Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 1 of 53 Pages 1 - 52 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE WILLIAM H. ALSUP RICHARD DENT, et al, ) ) ) Plaintiffs, ) ) vs. ) No. C 14-2324 WHA ) NATIONAL FOOTBALL LEAGUE ) ) San Francisco, California Defendant. ) Thursday ) March 21, 2019 ___________________________________) 8:00 a.m. TRANSCRIPT OF PROCEEDINGS APPEARANCES: BY: SILVERMAN THOMPSON SLUTKIN WHITE, LLC 201 N. Charles Street Suite 2600 Baltimore, Maryland 21201 PHILLIP J. CLOSIUS, ESQ. BY: ROBBINS, GELLER, RUDMAN & DOWD, LLP 120 E. Palmetto Park Road Suite 500 Boca Raton, Florida 33432 MARK DEARMAN, ESQ. BY: AKIN GUMP STRAUSS HAUER & FELD, LLP 1333 New Hampshire Avenue, NW Washington, DC 20036 DANIEL L. NASH, ESQ. For Plaintiffs: For Defendant: (APPEARANCES CONTINUED ON FOLLOWING PAGE) Reported By: Debra L. Pas, CSR 11916, 11916, CRR, RMR, RPR Official Reporter - US District Court Computerized Transcription By Eclipse Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 2 of 53 1 APPEARANCES: (CONTINUED) 2 For Defendant: 3 4 5 BY: SKADDEN ARPS SLATE MEAGHER & FLOM 525 University Avenue Palo Alto, California 94301 JACK PATRICK DICANIO, ESQ. - - - 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 2 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 3 of 53 1 Thursday - March 21, 2019 8:58 a.m. 2 P R O C E E D I N G S 3 ---000--- 4 THE COURT: Now we go to NFL. 5 THE CLERK: Calling Civil Action 14-2324, Richard 6 7 8 Dent, et al versus National Football League. Counsel, please step forward and state your appearances for the record. 9 THE COURT: 10 11 Welcome back. MR. CLOSIUS: MR. DEARMAN: 13 THE COURT: 14 MR. NASH: Your Honor, And Mark Dearman for the plaintiff. Okay. Welcome back. Good morning, Your Honor. Daniel Nash for the defendant National Football League. 16 17 Thank you, Your Honor. Phil Closius for the plaintiff, Richard Dent. 12 15 Appearances, please. MR. DiCANIO: Good morning, Your Honor. Jack DiCanio also for the defendant. 18 THE COURT: Welcome back. So we're here after a 19 remand by the Court of Appeals and now yet another Motion to 20 Dismiss based upon a new pleading. 21 22 23 24 25 So let's hear first from the moving party. Please, you go first. MR. NASH: Thank you, Your Honor. Let me focus on what we believe is the case dispositive issue on the Motion to Dismiss, and that is that the third Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 3 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 4 of 53 1 Amended Complaint, plaintiffs' best and final complaint in this 2 case, does not satisfy the standards for pleading a negligence 3 claim against the NFL that were established in the Ninth 4 Circuit's opinion. 5 The Ninth Circuit ruled unequivocally that plaintiffs' 6 negligence claim against the NFL could proceed only to the 7 extent -- and those were words from the opinion -- that the NFL 8 supplied the plaintiffs with medications in a manner that 9 violated the law and caused their injuries. 10 11 12 13 14 15 16 17 18 19 THE COURT: Help me. I got their opinion here somewhere. All right. Actually, I guess I don't. I thought I had the opinion. Do I have the opinion here? Just a minute. Would you find it for me? I want to take the time to have it. (Brief pause.) THE COURT: Okay. All right. Now I do have it here. Yes. Show me in the opinion where you're quoting from. MR. NASH: There would be several places. 20 should start, Your Honor, by -- 21 THE COURT: Please. Come on. And I You can see I want a 22 straight answer. 23 believe it's probably in there somewhere, but then I ask you 24 the question and then you slide off to something else. 25 Come on. Show me where you were quoting from. Help me. I You can slide off to it after you Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 4 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 5 of 53 1 answer my question. Show me where you were quoting from. 2 MR. NASH: On Page 20 of the slip opinion, Your 3 4 Honor. THE COURT: 5 goofed up. 6 Here. 7 All right. I see right off the bat we're I have the Fed 3rd opinion. I'm going to hand it down to you and you highlight the language that you want me to look at. 8 MR. NASH: 9 THE COURT: 10 MR. NASH: 11 THE COURT: 12 MR. NASH: 13 "We express no opinion regarding the merits of Sure. It would start on -- Give counsel a pen so he can mark it. Sure. Okay. On Page 1121. All right. (As read) 14 plaintiffs' negligence claim, which will require the 15 plaintiffs to establish that the relevant statutes 16 apply to the NFL, the NFL violated those statutes, and 17 that the alleged violations caused the players' 18 injuries." 19 The Court goes on on that same page to note that: 20 "At many points in the Second Amended Complaint 21 the plaintiffs appear to conflate the NFL and the 22 teams, but the plaintiffs are pursuing a theory of 23 direct liability, not vicarious liability, and they 24 have attempted to vindicate virtually identical claims 25 against the clubs themselves in separate litigation we Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 5 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 6 of 53 1 have in this case. 2 proceedings in this case should be limited to claims 3 arising from the conduct of the NFL and NFL personnel, 4 not the conduct of individual team employees." 5 6 7 THE COURT: Therefore, on remand any further Mark that last sentence that you just -- mark it for me so that I can have that. MR. NASH: And then it goes on to say that it leaves 8 it to the District Court to determine whether plaintiffs have 9 met that standard. 10 THE COURT: Okay. Now, I want to stick with that 11 point because that -- and come back to plaintiff for a minute. 12 This is going to take me a few minutes to develop this -- 13 develop this, and I might even take a break and give you a 14 chance to organize your thoughts on this. 15 of what counsel just said, the Court of Appeals opinion -- but 16 now I can't find it again. 17 MR. NASH: 18 THE COURT: But along the lines Just a minute. Page 1120. No, no, no. What you -- there was 19 another place where they had a bunch of bullet points, and I 20 had opened to that very page, and it's now gone. 21 Can my Law Clerk come up here and find that again? 22 MR. CLOSIUS: 23 THE COURT: 24 25 Your Honor, I believe it's Page 1115. Yes, that's it. All right. Thank you. At Page 1115 the Court of Appeals says: "But the players' Second Amended Complaint Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 6 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 7 of 53 1 asserts that the NFL itself directly provided medical 2 care and supplied drugs to players. 3 SAC" -- meaning Second Amended Complaint -- "alleges 4 that..." 5 And then there is one, two, three, four, five, six, seven For example, the 6 quotations from the Second Amended Complaint, all bullet points 7 and indented to sustain the point made by the Court of Appeals. 8 And, again, the point made by the Court of Appeals was that the 9 Second Amended Complaint asserted that the NFL itself directly 10 11 provided medical care and supplied drugs to players. Now, in reviewing the new complaint -- by the way, that is 12 what got me reversed, was that part, where you convinced the 13 Court of Appeals that you were alleging that the NFL itself 14 directly provided medical care and supplied drugs to players. 15 I've got to repeat it because it's so important. 16 itself directly provided medical care and supplied drugs to 17 players. 18 The NFL And then there are the seven or eight bullet points. Now, as a footnote, I need to say that that was not the 19 way I understood the original pleading. 20 was directed at the -- the National Football League was 21 negligent in the way in which it had supervised the way in 22 which the clubs had provided medicine to the players, and that 23 was the thing that was preempted. 24 25 The original pleading Well, you were able to put a different spin on it in the Court of Appeals and convince the Court of Appeals that, no, I Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 7 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 8 of 53 1 was wrong and I had misread the Complaint and that the 2 Complaint itself asserted that the NFL itself directly provided 3 medical care and supplied drugs to players. 4 All right. Now, of the examples that are in this opinion 5 that was used by the Court of Appeals to reverse me, not a 6 single one of them are in the new pleading, the one on remand, 7 except arguably one. 8 Not a single one of them survived. 9 stick with that once you got back down. 10 But I want to just say, we've checked. For some reason you didn't And now I want to explain -- I need my Law Clerk to come 11 help me find the new -- the Third Amended Complaint. 12 that go? 13 this all organized. 