In re Nat'l Hockey League Players' Concussion Injury Litig.

120 F.Supp.3d 942

In re NATIONAL HOCKEY LEAGUE PLAYERS' CONCUSSION INJURY LITIGATION.

MDL No. 14–2551 (SRN/JSM).

United States District Court, D. Minnesota.

Signed July 31, 2015.

Charles S. Zimmerman, Brian Gudmundson and David M. Cialkowski, Zimmerman Reed, PLLP, Minneapolis, MN; Bradley C. Buhrow and Hart L. Robinovitch, Zimmerman Reed, PLLP, Scottsdale, AZ, for Plaintiffs.

Stephen G. Grygiel, Steven D. Silverman and William N. Sinclair, Silverman, Thompson, Slutkin & White, LLC, Baltimore, MD, for Plaintiffs.

Jeffrey D. Bores and Bryan L. Bleichner, Chestnut Cambronne PA, Minneapolis, MN, for Plaintiffs.

Stuart Davidson, Mark J. Dearman, Janine D. Arno and Kathleen L. Douglas, Robbins, Geller, Rudman & Dowd, LLP, Boca Raton, FL; Leonard B. Simon, Robbins, Geller, Rudman & Dowd, LLP, San Diego, CA, for Plaintiffs.

Lewis A. Remele and Jeffrey D. Klobucar, Bassford Remele, Minneapolis, MN, for Plaintiffs.

Thomas A. Demetrio, William T. Gibbs and Katelyn I. Geoffrion, Corboy & Demetrio, Chicago, IL, for Plaintiffs.

Brian D. Penny and Mark S. Goldman, Goldman, Scarlato & Penny PC, Wayne, PA, for Plaintiffs.

Vincent J. Esades and James W. Anderson, Heins Mills & Olson, PLC, Minneapolis, MN, for Plaintiffs.

David I. Levine, The Levine Law Firm P.C., Fort Lauderdale, FL, for Plaintiffs.

Daniel E. Gustafson, David A. Goodwin and Joshua J. Rissman, Gustafson Gluek, PLLC, Minneapolis, MN, for Plaintiffs.

Thomas J. Byrne, Namanny, Byrne, & Owens, APC, Lake Forest, CA, for Plaintiffs.

Michael R. Cashman, Zelle Hofmann Voelbel & Mason LLP, Minneapolis, MN, for Plaintiffs.

Richard M. Hagstrom, Hagstrom Law Office, Minneapolis, MN, for Plaintiffs.

Robert K. Shelquist, Lockridge, Grindal, Nauen, PLLP, Minneapolis, MN, for Plaintiffs.

Daniel J. Connolly, Joseph M. Price, Linda S. Svitak, and Aaron D. Van Oort, Faegre Baker Daniels, LLP, Minneapolis, MN, for Defendant.

John H. Beisner, Geoffrey M. Wyatt and Jessica D. Miller, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, D.C.; Shepard Goldfein, James A. Keyte, Matthew M. Martino and Michael H. Menitove, Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY; James Baumgarten and Adam M. Lupion, Proskauer Rose LLP, New York, NY, for Defendant.

Christopher J. Schmidt, Bryan Cave, LLP, St. Louis, MO, for Non–Party U.S. NHL Clubs.

MEMORANDUM OPINION AND ORDER

SUSAN RICHARD NELSON, District Judge.

This matter is before the Court on Plaintiffs' Motion to Enforce Subpoenas Directed to U.S. NHL Clubs [Doc. No. 142] and related disputes concerning discovery that contains medical and medical-related information of former NHL hockey players. In addition to filing memoranda in support of and in opposition to the instant motion, the parties and non-party U.S. NHL Clubs ("U.S. Clubs") also filed position papers regarding the de-identification of information contained in certain NHL electronic databases. (See Pls.' Position Paper [Doc. No. 185]; U.S. Clubs' Position Paper [Doc. No. 186]; and Def.'s Position Paper [Doc. No. 187].) For the reasons set forth herein, Plaintiffs' motion is granted in part and denied in part.

I. BACKGROUND

Plaintiffs, former professional hockey players in the NHL, allege that they have experienced long-term neurological problems stemming from concussions that they sustained while playing for the Defendant NHL. (See Master Admin. Long–Form Compl. ¶¶ 1–2 [Doc. No. 28].) They contend that Defendant knew or should have known of a growing body of scientific evidence purportedly showing a link between repetitive concussive events, sub-concussive events and/or brain injuries and a greater risk for chronic neuro-cognitive illness and disabilities. (Id. ¶ 4.) Plaintiffs assert that in 1997, the NHL created a concussion program (the "Concussion Program") to ostensibly research and study brain injuries affecting NHL players. (Id. ¶ 9.) Citing a Concussion Program report, Plaintiffs contend that Defendant required team physicians to document all concussions sustained during regular season games from 1997–1998 through 2003–2004 using standardized injury report forms. (Id. ¶ 10.) In addition, Plaintiffs allege that the NHL initiated baseline brain testing for its players and required its team doctors and trainers to maintain records of all players who were believed to have suffered concussions. (Id. ¶¶ 10–11.) Defendant used this data, Plaintiffs assert, to study concussions in the NHL from 1997 through 2004. (Id. ¶ 11.) Plaintiffs contend that they are now entitled to full discovery of this data.

