Scott Holland Dec. 30, 2015, 11:41am

The family of a deceased professional hockey player, who died following a purported drug overdose, has suffered a setback in their bid to assign blame for the athlete’s death to the NHL.

U.S. District Judge Gary Feinerman last week granted summary judgment to the NHL in the complaint it faced from the estate of Derek Boogaard. The complaint, originally filed in Cook County Circuit Court, also named the NHL Board of Governors and NHL Commissioner Gary Bettman as defendants. The NHL removed the suit to federal court, successfully arguing the Boogard claims were pre-empted by the federal Labor Management Relations Act.

After an amended complaint named new personal representatives and added references to Minnesota law, the NHL moved to dismiss under civil procedure rules. The court, however, converted that request into a motion for summary judgment, which led to more than a year of discovery.

The complaint invoked the NHL’s 1996 Substance Abuse and Behavioral Health Program, negotiated between the league and its players union. The policy was in effect during Boogaard’s playing career; from 2005 to 2011, he played for the Minnesota Wild and the New York Rangers. The family said Boogard’s “principal job was to get into fistfights with opposing players during games — a task he performed at least 66 times over his career. The fights often left Boogaard with painful injuries, which team physicians, dentists, trainers, and staff treated using ‘copious amounts of prescription pain medications, sleeping pills, and painkiller injections.’ ”

The treatment, they alleged, led to Boogaard’s opioid addiction. In 2009, the NHL placed him in the substance abuse program. He was discharged and signed with the Rangers but suffered a relapse and was sent to a second rehabilitation facility. Therapists there, the complaint stated, reported “Boogaard would not comply with his treatment regimen and that he thought of rehab as a hurdle to clear before he could return to the ice rather than as a necessary medical intervention.”

“The NHL knew or had reason to know that Boogaard was not complying with his treatment, but it twice allowed ARC to temporarily release him without a chaperone,” the complaint said. “On the first night of his second release, Boogaard took Percocet; the next morning, on May 13, 2011, he was found dead of an accidental drug overdose. Posthumous tests revealed that Boogaard suffered from a progressive neurodegenerative illness known as Chronic Traumatic Encephalopathy … (that) likely resulted from the dozens of brain injuries that he sustained during his hockey career.”

Feinerman’s opinion centered largely on different views between the league and Boogard’s family over which of Boogaard’s complaints are state-law claims and which are pre-empted by federal law. The counts that alleged “the NHL was negligent in failing to protect Boogaard from brain trauma during his career, violating its voluntarily undertaken duty to protect his health … (and) breached its voluntarily undertaken duty to protect Boogaard’s health by failing to prevent team doctors from injecting him with Toradol — are preempted because they would require the court to interpret the 2005 (collective-bargaining agreement) to determine the scope of any duty that the NHL had actually assumed,” the judge said.

With this in mind, the judge noted that, so much of the language in the 2005 CBA was “hyper-specific,” making it difficult for the court to accept Boorgaard’s broad assertions of the NHL’s obligations: “The NHL’s reading is, at a minimum, plausible and arguable, which means that ascertaining the scope of the NHL’s voluntarily assumed duties would require interpreting the CBA, which in turn means under settled law that Counts V and VI are completely preempted.”

The judge, however, gave Boogaard permission to file a second complaint, a request he said is timely and not preempted by federal law. The judge gave the NHL until Jan. 15 to respond to the motion; Boogaard’s estate then has until Jan. 29 for its response.

The Boogard family was represented in the action by the firms of Corboy & Demetrio, of Chicago, and Kellogg, Huber, Hansen, Todd, Evans & Figel, of Washington, D.C.

The NHL and its officials are represented by the firms of Proskauer Rose, with offices in New York and Chicago.

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Organizations in this Story

Proskauer Rose LLP
3800 70 West Madison Street
Chicago, IL 60602

Corboy & Demetrio PC.
33 N Dearborn St 21st Floor
Chicago, IL 60602

400 1615 M Street Northwest
Washington, DC 20036

National Hockey League/NHL

New York, NY 10036-2601

Cook County Circuit Court
50 W Washington St
Chicago, IL 60602

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