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Denial of Class-Action Status for NHL Concussion Lawsuit Opens the Door for Individuals to File Instead

Written by Berkowitz

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The class-action status was requested by former NHL players who allege that the league failed to protect them from severe head injuries and concealed the risks of multiple concussions – including the long-term effects. While the class-action status was denied, that does not mean the case is over or that it is the last chance for NHL players. Instead, NHL players can now file individual lawsuits against the league.

To the NHL, it is a victory. But now the floodgates have opened for individual players and their surviving family members – which is about 100 cases – to file their cases individually against the NHL. Typically, individual cases go last while any class action goes first. With no class-action status in the way, players can work toward compensation.

What Case Is Expected to Go First?

The first case has not been announced, but most legal professionals agree it will be the one that the NHL knows they need to defend against first: a wrongful death lawsuit. The lawsuit was filed by the estate of Steve Montador in 2015. The lawsuit was filed eight months after his death (at a mere age of only 35 years old). The suit alleges that the league failed to maintain safe conditions for Montador during his career, and they neglected to provide him with medical information about his head trauma and the permanent effects of those injuries.

His case no longer has to wait in the back of the line while a class-action set goes through. Instead, his case moves forward. Most likely, this case will be the test case for the rest of the lawsuits to follow.

Others believe that the NHL would not want this as the first case to move forward because of the possible outcome of that case. It is a high-profile case, and there are studies that show Montador did, in fact, have CTE at death. Dr. Charles Tator, the doctor that examined his brain after death, stated that the CTE was excessive and stemmed from multiple blows to the head.

While 100 plaintiffs were trying for the class action status, it is likely that the number of potential cases is in the thousands. All of the plaintiffs in the class action claimed that they suffered from pathological and debilitating effects due to brain injuries that occurred during their career. The NHL encourages players to fight one another. Therefore, players state that this encouragement led to their injuries – and in some cases, premature deaths.

What Is CTE?

Chronic Traumatic Encephalopathy (CTE), is a degenerative brain disease common to athletes and those serving in the military. It requires a history of repeated injuries to the brain. With each injury, the brain develops a protein known as Tau. Tau clumps together and spreads through the brain, slowly killing brain cells in the process.

CTE has been found in brains as young as 17 years old, but the symptoms typically take over a decade to fully show.

Most people with CTE will only show symptoms in their 20s or 30s, and it starts by affecting their mood and general behavior. They may have poor impulse control, become depressed, be aggressive, or even suffer from paranoia.

As CTE progresses, patients will start to get into the later stages of the illness and show more severe, apparent signs of permanent brain damage.

What Are the Stages of CTE?

New studies have found a specific pathway for CTE victims, and researchers have created four stages of the disease with Stage IV being the most severe.

The symptoms associated with the CTE stages are:

  • Stage I – The early stages of the disease include headaches, concentration issues, and attention problems.
  • Stage II – In this stage, the symptoms increase from Stage I. Also, the patient will have depression, explosive behavior, and short-term memory issues.
  • Stage III – By this stage, the first two stage symptoms are present. In addition, the patient now has issues with judgment, impulse control, cognitive impairment, planning issues, organization issues, and an inability to multitask even the simplest of things.
  • Stage IV – This is the most severe level of CTE. A person may suffer complete dementia, and that dementia is so severe that the victims’ quality of life is completely altered.

While the disease progresses slowly, it can increase faster in some victims, especially with further trauma to the brain.

Facts about CTE to Know

CTE is something that the NHL, NFL, and other sports leagues try to speculate and discredit. But it is a real, documented, degenerative disorder of the brain and professional players do have it. For example, former NFL player Aaron Hernandez upon death was found to have Stage III CTE at only 27 years old. The progression of the disease was something that most doctors would only expect to see in someone 60 years or older.

