19-.16017
IN THE

United States Court of Appeals
Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 1 of 46

FOR THE NINTH CIRCUIT

RICHARD DENT; JEREMY NEWBERRY; ROY GREEN; J . D . HILL; KEITH VAN
HORNE; RON STONE; RON PRITCHARD; JAMES McMAHON; MARCELLUS
WILEY; JONATHAN REX HADNOT, JR., On Behalf of Themselves and All Others

Similarly Situated,
Plaintiffs-Appellants,
-v.-

NATIONAL FOOTBALL LEAGUE,

a New York unincorporated association,
Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR NORTHERN CALIFORNIA, SAN FRANCISCO

BRIEF FOR PLAINTIFFS-APPELLANTS

WILLIAM N . SINCLAIR
PHILLIP J. CLOSIUS
STEVEN D. SILVERMAN
ANDREW G. SLUTKIN
SILVERMAN THOMPSON SLUTKIN
&WHITELLC

201 N. Charles Street, Suite 2600
Baltimore, Maryland 21201
(410) 385-2225
Attorneys for Plaintiffs-Appellants

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 2 of 46

TABLE OF CONTENTS
PAGE(S)
INTRODUCTION ....................................................................................................1
JURISDICTIONAL STATEMENT .......................................................................2
STATEMENT OF THE ISSUES ............................................................................2
STATEMENT OF THE CASE ...............................................................................4
SUMMARY OF THE ARGUMENT .....................................................................8
ARGUMENT ............................................................................................................9
I. THE DISTRICT COURT MISUNDERSTOOD THE NINTH
CIRCUIT’S OPINION IN DENT V. NFL....................................................9
A. The District Court Mischaracterized Plaintiffs’ Arguments before the
Ninth Circuit in Dent...................................................................................9
B. The Dent Opinion did not Require the TAC to Allege that NFL
Personnel Gave Drugs to NFL Players....................................................13
1.

The District Court considered restrictive interpretations of
statutory terms resulting in an improper decision………….....13

2.

The District Court improperly relied solely on the Controlled
Substances Act and blatantly disregarded other statutes that
Plaintiffs pleaded in the TAC …………..……………………16

II. THE DISTRICT COURT’S ORDER EXCEEDED THE SCOPE OF A
MOTION TO DISMISS. .............................................................................18
A. Standard of Review. ..................................................................................18
B. The TAC is Replete with Specific Allegations of NFL Personnel
Directing and Controlling the Provision of Prescription Drugs to NFL
Players. .......................................................................................................19
C. The Third Amended Complaint Adequately Pleads Negligence. .........23
1.

The NFL Owed a Duty of Care to Plaintiffs …… …….……24

1
 

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 3 of 46

2.

i.

The NFL failed to exercise reasonable care in its
utilization of prescription medications ………………24

ii.

For decades the NFL assumed a duty when it voluntarily
involved itself in the distribution of medications …….27

iii.

The NFL owed Plaintiffs a duty because they were in a
"special relationship."…………………...……………..29

Plaintiffs have adequately pled the remaining elements of
negligence ……………………………………………………31

III. THE DISTRICT COURT MISUNDERSTOOD CALIFORNIA’S
NEGLIGENCE PER SE LAW...................................................................34
CONCLUSION.......................................................................................................35
STATEMENT OF RELATED CASES................................................................36
CERTIFICATE OF SERVICE…………………………………………………37

2
 

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 4 of 46

TABLE OF AUTHORITIES
Andrews v. Wells, 204 Cal. App. 3d 533 (Sept. 12, 1988) ......................................32
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ..................... ……………………………..19
Baldwin v. Zoradi, 123 Cal. App. 3d 275 (Aug. 31, 1981) .....................................29
Beaver v. Tarsadih Hotels, 29 F. Supp. 3d 1294 (S. D. Cal. 2014) ........................35
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ....................................................19
Clarke v. Hoek, 174 Cal. App. 3d 208 (Nov. 8, 1985) ............................................33
Coppola v. Smith, 935 F. Supp. 2d 993 (E.D. Cal. Mar. 26, 2013) ............ 23, 34, 35
Curtis v. Q. R. S. Neon Corp., 147 Cal. App. 2d 186 (1956) ..................................31
Dent v. National Football League, 902 F.3d 1109 (9th Cir. 2018) ................. passim
Dent v. National Football League, No. C 14-02324 WHA, 2019 WL 1745118
(N.D. Cal. Apr. 18, 2019)…………………………………………………passim
Desaigoudar v. Meyercord, 223 F.3d 1020 (9th Cir. 2000) ....................................22
El-Shaddai v. Zamora, 833 F.3d 1036 (9th Cir. 2016) ............................................19

1
 

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 5 of 46

Garman v. Magic Chef, Inc., 117 Cal. App. 3d 634 (Apr. 1, 1981) ........................33
Giraldo v. Department of Corrections & Rehabilitation, 168 Cal. App. 4th 231
(2008) ....................................................................................................................30
Hatch v. Ford Motor Co., 163 Cal. App. 2d 393 (1958) .........................................33
Ileto v. Glock Inc., 349 F.3d 1191 (9th Cir. 2003) ........................................... 22, 32
J.P. ex rel. Balderas v. City of Porterville, 801 F. Supp. 2d 965 (E.D. Cal. 2011).32
J’Aire Corp. v. Gregory, 157 Cal. Rptr. 407, 598 P. 2d 60 (1979) .........................26
Jackson v. AEG Live, LLC, 233 Cal. App. 4th 1156, (Jan. 30, 2015) .............. 32, 33
Johns-Manville Sales Corp. v. Workers’ Comp. Appeals Bd., 96 Cal. App. 3d 923
(1979) ....................................................................................................................31
Jones v. Bock, 549 U.S. 199 (2007) .........................................................................19
Kleinknecht v. Gettysburg College, 989 F.2d 1360 (3rd Cir. 1993) ........................30
Knight v. Jewett, 3 Cal. 4th 296 (1992) ...................................................................28
Lacy v. Pacific Gas & Elec. Co., 220 Cal. 97 (Feb. 10, 1934) ................................33
Lindstrom v. Hertz Corp., 81 Cal. App. 4th 644 (2000) ..........................................32

2
 

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 6 of 46

Lu v. Hawaiian Gardens Casino, Inc., 50 Cal. 4th 592 (2010) ...............................26
Mann v. State of California, 70 Cal. App. 3d 773 (June 16, 1977) ........................30
Mayall on Behalf of H.C. v. USA Water Polo, Inc., 909 F.3d 1055 (9th Cir. 2018)
...............................................................................................................................27
 

McIntyre v. The Colonies-Pac., LLC, 228 Cal. App. 4th 664 (2014) ......................23
Moradi-Shalal v. Fireman’s Fund Ins. Companies, 46 Cal. 3d 287 (1988)............26
Pub. Lands for the People, Inc. v. U.S. Dep't of Agric., 697 F.3d 1192 (9th Cir.
2012) .....................................................................................................................19
Raven H. v. Gamette, 157 Cal. App. 4th 1017 (2007) ...................................... 23, 24
Regents of Univ. of Cal. v. Superior Court, 4 Cal. 5th 607 (2018) .................. 29, 30
Rowland v. Christian, 69 Cal. 2d 108 (1968) ..........................................................24
Saelzler v. Advanced Group 400, 25 Cal. 4th 763 (2001) .......................................33
Schaeffer v. Gregory Village Partners, L.P., 105 F. Supp. 3d 951 (N.D. Cal. May,
14, 2015) ...............................................................................................................32
Sonoma Cty. Ass'n of Retired Employees v. Sonoma Cty., 708 F.3d 1109 (9th Cir.
2013) .....................................................................................................................18

3
 

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 7 of 46

Spencer v. DHI Mortg. Co., Ltd., 642 F.Supp.2d 1153 (E.D. Cal. 2009) ...............34
Steinle v. City and County of San Francisco, 230 F. Supp. 3d 994 (N.D. Cal. Jan. 6,
2017) .....................................................................................................................33
Trujillo v. G.A. Enters, Inc., 36 Cal. App. 4th 1105 (1995) ....................................33
Turner v. City & Cty. of San Francisco, 788 F.3d 1206 (9th Cir. 2015).................18
United States v. Ahumada-Avalos, 875 F.2d 681 (9th Cir. 1989)…………….15, 16
 

