Hockey Fighter Derek Boogaard Runs Aground on §301 of the LMRA in Concussion-Related Claim

(Editor’s Note: What follows is an excerpt from an article that appeared in the February issue of Concussion Litigation Reporter. To see the full article, subscribe at https://concussionpolicyandthelaw.com/subscribe/)

By Jon Heshka, Associate Dean of Law at Thompson Rivers University in Kamloops, BC  Canada

Derek Boogaard played in the National Hockey League from 2005 to 2010. Standing at 6’7” and weighing approximately 270 pounds, he was a prized pugilist. Over six seasons with the Minnesota Wild and the New York Rangers, Boogaard played in 277 regular season games, scoring three goals, participating in at least 66 fights and accruing 589 minutes in penalties. After five seasons with the Wild, his final contract was a four year $6.5 million deal contract with the Rangers.

His chosen craft, however, came with a cost. Boogaard’s complaint, filed by his surviving parents, listed the dozens of injuries he sustained while playing in the NHL, including concussions and sub-concussions, broken noses, torn shoulder tissues, facial lacerations, contusions, muscle strains, herniated disks, and teeth fractures.

The District Court noted that Boogaard was an “Enforcer/Fighter” who in the NHL fought at least 66 times often leaving him with painful injuries, which team physicians, dentists, trainers and staff treated using “copious amounts of prescription pain medications, sleeping pills and painkiller injections.”

Boogaard’s lawsuit claimed that he was provided copious amounts of prescription pain medications, sleeping pills, and painkiller injections by NHL teams’ physicians, dentists, trainers and staff. For example, during the 2008-09 season Boogaard sustained a tooth fracture, underwent nasal surgery and had shoulder surgery and was prescribed 1,021 pills from ten Minnesota Wild or San Jose Sharks teams’ physicians and dentists plus 150 Oxycodone — a Schedule II controlled substance because of its high potential for abuse — pills.

Boogaard died of an accidental overdose of prescription painkillers and alcohol on May 13, 2011. He was posthumously found to have chronic traumatic encephalopathy (CTE) — the same neuro-degenerative disease at the core of the now settled nearly $1 billion class action lawsuit against the National Football League.

Boogaard’s parents filed suit against the National Hockey League, its Board of Governors and Commissioner Gary Bettman (collectively, “NHL”) alleging that the NHL negligently failed to prevent Boogaard from becoming addicted to opiods and sleeping pills, that the NHL breached its voluntarily undertaken duty to curb and monitor Boogaard’s drug addiction while he was enrolled in the league’s Substance Abuse and Behavioral Health Program (“SABH Program”), that the NHL was negligent in failing to protect Boogaard from brain trauma during his career, and that the NHL breached its voluntarily undertaken duty to protect Boogaard’s health by failing to prevent … (for the full summary, visit https://concussionpolicyandthelaw.com/subscribe/ to subscribe)

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