Case 2:19-cv-03656-FMO-GJS Document 33 Filed 08/08/19 Page 1 of 17 Page ID #:293 1 2 3 4 5 6 7 ZIMMERMAN REED LLP Brian C. Gudmundson (admitted pro hac vice) E-mail: brian.gudmundson@zimmreed.com Michael J. Laird (admitted pro hac vice) E-mail: michael.laird@zimmreed.com 1100 IDS Center 80 South 8th Street Minneapolis, MN 55402 (612) 341-0400 Telephone (612) 341-0844 Facsimile [Additional Counsel Listed in Signature Block] UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 8 9 10 KELLI EWEN, 11 Plaintiff, 12 13 14 Case No. 2:19-cv-03656 FMO(GJSx) v. NATIONAL HOCKEY LEAGUE, et al., Defendants. 15 JOINT CASE MANAGEMENT STATEMENT Hearing: August 22, 2019 Time: 10:00 a.m. Courtroom: 6D Before: Hon. Fernando M. Olguin 16 Plaintiff Kelli Ewen (“Plaintiff”) and Defendants National Hockey League, 17 18 NHL Enterprises, L.P., and National Hockey League Board of Governors 19 (collectively, the “NHL” or “Defendants”) submit this Joint Case Management 20 Conference Statement pursuant to Federal Rule of Civil Procedure 26(f), Civil 21 Local Rule 16 and this Court’s Order Setting Scheduling Conference (ECF No. 22). 22 a. 23 Plaintiff’s Statement 24 Statement of the Case Todd Ewen played in 518 games over eleven seasons in the NHL. As an 25 “Enforcer” – a position requiring him to frequently and viciously hit and fight 26 opponents – Todd participated in 150 career documented fights and suffered 27 numerous blows to the head. Tragically, seventeen years after retiring, Todd 28 1 JOINT CASE MANAGEMENT STATEMENT Case 2:19-cv-03656-FMO-GJS Document 33 Filed 08/08/19 Page 2 of 17 Page ID #:294 1 committed suicide. Todd’s brain was donated for analysis to the Canadian 2 Concussion Centre and neuropathologist Lili Naz-Hazrati, who found no evidence 3 of chronic traumatic encephalopathy (“CTE”). Upon later re-examination, 4 however, neuropathologists from Boston University and the Mayo Clinic confirmed 5 Todd did have CTE, an incurable brain disease associated with repeated head 6 injuries. After her analysis of Todd’s brain, Dr. Hazrati went on to become one of 7 the NHL’s experts in the MDL proceedings. The NHL continues to support Dr. 8 Hazrati’s wrongful conclusions regarding Todd even though she and her institution 9 have admitted the conclusions were erroneous. 10 Kelli Ewen, Todd’s wife of 28 years, brings claims against the NHL on 11 behalf of Todd’s estate and herself. Kelli asserts the NHL knew of the hazards 12 inherent in its promotion of fighting and violence in the game of professional 13 hockey and knew that the resultant repeated head trauma would cause long term 14 brain damage to its Enforcers. Despite its knowledge, she alleges the NHL fostered 15 an environment that encouraged and pressured players like Todd to fight opponents 16 for entertainment and to increase revenue, also increasing the risk that players 17 developed long-term brain damage, all while downplaying the risks of repeated 18 head trauma. To this day, the NHL carries the dubious distinction of being the last 19 “league of denial” and denies that repeated head trauma poses any risk of 20 permanent brain damage. 21 Kelli also brings claims for wrongful death and for loss of consortium. Kelli 22 asserts that Todd’s severe brain damage precipitating his suicide was the 23 foreseeable consequence of the NHL’s encouragement of its players to partake in 24 violent bareknuckle fights and denial (to this day) that head blows in hockey pose 25 any long-term risks. Kelly alleges Todd’s suicide was a direct and proximate result 26 of his symptoms of CTE caused by the numerous hits to the head he experienced as 27 an NHL player. 