United States v. Brunty, 701 F.2d 1375 (11th Cir. 1983)…………………………16

United States v. DeRosa, 670 F.2d 889 (9th Cir. 1982)……………………..……16
 

United States v. Park, 421 U.S. 658 (1975) .............................................................17
University of Southern California v. Superior Court, 30 Cal. App. 5th 429 (2018)
...............................................................................................................................27
Verdugo v. Target Corp., 59 Cal. 4th 312 (2014)....................................................26

STATUTES, RULES AND OTHER AUTHORITY
21 C.F.R. § 1301.71 (2018) .....................................................................................16
21 C.F.R. § 1304 (2018) ..........................................................................................16

4
 

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 8 of 46

21 U.S.C. § 301 ..........................................................................................................4
21 U.S.C. § 801 ..........................................................................................................4
21 U.S.C. § 802 (2016) ..................................................................................... 14, 15
21 U.S.C. § 827 ........................................................................................................16
28 U.S.C. § 1291 ........................................................................................................2
28 U.S.C. § 1332 ........................................................................................................2
California Evidence Code §669 .......................................................................... 4, 34
Other Authorities
Transcript of Oral Argument, Dent v. National Football League, No. C 14-02324
WHA, 2019 WL 1745118 (N.D. Cal. Apr. 18, 2019) .............................................18
RESTATEMENT (SECOND) OF TORTS: §285, Cmt. C (1965) ......................................25
RESTATEMENT (SECOND) OF TORTS: §314A, Cmt. B, p. 119 (1965) .......................29
RESTATEMENT (THIRD) OF TORTS: Liability for Physical and Emotional Harm,
§40(b) (2010)..........................................................................................................29
Oral Argument, Dent v. NFL, 902 F.3d 1109 (9th Cir. 2018) (No. 15-15143)
……………………………………………………………...…………11, 12, 21

5
 

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 9 of 46

INTRODUCTION
For decades the National Football League (“NFL”) directed and controlled the
distribution of controlled substances and prescription drugs to its players in amounts
(e.g., number of injections) and a manner (e.g., without a prescription and failure to
warn of side effects) that violate federal and state laws. It did so for a lucrative
financial benefit, yet left its “money-makers” – the players – with latent injuries
(e.g., kidney failure that did not manifest until years after a player retired) and drug
addictions they now battle on their own, without NFL assistance, years after their
careers ended.
In early 2013, Plaintiffs/Appellants (hereinafter, “Plaintiffs”) first made the
connection between their injuries and the aforementioned illegal conduct. In May
2014, on behalf of all retired players, they filed a complaint to seek redress for the
injuries the class has suffered, and continues to suffer, as a result thereof. The NFL
filed two motions to dismiss and on December 17, 2014, the District Court dismissed
on preemption grounds (the “2014 Decision”). Plaintiffs appealed that decision to
the Ninth Circuit, which reversed and remanded to the District Court for further
proceedings on September 6, 2018. Thereafter, Plaintiffs filed a Third Amended
Complaint (“TAC”) in which they streamlined the case to a single cause of action –
negligence. After oral argument, on April 18, 2019, the District Court dismissed
Plaintiffs’ TAC on the grounds that Plaintiffs failed to adequately plead their sole
1

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 10 of 46

negligence claim because they did not demonstrate any duty owed by the NFL to
Plaintiffs. The District Court came to this conclusion after deciding Plaintiffs’ well
pleaded allegations were inaccurate, a colossal misstep at this stage in litigation. For
the reasons discussed herein, the District Court committed reversible error
dismissing Plaintiffs’ TAC as it misapplied the standard for deciding a motion to
dismiss and failed to abide by Supreme Court and Ninth Circuit decisions pertaining
to Federal Rule of Civil Procedure 12(b)(6) motions. This Court should thus reverse
and remand this matter for further proceedings below.
JURISDICTIONAL STATEMENT
Plaintiffs appeal from the District Court’s April 18, 2019 judgment granting
the NFL’s motion to dismiss. The District Court has jurisdiction under 28 U.S.C. §
1332(d)(2) because the proposed class consists of more than one hundred persons,
the overall amount in controversy exceeds $5,000,000 exclusive of interest, costs,
and attorney’s fees, and at least one plaintiff is a citizen of a state different from one
defendant. Plaintiffs filed a timely notice of appeal on May 14, 2019. This Court
has jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUES
There are 4 issues on appeal:
1.

The District Court concluded that Plaintiffs did not comply with the

Ninth Circuit’s 2018 holding, when it remanded the matter to the District Court. The
2

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 11 of 46

District Court found that Plaintiffs had convinced the Ninth Circuit that the NFL had
directly handed drugs to players and Clubs and that the Ninth Circuit in effect
required the TAC to contain allegations to that effect. Did the District Court commit
reversible error when it mischaracterized Plaintiff’s argument and the Ninth
Circuit’s opinion in Dent,1 by holding that Plaintiffs’ well-pled allegations regarding
the NFL having directed and controlled the distribution of drugs was insufficient to
support a negligence claim?
2.

In deciding a motion such as the one at issue, the trial court must accept

all well-pled allegations as true and cannot resolve disputed issues of fact. The
District Court found the individual clubs and its respective employees, not the NFL,
the conglomerate, as pled, were responsible for the conduct at issue and therefore
dismissed the case. Did the District Court commit reversible error when it substituted
its view of the allegations for what Plaintiffs pled and when it resolved factual
disputes in the NFL’s favor?
3.

The District Court held that none of the three duties alleged in the TAC

were sufficiently plead under applicable California law. Did the District Court err
in so holding?

1

Dent refers to Dent v. National Football League, 902 F.3d 1109 (9th Cir.

2018)
3

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 12 of 46

4.

The District Court concluded that Plaintiffs relied on a negligence per

se theory to support their negligence claim, when in actuality California recognizes
negligence per se as an application of an evidentiary presumption provided by
California Evidence Code §669. Did the District Court commit reversible error when
it conflated the evidentiary presumption of negligence per se with the theory of
negligence as pled by Plaintiffs?
STATEMENT OF THE CASE
On May 20, 2014, Hall of Famer Richard Dent and seven other retired football
players filed a putative class action suit against the NFL. Appellants’ Excerpts of
Record, Volume I, Page 279.2 The complaint was amended (“SAC”) to include two
additional retired players as named Plaintiffs. E.R. 279. After the District Court
dismissed Plaintiffs’ SAC and the Ninth Circuit reversed the District Court’s
decision, Plaintiffs filed a third and final amended complaint. E.R. 289.
Cumulatively, at least one of the ten Plaintiffs played in every NFL season from
1969 through 2012. E.R. 245. The gravamen of the TAC was simple: since 1971,
the NFL directed and controlled the distribution to its players of controlled
substances and prescription drugs in violation of the Comprehensive Drug Abuse
Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq. (“Controlled Substances

2

Appellants’ Excerpts of Record are hereinafter referred to as “E.R.”
4

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 13 of 46

Act”); the Food, Drug and Cosmetic Act, 21 U.S.C. § 301 et seq. (“Food and Drug
Act”), and corresponding state statutes. E.R. 10.
Plaintiffs’ stories are remarkably similar. Regardless of the team or year,
players were given large quantities of opioids, non-steroidal anti-inflammatory
drugs, and anesthetics without a prescription, with little regard for their medical
history or potentially fatal interaction with other medications, and without warning
about possible side effects. E.R. 105. While the types of medications changed over
the years, from amphetamines in the 1970s to Toradol in the 1990s and beyond, the
volume and manner in which they were distributed remained constant. E.R. 159–60.
The NFL engaged in this conduct to keep its players on the field and its
revenues high, with the former becoming increasingly difficult over time and the
latter becoming all-encompassing. E.R. 154–57. From 1966 (when the AFL and
NFL merged) to the present, the NFL has steadily expanded its schedule to include
more games in an overall season and has also increased their frequency, with games
now being played on Sundays, Mondays and Thursdays (and after college football
ends, Saturdays too). E.R. 154. The offseason is far shorter than it was 50 years ago,
as now a player might participate in the Super Bowl in February and have to report
back in April (and until recently, March), whereas they used to go months at a time
with no involvement with their clubs.