The Collective Bargaining Agreement ("CBA") between the NHL and the National Hockey League Players' Association ("NHLPA") for the period of September 16, 2012 through September 15, 2022 addresses the use of players' medical information. (CBA, Art. 34.3, Ex. 3 to Penny Decl. [Doc. No. 145–6].) The CBA provides that in connection with a player's annual pre-participation medical examination, players must execute the following forms, authorizing the release of medical information: the NHL/NHLPA Authorization Form for Health Care Providers, the NHL/NHLPA Concussion Program Authorization, and the Authorization for Management and Release of Neuropsychological Test Results. (Id., Art. 34.5(a).) In addition, the CBA indicates that the U.S. Clubs are required to input certain types of medical records into the Athlete Health Management System ("AHMS.") (Id., Art. 34.5(b)(i)). While the CBA otherwise generally prohibits the disclosure of medical information absent "express, prior written consent of the Player or as required by law" (id., Art. 34.5(c)(ii)), it contains several exceptions for the disclosure of medical information. Most relevant here are two exceptions, the first of which is the public relations exception:

For public relations purposes, a Club, the League, and/or the NHLPA may disclose the following information: (A) for injuries sustained during the course of a Player's employment as a hockey Player with the Club, including, but not limited to, travel with his team or on business requested by the Club: (I) the nature of a Player's injury, (II) the prognosis and the anticipated length of recovery from the injury, and (III) the treatment and surgical procedures undertaken or anticipated in regard to the injury; and (B) for any other medical and/or health condition that prevents a Player from renderings services to his Club: (I) the fact that a medical and/or health condition is preventing the Player from rendering services to the Club, and (II) the anticipated length of the Player's absence from the Club.

(Id., Art. 34.5(c)(iii).)

The second relevant exception, the "de-identified exception," is found in Article 34.5(c)(ii). In addition to permitting disclosure pursuant to an express release, this provision contains an exception, permitting disclosure where the disclosed information contains no player-identifying information:

Except with respect to uses, disclosures and redisclosures of Medical Information that are permitted under the CBA, the SPC, and the Authorizations, the Clubs, the NHLPA and the League shall not use, disclose or redisclose any Medical Information relating to a Player (unless stripped of all individual Player-identifying information ) without the express, prior, written consent of the Player or as required by law.

(Id., Art. 34.5(c)(ii)) (emphasis added).

As part of Plaintiffs' discovery in this action, they served subpoenas on 23 U.S. Clubs in January 2015. (Penny Decl. ¶ 2 [Doc. No. 145].) Among the information that Plaintiffs requested was information concerning head trauma and brain disease, including diagnoses of head trauma and brain disease, studies or analyses of the incidence of players' brain disease, and communications between the U.S. Clubs and Defendant regarding head trauma and brain disease. (See Ex. 1 to Penny Decl. [Doc. No. 145–1].) At the time that Plaintiffs served the subpoenas, they provided the U.S. Clubs with a copy of the December 19, 2014 Protective Order entered in this case, which applied to the disclosure of "information protected under privacy laws, including personal or medical information." (12/19/14 Protective Order at ¶¶ 1, 3 [Doc. No. 70].) When an Amended Protective Order [Doc. No. 140] was filed in this case, Plaintiffs provided the U.S. Clubs with a copy of that order as well.

The U.S. Clubs objected to the information requested in Plaintiffs' subpoenas, primarily on grounds of medical privacy and burden. (See U.S. Club's Opp'n Mem. at 2–3 [Doc. No. 156].) Instead, the U.S. Clubs offered to produce unredacted medical files only for any former or current NHL player who signed an authorization form. (Id. at 3.) Plaintiffs countered with a proposal that the U.S. Clubs produce a statistically significant sample of player medical records, which the U.S. Clubs rejected. (Id. ) The U.S. Clubs contended that any such sample would still require them to disclose non-party medical information without player authorization, in violation of the law and the applicable CBA. (Id. at 4.)

The NHL also filed a response in opposition to Plaintiffs' motion to enforce the subpoenas, arguing that the subpoenas posed an invasion into the privacy rights of the players whom Plaintiffs purportedly represent. (NHL's Opp'n Mem. at 1 [Doc. No. 159].) Defendant further contended that Plaintiffs provided no justification for the need for players' pre-retirement information. (Id. at 6.)

While the Court did not rule on the merits of the motion to enforce the subpoenas, at the conclusion of the hearing on the motion, the Court offered guidance and directed the parties and the U.S. Clubs to meet and confer on their disputes. (See Tr. of 6/14/15 at 4144 [Doc. No. 176].) In that guidance, the Court directed that: (1) medical information that has already been publicly disclosed is not protected from disclosure and must be produced; and (2) injury data obtained from players' medical records, including internal reports, studies or analyses, must be de-identified and produced. (Id. at...