ETOPIA EVANS, et al., Plaintiffs, v. ARIZONA CARDINALS FOOTBALL CLUB, LLC, et al., Defendants.
No. C 16-01030 WHA
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
May 15, 2017
WILLIAM ALSUP, UNITED STATES DISTRICT JUDGE
Document 224
INTRODUCTION
Defendants in this putative class action move to dismiss most claims in the second amended complaint and for summary judgment as to most claims surviving dismissal. The motion is GRANTED.
STATEMENT
This is an action against the 32 member clubs of the National Football League by twelve retired NFL players and the estate of a thirteenth. The roster of plaintiffs and array of asserted claims have been refined through both amendments and motion practice. Although we remain at the pleading stage, substantial discovery has already been taken. The procedural history of this litigation and plaintiffs’ sweeping background allegations about the NFL as a whole that have featured in each iteration of their complaint have been set forth in detail in prior orders (see Dkt. Nos. 168 at 1–3; 175 at 1–3) and need not be repeated here. Recent events directly informing the instant motion, however, merit brief summary.
Plaintiffs then filed their second amended complaint, which exceeds its predecessor in length and asserts claims only for intentional misrepresentation and concealment (Dkt. No. 189). The clubs move to dismiss most claims and for summary judgment as to most claims that survive dismissal (Dkt. No. 212). This order follows full briefing and oral argument.
ANALYSIS
1. EXTRANEOUS ALLEGATIONS.
As a preliminary matter, by a conservative estimate, over half of the second amended complaint consists of allegations inapposite to plaintiffs’ actual claims for relief. Much of the second amended complaint is dedicated to essentially repeating the same sweeping criticisms and accusations, directed against the NFL as a whole, that permeated plaintiffs’ prior pleadings. The critical section of the second amended complaint setting forth particularized allegations concerning individual players and clubs consists of less than 50 pages.
Even within that section, only a fraction of the allegations actually pertain to plaintiffs; the rest concern putative class members. But as the undersigned judge has repeatedly noted, this is not yet a class action (e.g., Dkt. No. 169 at 26:23–27:2). And as a recent order ruled,
Additionally, the second amended complaint is replete with extensive and incendiary allegations of conspiracy and general illegality (e.g., that the NFL‘s handling and distribution of medication violated the
This order recognizes the possibility that plaintiffs made the deliberate choice to proceed this way. The second amended complaint makes this notable comment (Dkt. No. 189 at 4):
8. Plaintiffs agree, and commit now (they would contend they have already done so) to working with the Clubs on this problem [of painkiller abuse in the NFL]. In any event, this should be considered a standing invitation to do so.
9. But until Plaintiffs get that call, all they can do (if they are to do anything at all) is proceed with their well-pled allegations that Defendants’ actions violate the Controlled Substances Act (“CSA“) and/or Food Drug & Cosmetic Act (“FDCA“) . . . their implementing regulations, and analogous state laws and that their omissions and concealment as detailed herein harmed Plaintiffs and the proposed class.
So perhaps the bloat of inapposite allegations is the product of some advocacy-based agenda rather than any attempt to comply with pleading requirements. For present purposes, however, this order makes clear at the outset that what matters is not whether plaintiffs have drawn attention to widespread misconduct in the NFL but whether each plaintiff has properly pled claims for relief against each individual club and, if so, whether those claims survive summary
Having established the foregoing, this order turns to the merits of the clubs’ motion.
2. MOTION TO DISMISS.
A. Legal Framework.
As before, there is no dispute that plaintiffs’ claims sound in fraud, so Rule 9(b) applies and requires plaintiffs to “state with particularity the circumstances constituting fraud,” although “[m]alice, intent, knowledge, and other conditions of a person‘s mind may be alleged generally.” See Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009). Averments of fraud must be accompanied by “the who, what, when, where, and how” of the alleged misconduct. Ibid. This pleading standard applies to both claims of fraud based on misrepresentation and those based on nondisclosure. Id. at 1126–27.