5

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 14 of 46

In a survey by The Washington Post, nearly nine out of 10 former players
reported playing while hurt. E.R. 155. Fifty-six percent said they did this
“frequently.” E.R. 155. An overwhelming number – 68 percent – said they did not
feel like they had a choice whether to play hurt. E.R. 155. And they are right – the
NFL gave them no choice. E.R. 155. Rather than allowing players the opportunity
to rest and heal, the NFL illegally substituted Medications for proper health care.
E.R. 156. For example, Plaintiff Keith Van Horne played a playoff game when he
could not lift his arm. E.R. 175. During that time, he received two Percodan for the
first half of the game and another two Percodan for the second half of the game to
deal with the pain rather than proper medical care and rest. E.R. 175.
The similarity in which Medications were distributed to players on different
clubs scattered across the country over five decades indicates that the decision to
engage in this illegal conduct came from the NFL. E.R. 76.
The foregoing allegations form the nucleus of the TAC, the operative
amended pleading filed on December 5, 2018. E.R. 289. Plaintiffs further allege that,
as a result of the NFL’s illegal conduct, they suffer from addiction, muscular-skeletal
injuries, and harm to their internal organs. E.R. 160.
Procedurally, the District Court first District Court granted the NFL’s
preemption motion to dismiss on December 17, 2014. E.R. 288. The Order further
provided that Plaintiffs could have until December 31, 2014 to file a motion for leave
6

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 15 of 46

to amend their claims. E.R. 288. Plaintiffs did not, and the District Court entered a
final Order on December 31, 2014. E.R. 288. Plaintiffs appealed the District Court’s
December 17, 2014 ruling to the Ninth Circuit. E.R. 288. On September 6, 2018, the
Ninth Circuit reversed on the collective bargaining agreement (“CBA”) issue and
remanded the matter to the District Court for further proceedings. E.R. 151. The
Ninth Circuit was clear that Plaintiffs were to focus on the NFL’s responsibility and
actions that support Plaintiffs’ negligence claim against it. E.R. 151.
On December 5, 2018, Plaintiffs filed their TAC asserting one cause of action –
negligence. E.R. 289. This claim is supported by several facts pled therein, including
the following:
− Doctor Pellman of the New York Jets, the public face of the League’s health
problems, distributed drugs to players, E.R. 209 at ¶¶ 184;
− NFL’s employment of a doctor as the head of its prescription drug program
since at least 1973 with the purpose of maintaining NFL’s Return to Play
Business Plan (“Business Plan”), E.R. 203 at ¶¶ 159–62, E.R. 210 ¶ 188;
− The NFL holds annual meetings to coordinate details regarding the
distribution of Medications among all of its clubs, E.R. 208 at ¶ 183;
− The NFL mandated that its players sign a Toradol waiver. E.R. 208 at ¶ 181;
− The NFL audits and reviews the distribution of medications, E.R. 210 at ¶
188.; and
− The imposition by the NFL of reporting software and bulk drug procurement
from SportPharm, a company that voluntarily surrendered its pharmacy
license in 2010 in the face of charges that it illegally distributed drugs to
multiple NFL clubs, E.R. 207.
7

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 16 of 46

The NFL moved to dismiss the TAC for failure to state a claim and on
supposed statute of limitations problems. E.R. 289. After oral argument on April 18,
2019, the District Court dismissed Plaintiff’s TAC, explaining that it did not find
that the NFL was directly involved in handling, distributing, and administrating of
medications within the meaning of the pertinent statutes and further that the NFL
had no duty to Plaintiffs that it may have plausibly breached. E.R. 290. The District
Court found the statute of limitations motion to be moot. E.R. 21.
Plaintiffs timely filed the current appeal. E.R. 291.
SUMMARY OF THE ARGUMENT
The District Court analyzed Plaintiffs’ TAC under a fundamental
misapplication of the law at this stage in litigation. It required Plaintiffs to prove that
the NFL itself was providing prescription drugs to NFL players or Clubs. Rather, the
standard at this stage is to assess whether Plaintiffs sufficiently pleaded allegations
that, if true, would state a negligence claim. Further, the District Court
mischaracterized negligence per se as a vehicle for Plaintiffs to prove negligence,
when in fact California recognizes it as an evidentiary presumption. As explained,
both supra and infra, Plaintiffs allege that the NFL owed a duty – under California
law – to Plaintiffs, which it breached when it directed and controlled the distribution
of prescription drugs to NFL players, leaving them with latent injuries decades after
each player retired. Last, the District Court misinterpreted this Court’s 2018 holding.
8

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 17 of 46

The District Court incorrectly determined that Plaintiffs convinced the Ninth Circuit
that NFL was directly providing prescription drugs to NFL players and Clubs.
However, Plaintiffs assert, then and now, that NFL directs and controls its pyramidal
prescription drug scheme and is therefore liable to Plaintiffs.
The question thus presented is: If in fact Plaintiffs can prove that the NFL
directed, controlled and profited from the prescription drug scheme on a routine
basis, did the NFL breach a duty it owed to each of the players?
In the appropriate analysis that should flow from that question, who else was
involved in distributing and administering the prescription drugs is not relevant. The
District Court’s decision should be reversed because it failed to recognize Plaintiffs’
claims as pled and did not correctly construe the duty at issue.
ARGUMENT
I.

THE DISTRICT COURT MISUNDERSTOOD THE NINTH
CIRCUIT’S OPINION IN DENT v. NFL.
A. The District Court Mischaracterized Plaintiffs’ Arguments
before the Ninth Circuit in Dent.
The District Court premised its analysis of the Ninth Circuit’s opinion in Dent

is on a misunderstanding that Plaintiffs argued that NFL personnel were directly
giving drugs to the players or the Club doctors and trainers. These key passages from
the District Court’s decision stating as much are as follows:
− “By their own admission then, plaintiffs do not allege that the NFL itself
violated the relevant drug laws and regulations governing the medications at
9

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 18 of 46

issue – that violation is specifically attributed to the club doctors and trainers.”
Dent v. National Football League, No. C 14-02324 WHA, 2019 WL 1745118
at *5 (N.D. Cal. Apr. 18, 2019) (hereinafter “Dent II”).
− “Significantly, plaintiffs do not make any specific, plausible allegation that
the relevant statutes apply to the NFL, let alone that the NFL violated those
statutes.” Id. at *6.
− “Plaintiffs now acknowledge in their third amended complaint and briefing
that the NFL did not itself provide medical care for or distribute medications
to the players, and the operative complaint contains only conclusory
allegations related to conduct by the NFL that would give rise to a duty of
care.” Id.
Plaintiffs neither made such representations nor did the Dent Court rely on any such
assertions.
The District Court’s improper reasoning, by its own admission, was driven by
one specific exchange during the appellate oral argument between NFL’s counsel
and the Dent Court, which it quoted in its opinion:
“THE COURT: Counsel, what do we do with the allegation in
the complaint that NFL directly gave drugs to athletes?
MR. CLEMENT: Well, I think what you do is you read it in the
context of the entire complaint, so with respect to every one of the
ten plaintiffs, the specific allegations are that they were given
injections by the team doctors, the doctors …
THE COURT:
I’m looking at paragraph 17 of the complaint.
This is the second amended complaint, the NFL directly? I’m going
to put some Ellipses in here. The NFL directly supplied players with
Opioids.” Id. at *2. (stating that this exchange and interpretation “of
the complaint drove our court of appeals’ analysis.”).
Conspicuously missing from the District Court’s opinion is the exchange
immediately following the above-referenced dialogue, which addressed a potential
10