14 (Brief pause.) 15 16 I need that paragraph they were discussing. THE COURT: Okay. Where did I had Thank you. The one that is arguably still in the pleading, but 17 I'm going to come to that in some detail, was the next to the 18 last one in which the Second Amended Complaint, and the Court 19 of Appeals quotes from it, quote: 20 "Medications are controlled by the NFL Security 21 Office in New York." 22 I'll repeat that, quote: 23 "Medications are controlled by the NFL Security 24 Office in New York." 25 Leaving the impression that there is a room somewhere at Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 8 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 9 of 53 1 the NFL Security Office in New York full of medicine. 2 Well, all right. Here is what the Second Amended 3 Complaint said on that point. 4 Paragraph 210 -- actually, you need to look at 209 for a 5 moment. 6 were being -- that were being prescribed on a mass basis for 7 him. 8 9 I went back to look. That's a paragraph about Van Horne and some drugs that 209 said: "There are already DEA records that hundreds of 10 pain killers had been ordered in Van Horne's name even 11 though Van Horne had no need for the medications the 12 Bears had ordered at the time the order was placed." 13 So this was about the Bears getting the Club -- the Bears 14 15 getting mass pain killers for Van Horne. That's 209. Then we come to 210, and I'll read it exactly: 16 "Upon information and belief, the practice of 17 mass ordering in a player's name no longer occurs. 18 Instead, medications are controlled by the NFL 19 Security Office in New York, which has implemented 20 tighter controls in the last decade according to one 21 former trainer, who for years was a member of the 22 NFL's Committee on Performance Enhancing and 23 Prescription Medications. 24 2013 Washington Post article titled, quote, Pain and 25 Pain Management in NFL Spawn a Culture of Prescription In addition, according to a Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 9 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 10 of 53 1 Drug Use and Abuse, close quote, the NFL contracted 2 with an independent vendor SportPharm" -- that's all 3 one word, sport and then with a capital P-h-a-r-m -- 4 "to track and log the extensive amounts of medication 5 dispensed to teams." 6 Now, that's what 210 said, and that's what was before the 7 Court of Appeals that reversed me, and that's what led to the 8 bullet point in the reversal opinion saying, quote: 9 "Medications are controlled by the NFL Security 10 Office in New York." 11 Which left with the Court of Appeals the very clear-cut 12 impression that there was a place in New York called the NFL 13 Security Office from which the NFL itself was dispensing 14 medications to teams. 15 All right. 16 still being alleged? 17 more. 18 Now, we come to how much of that is actually Well, it doesn't go nearly that far any It now says in Paragraph 180 of the now operative 19 Complaint, Paragraph 180 -- this is as close -- as close as I 20 think the pleading now comes to any of these bullet points, and 21 it doesn't, in my view, come very close at this point. 22 reading verbatim, Paragraph 180: 23 I'm "The NFL also exerts control over and constant 24 monitoring of the storage and administration of 25 controlled substances and prescription drugs through Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 10 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 11 of 53 1 their agent, the NFL Security Office. 2 Office personnel regularly meet and consult with Club 3 officials, including doctors and trainers, and conduct 4 regular audits of Club recordkeeping and facilities." 5 That's it. 6 So no longer is there an impression that there is this NFL Security 7 room in New York where the NFL dispenses drugs to the clubs. 8 It's now monitoring and, quote, control over, whatever that 9 means, and the personnel regularly meet and consult. 10 So I raise the question whether or not the very bullet 11 points on which the Court of Appeals was led to reverse me have 12 been completely abandoned by the plaintiffs and no longer -- 13 you led the Court of Appeals to believe that the NFL was 14 dispensing drugs. 15 don't know that. 16 I have a feeling that's utterly false, but I But that's where I'm going to start, with the NFL. Is 17 there such a place as the NFL Security Office and do they store 18 drugs there? 19 MR. NASH: 20 THE COURT: 21 case to prove that? 22 MR. NASH: Absolutely not, Your Honor. Has there been discovery in the other There has been substantial discovery in 23 the other case of both the NFL and of the clubs. 24 believe there has ever been anything that could remotely come 25 close to that. Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 I don't 11 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 12 of 53 1 2 THE COURT: Well, but has there been discovery into the NFL Security Office? 3 MR. NASH: 4 THE COURT: Umm -I would be willing to give plaintiff the 5 opportunity in this case, if there hasn't been, to go to New 6 York. 7 shocked if the NFL Security Office dispensed drugs, but I -- 8 see, I got reversed before on something. 9 to go up and say I didn't give you a chance to take, so I will 10 I want to take that issue -- I am just -- I would be give you that chance to go take that discovery -- 11 MR. CLOSIUS: 12 THE COURT: 13 MR. CLOSIUS: 14 THE COURT: 15 16 I wouldn't want you Not needed, Your Honor. What? Not needed. Well, what do you mean it's not needed? Do you concede? MR. CLOSIUS: First of all, I assume Counsel Nash 17 agrees there is an NFL Security Office. 18 there is no drugs stored there when he answered no. 19 20 THE COURT: Well, are there any drugs ever dispensed out of there? 21 MR. CLOSIUS: 22 THE COURT: 23 24 25 He's referring to No, not that we know of. All right. Well, do you want discovery to go find out? MR. CLOSIUS: Whether there are physical drugs in the NFL Security Office? Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 12 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 13 of 53 1 2 THE COURT: That's the impression you gave the Court of Appeals. 3 MR. CLOSIUS: 4 THE COURT: I disagree with that, Your Honor. Oh... Well, all right. Here is what 5 we're going to do. 6 because when I'm reversed, I want to know what I'm reversed on. 7 And the impression that I have received -- it's not just an 8 impression. 9 at the Court of Appeals to give bullet points in the pleading I took a long time to work through this I've gone through. They went to a lot of trouble 10 as to where I went -- where I made a mistake. 11 one of those bullet points has been abandoned. 12 of Appeals did say, you've got to pin the bad conduct on the 13 NFL, not the clubs. 14 So we're going to take a break. And now every And the Court Give my court reporter a 15 chance to -- give you a chance to organize your thoughts, and 16 then I'm going to let both of you respond to what I just went 17 through. 18 19 But in addition, I'm going to give you a chance to respond to anything else that you want and then we -- on the motion. 20 All right. 21 (Whereupon there was a recess in the proceedings 22 23 24 25 We'll take a 15-minute break. Thank you. from 9:15 a.m. until 9:30 a.m.) THE COURT: All right. Start with plaintiff. have the floor and I'll try to be quiet. MR. CLOSIUS: Thank you, your Honor. Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 You 13 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 14 of 53 1 Your Honor, I would first disagree with the 2 characterization of why the Ninth Circuit reversed your 3 opinion. 4 The Ninth Circuit reversed your opinion because they held 5 that our claims were not dependent on anything in the CBA. 6 They were not using CBA duty. 7 records or provisions. 8 Amended Complaint. 9 They were not citing CBA's And that still is true with the Third In addition, the Ninth Circuit clearly said -- and I can 10 give you the page if you want -- that what had to happen -- I'm 11 on Page 1121 and I'm quoting in that paragraph the last six or 12 seven lines: 13 "Regardless of what, if anything, the CBAs say 14 about those issues, if the NFL had any role" -- and 15 I'm emphasizing any role -- in distributing 16 prescription drugs, it was required to follow the law 17 regarding those drugs." 18 19 THE COURT: believe it's there. I'm sorry. I I just want to mark it. 20 MR. CLOSIUS: 21 THE COURT: 22 MR. CLOSIUS: 23 THE COURT: 24 MR. CLOSIUS: 25 I want to read that. Sure. Where is that? Page 1121. Yes. Which column? The carry-over, the same paragraph. It's the last -- if you go, like, the last ten lines, it says, Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 14 15 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 15 of 53 1 "regardless of what, if anything"? 