NHL Skates on Wrongful Death Claim

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Derek Boogaard, the Boogeyman to some, played for the Minnesota Wild and New York Rangers during his six-year career in the National Hockey League.  Known as one of the game’s fiercest fighters, Boogaard racked up 589 penalty minutes in 277 career games.  He died on May 13, 2011, at age 28, of an accidental overdose of prescription drugs and alcohol.

According to the New York Times, a posthumous examination of Boogaard’s brain, conducted by a laboratory at the Bedford V.A. Medical Center in Bedford, Massachusetts, revealed that he suffered from chronic traumatic encephalopathy, or CTE.  The Bedford scientists were reportedly shocked to see so much damage in someone so young.  The CTE, which is believed to be caused by repeated blows to the head and can only be diagnosed after death, appeared to have spread throughout his brain.

The Action

Two years later, in May 2013, Boogaard’s personal representative, Robert Nelson, sued the NHL for Boogaard’s wrongful death.  Last month, Judge Gary Feinerman of the U.S. District Court for the Northern District of Illinois granted the NHL’s motion to dismiss.  See Boogaard v. NHL, 13-cv-4846 (N.D. Ill. June 5, 2017) (ECF No. 209).  By that time, however, Lee and Joanne Boogaard, the Boogeyman’s parents, had been substituted as the personal representatives of the estate.  In sum and substance, the complaint alleged that the NHL cultivated a culture of violence, which led Boogaard—an “enforcer,” in hockey terms—to get into fights.  See id. at 4.  As a result of the fighting, he developed CTE and become addicted to opioids, which, in turn, caused his death.  See id.

According to the complaint, the NHL encouraged fighting by glorifying such violence in its nightly coverage, highlight reels, and promotional materials.  See id.  It even promoted an HBO documentary, “Broad Street Bullies,” which lionized the infamous Philadelphia Flyers teams from the mid-70s.  See id.  Allegedly, the NHL also actively and unreasonably harmed Boogaard by implicitly downplaying the dangers of head trauma during his career.  See id. at 4–5.

Applying Minnesota law under Illinois’ choice-of-law rules, the court held that the Boogaards failed to state a claim under Minnesota’s wrongful death statute.  See id. at 9–14 (citing Minn. Stat. § 573.02).  Their claims “founder[ed]” on Minnesota’s requirement that wrongful death actions be brought by a court-appointed trustee.  Id. at 9–10.  As the two plaintiffs, Boogaard’s parents, were “personal representatives,” not “trustees,” their claims were “not viable” under Minnesota law.  Id. at 10.  And it was too late for the court to cure the Boogaards’ statutory defect.  See id. at 11.  Under Minnesota law, a wrongful death action requires the appointment of a trustee before the expiration of the three-year statute of limitations, which began to run on the day Derek died.  See id. at 12.

In contrast, Minnesota law “does not expressly impose” a three-year statute of limitations on survival actions.  See id. at 13.  But, it appears, Judge Feinerman does.  Due to their “inexcusable and inexplicable delay” in seeking appointment as trustees, the Boogaards “forfeited” their ability to save their survival claims by doing so now.  See id.  According to the court, the Boogaards “were alerted to the trustee issue three years ago,” when the NHL first argued that their claims should fail because they had not been appointed as trustees.  See id. (emphasis in original).  Therefore, more than six years after their son’s death, and three years after the NHL raised the trustee issue, it was too late for the Boogaards to start afresh.  See id.

In any event, the court held that the Boogaards’ claims would also be defeated on separate grounds.  See id.  The Minnesota statute provides for survival-based actions “only where the person thereafter dies from a cause unrelated to those injuries.”  Id.  The NHL argued, and the court agreed, that the survival claims could not proceed because the complaint alleged that the NHL’s wrongful acts affirmatively caused Boogaard’s death.  See id. at 13–14.  In other words, “those acts are the antithesis of acts that are ‘unrelated’ to his injuries.”  Id. at 14.  Finally, for posterity, the court added that the Boogaards’ claims would fail no matter which state’s law applied.  See id.  Because the Boogaards “utterly and inextricably” failed to address the NHL’s argument that the complaint failed to state a claim for negligence or negligent misrepresentation, they forfeited those claims as well.  See id. at 14–15.

On June 30, 2017, the Boogaards filed a notice of appeal to the Seventh Circuit.

Takeaways

Read carefully.  Read very carefully.  For want of a close reading of the governing statute, the court dismissed the complaint on not one, not two, but three independent grounds.  First, the Boogaards’ lawyers failed to realize that, under Minnesota’s wrongful death statute, the court must appoint a trustee within three years.  Second, they failed to notice that the same statute only allows survival actions where cause of death is unrelated to the claimed injuries.  Look, it’s entirely possible that the court’s decision to apply Minnesota law took the lawyers by surprise, but it really shouldn’t have—Minnesota was where, among other things, their clients lived and the death occurred.  At the very least, they should have at least considered, and prepared for, that potential outcome.  Third, they failed to address—and therefore conceded—the NHL’s 12(b)(6) arguments.  As a result, the court never even had to consider the strength of the Boogaards’ allegations.

Each of these errors might have been avoided with a careful reading of the statute and you might have read a very different article—especially given Judge Feinerman’s full-throated warning that the opinion “should not be read to commend how the NHL handled Boogaard’s particular circumstances” or those of other NHL players who’ve suffered injuries from on-ice play over the years.  Id. at 20.

We’ll keep an eye on the Boogards’ appeal here at the Monitor.