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 19 of 46

negligence claim under the theory that the NFL is the “outside force” causing
medications to be distributed to the players. The following dialogue took place
between the Dent Court and NFL’s counsel:
MR. CLEMENT: Well, again, I mean look, if they want to isolate their
whole complaint to being the, you know, the direct distribution of
opioids by the NFL, not through the club trainers and the club doctors,
I mean, I think what they would then perhaps have is a claim that just
is fanciful. But that’s, I don’t think that’s a fair reading of what they
actually alleged in their whole complaint If you take it as a whole and
I think if you go back and you …
THE COURT:
I’m sorry, I think this is where you’re going but
they‘re not in fact alleging this is independent, they are in fact alleging
that they use club doctors but why does the type use the club doctors
bring this under the collective bargaining agreement?
THE COURT:
Okay, so, you know, I think they take that as
a given so the collective bargaining agreement say the doctors have
certain duties and in the (inaudible) thing there was this outside force
that is causing the doctors to breach their duty and we’re not suing the
doctors for the breach of duty, we’re suing this outside force for causing
the doctors to do these terrible things. Oral Argument at 16 min. 01 sec.
– 18 min. 00 sec., Dent v. NFL, 902 F.3d 1109 (9th Cir. 2018) (No. 1515143),
available
at
https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=000001
0751.
In short, the NFL, through counsel, states that Plaintiffs’ claims did not
depend on the NFL directly giving drugs to players and the Ninth Circuit confirmed
that they agreed with such a reading of Plaintiffs’ complaint.
Indeed, the District Court quoted a statement from Plaintiffs: “the NFL
controlled and directed a pyramidal scheme for the distribution of controlled
substances and prescription drugs in flagrant disregard of federal and state law.”
11

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 20 of 46

Dent II, 2019 WL 1745118 at *1. The District Court, however, drew the wrong
conclusion from the pyramidal scheme argument. Wrongly, it found that “plaintiffs
argued that they alleged that the NFL itself supplied and distributed the endless
stream of drugs, thereby violating the relevant federal and state statutes governing
controlled substances.” Id. Unsurprisingly, the pyramidal scheme is designed to do
the exact opposite – it insulates the top of the pyramid from direct contact with the
victim or ultimate purchaser. The Dent oral argument reveals that Plaintiffs’ counsel
clearly stated as such to the Ninth Circuit panel. See e.g., Oral Argument at 8 min.
16 sec. – 9 min. 33 sec., Dent v. NFL, 902 F.3d 1109 (9th Cir. 2018) (No. 15-15143),
available

at

https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000010751
(explaining that “what happens in a classic pyramid is everybody blames somebody
else… that’s why pyramid schemes have been in existence…because they confuse
duties, they confuse responsibilities and everybody’s got plausible denial…”).
Despite having the transcript of the Dent oral argument, the District Court
emphasized its incorrect assumption of the Dent opinion: “To repeat, plaintiffs
escaped preemption before our court of appeals by asserting the NFL’s proactive
involvement with medication distribution. Having convinced our court of appeals
that they were alleging that the NFL itself directly provided medical care and
supplied drugs to players, plaintiffs may not bob and weave back to old theories of
12

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 21 of 46

negligence that, in essence, amount to the NFL’s failure to intervene.” Dent II, 2019
WL 1745118 at *7. This exemplifies the District Court’s misunderstanding of
Plaintiffs’ argument, which resulted in the District Court erroneously concluding
that Plaintiffs had convinced the Dent Court that they had alleged NFL personnel
had directly given drugs to NFL players. Rather, Plaintiffs clearly argued the
opposite – that the NFL itself had directed and controlled others to do so.
B. The Dent Opinion Did Not Require the TAC to Allege that NFL
Personnel Gave Drugs to NFL Players.
The Dent Court, therefore, was cognizant that Plaintiffs’ allegations centered
on the NFL directing and controlling the Clubs’ distribution of the drugs to the
players. This reading of the TAC, not the one adopted by the District Court, should
inform any interpretation of the language used in Dent.
1.

The District Court considered restrictive interpretations of
statutory terms resulting in an improper decision.

The Ninth Circuit discussed Plaintiffs’ negligence claim with specific
attention to the NFL’s required duty to Plaintiffs. Dent v. National Football League,
902 F.3d 1109, 1118–19 (9th Cir. 2018) (hereinafter “Dent”). In its analysis, the
opinion uses three words – handling, distribution and administration – either
together, or more frequently, independently to describe the NFL’s role with regard
to how players received prescription drugs. Id. at 1119. Yet, the District Court
concluded that the Dent opinion used those words as defined in the applicable
13

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 22 of 46

statutes, and therefore required the TAC to allege that NFL personnel directly gave
drugs to NFL players. “Our court of appeals thus clearly reversed (on the preemption
issue) based on plaintiffs’ prior representations related to the NFL’s direct
involvement in the handling, distribution, and administration of the medications
within the meaning of the relevant drug statutes.” Dent II, 2019 WL 1745118 at *8.
However, the word “handling” is not defined in the Controlled Substances
Act. In fact, the word is neither used in the Controlled Substances Act nor is it used
in the Food, Drug and Cosmetic Act. The District Court was categorically wrong to
assert that “handling” had a meaning in the relevant drug statutes. The TAC cites to
an NFL document which defines handling as “purchase, distribution, dispensing,
administration and recordkeeping.” E.R. 211 at ¶ 194. This document provides a
rather broad and all-encompassing definition of “handling,” which includes actions
other than handing drugs to players or giving them to the Clubs. E.R. 211–12 at ¶
194. Yet, the District Court simply ignored this definition of “handling.”
The word “administration” is used only once in the Dent opinion, and, even
so, it is combined with handling and distribution. Dent, 902 F.3d at 1119. The
Controlled Substances Act does not define administration but it does define the word
“administer.” “Administer” is defined as “the direct application of a controlled
substance to the body of a patient or research subject by – (A) a practitioner (or, in
his presence, by his authorized agent) or (B) the patient or research subject at the
14

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 23 of 46

direction and in the presence of the practitioner.” 21 U.S.C. § 802(2) (2016).
“Administer” is not used in the Food, Drug and Cosmetic Act. The District Court
erred in holding that the Dent opinion was referring to the application of a topical
cream or ointment to a players’ body when it used the term “administration.” Dent
II, 2019 WL 1745118 at *8.
The Controlled Substances Act defines the words “distribute,” “deliver,” and
“delivery.” “Distribute” is defined as “to deliver (other than by administering or
dispensing) a controlled substance or a listed chemical.” 21 U.S.C. § 802(11) (2016).
“Deliver” and “delivery” are defined as “the actual, constructive, or attempted
transfer of a controlled substance or a listed chemical, whether or not there exists an
agency relationship.” 21 U.S.C. § 802(8) (2016) (emphasis added). The Dent opinion
is clearest in its application of the word “distribute” to this case. “Regardless of what
(if anything) the CBAs say about those issues, if the NFL had any role in distributing
prescription drugs, it was required to follow the laws regarding those drugs.”
(emphasis added). Dent, 902 F.3d at 1121. “Any role” clearly includes more conduct
than simply handing pills to players. As will be discussed infra, the TAC details the
multiple roles NFL personnel played in directing and controlling the distribution of
prescription drugs.
In addition, the Ninth Circuit, in applying the Controlled Substances Act, has
stated “the distribution provision has been held to criminalize participation in the
15

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 24 of 46

transaction viewed as a whole.” United States v. Ahumada-Avalos, 875 F.2d 681,
683 (9th Cir. 1989) (quoting United States v. Brunty, 701 F.2d 1375, 1381 (11th Cir.
1983)). In fact, “courts usually interpret the term “distribute’ quite broadly.” Id. The
Ninth Circuit also has specifically held that a defendant violated the Controlled
Substances Act when he “directed and oversaw the distribution of drugs” even
though he himself never possessed the drugs. United States v. DeRosa, 670 F. 2d
889, 893 (9th Cir. 1982). The TAC echoed the DeRosa opinion with its multiple
allegations that the NFL directed and controlled the distribution of controlled
substances.
The District Court also asserted that “plaintiffs aim for a broader interpretation
of liability allowed under Dent to include the NFL’s alleged activities beyond those
governed by the relevant drug statutes, such as recordkeeping and storage.” Dent II,
2019 WL 1745118 at *7. However, recordkeeping and storage are governed by the
Controlled Substances Act. See 21 U.S.C. § 827(c); 21 C.F.R. § 1304(22)(c) (2018);
21 C.F.R. § 1301.71(a) (2018); see also E.R. 198 at ¶¶ 131–33. The District Court’s
improper focus on the physical handing off drugs to players led to its
misunderstanding of the reach of the Controlled Substances Act.
2.