2 THE COURT: 3 MR. CLOSIUS: 4 THE COURT: 5 MR. CLOSIUS: 6 Correct. From Column 1 to Column 2? I don't have it that way on mine, Your Honor. 7 MR. NASH: 8 THE COURT: 9 Carry-over paragraph? page. 10 Oh, oh, yes. I'm sorry. Which page are you on? Oh, you mean, carry over from the prior I see. Yeah, I got it. "Regardless of what, if anything, the CBAs say 11 about these issues, if the NFL had any role in 12 distributing prescription drugs, it was required to 13 follow the laws regarding those drugs." 14 Well, but you don't allege any more that the NFL had any 15 role in distributing prescription drugs. 16 MR. CLOSIUS: 17 THE COURT: 18 MR. CLOSIUS: 19 We do, Your Honor. Well, what -Your Honor, if I could give you a slight overview of the -- 20 THE COURT: It's just this thing about the plan. 21 business plan is to -- that's what you have been saying all 22 along. 23 the clubs to distribute. 24 25 The Now that you're putting pressure on the clubs to -- for Well, where does the NFL itself distribute drugs? MR. CLOSIUS: Your Honor, the NFL is involved in Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 16 of 53 1 every level of the drugs. 2 They are involved in distributing. 3 everything. 4 NFL personnel involving the drugs. 5 The Third Amended Complaint has many examples of THE COURT: All right. I got it right here. Let's see what you say. 8 9 They are involved in If you could turn to Paragraph 194 for a minute? 6 7 They are involved in recordkeeping. MR. CLOSIUS: Honor. Paragraph 194. I'm going to read it exactly, Your And you see that there is a document 10 produced by Dr. Brown, an NFL employee, he's the NFL's chief 11 medical director, describing the NFL prescription drug program 12 and protocol, which is a committee that's been in existence 13 since 1973. 14 to comply with regulations of the -- 15 (Court reporter clarification.) 16 17 It's dated April 1999 on its face. MR. CLOSIUS: It was drafted Oh, I'm sorry. It was drafted to comply with the regulations of the 18 Federal Drug Enforcement Administration as they apply to 19 controlled substances. 20 21 And I'm emphasizing with my tone: "The program's main purpose" -- this is a quote 22 -- "is to provide guidelines for the utilization of 23 all prescription drugs provided to players and team 24 personnel by physicians and other healthcare providers 25 and associated NFL clubs" -- and I'm underlining this Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 16 17 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 17 of 53 1 now -- "and to ensure the proper handling" -- 2 3 THE COURT: Mine says "appropriate handling." You said "proper." 4 MR. CLOSIUS: 5 "...to ensure the appropriate handling (purchase, I'm sorry. 6 distribution, dispensing, administrating and 7 recordkeeping.)" 8 The NFL is admitting in this memo that they are providing 9 the guidelines for the distributions of the drugs. 10 11 THE COURT: That's not the same as distributing the drugs. 12 MR. CLOSIUS: 13 THE COURT: 14 MR. CLOSIUS: 15 it. Your Honor -- That's distributing by the clubs; right? They are telling them how to distribute They are providing guidelines on how to do it. 16 THE COURT: Yes. That's what you're alleging here, 17 but it's not the same as the NFL itself handling, physically 18 handling the drugs. 19 MR. CLOSIUS: 20 THE COURT: 21 22 Your Honor, if you're asking -- That's what the controlled substances law requires. MR. CLOSIUS: If you're asking me did we allege 23 whether anyone from the NFL physically handed pills to the -- 24 to a player, the answer is yes. 25 we cover that on paragraphs -- I'm sorry. It's Dr. Elliot Pellman. Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 I have it here. And Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 18 of 53 1 2 We cover that on Paragraph 1183 where we identify Pellman as an NFL medical advisor. 3 And then on Paragraph 210 we talk about the drugs that 4 were delivered to the plaintiffs -- that were delivered to 5 players by the Jets. 6 THE COURT: 7 because this is new. 8 distributing drugs directly to somebody. 9 that. Pellman is also a Jet team doctor. Okay. I want to make sure I got this, I did not know that you had an NFL person 10 MR. CLOSIUS: 11 THE COURT: 12 MR. CLOSIUS: So let's go through Paragraph 1. One? Paragraph 1. We identify Elliot 13 Pellman, Dr. Elliot Pellman, as a New York Jets team physician 14 and as the NFL -- one of the NFL medical advisors. 15 years employed by the NFL and the Jets. 16 THE COURT: 17 MR. CLOSIUS: 18 19 20 21 22 He was 30 So -We have other places where we refer to him. Then turn to Paragraph 210. THE COURT: Wait. Paragraph 210. All right. MR. CLOSIUS: And there we give you the volume of 23 drugs that were distributed by the New York Jets. 24 you the numbers if you want, but you see what you have there. 25 THE COURT: Let me read it out loud. Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 I'll read 18 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 19 of 53 1 "For the Jets at least, the usage of Toradol and 2 Vicodin exploded between 2004 and 2009. 3 January 26, 2010 email from David Zuffelato to John 4 Mellody and Joshua" -- how do I say that? 5 Koch? 6 showing that in the 2008 season the Jets dispensed 7 1,031 doses of oral and injectible Toradol and 1,295 8 doses of Vicodin, and that in the 2009 season their 9 usage of Toradol increased" -- et cetera, et cetera. 10 Koch? In a K-O-C-H. All right -- "he provides a chart I won't read it all. 11 "On information and belief the Jets are an 12 average NFL Club in terms of their Vicodin and Toradol 13 usage during the times identified." 14 Okay. 15 16 So what is your point there? Jets. MR. CLOSIUS: 17 Jet team doctor also. 18 team doctor. 19 the pills to players. 20 That's all about the He was involved, Your Honor. He was a He was both an NFL employee and a Jet So we have an NFL employee who was distributing THE COURT: Well, 210 does say that the "Jets 21 dispensed." 22 but I don't see -- I don't see his name anywhere in there. 23 24 25 That word is right there. Dispensed these doses, I see Pellman's name in Paragraph 1 saying that he -- just who he is, a Jets doctor and an NFL medical advisor. And then you also have him in Paragraph -- I could have Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 19 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 20 of 53 1 sworn I had it. 2 MR. CLOSIUS: He is an influential figure in the NFL. 3 We refer to him a number of times in various memos and 4 documents produced in discovery. 5 doctor. 6 7 So at the same time he's distributing pills directly to the players. 8 THE COURT: 9 MR. CLOSIUS: 10 11 But he's also the Jet team THE COURT: So -Your Honor, look at Paragraph -- All right. Is that the best you've got, or is there more? 12 MR. CLOSIUS: That's the only example we have at this 13 point of an NFL person physically handing a pill to a player, 14 yes. 15 Your Honor, if you look at Paragraph 11, we have a 16 memorandum there from an NFL doctor, an NFL employee, and in 17 Paragraph 11 it -- one of the documents from 2014, he says: 18 "The NFL has joint culpability regarding the 19 distribution and problem of the opioids." 20 The NFL people themselves are admitting that they are in 21 this; that they are involved. 22 THE COURT: 23 you're referring to? Let's see, Paragraph 11. 24 MR. CLOSIUS: 25 THE COURT: Is that the one Yes. Someone named Dr. McClellan. Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 Who is 20 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 21 of 53 1 2 3 McClellan again? MR. CLOSIUS: Dr. Brown is the chief medical officer of the NFL. 4 THE COURT: 5 MR. CLOSIUS: 6 Dr. Brown. And Dr. McClellan is what for the NFL? THE COURT: 8 MR. CLOSIUS: 9 THE COURT: 11 Dr. McClellan is a subordinate to At least he was at the time. 7 10 McClellan works with Dr. Brown. Okay. Look at the last line in Paragraph 11. Let me read the whole thing, including that last sentence. "The next issue Dr. McClellan addresses is, 12 quote, Pain Relieving Medications and Competitive 13 Football, close quote, about which he makes two 14 points. 15 medications are demonstrably effective in the short 16 term for relieving most forms of skeletal and muscular 17 pain so often experienced by NFL players, close quote; 18 and (2), quote, for these reasons appropriate properly 19 prescribed and monitored as well as inappropriate 20 opioid and non-opioid pain medication use are both 21 more common among NFL players, close quote. 22 takeaway point on this issue, quote, it is in the 23 players' the teams' and the league's reputational and 24 financial interest to use analgesic medications for 25 pain relief. One, quote, opioids and other non-opioid pain His These incentives and the nature of the Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 21 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 22 of 53 1 sport combined to make opioid and other pain 2 medication usage much more prevalent in the NFL than 3 in virtually any other industry, population or 4 endeavor. 