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Yesterday, after obtaining some of the early pleadings and speaking with a handful of individuals privy to the details of the matter at hand, I outlined the
laundry-list of prescriptions provided to Derek Boogaard during his playing days with the Minnesota Wild and New York Rangers. Right until the very day, the National Hockey League ("NHL") and Member Clubs fueled his drug addiction, leading to his tragic passing on May 13, 2011.
I was curious to see how the NHL would respond to the estate of Derek Boogaard's Complaint, and whether or not they would take a page out of the National Football League's ("NFL") playbook. Perhaps more accurately, it's a page out of the Proskauer Rose LLP playbook. We have seen the NHL's legal representation regularly adopt arguments deployed by others in the past, their preemptive attack to a potential NHLPA desertification through a class action suit the most recent example.
The NHL, as expected, argued on July 10, 2013 that federal court has jurisdiction over the claim under Section 301 of the Labor Management Relations Act ("LMRA"). It's the NHL's opinion that any legal decision would require deep interpretation of the CBA -- effectively establishing that, as a labor dispute at the ground-level, the two sides must head to arbitration pursuant to the grievance procedures in place. And, hitting the NFL trifecta, the NHL argued that the suit must be dismissed because the CBA and federal labor law preempt the claims of Derek Boogaard in this matter.
It's an interesting decision for the presiding, who will have to decide whether or not the CBA addressed the NHL's duties to monitor player health. The Complaint attacked the CBA's lack of language concerning the above, and additionally attacked whether or not specific presiding health programs were effectively apart of the CBA in-place, or whether they were established outside of the NHL/NHLPA agreement.
If this case continues to follow the path currently being blazed by the NFL in their concussion suits, then it's very possible the two sides could be heading to alternative dispute resolution. The residing Judge Brody ordered the following earlier this month (effectively punting on the Motion to Dismiss) after hearing the same arguments outlined in Boogaard v. NHL, via
NFLCL.
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The legal knife-fight concerning jurisdiction is going to reach resolution eventually, and for what it's worth, I do think the NHL has a pretty strong argument under Section 301 of LMRA to preempt the various claims.
But, beyond the copious prescriptions, the blind-eye turned to Derek Boogaard as he continued to trek down a path of no-return, and future litigation warfare, the one aspect of the Complaint I couldn't seem to grasp or understand was the grossly negligent handling of Derek Boogaard's situation in the days and months leading up to his passing.
The NHL's Memorandum in Support of its Motion to Dismiss spoke an awful lot about jurisdiction, whether claims were time barred from recovery, and regularly drove home the point that such a complex issue would require CBA interpretation. From a perspective of law, the above, collectively, is a great turf to fight on.
Considering the NHL's attempting to throw this case off of the proverbial cliff, it's additionally not surprising that the league did not really address the legitimacy of the claims made by the estate of Derek Boogaard, which included (but certainly not limited to) innumerable pill prescriptions.
That's a topic I touched on yesterday. A topic I didn't hit was the Complaint's scathing indictment of the Substance Abuse and Behavioral Health ("SABH") program, particularly it's failure to deal with Boogaard's patterns of abuse as stated in the course's regimen.
The program, designed by the NHL and NHLPA, has been kept quiet from the public since its inception in September of 1996. Dr. Brian Shaw of Toronto Hospital and the Hospital for Sick Children, and Dr. David Lewis of ANACAPA Hospital were retained by the NHL/NHLPA to administer the program, one designed to address substance abuse, HIV, and related health matters for players and their families.
Prior to the NHL's forced disclosure of these documents in support of their argument, the SABH design and protocol was kept away from public eye. A quick Google search suggests the document hasn't ever been made available. The bold "CONFIDENTIAL" lettering on page two would seem to me a good indicator, too.
I obtained the documents upon the NHL's Memorandum filing. You'll note the stated operating procedure for SABH below:
What would it take to trigger a positive test? Below, via the NHL/NHLPA confidential SABH policy's Exhibit A -- Collection and Laboratory Procedures:
It would certainly seem that the SABH, at least on the surface, takes what it does seriously. Players are encouraged to seek help, but the discipline in place for violations while enrolled or post-graduation are harsh, and for good reason.
Problem is, if the program bends (or, ignores) addicts while they're enrolled, there's a good chance proposed treatment will be an unmitigated disaster. A table of Boogaard's testing failures -- six of them, and one admittance prior to failure -- from Q1 of 2011 is shown below. You'll note the far right column. Under SABH, any positive test in accordance with the above should designate deeper staging through the program, which generally includes a more punitive, hands-on system.
After a seventh failure in three months time, the SABH finally took action, but only pushed Derek Boogaard into Stage One of treatment. This included a trip to the Authentic Recovery Center ("ARC"), where Boogaard's was purportedly non-responsive to treatment attempts and was regularly allowed to leave the program under his own volition.
The Complaint alleges that the NHL and ARC were negligent of handling in Boogaard during this final month, where the patient was free to travel without being placed in violation of the program. Further, the Complaint submits that under the specific language of the program in-place, Derek Boogaard should have been at or well beyond Stage Two of treatment, under careful and watchful eyes.
The end-of-life timeline, as we understand it currently, is provided as follows:
On April 29 of 2011, Derek Boogaard left ARC and purchased $4,000.00 of opioids. He was not disciplined or place under violation.
On May 4, 2011, Derek Boogaard temporarily returned to ARC.
On May 12, 2011, Derek Boogaard again left ARC. He was not disciplined or place under violation.
On May 13, 2011, Derek Boogaard ingested a lethal combination of opioids and alcohol away from the program.
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