The District Court improperly relied solely on the Controlled
Substances Act and blatantly disregarded other statutes that
Plaintiffs pleaded in the TAC.

16

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 25 of 46

The District Court only looked to the Controlled Substances Act in forming
its opinion. The Plaintiffs clearly also allege violations of the Food, Drug and
Cosmetic Act and the California Pharmacy Laws, as noted in the Dent opinion. Dent,
902 F.3d at 1119. Assuming arguendo that the District Court is correct in its
interpretation of the Controlled Substances Act, the NFL’s Motion to Dismiss should
have been denied based on the other statutes at issue. Failure to consider them was
reversible error.
With respect to the Food, Drug and Cosmetic Act, the United States Supreme
Court has established the “responsible corporate officer” doctrine to impose direct,
not vicarious, liability when a “… defendant had, by reason of his position in the
corporation, responsibility and authority either to prevent in the first instance, or
promptly to correct, the violation complained of, and that he failed to do so.” United
States v. Park, 421 U. S. 658, 673–74 (1975). This Court should apply the
“responsible corporate office” doctrine to the NFL as the literal structure is less
important than the underlying policies supporting the “responsible corporate office”
doctrine, especially in the context of interpreting reasonable conduct in a negligence
claim. As noted infra, the TAC clearly alleges and demonstrates that the NFL was
in a position to prevent or correct the statutory violations contained therein.
The District Court noted that the Controlled Substances Act could be violated
even if the NFL did not possess or directly hand drugs to the players or teams. While
17

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 26 of 46

questioning NFL’s counsel regarding the “kingpin” hypothetical, the District Court
noted the following:
“[a]ll right. Well, but the argument I think is like in a criminal case,
the kingpin may be careful enough never to have drugs in their
possession. In fact, the drugs will be down at the street level or at
some stash house or someplace where the kingpin never has to go.
So let’s say the kingpin never touches the drugs. Never has
physical possession, but controls the whole enterprise. Under your
assumption, the Government couldn’t put the kingpin in jail
because they don’t touch the drugs. That can’t be right.”
(emphasis added). Transcript of Oral Argument at 35, Dent v.
National Football League, No. C 14-02324 WHA, 2019 WL
1745118 (N.D. Cal. Apr. 18, 2019).
Although the District Court made the connection that the NFL, at a de minimis
level, was akin to a “kingpin,” it clearly came to an inapposite determination. Based
on the District Court’s improper interpretation of both the Dent opinion and statutory
definitions, this Court should reverse the District Court decision.
II.

THE DISTRICT COURT’S ORDER EXCEEDED THE SCOPE OF
A MOTION TO DISMISS.
A. Standard of Review.
A district court’s dismissal of a complaint for failure to state a claim is

reviewed de novo. Sonoma Cty. Ass'n of Retired Employees v. Sonoma Cty., 708
F.3d 1109, 1115 (9th Cir. 2013). “In assessing whether a party has stated a claim
upon which relief can be granted, a court must take all allegations of material fact as
true and construe them in the light most favorable to the nonmoving party[.]” Turner
v. City & Cty. of San Francisco, 788 F.3d 1206, 1210 (9th Cir. 2015). “Because this
18

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 27 of 46

case was decided on a motion to dismiss,” the court must “take the [complaint]’s
allegations as true and construe them in the light most favorable to the plaintiffs.”
Dent v. Nat'l Football League, 902 F.3d 1109, 1117 (9th Cir. 2018).
A motion to dismiss a complaint for failure to state a claim can only be granted
“if the allegations, taken as true, show the plaintiff is not entitled to relief.” ElShaddai v. Zamora, 833 F.3d 1036, 1043 (9th Cir. 2016) (quoting Jones v. Bock, 549
U.S. 199, 215 (2007)). At this stage, all reasonable inferences are drawn in favor of
the nonmoving party. See Pub. Lands for the People, Inc. v. U.S. Dep't of Agric.,
697 F.3d 1192, 1196 (9th Cir. 2012). “[W]hen the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged” a claim has facial plausibility. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). This
plausibility determination is “a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
B. The TAC is Replete with Specific Allegations of NFL Personnel
Directing and Controlling the Provision of Prescription Drugs to
NFL Players.
The District Court erred in holding that Plaintiffs’ TAC did not comply with
the Dent Court’s instruction. To be clear, the Dent opinion held that “on remand, any
further proceedings in this case should be limited to claims arising from the conduct

19

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 28 of 46

of the NFL and NFL personnel – not the conduct of individual teams’ employees.”
Dent, 902 F.3d at 1121.
The TAC contains numerous factual allegations that NFL personnel directed
and controlled the provision of prescription drugs to NFL players, including but not
limited to the following: (1) Doctor Pellman of the New York Jets seen as the public
face of the League’s health problems, dispensing drugs to players E.R. 209 at ¶ 184;
(2) NFL’s employment of a doctor as the head of its prescription drug program since
at least 1973 with the purpose of maintaining NFL’s Business Plan, see E.R. 203 at
¶¶ 159–62, E.R. 210 ¶ 188; (3) Dr. Brown’s 1999 memo detailing the main purpose
was “to provide guidelines for the utilization of all prescription drugs provided to
players and team personnel by physicians and other healthcare providers” and “to
ensure the appropriate handling (purchase, distribution, dispensing, administration
and recordkeeping),” see E.R. 211–12 at ¶ 194; (4) NFL Prescription Drug Program
emphasis was placed on “(1) the on-site audit, (2) the initial inventory and
reconciliation reports, and (3) procedures used to provide controlled drugs to team
personnel, to obtain prescription drugs from pharmacies, and to secure controlled
drugs[,]” see id.; (5) violations of the Controlled Substances Act when travelling
with controlled substances across state lines, see E.R. 219–20 at ¶ 215, E.R. 220–21
¶¶ 218–21; (6) NFL’s mandate to register Club stadiums and practice facilities as
storage facilities for prescription drugs subsequent to DEA reprimands, see E.R. 207
20

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 29 of 46

at ¶ 178; (7) NFL Security Office controls aspects of drug distribution and conducts
on-site inspections, see E.R. 157 ¶ 8, E.R. 207 at ¶ 180; (8) NFL’s requirement that
all Clubs report regularly to it regarding injury status and number of dispensed drugs,
see E.R. 204–05 ¶ 163, E.R. 210–12 ¶¶ 188–96, E.R. 216–18 ¶¶ 206–12; (9) NFL’s
regular meetings with Club doctors and trainers regarding the use of prescription
medications, see E.R. 208–09 ¶¶ 183–87, E.R. 216 ¶¶ 204–06; (10) NFL personnel
regularly meeting with the DEA to discuss the legality of drug use in the league, see
E.R. 218–21 ¶¶ 214–20; (11) NFL’s approval of hiring Clubs’ doctors and medical
sponsorship, see E.R. 207 ¶ 179, which led to NFL (through counsel) referring to
NFL as a “super-employer,” see Oral Argument at 14 min. 20 sec., 19 min. 09 sec.,
Dent v. NFL, 902 F.3d 1109 (9th Cir. 2018) (No. 15-15143), available at
https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000010751;

(12)

NFL mandate that Clubs use SportPharm – drug tracking software, see E.R. 207 ¶
179; (13) NFL requirement that all players sign a Toradol waiver that was drafted
by the NFL preceding the 2010 season, see E.R. 208 at ¶ 181 (14) San Diego
Chargers’ attempt to survey all Clubs regarding their distribution of controlled
substances, which was squelched by Dr. Pellman, the acting NFL Medical Advisor,
see E.R. 223 at ¶¶ 227–28; (15) NFL officials authoring its response to Harvard’s
report on NFL doctors, see at E.R. 155–56 at ¶ 6, E.R. 223 at ¶ 229; (16) NFL
funding two significant reports with respect to the use of Toradol in the NFL, see
21

