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Denial of class-action status for concussion lawsuit opens floodgates for individual cases

The concussion-related lawsuit filed by former players against the NHL was denied class-action status, but that can open the floodgates for individual cases to be heard, like that of former NHL defenseman Steve Montador, who died at 35.

When a Minnesota judge last week denied class-action status for a lawsuit by former players accusing the NHL of failing to protect them from head injuries and concealing information about the long-term effects of concussions, it closed the book on one legal chapter of this saga, but opened the door to another one to begin.

The NHL scored a victory last Friday when U.S. District Judge Susan Nelson came down with her ruling regarding the class-action lawsuit, but what that likely has done is open the floodgates to about 100 individual lawsuits that have been filed against the NHL. Typically in cases like these, individual cases are put on the backburner while the class-action is handled. Now that there has been a ruling, the NHL’s legal headaches might just be beginning.

There are those in the legal community who believe the first case on the docket is the one the NHL would likely be least interested in defending off the top, which is the one leveled against the league by the estate of former NHLer Steve Montador in 2015. The lawsuit, which was filed about eight months after Montador died at the age of 35, alleges the NHL, “failed to keep Steven R. Montador reasonably safe during his career and utterly failed to provide him with crucial medical information on the permanent ramifications of brain trauma.”

“Now his case will go forward,” Stuart Davidson, one of the lead lawyers in the class-action lawsuit, said of the Montador case. “It would not surprise me if the first test case for all the plaintiffs were not Mr. Montador’s case. I know his lawyers are ready, willing and able and they will do whatever they can to push that case forward as soon as possible because Mr. Montador (Steve’s father, Paul) is anxious to have his case heard.”

William Gibbs of Corboy and Demetrio, the Chicago-based firm representing Montador’s estates said, “the Montador family looks forward to its day in court,” saying that case-specific discovery in the case could be done within nine months, six months if both sides were aggressive. “There is definitely some work to do,” Gibbs said. The only problem is that it’s likely the NHL would not want the Montador case tried first because of the tragic outcome, the fact that it is so high-profile and that studies of Montador’s brain after he died revealed it was rife with Chronic Traumatic Encephalopathy (CTE). Dr. Charles Tator, who examined Montador’s brain after his death, said it was the youngest brain he had seen to have CTE and was surprised to see how widespread it was. “It wasn’t just a little bit,” Tator said at the time. “It was in spades.” Since his death, Montador’s story and the effects of blows to the head have been the subject of a book by Hall of Famer Ken Dryden titled, Game Change: The Life and Death of Steve Montador and the Future of Hockey.

In reality, there was actually very little chance the NHL concussion lawsuit would have gone ahead as a class-action procedure. That’s because this lawsuit was not quite like the class-action lawsuit that saw thousands of former NFL players awarded $1 billion in damages in 2017. In that lawsuit, there were two distinct classes, a litigation class and a settlement class. It’s important to make that distinction because for purposes of litigation, there really was no class-action lawsuit. The group was made up of thousands of players who were suing the NFL individually. When a settlement became a possibility, the settlement class was created, which would allow the NFL to pay out one lump sum in exchange for not having to deal with any future lawsuits. The NHL players, for litigation purposes, created a class-action group and its case was denied largely because the medical monitoring of the players, had they won the lawsuit, would have been subject to each state and province’s legal jurisdiction.

It’s too early to tell whether the NHL might be willing to do the same thing to avoid the prospect of being dragged into court for more than 100 individual cases, a number that will undoubtedly grow now that the class-action lawsuit has been dismissed. The league declined comment on the situation when approached by THN.com. But one thing is certain. Things did not get any less complicated or potentially any less contentious because of the decision that came down in a courtroom in St. Paul last Friday.

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