CTE Can Only be Diagnosed After Death

The only way to diagnose for certain is during an autopsy of the brain. CTE is then measured, and the severity of the damage done to the brain cells can be thoroughly examined. There is research underway to use imaging studies to determine damage to the brain using an MRI. While it can be diagnosed before death, the only way to confirm it is after death.

CTE Is Not a Concussion – It is Caused by Concussions

A common misconception is that CTE is a concussion, but it is not. It is a degenerative brain disorder, and researchers do not know the exact cause other than repeated trauma. Concussions do cause irreversible trauma to the brain. And when someone suffers these repeatedly, they are more likely to have CTE.

CTE is not from a single concussion. Instead, it is a degenerative neurological disorder that worsens over time. The only common thread in those diagnosed with CTE is damage to the brain. This is why the most common victims of this disorder include NFL players, NHL players, boxers, military veterans, and those playing high-impact sports.

CTE Symptoms Might Vary by Person

While the stages have some symptoms that are common, a person may have other symptoms. A person might have cognitive impairments or even be diagnosed with Alzheimer’s disease while having CTE. It is difficult for physicians to diagnose CTE without conclusive studies. Therefore, physicians must rely on patient history, diagnostic scans, and symptoms.

CTE has been linked to increased substance abuse, aggressive behavior, and suicidal thoughts.

For example, the NFL player Aaron Hernandez was serving a life sentence for murder. Some researchers feel that Hernandez was showing the signs of someone suffering from CTE, but those symptoms were overlooked. There was a clear pattern of him having issues like memory loss, impulsive behavior, and aggression. After his suicide, it was more evident that he may have suffered CTE and that CTE may be the reason for not only committing murder but taking his own life later. While no one will know for sure if CTE caused him to commit murder or even suicide, overly aggressive behavior, including fits of rage, are common in people suffering from Stage III CTE.

NHL Owners Still Deny the Existence of CTE

Years after the first lawsuit was filed against the NHL, owners of NHL teams still deny the existence of CTE or that CTE comes from hits taken on the ice.

Some owners outright deny ever hearing of CTE and claim that it was never brought up at NHL owner meetings. CTE, at the time of the depositions of some of these owners, had already been found in four former NHL players, including Rick Martin, Reggie Fleming, Bob Probert, and Steve Montador.

In fact, three years before owners were questioned about their knowledge, the NFL had already agreed to pay $765 million to settle concussion lawsuits claiming CTE. Therefore, it is hard to believe that NHL owners did not suspect they too would be sued let alone that their players were at risk for similar injuries – given the nature of the sport.

During the depositions, several interesting facts were discovered about how the NHL handled cases of CTE:

  • The NHL levied fines against teams for concussion protocol violations. In July 2016, the NHL placed fines against Montreal Canadiens, the Calgary Flames, and a third team for breaching the concussion protocols by the league. Also, it was found that the New Jersey Devils, while not fined, were found to violate the rule for baseline neurological tests in 2007 and only did so once the NHL pressured them to.
  • Players had stated they were afraid for their lives. The Director of the NHL player safety department, Brendan Shanahan, testified that players had reached out to him and discussed their fear for their safety and their lives after Wade Belak died in 2011.
  • Several teams never even tracked player concussions. The Edmonton Oilers and Rangers never bothered to track concussions among players, because they assumed minor league players were only there a year or two and it was not worth it.
  • Several team owners testified that they were unaware of CTE. Multiple owners stated that they were in the dark about CTE or the risks of CTE. They claimed they heard about it, but only regarding the NFL. They stated the NHL never told them of the risks of CTE in their league. They also said that no official NHL meetings ever discussed CTE.

NHL Players Have the Right to File a Lawsuit

Whether you play in the minor leagues or you are a member of a major hockey team here in the US, you have the right to receive compensation for your injuries. The NHL might not have told owners or even made protocols to protect you, but that does not excuse them from the long-term damage done to you and your family.

To explore your options for compensation, schedule a consultation with the attorneys at Berkowitz Hanna today by calling 203-324-7909 or requesting more information online.z