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 30 of 46

E.R. 204–07 at ¶¶164–77; (17) references to NFL’s liability regarding the use and
distribution of prescription drugs, see E.R. 158 at ¶ 11, E.R. 220 at ¶ 217; and, (18)
NFL’s 2015 policy that teams could not travel with controlled substances but needed
to use an independent doctor in the away city to dispense them, see id. at E.R. 208
at ¶ 182, E.R. 221 at ¶ 221.
The eighty-nine page and three-hundred and ten paragraph TAC is
painstakingly detailed with specific allegations and references to demonstrate the
NFL’s direct role in controlling and distributing prescription drugs to NFL players.
See E.R. 154–241. In the context of a 12(b)(6) motion, those allegations must be
accepted as true. Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003);
Desaigoudar v. Meyercord, 223 F.3d 1020, 1021 (9th Cir. 2000). Considering the
TAC’s assertions as true at this stage, the District Court had very little discretion to
find that Plaintiffs did not sufficiently allege facts to support their claim.
The NFL had the ability to stop Club doctors and trainers from acting illegally
whenever it wanted to do so. In fact, on May 20, 2019, the NFL unilaterally
announced that a new Prescription Drug Monitoring Program (the “Program”) had
been developed to “monitor all prescriptions issued to NFL players by club
physicians and unaffiliated physicians” and “[p]rior to the start of the 2019 NFL
Season, each NFL club must appoint a Pain Management Specialist …” The NFL
further stated that the Program and appointment were “mandatory across all clubs.”
22

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 31 of 46

See “NFL-NFLPA joint agreements to protect health, safety, wellness of players,”
NFL.com,

May

20,

2019

at

www.nfl.com/news/story/0ap3000001031345/article/nflnflpa-joint-agreements-toprotect-health-safety-wellness-of-players (announcing simultaneously that the NFL
and NFLPA would create a joint committee to “establish uniform standards for club
practices and policies regarding pain management and the use of prescription
medication by NFL players …’). Evidently, the NFL is finally mandating that
prescription drugs be delivered to players legally.
Therefore, it is evident that Plaintiffs’ TAC clearly alleges that NFL personnel
directed and controlled literally every aspect of the distribution of prescription drugs
to NFL players. This conclusion is even more warranted in the assessment of a
Motion to Dismiss. The District Court erred in holding that the TAC did not do so.
C. The Third Amended Complaint Adequately Pleads Negligence.
A negligence cause of action in California consists of the following elements:
(1) the existence of a legal duty of care; (2) breach of that duty; and, (3) the proximate
cause resulting in injury. McIntyre v. The Colonies-Pac., LLC, 228 Cal. App. 4th
664, 671 (2014). California recognizes that negligence is the failure to use
reasonable care to prevent harm to others; thus, a person is negligent if they do
something that a reasonably careful person would not do in the same situation or
fails to do something that a reasonably careful person would do in the same situation.
23

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 32 of 46

Coppola v. Smith, 935 F. Supp. 2d 993, 1013 (E.D. Cal. Mar. 26, 2013) (citing Raven
H. v. Gamette, 157 Cal. App. 4th 1017, 1025 (2007)). The TAC adequately pleads a
negligence claim as defined by California law.
1.

The NFL Owed a Duty of Care to Plaintiffs.

The District Court was incorrect when it concluded that Plaintiffs did not
plead an independent duty of care. Again, Plaintiffs do not have to establish
anything at this point; they simply need to allege plausibly, and that they have done.
The duties owed by the NFL to Plaintiffs exist because of the very nature of the
activity at issue. The NFL assumed such duties, and further, a duty arises because of
the “special relationship” that exists between the NFL and its players. Plaintiffs need
only sufficiently plead one of these duties to justify reversal.
i.

The NFL failed to exercise reasonable care in its
utilization of prescription medications.

The Ninth Circuit has already determined that, applying the Rowland factors,3
the “lack of reasonable care in the handling, distribution, and administration of
controlled substances can foreseeably harm the individuals who take them.” Dent,
3

The Rowland factors consist of: (1) the foreseeability of harm to the plaintiff;
(2) the degree of certainty that the plaintiff suffered injury; (3) the closeness of the
connection between the defendant’s conduct and the injury suffered; (4) the moral
blame attached to the defendant’s conduct; (5) the policy of preventing future harm;
(6) the extent of the burden to the defendant and consequences to the community of
imposing a duty to exercise case with resulting liability for breach; and, (7) the
availability, cost, and prevalence of insurance for the risk involved. Rowland v.
Christian, 69 Cal. 2d 108, 113 (1968).
24

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 33 of 46

902 F. 3d at 1119. The Ninth Circuit stated that Rowland factors had been satisfied
and took the time to explain that:
“Carelessness in the handling of dangerous substances is both
illegal and morally blameworthy, given the risk of injury it entails.
Imposing liability on those involved in improper prescription-drug
distribution will prevent harm by encouraging responsible entities
to ensure that the drugs are administered safely. And it will not
represent an undue burden on such entities, which should already
be complying with the laws governing prescription drugs and
controlled substances.”
Dent, 902 F.3d at 1119.
Ultimately, the question is whether the NFL conducted its business in a
reasonable manner. In deciding the issue of reasonability and consequent duty,
statutory provisions inform the interpretation of reasonable conduct even if the
pertinent statute does not provide a private right of action. See RESTATEMENT
(SECOND)

OF

TORTS: §285, Cmt. C (1965) (“Even where a legislative enactment

contains no express provision that its violation shall result in tort liability, and no
implication to that effect, the court may, and in certain types of cases customarily
will, adopt the requirements of the enactment as the standard of conduct necessary
to avoid liability for negligence.”). The Ninth Circuit, in Dent, recognized such a
duty under California common law:
“Here, any duty to exercise reasonable care in the distribution of
medications does not arise through statute or by contract; no
statute explicitly establishes such a duty, and as already noted,
none of the CBAs impose such a duty. However, we believe that
a duty binding on the NFL – or any entity involved in the
25

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 34 of 46

distribution of controlled substances – to conduct its activities with
reasonable care arises from “the general character of (that)
activity.” See J’Aire Corp., 157 Cal. Rptr. 407, 598 P. 2d at 62.
… Of course, establishing that an entity owes a duty does not
necessarily establish what standard of care applies, or whether it
was breached. But when it comes to the distribution of potentially
dangerous drugs, minimum standards are established by statute.”
Dent, 902 F.3d at 1119.
It is well established under California law that a business establishment's
legal obligations to its customers and others may arise…[because of] the
Legislature's enactment of a statutory provision. Verdugo v. Target Corp., 59 Cal.
4th 312, 326 (2014) (“A duty of care … may of course be found in a legislative
enactment which does not provide for civil liability.”); Lu v. Hawaiian Gardens
Casino, Inc., 50 Cal. 4th 592, 604 (2010) (quoting Moradi-Shalal v. Fireman’s Fund
Ins. Companies, 46 Cal. 3d 287, 304–05 (1988)) (“even without a private right of
action under a statute courts retain jurisdiction to impose civil damages or other
remedies … in appropriate common law actions.”).
The TAC is replete with factual allegations that specifically identify how the
“general character of” the NFL’s maintenance of its Business Plan and its direction
and control of the distribution of the Medications is unreasonable. The NFL has
violated every aspect of the standard set forth by the Coppola Court. To be clear, the
NFL failed to use reasonable care to prevent harm to Plaintiffs. A reasonable person
would not have pushed prescription drugs in a manner contrary to the requirements
of federal and California statutes as the NFL did, and further the NFL failed to stop
26

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 35 of 46

the illegal use of prescription drugs as a reasonable person would have done with the
same knowledge the NFL possessed.
ii.

For decades the NFL assumed a duty when it voluntarily
involved itself in the distribution of medications.

