Judge Wants NHL to Hand Over Med. Info to Court in Concussion Class Action

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A Minnesota federal judge told the National Hockey League that it needs to turn over medical records of former players that don’t include their identities to help determine what the long-term effects of concussions suffered by players.

U.S. District Judge Susan Richard Nelson said that handing over the data without the players’ names included will keep their identities protected.

Judge Nelson said it was legitimate for the players to be concerned about their privacy being violated through the revelation of their medical data, but she said that removing all personally identifiable information from the medical records should sufficiently protect their information.

“The court fully appreciates that the players’ medical information is highly confidential,” Judge Nelson wrote in her memorandum opinion and order.

“The court also fully recognizes, however, that this data is highly relevant in this litigation — to both sides. On balance, the court finds that the players’ medical information can be adequately anonymized and protected, while still providing plaintiffs with basic discovery highly relevant to their claims,” she added.

The players who are the plaintiffs in the NHL concussion class action lawsuit want the NHL and its teams to release the medical records from every concussion ever suffered by hockey players. They also want the NHL and the teams to communicate with each other over issues of head trauma and brain disease. The players filed subpoenas for the data in January.

However, the NHL said previously that it couldn’t release the medical records because it violated privacy protections under the Health Insurance Portability and Accountability Act, the Americans with Disabilities Act, along with the NHL’s collective bargaining agreement.

The league also said the data request was a bit extreme, and that it would only hand over the medical records of players if they gave their express consent.

The plaintiffs accepted Judge Nelson’s ruling and agreed to take the data without identifiable information including names, jersey numbers as well as teams. It also said that it will not try to determine who the players are based on the information given.

Judge Nelson said that she was satisfied with the guarantees given by the plaintiffs.

“Since the chief concern of the U.S. clubs and defendant is that the requested information will somehow be connected to an individual player, anonymizing information appropriately addresses this legitimate concern,” Judge Nelson wrote in the order.

The Minnesota federal judge explained that the federal statutes cited by the league, such as the ADA or HIPAA could not be used to prevent any data from being produced.

“The court finds that the ADA does not create a privilege that wholesale bars the discovery of the requested information under the circumstances of this case,” she wrote.

In addition, when it comes to HIPAA, it “contains a litigation-use exception pursuant to which disclosures may be permitted when a qualified protective order is in place,” which Judge Nelson says applies in this case.

In addition, the judge said that the collective bargaining agreement did create exceptions for revealing medical records to the general public as it relates to injuries.

The NHL concussion class action lawsuits were consolidated into an multidistrict litigation by the Judicial Panel on Multidistrict Litigation (MDL) in August 2014 in the Minnesota federal court.

The players are represented by Brian D. Penny of Goldman Scarlato & Penny PC, Stuart A. Davidson, Mark J. Dearman, Leonard B. Simon, Kathleen B. Douglas and Janine D. Arno of Robbins Geller Rudman & Dowd LLP, William N. Sinclair, Stephen G. Grygiel and Steven D. Silverman of Silverman Thompson Slutkin & White LLC, and Charles Zimmerman, Brian C. Gudmundson, Hart L. Robinovitch, David M. Cialkowski and Brad Buhrow of Zimmerman Reed PLLP, among others.

The NHL is represented by John Beisner, Shepard Goldfein, Matthew M. Martino, Jessica Davidson Miller and James A. Keyte of Skadden Arps Slate Meagher & Flom LLP, Joseph Baumgarten and Adam M. Lupion of Proskauer Rose LLP and by Dan Connolly, Joe Price, Linda Svitak and Aaron Van Oort of Faegre Baker Daniels LLP.

The U.S. clubs are represented by Christopher J. Schmidt, Kenneth J. Mallin, Timothy J. Hasken, Jonathan B. Potts of Bryan Cave LLP.

The NHL Concussion Class Action Lawsuit is In re: National Hockey League Players’ Concussion Injury Litigation, Case No. MDL 2551, in the U.S. District Court for the District of Minnesota.

UPDATE: On Nov. 6, 2018, a class action lawsuit filed by hundreds of former National Hockey League (NHL) players over concussion and head trauma claims might be ending with a $19 million settlement.