5 responsibility and joint culpability for the problem." 6 Okay. This really means that there is a shared All right. So that -- that is a -- I take your 7 word for it. 8 McClellan is an NFL employee? 9 MR. NASH: 10 11 12 13 He's an NFL employee. No, Your Honor. I assume you agree. And there is no allegation in the Third Amended Complaint that he is. THE COURT: Well, he just got through telling me that he works for the doctor for the NFL. MR. NASH: He said he's an associate. He's an 14 independent doctor who wrote this paper and it was provided to 15 the doctor, to Dr. Brown, in an advisory capacity. 16 17 18 I believe he may have served on an advisory committee to the NFL, but I -THE COURT: Well, where does the -- right now I'm 19 just sticking with what's in the Third -- where in your Third 20 Amended Complaint is this fellow McClellan identified? 21 22 MR. CLOSIUS: He's identified as an associate in Paragraph 9. 23 THE COURT: 24 "The business plan is best exemplified by a 25 All right. Here we go. single page document produced in evidence that was Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 22 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 23 of 53 1 prepared in 2014 by Dr. Thomas McClellan, an associate 2 of Dr. Lawrence Brown, titled the Role of League-Wide 3 Incentives in Promoting the Opioid Use Problem, the 4 need for League-Wide collaboration to solve the 5 problem." 6 And I don't know what "associate" means. 7 identify who Brown is? 8 MR. CLOSIUS: 9 Brown is the chief medical officer of the NFL. 10 11 Where do we THE COURT: All right. Where is that stated here? Is that in Paragraph 1? 12 MR. CLOSIUS: 13 MR. NASH: 14 THE COURT: 15 MR. NASH: That's in Paragraph 1, Your Honor. If I could correct counsel. Yes, go ahead. He's not the chief medical officer of the 16 NFL. 17 NFL and the NFL Players Association to oversee the NFL's 18 collectively bargained drug program and he is an advisor to the 19 NFL. He is the medical advisor who has been retained by the He's not the chief medical officer. 20 THE COURT: Well, the Complaint identifies him as 21 Dr. Lawrence Brown (NFL medical advisor on prescription drugs 22 since the early 1990s). 23 MR. CLOSIUS: Your Honor, I would concede sometimes 24 they refer to him as medical director and sometimes medical 25 advisor. That's true. Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 23 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 24 of 53 1 He's involved in the prescription drug program, not the -- 2 Dr. Lombardo is the doctor who is in charge of the steroid and 3 performance enhancing drug area of the NFL. 4 THE COURT: 5 MR. CLOSIUS: Well -Brown is responsible for the 6 prescription drug protocol I talked to you about in 7 Paragraph 194. 8 9 THE COURT: is an associate. 10 Just a minute. No. 9 says that McClellan Now, what does that mean? MR. CLOSIUS: Your Honor, we're not sure. Whether he 11 was an employee in the NFL, an independent contractor who was 12 working for the NFL. 13 who is an NFL employee, and he clearly is writing a memo for 14 the NFL, just by the title. 15 16 THE COURT: He clearly was associated with Dr. Brown, Do one of you have this document here, this -- this single page document produced in evidence? 17 MR. CLOSIUS: 18 THE COURT: We don't have it here, Your Honor. Well, an associate could simply be 19 somebody who practices in the same clinic and wrote -- wrote 20 this memo about the -- maybe he wrote it for the NFL, but -- 21 MR. CLOSIUS: 22 Clubs in evidence. 23 from him. 24 25 This was produced by the NFL -- by the We didn't subpoena McClellan and get it THE COURT: So where does it -- where does that memo say that the NFL is directly handing drugs to players? Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 24 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 25 of 53 1 MR. CLOSIUS: It doesn't, Your Honor. It simply says 2 that they are jointly culpable for the opioid problem the NFL 3 is facing. 4 THE COURT: 5 MR. CLOSIUS: 6 THE COURT: 7 10 The Ninth Circuit didn't say -- The Ninth Circuit said that you've got to show direct involvement in the distribution of the drugs. 8 9 The Ninth Circuit didn't say that. MR. CLOSIUS: that. Your Honor, I don't see where they said I don't think the Ninth Circuit ever said that we had to prove that an NFL employee was handing pills to players. 11 THE COURT: Or handing them to the Clubs. If the NFL 12 was -- the impression you left with the Ninth Circuit was there 13 was a room in New York called the Security Office that was full 14 of drugs. 15 MR. CLOSIUS: 16 THE COURT: 17 MR. CLOSIUS: 18 THE COURT: 19 then they said okay. 20 distribution so, therefore, these drug laws -- see, the 21 Controlled Substances Act is very clear. 22 of those drugs is what the Controlled Substances Act covers, 23 among a lot of other things. That's not true, Your Honor. Come on. That's the way I read it. That may be the way you read it -- That's what you convinced them of, and They are right there in the chain of The physical tracking 24 But you left the impression with the Ninth Circuit that 25 there were physical custody by the NFL of these drugs in New Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 25 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 26 of 53 1 York at the Security Office and that somehow maybe the next 2 step was they were then sent out to Cleveland and sent out to 3 Chicago to the Clubs. 4 To me, that's preposterous that there would be such a 5 thing. 6 But to me, the individual Clubs are getting the drugs on their 7 own and handing them out to the players. 8 9 It's conceivable. MR. CLOSIUS: That's why I asked the question. Your Honor, with all respect, that's not what happened in front of the Ninth Circuit. If you review 10 the transcript of that argument, you will find I never said 11 that the NFL was handing physical pills to players. 12 THE COURT: All right. What do you think accounts 13 for the way they worded their own opinion? 14 points? 15 MR. CLOSIUS: All those bullet I think the bullet points are all still 16 in the Third Amendment Complaint, except for the last one, "The 17 NFL made knowing and intentional misrepresentations." 18 dropped the claim for intentional misrepresentation. 19 20 21 22 We The NFL is directly involved and indirectly involved in everything that's mentioned in those bullet points. As mentioned on 194, Your Honor -THE COURT: You know, they said that what the Clubs 23 are doing, you can't -- that you should not be suing the NFL 24 for what the Clubs themselves are doing. 25 MR. CLOSIUS: We're not, Your Honor. Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 We are talking 26 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 27 of 53 1 2 about what the NFL is doing. The NFL is telling them how to keep the records. The NFL 3 is telling them where to store the drugs. The NFL is giving 4 them guidelines on how to distribute it. I could keep going 5 on, but that's the Third Amended Complaint. 6 Your Honor, I will give you an example. In 174 in the 7 Complaint, Paragraph 174, the NFL stops. 8 they don't have to report Toradol and Vicodin any more. 9 10 And then on 207 and 211, what a shock. Toradol and Vicodin use explodes under the Clubs. 11 12 The NFL tells people THE COURT: read it. Wait, wait. Let me find it. 174? 13 MR. CLOSIUS: 14 THE COURT: 15 "On the same day Brad C. Brown, PFATS Yes, please. Paragraph 174. 16 Secretary" -- 17 I'm sorry, I don't know what that means. 18 mean? I want to What does that PFATS, what is that? 19 MR. CLOSIUS: 20 THE COURT: 21 MR. CLOSIUS: 22 THE COURT: 23 "Secretary, kept the minutes of a PFATS winter That's the physicians society. Okay. I'm sorry. It's the trainers society. All right. 24 meeting held at the Combine in Indianapolis. 25 minutes reflect that Dean Kleinschmidt" -- who is he? Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 Those 27 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 28 of 53 1 MR. CLOSIUS: 2 THE COURT: 3 "...reported to the group assembled (open to all Trainer. Minnesota Vikings. (Continuing): 4 NFL trainers) on the meaning of the Drug Abuse 5 Committee as follows." 6 Quote: 7 "Those athletic trainers have to -- those 8 athletic trainers that have to contend with the NFL 9 drug audit, the committee has determined that the 10 special care given to Toradol and Vicodin in the 11 reporting will no longer be necessary, as these two 12 drugs have not shown any significant problem. 