A separate duty to exercise due care arises when a person with no affirmative
duty to act voluntarily does so. University of Southern California v. Superior Court,
30 Cal. App. 5th 429, 448 (2018). This duty arises when a defendant voluntarily
undertakes to provide protective services for the plaintiff’s benefit, and either the
defendant’s failure to exercise reasonable care increases the risk of harm to the
plaintiff or the plaintiff reasonably relies on the undertaking and suffers injury as a
result. Id. at 623.
The Ninth Circuit recently dealt with such a duty in the context of sports. The
Ninth Circuit reversed a district court’s dismissal of a claim against the defendant
USA Water Polo for failure to state a claim. Mayall on Behalf of H.C. v. USA Water
Polo, Inc., 909 F.3d 1055 (9th Cir. 2018). Plaintiff alleged she had been damaged
when her coach consistently returned her to play despite her receiving multiple
concussions over a number of same day tournament games. Id. at 1058. Plaintiff
sued defendant for failure to implement concussion-management and return-to-play
protocols for its youth water polo league. Id. The Court recited California’s
negligence rule of law discussed supra. Id. at 1066. The Court noted that California
law imposes liability “if a defendant acts (or fails to act) in a way that increases the
27

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 36 of 46

risk beyond that ‘inherent in the sport.” Id. The Court found a 1992 Supreme Court
of California case illustrative in that it quoted
“Although defendants generally have no legal duty to eliminate
(or protect a plaintiff against) risks inherent in the sport itself, it is
well established that defendants generally do have a duty to use
due care not to increase the risks to a participant over and above
those inherent in the sport.” Id. at 1061 (citing Knight v. Jewett, 3
Cal. 4th 296, 315 (1992)).
Here, the TAC adequately alleges that the NFL voluntarily involved itself in
the distribution of Medications to its players. See supra Section III.C.1.ii. Indeed, a
section of the TAC is titled “The League Voluntarily Undertook a Duty to its Players
With Regard to the Administration of Medications.” E.R. 203–08. The pertinent
parts of the TAC detail how the League voluntarily undertook to establish a drug
program starting in 1973 and how that program evolved to its current state with
regard to distributing and administering Medications to players and therefore
increase the risks to players. E.R. 203–04 at ¶¶ 159–64. It explains the various means
by which the NFL has voluntarily assumed this duty with the imposition of Club
audits, League-wide policies related to Toradol, the security and handling of
Medications, and the support of various studies that warned the NFL of the danger
to players of continuing its practices. See id.
Plaintiffs have also adequately pled that the NFL’s failure to exercise
reasonable care has increased the risk of harm to them beyond that inherent in the
sport, see e.g., E.R. 160 at ¶ 16, E.R. 199 at ¶ 143, E.R. 221 at ¶ 220, and that they
28

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 37 of 46

reasonably relied on the NFL’s undertaking and suffered injury as a result, see e.g.,
at E.R. 164 at ¶ 27, E.R. 167 at ¶ 36, E.R. at 171 at ¶ 45, E.R. 173–74 at ¶ 55, E.R.
176 at ¶ 64, E.R. 181 at ¶ 74, E.R. 188 ¶ 94, E.R. 190 at ¶105. The District Court
erred in holding that the TAC did not do so.
iii. The NFL owed Plaintiffs a duty because they were in a
“special relationship.”
The NFL owed a third separate and distinct duty of care to Plaintiffs because
of the “special relationship” that intertwines the NFL, the Clubs, and players. The
California Supreme Court has held that a university has a duty of care to protect a
student from foreseeable violence of another student during chemistry lab. Regents
of Univ. of Cal. v. Superior Court, 4 Cal. 5th 607 (2018). The Court discussed special
relationships that create a duty to protect against foreseeable risks, and recognized
that “special relationships” share common features. 4 Id. at 620. These features
include an “aspect of dependency in which one party relies to some degree on the
other for protection.” Id. (citing Baldwin v. Zoradi, 123 Cal. App. 3d 275, 283 (Aug.

4

The court grounded its analysis in the Restatement Third of Torts, which
identifies several “special relationships” that may support a duty to protect against
foreseeable risks. Regents of Univ. of Cal., 4 Cal. 5th at 621 (RESTATEMENT (THIRD)
OF TORTS: Liability for Physical and Emotional Harm, §40(b) (2010)). Restatement
writers have recognized a growing trend in which courts consider a duty to aid or
protect in any relation of dependence or of mutual dependence. RESTATEMENT
(SECOND) OF TORTS: §314A, Cmt. B, p. 119 (1965).

29

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 38 of 46

31, 1981); Mann v. State of California, 70 Cal. App.3d 773, 229–80 (June 16,
1977)); see also Kleinknecht v. Gettysburg College, 989 F.2d 1360 (3rd Cir. 1993)
(holding that a college owed its lacrosse player a duty of care based on the special
relationship between the college and the player in his capacity as an intercollegiate
athlete engaged in school-sponsored activity for which he had been recruited). The
corollary of dependence is control, with one party dependent and the other having
superior control over the means of some protection. Id. at 621. “[A] typical setting
for the recognition of a special relationship is where the plaintiff is particularly
vulnerable and dependent upon the defendant who, correspondingly, has some
control over the plaintiff’s welfare.” Regents of Univ. of Cal., 4 Cal. 5th at 621
(citing Giraldo v. Department of Corrections & Rehabilitation, 168 Cal. App. 4th
231, 245–46 (2008)) (internal citations omitted) (emphasis added).
One might not think of NFL players as vulnerable, but when it comes to the
direction and control of prescription drugs, they are as vulnerable as any other person
in the United States to overuse or misuse and the resulting long-term health
problems; to quote the Ninth Circuit, “[t]hat’s why they’re ‘controlled’ in the first
place.” Dent, 902 F.3d at 1120. Further, there can be no doubt that Plaintiffs have
adequately alleged that the NFL exerts “some control” over its players’ medical
well-being. See E.R. 160 at ¶ 16, E.R. 199 at ¶ 143, E.R. 202 at ¶ 156, E.R. 203 at ¶
159, E.R. 203–04 at ¶ 162–64, E.R. 207–08 at ¶ 178–82, and E.R. 216 at ¶ 204. And
30

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 39 of 46

while true that the duty imposed by a special relationship extends only to foreseeable
risks, again, the Ninth Circuit has already explained that the risks complained-of
here – long-term health problems – are precisely the foreseeable type of risks that
come from mishandling of controlled substances. Id.
The District Court erred in holding that the TAC failed to allege a “special
relationship” between players and the NFL (the TAC need only allege the facts of
such a relationship and did so) and that the California doctrine of “special
relationship” only applied in the context of higher education. Dent II, 2019 WL
1745118 at *9.
2.

Plaintiffs have adequately pled the remaining elements of
negligence.

Plaintiffs have adequately pled their negligence claim. As discussed supra,
they have identified three common law duties owed by the NFL to Plaintiffs.
Plaintiffs have also pled breaches of those duties. For example, the TAC details a
number of instances over several decades in which NFL personnel knew that the
drug program it voluntarily created to monitor the handling and distribution of
controlled substances was failing and yet the NFL took no action. See E.R. 210–12
at ¶¶ 189–95. Failure to act is the very definition of a breach of a duty. Curtis v. Q.
R. S. Neon Corp., 147 Cal. App. 2d 186, 195 (1956) (“An act or failure to act in
violation of a statute is negligence as a matter of law.”); Johns-Manville Sales Corp.
v. Workers’ Comp. Appeals Bd., 96 Cal. App. 3d 923, 930 (1979) (“Gross negligence
31

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 40 of 46

involves a failure to act under circumstances that indicate a passive and indifferent
attitude toward the welfare of others. Negative in nature, it implies an absence of
care.”).
Lastly, causation is not nearly the hurdle that the District Court states (though
mistakenly in the context of a negligence per se claim), at least at this stage of the
proceedings. The Ninth Circuit recognized that the injuries complained-of here –
long-term health problems – “can be established with certainty, and they are closely
connected to the misuse of controlled substances.” Dent, 902 F.3d at 1119. In other
words, it is foreseeable that the NFL’s conduct as alleged in the TAC, if true,
proximately caused the injuries complained-of here. The TAC also includes the
expert opinion of Leslie Z. Benet, Ph.D., a noted expert in the field of pharmacology
and biopharmaceutics, that the injuries noted by the Plaintiffs could plausibly be
caused by the misuse of prescription medications. E.R. 224–25 at ¶¶ 230–34. The
TAC alleges that some of the injuries complained of by Plaintiffs are specifically
listed in the black box warning for the drug Toradol. E.R. 225 at ¶ 235. Additionally,
under California law, “issues of breach and causation are questions of fact for the
jury.” J.P. ex rel. Balderas v. City of Porterville, 801 F. Supp. 2d 965, 990 (E.D.
Cal. 2011) (citing Lindstrom v. Hertz Corp., 81 Cal. App. 4th 644, 652 (2000)).5 In