28 2 JOINT CASE MANAGEMENT STATEMENT Case 2:19-cv-03656-FMO-GJS Document 33 Filed 08/08/19 Page 3 of 17 Page ID #:295 1 2 NHL’s Statement Plaintiff filed this lawsuit more than five years after class actions alleging 3 virtually the same misconduct were filed in 2013 by former NHL players. Those 4 suits were consolidated for pretrial matters in a multi-district litigation proceeding 5 in the U.S. District Court for Minnesota on August 19, 2014 (the “MDL”). 6 Plaintiff’s counsel in this case participated as co-lead class counsel in the MDL 7 proceeding and served on plaintiffs’ executive committee. On July 13, 2018, the 8 court in the MDL denied plaintiffs’ motion for class certification. 9 Plaintiff’s claims fail for multiple reasons. As a threshold matter, Plaintiff’s 10 claims center on numerous subjects that have been collectively bargained between 11 the NHL, as bargaining representative of its Member Clubs, and the National 12 Hockey League Players’ Association (“NHLPA”), as bargaining representative of 13 all NHL players. These include, but are not limited to, the NHL’s playing rules, 14 which are incorporated into the applicable collective bargaining agreements and 15 which Plaintiff alleges did not adequately deter fighting and impacts to players’ 16 heads, resulting in the injuries for which Plaintiff seeks recovery, as well as 17 provisions concerning supplemental discipline and player health and safety. 18 Plaintiff’s claims, which will require the determination of whether the NHL owed 19 and breached any duty to Todd Ewen, arise under and/or are substantially 20 dependent on interpretations of collective bargaining agreements between the NHL 21 and the NHLPA and are inextricably intertwined with those agreements. Plaintiff’s 22 claims are therefore preempted by federal labor law and subject to the grievance 23 provisions of the applicable collective bargaining agreements. 24 Even if Plaintiff’s claims were not preempted by federal labor law, they 25 would fail for additional reasons. First, the NHL respectfully submits that the 26 statute of limitations has run as to each of Plaintiff’s claims. Second, Plaintiff 27 cannot establish that the NHL owed or breached any duty to Mr. Ewen, or made 28 any misrepresentation to him. To the contrary, as the record evidence established 3 JOINT CASE MANAGEMENT STATEMENT Case 2:19-cv-03656-FMO-GJS Document 33 Filed 08/08/19 Page 4 of 17 Page ID #:296 1 during the MDL, the NHL and its Member Clubs—along with the NHLPA—have 2 acted consistently with medical knowledge as it has developed over time with 3 regard to the management and treatment of player injuries, including concussions, 4 as well as the education of players about the risks of head injuries and the 5 importance of reporting any such injury to Member Club medical personnel. 6 b. 7 Plaintiff’s Statement Subject Matter Jurisdiction 8 Plaintiff pleaded in her Complaint that this Court had subject matter 9 jurisdiction due to the diversity of the Parties under 28 U.S.C. § 1332, in part by 10 alleging “Plaintiff is a resident of a different state than the Defendant[.]” 11 Plaintiff alleged her state of residence was Missouri while Defendants were 12 headquartered in New York. In its subsequent answer (ECF No. 20), the NHL pled 13 that it is an unincorporated association and that in terms of corporate structure, the 14 association is comprised of its individual teams, and that those teams reside in the 15 states where they play. This includes Missouri and California, which Defendants 16 assert destroys diversity. At the same time, Defendants assert this Court has subject 17 matter jurisdiction due to the fact Defendants intend to raise a defense of complete 18 preemption under § 301 of the Labor Management Relations Act (“LMRA”). 29 19 U.S.C. § 185. Plaintiff asserts that none of her claims are preempted under the 20 LMRA. 21 Plaintiff agrees with Defendants that the Court should resolve subject matter 22 jurisdiction through motion practice and that a limited amount of discovery may be 23 necessary to do so. Plaintiff believes the most straightforward means of achieving 24 this is through Rule 12 motion practice, including regarding Defendant’s asserted 25 preemption defense, as was done previously in the related MDL proceedings. 