13 other words, at the same time the Tokish Study is 14 calling for more study and the K.C. document is 15 advising of the risks associated with Toradol, the NFL 16 collective decided to stop reporting about it." 17 Is this reporting to the NFL or -- 18 MR. CLOSIUS: The NFL requires reports on all the 19 drugs to be made by the Clubs to NFL personnel. 20 supervises the compilation of that data. 21 In Dr. Brown And then, Your Honor, if you want to look at 207 to 211, 22 that's where we talk about the explosion of Toradol and Vicodin 23 as soon as the NFL said they didn't have to report it any more. 24 So the NFL is implicitly telling these people they can 25 continue to abuse Toradol and Vicodin. Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 28 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 29 of 53 1 THE COURT: 2 MR. CLOSIUS: 3 THE COURT: 4 we? 207? 207 to 211. We looked at that a minute ago, didn't Yeah, 210. 5 6 Say it again. "For the Jets at least the usage of Toradol and Vicodin exploded," et cetera. 7 The NFL -- the NFL where Dr. Pellman is MR. CLOSIUS: 8 an employee decides that they are not going to report Toradol 9 and Vicodin and then Dr. Pellman with the Jets explodes the use 10 of Toradol and Vicodin. 11 across the League, Your Honor. 12 THE COURT: The NFL is directly -- and it explodes All right. Let's -- I'll give you a 13 chance to keep going. 14 side a chance to reply to the -- each individual. 15 Hang on. But I want to give the other So we've gone over a number of points made by plaintiff 16 with the idea that -- to show the NFL has direct involvement in 17 the -- in these drugs. 18 So I want you to -- I want to hear what you have to say. 19 And don't just repeat the questions that I have asked. 20 won't do me any good. 21 explain what's wrong with counsel's argument. 22 25 I want you to be more specific and Please go ahead. 23 24 That MR. NASH: Thank you. Let me start with what counsel said that he told the Ninth Circuit. And he -- he said that they didn't tell the Ninth Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 29 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 30 of 53 1 2 Circuit that the NFL was providing the drugs. Here is the first sentence of their appeal brief: 3 "For decades the National Football League 4 supplied controlled substances and prescription drugs 5 to its players." 6 They go on at page -- later in their brief -- 7 8 THE COURT: write it down. 9 10 Give us the docket so my Law Clerk can MR. NASH: Circuit. This is their brief before the Ninth It's docket entry 22-1. 11 THE COURT: 12 MR. NASH: 13 THE COURT: 14 MR. NASH: 15 "For decades the National Football League Read the exact -- read it exactly. It's case 15-15143. Read the sentence exactly. Oh, the sentence. I'm sorry. 16 supplied controlled substances and prescription drugs 17 to its players in amounts, e.g. number of injections, 18 in a manner without a prescription and failure to warn 19 of side effects that violated federal and state law." 20 That's what they told the Ninth Circuit. 21 THE COURT: 22 MR. NASH: All right. They told the Ninth Circuit that because 23 their argument was that this Court's ruling that it understood 24 their Complaint, as the NFL's failure to either properly 25 supervise the Clubs' medical care or to intervene, was not Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 30 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 31 of 53 1 their claim. They said our claim was based on illegality. 2 And counsel just mentioned the transcript of the hearing. 3 I would invite the Court, if it had the time, to listen to it. 4 In fact, Judge Bybee expressed the same skepticism, Your 5 Honor, that you just did. 6 would be providing drugs directly to the players. 7 and as the opinion shows, that that sounded more like a Rule 12 8 issue for the District Court to resolve. 9 10 THE COURT: But he -- Is there a transcript available of the oral argument? 11 12 It seemed implausible that the NFL There is. MR. NASH: And it's cited in plaintiff -- it's cited in plaintiffs' opposition to our motion. 13 THE COURT: 14 MR. NASH: The entire transcript? It's a video transcript I believe, yes. 15 It's not a transcript. 16 there is a transcript, but we could endeavor to get one. 17 18 THE COURT: It's a video, I believe. Well, all right. Continue. I don't think What else do you want to say? 19 But so just to correct something I think MR. NASH: 20 that counsel said. 21 supporting the allegation that Dr. Pellman handed a drug to a 22 player. 23 Complaint that alleges that Dr. Pellman supplied any player, 24 nor is there any -- 25 He pointed to one of the paragraphs as That doesn't -- there is nothing in the Third Amended THE COURT: Well, no. That is true. Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 It's true that 31 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 32 of 53 1 there is no direct allegation that he himself handed any drugs 2 to them. 3 But what is alleged is that that team gave drugs to its 4 players and that he, Pellman, had a medical role in connection 5 with that team. 6 inferred that Pellman did it. 7 Therefore, the argument is it could be And then further it's argued that Pellman had a second hat 8 advising the NFL and, therefore, that -- from that second 9 inference it could be inferred that the NFL was the one handing 10 11 12 the drugs to the players. I think that's the argument. So do you -- I recognize it doesn't flat out say that he handed any drugs, but would that be a permissible inference? 13 MR. NASH: I think the Ninth Circuit required so much 14 more than that, Your Honor. 15 point. 16 And that was going to be my second Regardless of whether they could even allege that a doctor 17 that had some association with the NFL was involved in or 18 handed a drug, the Ninth Circuit made very clear, and they did 19 so based on their -- plaintiffs' arguments, that they would 20 have to plead that the NFL actually was covered by the statutes 21 and violated those statutes. 22 Circuit made that express holding was because as they 23 understood the argument and the challenge to this Court's 24 ruling, you didn't need to interpret the collective bargaining 25 agreement to determine whether the NFL had violated the law. And the reason that the Ninth Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 32 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 33 of 53 1 In fact, the way they put it was what's reasonable -- 2 we're not relying on traditional negligence theories of 3 reasonableness. 4 the brief I just cited: 5 What they said was -- and this is Page 31 of "Plaintiffs' claims do not require the Court to 6 weigh whether the NFL's actions were reasonable. 7 is reasonable is required by statute. 8 not involve the type of common law analysis that made 9 tort claims under Stringer and Duerson" -- and they 10 are talking about the cases this Court relied on in 11 the preemption argument -- "dependent on the CBAs." 12 So I think it was absolutely clear. 13 And then to just sort of make a final point, going back to What This case does 14 the Dent decision itself. 15 Circuit required plaintiffs to prove much more than what they 16 are saying here and why the -- why the Third Amended Complaint 17 doesn't come close is that the Ninth Circuit explained why, as 18 it understood plaintiffs' claims, they could be resolved 19 without CBA interpretation. 20 The reason we know that the Ninth And I won't read all of it, but there is a paragraph that 21 starts at the end of 1121 and it goes over to Page 11- -- 1120, 22 I apologize, and it goes over to Page 1121. 23 the Ninth Circuit explains that the reason why you don't have 24 to interpret the CBA in analyzing the claims, at least as they 25 told them the claims were, is that the issue was the NFL's Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 And in each case 33 34 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 34 of 53 1 violation of the law. 2 Now, one of the things that we haven't talked about at all 3 is we demonstrated, I believe, in our motion -- and I think you 4 were alluding to it before when you talked about the Controlled 5 Substances Act -- the Third Amended Complaint does not allege 6 any violation by anyone at the NFL of any of the statutes. 7 explained that in our motion. 8 opposition they attempted to challenge it. 9 We I don't even think in their Instead they pivoted back to arguments about 10 reasonableness and things like that that goes to the heart of 11 the reasons why this Court originally held the claims to be 12 preempted. 13 Amended Complaint where they allege even that the NFL violated 14 any of the statutes. 15 They could not identify anywhere in the Third And, in fact, if you -- if you actually look at their 16 allegations about the statutes, it becomes crystal clear. 