5

See also Ileto v. Glock, Inc., 349 F.3d 1191, 1206 (9th Cir. 2003); Schaeffer
v. Gregory Village Partners, L.P., 105 F.Supp.3d 951 (N.D. Cal. May, 14, 2015);
Andrews v. Wells, 204 Cal. App. 3d 533, 538 (Sept. 12, 1988). See also Jackson v.
32

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 41 of 46

any event, Plaintiffs have adequately alleged that the NFL, through the maintenance
of its Business Plan and its failings associated with the direction and control of
Medications, caused the injuries at issue. See E.R. 180–82 at ¶¶ 72–77; E.R. 232–
3610 at ¶¶ 269–87; see e.g., E.R. 160–61 at ¶¶17–19, E.R. 163–64 at ¶¶ 25–27, E.R.
171 at ¶¶ 43–45, E.R. 173–74 at ¶¶ 53–55, E.R. 176 at ¶¶ 62–64, E.R. 180–81 at ¶¶
72–74, E.R. 183 at ¶¶ 82–84, E.R. 187–88 at ¶¶ 91–94, E.R. 190 at ¶¶ 103–105.

AEG Live, LLC, 233 Cal. App. 4th 1156, 1173 (Jan. 30, 2015) (Breach of duty and
proximate cause normally present factual questions); Clarke v. Hoek, 174 Cal. App.
3d 208, 214 (Nov. 8, 1985) (“…The province of the jury, as trier of fact, [is] to
determine whether an unreasonable risk of harm was foreseeable under the particular
facts of a given case…”); Hatch v. Ford Motor Co., 163 Cal. App. 2d 393, 397
(1958) (“The reasonableness of a defendant's actions is a quintessential jury
question. The duty [of care] having been found to exist, whether it has been breached
is a question of fact for the triers of the facts.”); Trujillo v. G.A. Enters, Inc., 36 Cal.
App. 4th 1105, 1109 (1995) (reversing summary judgment on the issue of the
reasonableness of defendant's actions, because “whether [defendant] acted
reasonably under the circumstances ... [is a] question[ ] of fact to be resolved by trial,
not summary judgment); Saelzler v. Advanced Group 400, 25 Cal. 4th 763, 785
(2001) (“The question of causation long has been recognized as a factual one, and it
is only where reasonable men [and women] will not dispute the absence of
causality.” (internal quotations omitted)); Steinle v. City and County of San
Francisco, 230 F. Supp. 3d 994, 1034 (N.D. Cal. Jan. 6, 2017) (proximate cause is
a question of fact which cannot be decided as a matter of law from the allegations of
a complaint); Garman v. Magic Chef, Inc., 117 Cal. App. 3d 634, 638 (Apr. 1, 1981)
(“Proximate cause is a legal relationship. Whether an act or incident is the proximate
cause of injury is a question of law where the facts are uncontroverted and only one
deduction or inference may reasonably be drawn from those facts.”); Lacy v. Pacific
Gas & Elec. Co., 220 Cal. 97, 101 (Feb. 10, 1934) (explaining that proximate cause
is a question of fact for the jury).
33

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 42 of 46

III.

THE DISTRICT COURT MISUNDERSTOOD CALIFORNIA’S
NEGLIGENCE PER SE LAW.

Negligence per se is not a separate cause of action, but the application of an
evidentiary presumption provided by California Evidence Code §669. Coppola, 935
F. Supp. 2d at 1016–17. It is the tort of negligence, and not the violation of the statute
itself, which entitles a plaintiff to recover civil damages. Spencer v. DHI Mortg. Co.,
Ltd., 642 F.Supp.2d 1153, 1162 (E.D. Cal. 2009). To claim negligence per se, a
plaintiff must allege that: (1) the defendant violated a statute, ordinance, or
regulation; (2) the violation proximately caused injury; (3) the injury resulted from
an occurrence that the enactment was designed to prevent; and, (4) the plaintiff fits
within the class of persons for whose protection the enactment was adopted. Cal.
Evid. Code §669; see also Coppola, 935 F.Supp.2d at 1017.
The District Court treated the negligence per se issue as if it were the
negligence claim. “Here, plaintiffs primarily rely on a negligence per se theory to
support their negligence claim …” Dent II, 2019 WL 1745118 at *4. As noted supra,
Plaintiffs did not rely on an evidentiary presumption to prove their negligence claim.
The “Cause of Action” section of the TAC has but one cause – Negligence – and in
particular, paragraphs 304 and 305, which identify common law duties (discussed
supra) owed by the NFL to Plaintiffs, and paragraphs 306 and 307, which distinguish
between violations of the law (negligence per se) and breaches of duties
34

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 43 of 46

(negligence). The Plaintiffs could lose on the issue of negligence per se and still
have a valid negligence claim. The District Court failed to realize that, even it was
correct in its analysis, failure of the negligence per se argument would only mean
that Plaintiffs lost an evidentiary presumption, not that the negligence claim should
be dismissed.
Even though the Plaintiffs did not primarily rely on it, they are entitled to the
evidentiary presumption because the TAC clearly contains allegations that satisfy
the Coppola negligence per se standard discussed supra. See Coppola, F. Supp. 2d
993. The violations of the Controlled Substances Act, the Food Drug and Cosmetic
Act and the California Pharmacy Law are the foundation of the Plaintiffs’ negligence
per se claim, regardless of whether either federal statute provides a private right of
action against the NFL. See Beaver v. Tarsadih Hotels, 29 F. Supp. 3d 1294, 13211322 (S. D. Cal. 2014).
CONCLUSION
For the foregoing reasons, Plaintiffs-Appellants respectfully request that this
Court reverse the Order of the District Court granting Defendant’s Motion to
Dismiss Plaintiffs’ Third Amended Complaint and remand this matter to the District
Court for further proceedings consistent with this Court’s opinion.

35

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 44 of 46

Dated: August 22, 2019

Respectfully Submitted,

/s/ Willian N. Sinclair
William N. Sinclair (SBN 222502)
(bsinclair@mdattorney.com)
SILVERMAN THOMPSON SLUTKIN WHITE LLC

201 North Charles Street, Suite 2600
Baltimore, Maryland 21201
Telephone: (410) 385-2225
Facsimile: (410) 547-2432

STATEMENT OF RELATED CASES
Plaintiffs are not aware of any related cases pending in the United States Court
of Appeals for the Ninth Circuit.

36

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 45 of 46

CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
CM/ECF system on August 22, 2019.
I certify that all participants in the case are registered CM/ECF users and that
service will be accomplished by the appellate CM/ECF system.
/s/
William N. Sinclair

37

 Case: 19-16017, 08/22/2019, ID: 11407366, DktEntry: 12, Page 46 of 46

CERTIFICATE OF COMPLIANCE
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
Certificate of Compliance With Type-Volume Limitation,
Typeface Requirements, and Type Style Requirements
1.

This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because:
[X]

2.

this brief contains 9,220 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type style requirements of Fed. R. App. P. 32(a)(6) because:
[X]

this brief has been prepared in a proportionally spaced typeface using
Microsoft Word in Times New Roman, 14-point font.

Dated: August 22, 2019

Respectfully Submitted,
/s/ William N. Sinclair
William N. Sinclair (SBN 222502)
(bsinclair@mdattorney.com)
SILVERMAN THOMPSON SLUTKIN WHITE LLC

201 North Charles Street, Suite 2600
Baltimore, Maryland 21201
Telephone: (410) 385-2225
Facsimile: (410) 547-2432

38