26 27 28 4 JOINT CASE MANAGEMENT STATEMENT Case 2:19-cv-03656-FMO-GJS Document 33 Filed 08/08/19 Page 5 of 17 Page ID #:297 1 NHL’s Statement 2 The basis for the Court’s subject matter jurisdiction is a contested threshold 3 issue that should be resolved by the Court at the outset, as it will dictate the course 4 of the litigation. Contrary to the allegations in the Amended Complaint, there is no 5 diversity jurisdiction under 28 U.S.C. § 1332. The NHL is an unincorporated 6 association of 31 Member Clubs (see Amended Complaint ¶ 26), and, therefore, has 7 the citizenship of each of those Member Clubs. See Nelson v. Nat’l Hockey 8 League, 20 F. Supp. 3d 650, 659 n.1 (N.D. Ill. 2014) (The NHL “is an 9 unincorporated association and, therefore, is a citizen of every state in which one of 10 its members is a citizen.”), aff’d, Boogaard v. Nat’l Hockey League, 891 F.3d 289, 11 293 n.4 (7th Cir. 2018), cert. denied, 139 S. Ct. 601 (2018). Because one of the 12 Member Clubs (St. Louis Blues Hockey Club, L.P., operating as the St. Louis 13 Blues) is a citizen of Missouri, where Plaintiff alleges citizenship and residency, 14 diversity is lacking. Plaintiff also could not establish diversity by alleging 15 residence and citizenship in California where three Member Clubs (operating as the 16 Anaheim Ducks, Los Angeles Kings and San Jose Sharks) are citizens. 17 Nevertheless, this Court has federal question jurisdiction under 28 U.S.C. § 18 1331 because the claims in Plaintiff’s Amended Complaint arise under the laws of 19 the United States, specifically Section 301 of the Labor Management Relations Act. 20 29 U.S.C. § 185 (“Section 301”). Section 301 requires the application of federal 21 substantive law and completely preempts and displaces entirely any state law cause 22 of action. It does not matter that a lawsuit—like Plaintiff’s suit here—purports to 23 assert tort claims under state law instead of contract claims. See Boogaard, 891 F. 24 3d at 294. If the claims are founded directly on rights created by collective 25 bargaining agreements or are substantially dependent on analysis of a collectively 26 bargained agreement, they are federal claims governed by Section 301. As 27 explained above, among the many reasons that Plaintiff’s claims are preempted by 28 5 JOINT CASE MANAGEMENT STATEMENT Case 2:19-cv-03656-FMO-GJS Document 33 Filed 08/08/19 Page 6 of 17 Page ID #:298 1 federal labor law is Plaintiff’s theory that the NHL’s playing rules, which are 2 incorporated into the applicable collective bargaining agreements, did not 3 adequately protect Mr. Ewen from the injuries that are the subject of this litigation. 4 See Boogaard v. Nat’l Hockey League, 126 F. Supp. 3d 1010, 1020 (N.D. Ill. 2015) 5 (“[I]t is unlikely that the NHL would have assumed responsibility for ‘keeping 6 players reasonably safe’ and ‘preventing brain trauma’ while simultaneously 7 adopting a collective bargaining agreement that prohibited them from taking steps 8 necessary to meet those responsibilities.”). The NHL asserts that each of Plaintiff’s 9 claims is preempted by federal labor law, but even if only one claim is preempted, 10 the Court will have subject matter jurisdiction over this action if it exercises 11 supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over any claim that the 12 Court determines is not preempted. 13 In order to resolve this threshold dispute as to whether and why this Court 14 has subject matter jurisdiction, the NHL respectfully suggests that the Court allow 15 the parties to brief their respective positions. Thus, the NHL proposes that each 16 side submit opening briefs in support of its position on September 23, 2019 and that 17 responsive briefs be due 30 days thereafter, with reply briefs due 14 days thereafter. 