17 have this whole section about the statutes in the Complaint 18 starting at Page 42. 19 And this sort of bolsters the point that you were making. 20 21 22 They It's starting really with Paragraph 118. When they talk about the Controlled Substances Act, they -- they say: "The Controlled Substances Act criminalizes the 23 dispensation and possession of medications that the 24 NFL routinely gives players." 25 There is no allegation that the NFL dispensed, possessed, Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 35 of 53 1 or gave any players. 2 THE COURT: All right. Well, but the argument I 3 think is like in a criminal case, the kingpin may be careful 4 enough never to have drugs in their possession. 5 drugs will be down at the street level or at some stash house 6 or someplace where the kingpin never has to go. In fact, the 7 So let's say the kingpin never touches the drugs. 8 has physical possession, but controls the whole enterprise. 9 Under your argument the Government couldn't put the kingpin in 10 jail because they don't touch the drugs. 11 MR. NASH: 12 THE COURT: 13 you distinguish the two cases. 14 MR. NASH: Never That can't be right. That's not my argument. Well, then help me understand why -- how Because although they use words like 15 "kingpin" in their opposition motion, there is not a single 16 allegation anywhere in the Complaint of the NFL directing any 17 doctor, any Club, any trainer, to give a medication to a player 18 in disregard of his health, to do anything that violates any of 19 the statutes that they cite in the Complaint. 20 allegation whatsoever. 21 There is no In fact, your Honor, and this goes to the -- I think the 22 way that I could best explain this is I think it's important to 23 distinguish between what the plaintiffs themselves say caused 24 their injuries or were the proximate cause of their injuries 25 and what they say the NFL did. Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 35 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 36 of 53 1 2 So in the very beginning of the Complaint, this is what they say at Paragraph 15 of the Complaint. 3 They claim that: "The players were provided with medications that 4 were often administered without a prescription or side 5 effects warnings, with little regard for the player's 6 medical history, potentially fatal interactions with 7 other medications or the actual health and recovery 8 from the injury of the plaintiffs." 9 And then each named plaintiff recounts what their 10 11 complaint is. And just as an example, Richard Dent, the lead plaintiff, 12 at Paragraphs 21 to 27 he explains what his claim is. 13 he received medications, not from the NFL, from team doctors 14 and trainers for several of the teams that he played on and 15 that the person providing the medication did not identify the 16 dosage or provide the statutory required warnings and side 17 effects. 18 He says Now, what he also says, and what every single plaintiff in 19 the case says, the cause of his injuries that he's seeking 20 damages for was, quote: 21 "The wrongful distribution and administration of 22 medications by his Clubs." 23 Not that the NFL funded a study or had a program. 24 25 absolutely that is the cause. There is no question. Now, you turn -Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 It was 36 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 37 of 53 1 THE COURT: But wait. Doesn't the Complaint go on -- 2 or does it, I'm asking -- to further say, well, the reason that 3 the Clubs did this is because of a business plan that the NFL 4 imposed on the Clubs to maximize playing time and maximize 5 profits and the way the Clubs carried that out was by giving 6 too many drugs to the players. 7 MR. NASH: Doesn't the Complaint say that? They say that in conclusory fashion and 8 they offer no allegations of that ever happening. 9 specific allegation in the Complaint. 10 11 12 13 14 THE COURT: Not one Was there such a thing as the, quote, Business Plan or is that a term of art used by the plaintiff? MR. NASH: As far as I know, it's something that was put in caps, capital letters, but there is no -- they -THE COURT: I thought at first it was like the 15 by-laws, that the by-laws had all this in it, but is that -- is 16 there such a document as the Business Plan? 17 MR. NASH: Absolutely not. And there is no 18 allegation that there is. 19 theory to support the argument of trying to hold the NFL 20 accountable for what they say happened at the Club level. 21 It's purely -- it's counsel's legal But, Your Honor, I think the critical point there is the 22 Ninth Circuit couldn't have been clearer that in order to plead 23 your claims against the NFL for negligence, the plaintiffs 24 can't rely on what the Club doctors and trainers did. 25 the Third Amended Complaint that's exactly what each and every Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 Yet, in 37 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 38 of 53 1 plaintiff does. 2 And to make that crystal clear, they even attached to 3 their Complaint Exhibit A, which is a chart which they say 4 recounts each plaintiff's experience and in that chart they 5 identify Club doctors and trainers. 6 from the NFL. 7 They don't identify anyone Now, the only thing that they do do in these -- in each of 8 the plaintiff's claims is they describe the doctors as NFL 9 doctors, but it is absolutely clear and -- from what they say 10 and even from their Exhibit A that what they are talking about 11 are the Club doctors. 12 doctors." 13 do. 14 personnel. 15 They just have thrown that label "NFL And that's what the Ninth Circuit said they couldn't They were conflating the Club personnel with the NFL Now, the only other point I would make is when you take 16 out the conduct that forms the basis of the plaintiffs' claims, 17 and maybe even more importantly, Your Honor, the conduct that 18 plaintiffs themselves say caused their injuries, what you're 19 left with are really a failure to supervise or failure to 20 intervene claim. 21 preempted. 22 at all. 23 That's the claim that this Court held was The Ninth Circuit did not call that into question And that is made clear when you look at the specific 24 allegations that they make about the NFL. 25 deal of time talking about something called the Matava Study. Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 They spend a great 38 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 39 of 53 1 They say the NFL funded studies relating to the medication. 2 Sure. 3 We take that as true. In their own Complaint they say, what were the purpose of 4 those studies? 5 Complaint. 6 to the players. 7 get players back on the field for some Business Plan. It's at Paragraph 176 of the Third Amended The purpose of the study was to decrease the risk Not direct players -- not direct doctors to 8 All of the conduct actually that they specifically 9 attribute to the NFL, and it's in the section called the "NFL 10 Voluntarily Undertook Duties" here, all of it was to reduce 11 risk, not increase risk. 12 But maybe more importantly, there is nothing there that 13 remotely alleges the NFL directed any Club to disregard the 14 players' health and get them back on the field with 15 medications. 16 And maybe most importantly for the purposes of the Ninth 17 Circuit's decision, there is absolutely nothing in those 18 allegations that pleads a violation by anyone at the NFL of any 19 of the statutes. 20 And, again, you can go through -- I've gone through the 21 Third Amended Complaint many times. 22 allege it. 23 They don't even try to And when we explained, as you did earlier, that statutes 24 like the Controlled Substances Act are technical statutes, and 25 the allegations that even could be remotely attributable to the Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 39 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 40 of 53 1 NFL in the Complaint don't come close to that, they don't even 2 challenge that, Your Honor. 3 THE COURT: All right. I want to give plaintiff -- I 4 want to give you a chance to go over at least one more specific 5 allegation that ties the -- not just ties in. 6 NFL is supplying drugs directly out of this locker in New York, 7 or wherever it is that you think the NFL is hiding the drugs, 8 or as close as you can get to that. 9 That shows the To me, that's -- I'm reading what happened in the Ninth 10 Circuit as that's what they believe you were alleging. 11 think you are trying to slide off of what you told the Ninth 12 Circuit. 13 And I But I want you to -- I'm going to give you a chance to go 14 through yet another example, and then you can respond to what 15 counsel just said, too. 16 17 18 MR. CLOSIUS: Your Honor, the bullet point in the Ninth Circuit opinion you're referring to says that: "Medications are controlled by the NFL Security 19 Office in New York." 20 That doesn't say that they have a stash of drugs in New 21 York and they are distributing out of the office. 