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FENNO: Derek Boogaard lawsuit puts NHL on notice
Question of the Day
Descend into the 53 wrenching pages of the wrongful death lawsuit Derek Boogaard's estate filed against the NHL late Friday and pill by pill, fight by fight, the reality becomes clear.
Case No. 13L3945 in Illinois' Cook County Circuit Court delivered a transformational moment to the NHL with all the subtlety Boogaard used to smash opponents into the glass.
"Boogaard's lawsuit could be a potential game-changer," said Paul Anderson, a Kansas City attorney who tracks concussion lawsuits at NFLConcussionLitigation.com. "It could have far-reaching implications not only to Boogaard's case in particular, but to all NHL players generally. I think this could be the first step toward the next wave of the NHL concussion litigation."
This is the league's NFL moment, in the midst of the chase for Lord Stanley's Cup. That's not a positive thing.
Already, the NFL is swamped by litigation in federal court from 4,336 former players, at last count, over head injuries sustained during their careers. That includes 33 Pro Football Hall of Famers. It's a problem no public relations assault or rules changes or donation spree has been able to shake.
The NHL's turn is here.
Boogaard died after an accidental prescription drug overdose in 2011. The hulking enforcer rolled up 589 penalty minutes and 66 fights (and just three goals) during his career. He later was diagnosed with the devastating neurodegenerative disease chronic traumatic encephalopathy that's associated with repetitive head trauma.
The lawsuit blames the NHL for Boogaard's death and puts a price on hockey's culture of enforcers and fighting. It's not in dollars. It's a man's life.
The lawsuit called this a "preventable tragedy" and a "foreseeable combination of brain damage and addiction."
The narrative isn't surprising, after John Branch's 2011 series "Punched Out" in The New York Times detailed Boogaard's troubled life and death. That doesn't make page after page in the lawsuit alleging untreated concussions and virtually unlimited prescriptions as his career unraveled any less disturbing.
That starts with the pills. Mind-boggling quantities of them prescribed by NHL-affiliated doctors and trainers. Tables are scattered throughout the lawsuit outlining the drug and quantity and date and reason, as Boogaard slipped into the addiction that took his life.
After Boogaard fractured a tooth, staffers wrote prescriptions for 432 pills of the narcotic pain reliever hydrocodone, which is used in Vicodin, in a month.
Another 16-day period saw 150 pills of Oxycodone prescribed.
He received 13 injections of Toradol, a drug that masks the body's ability to feel pain.
From 2008-09, NHL doctors and staffers gave Boogaard prescriptions for 1,021 pills.
That continued after he was discharged from the first round of drug rehabilitation and, according to the lawsuit, in an NHL-mandated follow-up program that prohibited all opioid drug use. Still, team staffers prescribed him narcotic pain pills 17 times during that span.
Even the ugliest of the NFL's 230 concussion lawsuits don't deliver the same excruciating detail of a man drowning in team-prescribed pills and two fruitless trips to rehabilitation.
"Any reasonable person would say, 'Wow, this was an overly excessive amount,'" Anderson said. "It seems the doctors and trainers were just trying to get this guy back on the ice instead of really caring for his health."
That's the damning conclusion you can't dodge: The league's machinery worked to put Boogaard back on the ice even as his body and mind crumbled.
Of course, there are legalities to sort out. The go-to move for the NHL, like the NFL, will be to seek to remove the case to federal court, then argue, again, like the NFL, that the collective bargaining agreement pre-empts the lawsuit. That's a powerful play. A ruling expected later this year from federal Judge Anita Brody on the pre-emption issue in the NFL litigation could have a significant impact on Boogaard's case moving forward.
The path is familiar to the Chicago law firm representing Boogaard's estate, Corboy & Demetrio. It represents the family of Dave Duerson, the former Chicago Bears and New York Giants standout who killed himself in 2011, against the NFL.
None of this, of course, brings back Boogaard. But the potential for change in the NHL is written on every page of the lawsuit. Could this lead to an end to fighting? Improve concussion management? Create a leaguewide system to track each player's prescription medication? Encourage retired enforcers to sue?
That last one seems more a matter of when, not if.
"The way the lawsuit is framed, there's no doubt it has the potential to not only seek remedies for Derek," Anderson said, "but it can definitely set the stage for former NHLers to start filing concussion lawsuits."
Finish the 53 pages and you wonder who is next.
© Copyright 2014 The Washington Times, LLC. Click here for reprint permission.
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