18 The NHL believes that any discovery necessary for the jurisdiction and 19 preemption determinations was completed in the MDL proceeding. However, to 20 the extent the Court determines that any additional discovery is necessary, the 21 parties could focus initial discovery on either issue. After determining he had 22 subject matter jurisdiction, a similar procedure to resolve preemption issues was 23 used by Judge Gary Feinerman of the U.S. District Court for the Northern District 24 of Illinois in Nelson, supra—a litigation in which Plaintiff’s counsel also 25 participated—prior to Judge Feinerman holding that most of the plaintiff’s tort 26 claims against the NHL, which included factual allegations similar to those in this 27 case, were preempted. 28 6 JOINT CASE MANAGEMENT STATEMENT Case 2:19-cv-03656-FMO-GJS Document 33 Filed 08/08/19 Page 7 of 17 Page ID #:299 1 c. Legal Issues 2 Plaintiff’s Statement 3 This case will present the following key legal issues: 4 1. Whether the NHL owed a duty to protect Todd Ewen from, or warn 5 him of, the sequelae associated with repeated head trauma inherent in the role of 6 Enforcer and if so, whether defendants breached that duty; 7 8 9 10 2. Whether defendants fraudulently concealed the long-term consequences of head trauma in NHL hockey from Todd Ewen; 3. To the extent the NHL contends it warned Todd Ewen regarding the risks of repeated head trauma, was any such warning legally sufficient; 11 4. Whether the NHL’s actions and omissions caused injury to Plaintiff; 12 5. If the NHL’s actions and omissions caused injury to Plaintiff, what is 13 14 15 the measure of compensable damages; 6. Whether defendants wrongfully caused Todd Ewen’s death. NHL’s Statement 16 The principal legal issues in dispute are: 17 1. Whether Plaintiff’s claims are preempted by federal labor law; 18 2. Whether Plaintiff’s claims are barred by applicable statutes of 19 20 21 22 23 24 25 26 27 limitations; 3. Whether Plaintiff’s negligence-based claims are barred by contributory or comparative negligence and/or assumption of risk; 4. Whether Plaintiff can establish that the NHL owed any duty of care or duty to warn Mr. Ewen; 5. Whether Plaintiff can establish that the NHL breached any duty owed to Mr. Ewen; 6. Whether Plaintiff can establish that the NHL made any fraudulent statement; 28 7 JOINT CASE MANAGEMENT STATEMENT Case 2:19-cv-03656-FMO-GJS Document 33 Filed 08/08/19 Page 8 of 17 Page ID #:300 7. 1 2 Whether Plaintiff can establish that Mr. Ewen relied on any such fraudulent statement to his detriment; and 8. 3 Whether Plaintiff can establish that any alleged misconduct by the 4 NHL caused cognizable injury to Plaintiff. 5 d. 6 Parties, Evidence, etc. Plaintiff is Kelli Ewen, on behalf of herself and on behalf of the estate of 7 Todd Ewen, and the Defendants are the National Hockey League, NHL Enterprises, 8 LP, and the National Hockey League Board of Governors. 9 Plaintiff’s Statement Regarding Evidence 10 11 12 13 Key Documents: 1. Ann C. McKee, M.D., CTE Center Neuropathology Report on Todd Ewen (Jun. 28, 2018); 2. Letter from Kevin F. Bieniek, Ph.D. & Dennis W. Dickson, M.D., 14 Mayo Clinic Neuropathology Laboratory, to Ann C. McKee, Professor Neurology 15 and Pathology, Boston University School of Medicine (Jun. 4, 2018); 16 3. Documents adduced to date in discovery in MDL proceedings showing 17 the NHL’s awareness, acceptance, and encouragement of serious, repeated blows to 18 the head in NHL hockey, including in bare knuckle fighting; 19 4. Documents to be adduced in discovery showing the NHL’s awareness, 20 acceptance, and encouragement of serious, repeated blows to the head in NHL 21 hockey, including in bare knuckle fighting; 22 5. Expert reports from related MDL proceedings, including from NHL 23 expert Dr. Lili Naz-Hazrati, and who previously and erroneously examined Todd 24 Ewen’s brain and concluded he did not suffer from CTE, and from plaintiffs’ 25 experts; and, 26 6. Medical and scientific studies and information regarding the 27 connection between repeated head trauma and long term neurological issues, 28 including suicide. 