22 never said. 23 That was That was never alleged. The NFL Security Office does control the medications in 24 the sense that they are telling them where to store it, how to 25 store it, how to comply. They tell them when they have to get Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 40 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 41 of 53 1 2 DEA registrations. Those are all in the Complaint, Your Honor. THE COURT: Well, look. I went back and read the 210 3 in your Second Amended Complaint to see what the spin was that 4 was put on the Security Office. 5 the spin that was put on 210 by you was susceptible to the 6 reading that the drugs were being dispensed out of New York. 7 8 9 10 MR. CLOSIUS: I read it earlier. And it -- I don't -- I will read 210 again, Your Honor, if you'll give me a second. THE COURT: I will read it out loud. "Upon information and belief the practice of mass 11 ordering in a player's name no longer occurs. 12 medications are controlled by the NFL Security Office 13 in New York, which has implemented tighter controls in 14 the last decade according to one former trainer who 15 for years was a member of the NFL's Committee on 16 Performance Enhancing and Prescription Medications. 17 In addition, according to a 2013 Washington Post 18 article titled Pain and Pain Management in NFL Spawn a 19 Culture of Prescription Drug Use and Abuse, close 20 quote, the NFL contracted with an independent vendor 21 SportPharm to track and log the extensive amounts of 22 medication dispensed to teams." 23 That phrase "medications dispensed to teams" in the same Instead 24 paragraph as the "NFL Security Office" is susceptible to the 25 implication that the NFL Security Office is -- was dispensing Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 41 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 42 of 53 1 2 medications to teams. Now, I think that's -- it doesn't -- it doesn't literally 3 say -- this is maybe where you escape Rule 11 problems. 4 doesn't literally say that the drugs were stored in a locker at 5 the NFL Security Office and carried from there to the Clubs. 6 That probably would have been a Rule 11 violation. 7 came very close to that by putting this Washington Post 8 article, putting in the statement "extensive amounts of 9 medication dispensed to teams" right after a sentence about the It But you 10 NFL Security Office. 11 you were saying that the NFL Security Office was dispensing 12 drugs right out of New York. 13 Well, okay. No wonder the Ninth Circuit thought that I know you're going to say -- you're going to 14 say no, no, you didn't mean that. 15 MR. CLOSIUS: That's not what you -- That's not what I was going to say, 16 Your Honor. 17 Dent opinion it says they were dispensing drugs out of the 18 office in New York. 19 20 21 22 I was going to ask you to tell me where in the THE COURT: say that. All right. Here is what -- it doesn't It comes close to that though. What it says is, there is a lead-in sentence to the bullet points and the lead-in says, quote: 23 "But the players' Second Amended Complaint 24 asserts that the NFL itself directly provided medical 25 care and supplied drugs to players." Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 42 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 43 of 53 1 That's what -- the lead-in. 2 And then there is seven bullet points, one of which is: 3 "Medications are controlled by the NFL Security 4 Office in New York." 5 So if you read all seven plus that lead-in, I think they 6 were under the impression that you had alleged that NFL itself 7 directly provided medical care and supplied drugs to players. 8 And now you're sliding off of that to say, well, the Clubs do 9 it, but the NFL controls how they do it. 10 And that's the -- that was the original theory that was preempted. 11 All right. But if -- look, I've spent a lot of time on 12 this trying to understand how this -- how we got to where we 13 are. 14 Circuit said, which is you've got to show that the NFL itself 15 directly provided medical care and supplied drugs to players. 16 That's what I think the Ninth Circuit is insisting on in this 17 opinion. 18 And to me, I am going to hold you to what the Ninth So I want to give you a chance, because I know what will 19 happen if I were to throw this case out. 20 appeal and say, well, you did try to show where they, NFL 21 itself directly. 22 what -- I want to hear the examples where this pleading meets 23 that standard, "NFL itself directly provided medical care and 24 supplied drugs to players." 25 You would go up on And then you will say that I didn't listen to You gave me one example of Pellman. I'm not sure it Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 43 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 44 of 53 1 really is a good example, but that's the kind of thing. 2 to give you another opportunity to show me more of those 3 examples. 4 MR. CLOSIUS: I want Your Honor, if you're asking me more 5 examples of where an NFL employee handed a pill or handed a 6 drug to a player, I don't have any more. 7 THE COURT: That's all I have. I'm asking for examples where the NFL 8 itself directly provided medical care and supplied -- and/or 9 supplied drugs to players. 10 MR. CLOSIUS: Your Honor, in our view the NFL is 11 controlling all of this. 12 that the NFL approves the Club's hiring of the doctors. 13 NFL reviews all of their financial arrangements and they have 14 to approve it. 15 except for Pellman, handing the pill. 16 The The NFL is all over this in every aspect, Your Honor, your El Chapo analogy is exactly right here. 17 THE COURT: 18 MR. CLOSIUS: 19 The NFL approves -- on 179 we alleged My what? Your drug dealer, I'm sorry. Your drug kingpin analogy. 20 I mean, if this were true, every drug kingpin -- they 21 don't convict drug kingpins because they find them selling 22 nickel bags on the Embarcadero. 23 Your Honor, if we want to get into it, I guess we can talk 24 about Doctrine of Constructive Delivery, which is part of the 25 Controlled Substances Act, or we can talk about the Corporate Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 44 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 45 of 53 1 Responsibility Doctrine, which is part of the Food, Drug and 2 Cosmetic Act. 3 of these statutes by physically handing a pill to a player. 4 It's not the case that you can only violate both And, Your Honor, further if we're parsing the language of 5 the Ninth Circuit opinion in Dent, if you go to -- I'm sorry. 6 If you go to Page -- I always have trouble finding the numbers 7 when I want to. 8 assuming that the Ninth Circuit is using "distribution 9 administration" in the technical to term of art as defined I'm sorry. It's on Page 1119. 10 under the Controlled Substances Act. 11 that's not true, Your Honor. 12 They are We're not sure that Also, if you're looking at it, "Applying the rolling 13 factors" -- I'm in a paragraph I can't tell exactly where it 14 is, but it's on 1119. 15 "Applying the rolling factors, lack of reasonable 16 care in the handling, distribution and administration 17 of controlled substances." 18 Where does "handling" come from? 19 20 21 22 THE COURT: I'm sorry. where you're reading. MR. CLOSIUS: If you go on 1119, there is a paragraph that starts here "Any Duty to exercise reasonable care." 23 THE COURT: 24 MR. CLOSIUS: 25 I'm at 1119, but I don't see lines down from that. All right. If you go, I don't know, about ten After the cite to the "See J.R. Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 45 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 46 of 53 1 Corporation." 2 THE COURT: 3 MR. CLOSIUS: 4 "Applying the rolling factors lack of reasonable All right. (As read) 5 care in the handling, distribution and 6 administration." 7 And if you go through the rest that page, they use 8 9 10 11 "handling" frequently. So go to the paragraph that says "of course" and look to about six lines from the bottom of that paragraph. "Therefore, under plaintiffs' negligence per se 12 theory whether the NFL breached its duty to handle 13 drugs with reasonable care can be" -- 14 THE COURT: 15 MR. CLOSIUS: That says "handle." I understand that. I'm not -- we're 16 using this word "distribute" as it literally is defined in the 17 Controlled Substances Act. 18 I guess I'm suggesting the Ninth Circuit may not have been 19 that precise. 20 "handle" is defined by the NFL itself in that quote I read you 21 from Paragraph 194, handling includes recordkeeping, storage, 22 all kinds of stuff. 23 They are using the word "handle." And as So, I mean, the Ninth Circuit is using all kinds of 24 phrases here, Your Honor. 