players more adequately and protected them via rule changes.

Before we finally get to LaCouture, there is one more thing working against the NHL concussion lawsuits that likely helped along the NFL concussion settlement; the NHLPA and its players are opposed to outlawing fighting.7 They want to hold on to their ability to enforce the rules in their way instead of leaving it in the hands of the referees. This is a damning bit of information as the NHLPA should also be informing their players of the risks and taking steps in collective bargaining to install rules changes to protect against concussions.

Finally, we get to LaCouture. Let’s start with this gem to give you an idea of the level of logic we are dealing with.

“In Mystery, Alaska, Russell Crowe was the town sheriff and the team captain. The very next year, the film Gladiator was released also starting Russell Crowe, which won the Best Picture Academy Award. Russell Crowe won the Best Actor Academy Award for his role in Gladiator as a bloodied Roman war veteran turned slave, General Maximus Decimus Meridius. In Gladiator’s opening scenes, Russell Crowe leads a Roman platoon in a battle against Nordic Warriors. The Nordic warriors open their attack by sending Crowe a Roman soldier’s decapitated body on a horse, while holding up the soldier’s head. Ice hockey has some of its roots in Nordic tradition.”8

There is nothing in that block of text that is even paraphrased or shortened. That is straight from the complaint itself. To be fair, it should be noted that points like these are being used to show what the NHL’s image is in popular culture and the media, implying that the NHL has fostered these images and profits from them.

Still, some other points in this section involve what memes say on the internet,9 a picture in Sports Illustrated that shows a hockey player with missing teeth,10 and that Jason from Friday the 13th wears a hockey mask.11

Furthering their image of just throwing facts at the wall and hoping one or two stick is this illogical progression from various parts of LaCouture. It all starts with a passage from the section labeled “The Coutu Incidents” (ominous I know.)

“In the melee, Coutu severed Shore’s ear, which was later sewn back on. The NHL imposed only a $50 fine on Coutu for this incident, which was eventually refunded.”

The key operator in this sentence is the word only. Only a $50 fine. In 1925. Prior to even the first medical connection of mTBI’s and boxing which was established in 1928.12 Had that fine been administered today, the inflation only evident in the dollar itself would increase it to a $650 fine. Fines currently sit at between $5,000 and $10,000.13 The income of players and therefore the ability to have high fines against those players was clearly significantly lower in 1925, making a $50 fine a very significant one.

I hope you’ve lasted this long, because this is where it gets good. Not only is the logic lacking in LaCouture, so is the spelling, grammar and the ability to of the plaintiffs to exclude any information at all. This complaint has 64 pages of “evidence”, mostly anecdotal and including the dangers of flying pucks.14

Sydney Crosby,” “Montreal Canadians,” and finally in the section labeled “Gordie Howe’s Head Trauma Issues” it states, “In 2009, Howe died from the neurogenerative disease known as ‘Pick’s Disease.’” Gordie Howe is not dead, I repeat, he is alive and well. This is a legal case and they have simply failed to do research to see if one of the most famous hockey names is still among the living. To make matters worse they blame it on a “neurogenerative” disease, implying that it has something to do with the concussions Howe accrued, but he ISN’T dead.

But let’s read that again, “neurogenerative,” it is clearly neurodegenerative, i.e. related to dementia and the loss of memory and brain capabilities. Cures for such diseases would probably be considered neurogenerative though.

I told you this wasn’t supposed to be an article about corrections and critiques for a legal complaint, I’m not even a lawyer, but this just reads like it was written by someone of my current legal aptitude, not an established legal firm.

It seemed at first that this added NHL concussion lawsuit would make this off-season interesting. I now plead the 5th, I recant my statement, I do something to take it back. This just isn’t worth a judge’s time.


  1. Not in a good way. Here is a link to the PDF file of the lawsuit. https://drive.google.com/file/d/0B3AJ0xnFR2szcTJXVlpKTWtkSDA/edit?usp=sharing 

  2. Leeman v. NHL – https://drive.google.com/file/d/0B3AJ0xnFR2szTVJvNWlmS2pPN1k/edit?usp=sharing 

  3. In re NFL Players’ Concussion Injury Litigation – https://drive.google.com/file/d/0B3AJ0xnFR2szMXZlcTlfM3VfeGM/edit?usp=sharing 

  4. mTBI = mild traumatic brain injuries which has become the generally used term for concussions of all severities 

  5. Page 40, paragraph 178 of In re NFL 

  6. In relation to this, my favorite little note is Page 14, Paragraph 66 – The NFL fines players for vicious hits but then proceeds to sell photographs of the exact same hits for $54.95-$249.95 

  7. Via Greg Wyshynski – http://sports.yahoo.com/blogs/nhl-puck-daddy/once-again-nhl-players-voice-overwhelming-opposition-fighting-175557533.html 

  8. LaCouture – Page 24, Section IV(D)(2) paragraph 59 

  9. LaCouture – Paragraph 60 

  10. Lacouture – Paragraph 62 

  11. Lacouture – Paragraph 61 

  12. This thought process eventually lead to the collision aspect, but the first research was specifically for boxing 

  13. http://en.wikipedia.org/wiki/2013%E2%80%9314_NHL_suspensions_and_fines 

  14. Not something that is easy to sue on. The basic premise of assuming risk applies doubly to something as evident as the dangers of frozen plastic puck flying around at speeds close to 100 mph 

About the author: Colby Rogers

Colby is the Editor-in-Chief, Founder and Lead Contributor to Other League. Also a law student focusing on Labor & Employment law and intersections with law and sports. You can find him on Twitter via @Colby_OL.