8 JOINT CASE MANAGEMENT STATEMENT Case 2:19-cv-03656-FMO-GJS Document 33 Filed 08/08/19 Page 9 of 17 Page ID #:301 1 Key Witnesses: 2 1. 3 Ann C. McKee, M.D., Professor of Neurology and Pathology, Boston School of Medicine; 4 2. Kelli Ewen, widow of Todd Ewen; 5 3. NHL personnel, including Commissioner Gary Bettman; and, 6 4. NHL team personnel who witnessed or otherwise possess relevant 7 information regarding Todd Ewen’s head injuries while an NHL player. 8 NHL’s Statement Regarding Evidence 9 Categories of relevant documents that have been or likely will be produced 10 include: 11 1. Documents related to collective bargaining between the NHL and 12 NHLPA regarding, among other things, player health and safety, playing rules, 13 supplemental discipline and playing environment; 14 15 16 17 18 2. Documents related to Mr. Ewen’s hockey playing history, both in the NHL and in other amateur and professional leagues; 3. Documents related to Mr. Ewen’s post-hockey professional career, including income and finance related materials; 4. Documents related to Mr. Ewen’s medical history, including Dr. Lili 19 Naz-Hazrati’s autopsy report, in which she confirmed no pathology consistent with 20 CTE, and corroborative reports by other clinicians. (Contrary to Plaintiff’s 21 assertion, Dr. Hazrati has not admitted that her conclusions were erroneous.); 22 5. Documents related to Mr. Ewen’s knowledge about CTE; 23 6. Documents related to player education on head hits in hockey by the 24 NHLPA and NHL; 25 7. Documents related to treatment of player concussions by NHL Clubs; 26 8. Documents discussing the state of the science regarding CTE. 27 Potential witnesses likely include: 28 1. Plaintiff; 9 JOINT CASE MANAGEMENT STATEMENT Case 2:19-cv-03656-FMO-GJS Document 33 Filed 08/08/19 Page 10 of 17 Page ID #:302 1 2. NHL personnel; 2 3. Medical professionals who treated or examined Mr. Ewen, including 3 Drs. Hazrati, Ann McKee, Kevin F. Bieniek and Dennis W. Dickson; 4. 4 5 NHL Club doctors, trainers and other personnel who possess relevant information regarding Mr. Ewen’s playing or medical history; 6 5. NHLPA personnel; 7 6. Doctors, trainers and other personnel from other hockey leagues or 8 organizations who possess relevant information regarding Mr. Ewen’s playing or 9 medical history; 10 7. Mr. Ewen’s family members; 11 8. Mr. Ewen’s post-hockey career business associates; and 12 9. Experts, including a neuropathologist, neurologist, epidemiologist, a 13 warnings expert and a sports psychologist. 14 e. 15 Plaintiff’s Statement Not applicable. 16 17 Insurance NHL’s Statement 18 The NHL asserts that it has insurance coverage that may potentially apply to 19 this litigation. On or about April 15, 2014, one of the NHL’s insurers commenced 20 an action against the NHL and several insurers concerning insurance coverage for 21 certain concussion-related lawsuits against the NHL. That litigation, captioned TIG 22 Ins. Co. f/k/a Transamerica Ins. Co. v. NHL, et al., Index No. 651162/2014 (N.Y. 23 Sup. Ct., N.Y. Cty.), currently is pending but is stayed. The NHL produced its 24 applicable insurance policies to Plaintiff’s counsel in the MDL proceeding. 25 f. 26 27 Magistrate Judge Pursuant to Local Rule 73-2, the parties have filed a statement (ECF No. 17) informing the Court that they do not consent to proceed before a magistrate judge. 