25 distribution. They are focusing in on one, Handling is not used in either statute. Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 46 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 47 of 53 1 2 THE COURT: read it, it was referring to physical, physical distribution. 3 4 I think the Court of Appeals, the way I MR. CLOSIUS: way, Your Honor. I understand you're reading it that We're not. 5 THE COURT: 6 MR. CLOSIUS: Well -And the paragraph you referred to of 7 the Second Amended Complaint, that also; right? 8 dictated to all the Clubs they had to use SportPharm and buy 9 their tracking software so they could track the reporting of 10 the drugs. 11 The NFL That's all coming from the NFL. They tried to tell them they had to buy the stuff through 12 SportPharm, but then SportPharm had their license removed for 13 illegal distribution. 14 THE COURT: 15 "Therefore, on remand any further proceedings in The Ninth Circuit said: 16 this case should be limited to those claims arising 17 from the conduct of the NFL and NFL personnel - not 18 the conduct of individual team's employees." 19 20 MR. CLOSIUS: with that. 21 We agree with that. We focus on the conduct of the NFL. I mean, admittedly there are emails involving doctors and 22 trainers. 23 of the -- of whatever is being sent out. 24 25 We've complied I understand that because they are on the other end We're focusing what the NFL does. it. They control reporting. The NFL controls all of They control how to safeguard it. Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 47 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 48 of 53 1 They mandated registration of the facilities. 2 that the doctors get register -- certification numbers. 3 told them they had to order through SportPharm. 4 meetings with the doctors. 5 except handing the pill. 6 Pellman, who is doing both sides of it. 7 They mandated They They attend They are doing every aspect of this With, again, the exception of Your Honor, the NFL, they would have you believe that the 8 NFL is some good samaritan that's kind of watching the Clubs do 9 all these horrible things. 10 That's exactly the opposite of what's happening. 11 Since 1968 the NFL has been actively involved in the 12 provision of all of these prescription drugs, whether they are 13 controlled substances or whether they are just prescription 14 drugs. 15 evidence of NFL employees and action taking place. 16 And the Third Amended Complaint is replete with THE COURT: Give me what you would say is your best 17 example of an NFL employee violating the Controlled Substances 18 Act. 19 20 21 MR. CLOSIUS: distribute it illegally. Your Honor, the -- 22 THE COURT: 23 MR. CLOSIUS: 24 25 When they are telling people to Where is that -Let me rephrase that. The Third Amended Complaint is replete with people telling the NFL that what's happening is illegal. Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 The DEA is doing it. 48 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 49 of 53 1 The Matava report is doing it. 2 about illegal dispensation of controlled substances. 3 THE COURT: 4 MR. CLOSIUS: 5 THE COURT: By who? They are being told all through By the Clubs? By the Clubs. Okay. That's not the same though. Let's 6 say that the -- let's say the -- somebody is telling the NFL, 7 Hey, the Clubs are violating the Controlled Substances Act. 8 That's not the same as the NFL itself violating anything. 9 10 MR. CLOSIUS: Well, they never did anything to remedy it. 11 THE COURT: 12 MR. CLOSIUS: Well, that's the original theory. I'm sorry. They are also telling the 13 NFL -- the NFL is meeting with the DEA. 14 Paragraph 11, their own people are saying that we have -- we 15 have joint culpability on this. 16 THE COURT: No. As I noted in That's not quite there. It was an 17 associate of somebody who was an advisor to the NFL who said 18 there was joint culpability. 19 MR. CLOSIUS: 20 THE COURT: Why would he say that? "Culpability" was not referring 21 necessarily to the Controlled Substances Act. 22 to a moral thing, the way I read it. 23 24 25 But whatever. It was referring It wasn't the NFL itself admitting that it had violated any Controlled Substances Act. MR. CLOSIUS: Their knowledge of the -- Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 49 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 50 of 53 1 What is it that -- the worse that I think THE COURT: 2 you could say, I don't even know if you could say this, is that 3 the NFL -- somebody has told the NFL or the NFL itself may 4 think that the Clubs are violating the Controlled Substances 5 Act. 6 But is that the same thing as the NFL violating the Act? When the NFL is involved to the extent MR. CLOSIUS: 7 they are involved in, we believe it is. 8 mandating, when they are squashing surveys that are trying to 9 be done to show the extent of the problem, when they are paying When they are 10 for these reports, they are telling them it's being done 11 illegally and nobody does anything. 12 encouraging this conduct, if not mandating it. 13 14 I mean, they are That's why on all the bullet points you notice we do say directly or indirectly. 15 I'm going to give you two minutes on the THE COURT: 16 other side and I'm going to bring it to an end. 17 11:00 o'clock calendar. 18 MR. NASH: I've got an Your Honor, all I would say is that the 19 arguments you all just heard were nothing more than the claim 20 of either -- that the NFL had some knowledge and didn't act or 21 didn't intervene. 22 preempted. 23 They said no, no, no. 24 25 And that's the claim that you held was That's the claim that they disavowed on appeal. That was not our claim. We're talking about direct violations of the law by the NFL. We pointed out in our -- we explained in our motion they Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 50 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 51 of 53 1 don't -- the Third Amended Complaint doesn't allege any such 2 violations. 3 I made that argument here today. Counsel has still never identified anything that would be 4 remotely considered or any basis to say that the NFL has 5 violated any of these statutes. 6 Complaint should be dismissed. 7 On that basis alone the But on top of that, even if you credited everything that 8 he was saying, he keeps ignoring and they keep ignoring what 9 their own clients are saying caused their injuries. What their 10 own clients are saying is my doctor, I got some drugs. 11 didn't get the right evaluation by the doctor. 12 get the right warnings and I -- I was damaged as a result. 13 I -- I I -- I didn't The Ninth Circuit said, you can't rely on that to state a 14 claim against the NFL. 15 least plead that the NFL itself violated these statutes. 16 You have to show or you have to at And by the way, I don't believe if I were here on behalf 17 of the Clubs, I would have -- I would be arguing that the 18 Complaint does not allege that any Club or any Club 19 doctor violated any of these statutes. 20 21 22 But putting that aside, they have not come close to meeting the Ninth Circuit's standard on remand. THE COURT: I want to ask you if you will submit to 23 me, if you will, by 5:00 o'clock tomorrow an agreed-upon 24 transcript of the oral argument before the Ninth Circuit and 25 then the -- the plaintiff gets to highlight in pink whatever Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 51 52 Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 52 of 53 1 you want me to particularly focus on and the defendant gets to 2 highlight in -- do it, let's say, orange or some color that I 3 can read through. 4 they highlighted in a color it was so hard to read through. 5 was impossible. 6 legible enough that I can read it. 7 can -- one color. 8 be able to read through it. 9 5:00 o'clock tomorrow so I can see what was represented to the 10 11 One time I asked the lawyers to do this and It was like redacting. So it has to be So you pick a color that I I don't care what the colors are. I need to And you should give it to me by Ninth Circuit. All right. We've gone almost not quite two hours. 12 we have gone two hours. 13 interesting. I need to bring it to a close. Thank you, counsel. 14 MR. NASH: 15 MR. CLOSIUS: 16 It Thank you, Your Honor. Thank you, Your Honor. (Proceedings adjourned.) 17 18 19 20 21 22 23 24 25 Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477 Maybe Very Case 3:14-cv-02324-WHA Document 134 Filed 04/11/19 Page 53 of 53 CERTIFICATE OF OFFICIAL REPORTER I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. __________________________________ Debra L. Pas, CSR 11916, CRR, RMR, RPR Thursday, April 11, 2019 Debra L. Pas, CSR, RPR, RMR, CRR Official Reporter - U.S. District Court - San Francisco (415) 431-1477