28 10 JOINT CASE MANAGEMENT STATEMENT Case 2:19-cv-03656-FMO-GJS Document 33 Filed 08/08/19 Page 11 of 17 Page ID #:303 1 2 g. Discovery Substantial fact and expert discovery has already taken place in the MDL. In 3 addition, the parties to the MDL negotiated various agreements, including a 4 protective order and deposition protocol, that the parties anticipate asking the Court 5 to adopt for use with regard to remaining discovery in this litigation. With these 6 facts in mind, the parties propose the following schedules. 7 Plaintiff’s Statement 8 Fact Discovery. Plaintiff proposes a fact discovery cutoff date of February 9 28, 2020. Plaintiff presently anticipates pursuing additional discovery from: (1) 10 Defendants with respect to Todd Ewen and issues related to Todd Ewen’s NHL 11 career; (2) third parties, including but not limited to, the individual teams for whom 12 Todd Ewen played, and relevant current and former employees of those teams; and 13 (3) other entities and persons possessing potentially admissible evidence regarding 14 the claims asserted by Plaintiff. 15 16 Expert Discovery. Plaintiff proposes the following schedule for expert witness disclosures and discovery: 17 1. Mutual disclosure of expert reports on March 27, 2020 18 2. Deadline for expert discovery, including depositions, on May 29, 19 20 21 22 2020; and 3. Deadline for rebuttal reports: June 26, 2020. NHL’s Statement Fact Discovery. The NHL proposes that once the Court determines that it 23 has subject matter jurisdiction, fact discovery should commence and be completed 24 in six months. However, while briefing on jurisdiction is in progress and a decision 25 pending, the parties should serve document requests and interrogatories, and 26 responses thereto. In addition, Plaintiff should provide properly executed medical 27 authorizations so the NHL can proceed with the time-consuming collection of Mr. 28 Ewen’s medical records. 11 JOINT CASE MANAGEMENT STATEMENT Case 2:19-cv-03656-FMO-GJS Document 33 Filed 08/08/19 Page 12 of 17 Page ID #:304 The NHL agrees with Plaintiff that any remaining discovery pertaining to the 1 2 NHL will be specific to Mr. Ewen’s case. The NHL anticipates seeking fact 3 discovery from Plaintiff and the estate of Todd Ewen, neither of which was subject 4 to discovery in the MDL. The NHL also anticipates seeking additional discovery 5 from relevant third parties, including, but not limited to: (1) the NHLPA; (2) the 6 NHL Clubs for which Mr. Ewen played (i.e., the St. Louis Blues, Montreal 7 Canadiens, Anaheim Ducks and San Jose Sharks), as well as the physicians, 8 trainers and coaches employed by those Clubs; (3) NHL teammates of Mr. Ewen; 9 (4) medical professionals and medical centers that provided treatment to Mr. Ewen 10 (a prerequisite to which is an authorization by Mr. Ewen’s estate); (5) Mr. Ewen’s 11 post-hockey career employers and business associates; (6) Mr. Ewen’s family 12 members; (7) the Boston University CTE Center and its personnel who examined 13 Mr. Ewen’s brain and determined that he had CTE; and (8) the Mayo Clinic and its 14 personnel who examined Mr. Ewen’s brain. Expert Discovery. Consistent with the schedule for expert discovery in the 15 16 MDL, the NHL proposes the following schedule for expert disclosures and 17 discovery: 1. 18 19 Plaintiff’s expert reports disclosed 30 days after the close of fact discovery; 20 2. The NHL’s expert reports disclosed 60 days thereafter; and 21 3. Close of expert discovery, including depositions, 30 days after 22 disclosure of NHL’s expert reports. Rebuttal and sur-rebuttal reports would only be permitted by leave of the 23 24 Court. 25 h. 26 Plaintiff’s Statement 27 28 Motions Plaintiff does not anticipate adding other parties or claims or to transfer venue in this case, but may, if necessary, file an amended pleading. 12 JOINT CASE MANAGEMENT STATEMENT Case 2:19-cv-03656-FMO-GJS Document 33 Filed 08/08/19 Page 13 of 17 Page ID #:305 1 NHL’s Statement The NHL filed its answer to the Amended Complaint on June 28, 2019 (ECF 2 3 No. 20), which sets forth the NHL’s affirmative defenses. Based on current 4 information, the NHL’s position is that it is unlikely that it will file any motion 5 seeking to add other parties or claims, or to transfer venue. However, if the Court 6 grants leave for Plaintiff to file another amended complaint, the NHL would 7 respond to the new complaint. 8 i. Class Certification This litigation is not a class action. 9 10 j. Dispositive Motions 11 Plaintiff’s Statement Plaintiff proposes that dispositive and Daubert motions be filed within 45 12 13 days following service of expert rebuttal reports. 14 NHL’s Statement The NHL proposes that the cut-off date for dispositive motions and Daubert 15 16 motions be 45 days after the completion of expert discovery. 17 In addition to labor preemption grounds, the NHL anticipates seeking 18 summary judgment, or judgment on the pleadings, on multiple potential grounds, 19 including that: the statute of limitations has run as to each of Plaintiff’s claims; 20 Plaintiff cannot establish that the NHL owed or breached any duty; Plaintiff has 21 failed to adequately plead that the NHL made any misrepresentation or that Mr. 22 Ewen relied on any such misrepresentation; and Plaintiff cannot establish that Mr. 23 Ewen’s play in the NHL caused him to develop CTE, or that CTE or the NHL 24 caused him to commit suicide. 25 k. 26 Plaintiff’s Statement 27 28 Settlement/Alternative Dispute Resolution The parties have not formally discussed settling this dispute and have not pursued any alternative dispute resolution. 13 JOINT CASE MANAGEMENT STATEMENT Case 2:19-cv-03656-FMO-GJS Document 33 Filed 08/08/19 Page 14 of 17 Page ID #:306 1 NHL’s Statement During the MDL proceeding, plaintiffs’ counsel and the NHL engaged in 2 3 extensive settlement discussions, with retired Magistrate Judge Jeffrey Keyes 4 serving as a court-appointed mediator. After very lengthy discussions, the 5 mediation culminated in a settlement agreement, pursuant to which the NHL 6 offered each of the 146 plaintiffs who had filed concussion-related claims and each 7 unfiled claimant (i.e., former players or their estates, including Mr. Ewen’s, who 8 had retained counsel but not yet filed claims against the NHL): (1) a base payment 9 of $22,000; (2) agreed-upon neuropsychological testing; (3) an agreed-upon 10 neurological exam and blood testing (for players with specified neuropsychological 11 testing results); and (4) for such players or the estates of players (such as Mr. 12 Ewen’s), eligibility to receive up to an additional $75,000 pursuant to criteria 13 developed by MDL plaintiffs’ counsel and an independent claims administrator. Of 14 the 146 plaintiffs, 140 accepted this settlement offer or voluntarily dismissed their 15 claims; a total of 305 former players or their estates have participated in the 16 settlement or otherwise voluntarily dismissed their claims. Plaintiff is the only unfiled claimant who chose not to accept the settlement 17 18 and to proceed with litigation against the NHL. Accordingly, the NHL’s position is 19 that any further settlement discussions would be unproductive at this time. 20 l. 21 Plaintiff’s Statement 22 Pretrial Conference and Trial Plaintiff proposes a pre-trial conference to occur within 30 days of a ruling 23 on any dispositive motion and for trial to begin within 90 days of the pre-trial 24 conference. If no dispositive motions are filed, plaintiffs proposes that a pre-trial 25 conference occur within 30 days after the disclosures of expert testimony. 26 27 28 14 JOINT CASE MANAGEMENT STATEMENT Case 2:19-cv-03656-FMO-GJS Document 33 Filed 08/08/19 Page 15 of 17 Page ID #:307 1 NHL’s Statement 2 The NHL proposes that a pretrial conference be held 30 days after the Court 3 rules on the parties’ summary judgment and Daubert motions and that trial should 4 commence 90 days thereafter. 5 m. 6 Plaintiff’s Statement Trial Estimate Plaintiff anticipates a three-week trial, and that each side will call 7 8 approximately seven witnesses. 9 NHL’s Statement The NHL also anticipates a three-week trial, but it expects to call 10-15 10 11 witnesses. 12 n. 13 Plaintiff’s Statement Trial Counsel Trial counsel for Plaintiffs will be William T. Gibbs of Corboy & Demetrio, 14 15 Brian C. Gudmundson of Zimmerman Reed, LLP, and Mark O’Mara of O’Mara 16 Law Group. 17 NHL’s Statement Trial counsel for the NHL will be John Beisner, Jack DiCanio, Shepard 18 19 Goldfein and Matthew Martino, of Skadden, Arps, Slate, Meagher & Flom, LLP, 20 and Joseph Baumgarten and Adam Lupion, of Proskauer Rose LLP. 21 o. Independent Expert or Master The parties expect this action to involve contested scientific issues (including 22 23 the state of the science surrounding CTE) and expert reports and Daubert motions 24 pertaining to those issues, but agree that appointment of a special master or 25 independent expert is unnecessary at this time. 26 p. 27 28 Other Issues Plaintiff anticipates seeking discovery from one or more Canadian citizens and entities, which may require the Court’s assistance in management and 15 JOINT CASE MANAGEMENT STATEMENT Case 2:19-cv-03656-FMO-GJS Document 33 Filed 08/08/19 Page 16 of 17 Page ID #:308 1 resolution of attendant issues. Because several case management documents have 2 already been negotiated (e.g., ESI Protocol) and substantial discovery has already 3 occurred in the MDL, the parties agree there are no other issues that may impact the 4 management of these proceedings to raise at this time. 5 6 Respectfully submitted, 7 ZIMMERMAN REED, LLP 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Date: August 8, 2019 By: s/ Brian C. Gudmundson Brian C. Gudmundson (admitted pro hac vice) Michael J. Laird (admitted pro hac vice) 1100 IDS Center 80 South 8th Street Minneapolis, MN 55402 (612) 341-0400 Telephone (612) 341-0844 Facsimile Christopher P. Ridout Caleb Marker 2381 Rosecrans Avenue, Suite 328 Manhattan Beach, CA 90245 (877) 500-8780 Telephone (877) 500-8781 Facsimile CORBOY & DEMETRIO, P.C. William T. Gibbs (pro hac vice anticipated) 33 N. Dearborn, Suite 2100 Chicago, IL 60602 (312) 346-3191 Telephone (312) 346-5562 Facsimile O’MARA LAW GROUP Mark M. O’Mara (pro hac vice forthcoming) 221 NE Ivanhoe Blvd., Suite 200 Orlando, FL 32804 Telephone: (407) 898-5151 Facsimile: (407) 898-2468 mark@omaralawgroup.com Attorneys for Plaintiffs 25 26 27 28 16 JOINT CASE MANAGEMENT STATEMENT Case 2:19-cv-03656-FMO-GJS Document 33 Filed 08/08/19 Page 17 of 17 Page ID #:309 SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Date August 8, 2019 By: /s/ Jack P. DiCanio Jack P. DiCanio 525 University Avenue Palo Alto, CA 94301 Telephone: (650) 470-4500 John H. Beisner 1440 New York Avenue, N.W. Washington, D.C. 20005 Telephone: (202) 371-7000 Shepard Goldfein (pro hac vice application pending) Matthew M. Martino (pro hac vice application pending) Four Times Square New York, New York 10036-6522 Telephone: (212) 735-3000 PROSKAUER ROSE LLP Joseph Baumgarten (pro hac vice application pending) Adam M. Lupion (pro hac vice application pending) Eleven Times Square New York, New York 10036-8299 Telephone: (212) 969-3000 Attorneys for Defendants 18 19 20 ATTORNEY ATTESTATION I, Brian C. Gudmundson, am the ECF User whose ID and password are being 21 used to file the JOINT CASE MANAGEMENT STATEMENT. In compliance with 22 C.D. Cal. L.R. 5-4.3.4, I hereby attest that the concurrence in the filing of the 23 document has been obtained from the other signatory. 24 25 s/ Brian G. Gudmundson Brian C. Gudmundson 26 Attorney for Plaintiff 27 28 17 JOINT CASE MANAGEMENT STATEMENT