Plaintiffs incorrectly contend Rule 9(b) “does not apply in its full force to . . . concealment claims” (Dkt. No. 216 at 4). Circumstances constituting fraud by omission or nondisclosure must still be pled with particularity, though they may be less specific or precise insofar as they do not involve affirmative acts. See In re Anthem, Inc. Data Breach Litig., Case No. 15-MD-02617-LHK, 2016 WL 3029783, at *35 (N.D. Cal. May 27, 2016) (Judge Lucy Koh). For example, plaintiffs may state that concealment occurred over a particular period of time rather than on a specific date, but they may not simply fail to state “when” the alleged concealment occurred.
Although the extensive, disorganized, frequently boilerplate, and sometimes contradictory statements in the second amended complaint and plaintiffs’ opposition brief make it difficult to understand specific claims for relief asserted against individual clubs, this order addresses three theories of liability discernible from plaintiffs’ allegations. First, each club allegedly concealed facts concerning medication given to plaintiffs. Second, each club allegedly concealed the illegality of their actions, i.e., failed to disclose the fact that they were breaking various laws. Third, each club intentionally misrepresented that they cared about and prioritized plaintiffs’ health and safety.
B. Concealment (re Medication).
Plaintiffs’ first theory of liability is that “the Clubs concealed material facts relating to the Medications” (Dkt. No. 216 at 5). The second amended complaint alleges at length that the clubs dispensed medication to plaintiffs without making legally required disclosures, e.g., about side effects, risks, or appropriate directions (see Dkt. No. 189 at 61–105). The second amended complaint does not, however, allege that any plaintiff except Jeffrey Graham actually relied on this concealment and would have behaved differently had some legally required disclosure been made. According to the second amended complaint, Graham received his first anti-inflammatory injection in the NFL from James Bradley, a team doctor with the Pittsburgh Steelers. Graham said that “if he had been told about the risks and long term consequences,” he would not have taken the shot (Dkt. No. 189 at 97).1
Assuming for the sake of argument that this brief and conclusory statement suffices to plead reliance, the second amended complaint still fails to plead causation as to Graham‘s concealment claim against the Steelers. The second amended complaint alleges that Graham has suffered the following damage (id. at 72–73 (emphasis added)):
Mr. Graham now lives in constant pain. He has pain in both shoulders, neck, hips, lower back, both elbows, both hamstrings, his fingers, wrists, left toe and right knee. He cannot stand for long periods and needs special shoes to lessen the pain. He is stiff and sore all day. He cannot sleep at night, moving from bed to floor to couch throughout the night. Mr. Graham struggles to control his weight due to his limited ability to exercise. He believes his current pain is directly attributable to various injuries suffered during his NFL career.
But the second amended complaint does not even remotely suggest that Graham suffered any of the foregoing damage as a result of the anti-inflammatory injection that he would not have taken had he been told about “the risks and long term consequences” thereof. On the contrary, the second amended complaint expressly alleges that Graham “believes his current pain is directly attributable to various injuries suffered during his NFL career.”
During oral argument, plaintiffs’ counsel claimed ten of the named plaintiffs “have internal organ claims in the complaint, of different kinds,” based on the theory that their use of medication in the NFL caused internal organ failures and other “internal damage” (as opposed to musculoskeletal injury) (see Dkt. No. 223 at 22:2–24:6). Plaintiffs’ counsel proffered the example of plaintiff Chris Goode, who — according to counsel — “had to remove a seven-pound tumor” from his kidney in 2005. (Actually, the second amended complaint says Goode had to “remove half of his kidney along with [a] malignant tumor” in 2015 (Dkt. No. 189 at 83).) The undersigned judge then asked plaintiffs’ counsel to identify specific allegations giving rise to any plausible inference that Goode‘s use of medication in the NFL actually caused his tumor. In response, plaintiffs’ counsel took aim with birdshot at an entire universe of speculative medical effects, stating, “An abundance of the drugs can produce harm to certain organs . . . we have a lot of experts that we are consulting who are talking about the impact of excessive dosages of drugs on various organs in the human body” (Dkt. No. 223 at 23:4–23:10).
This nebulous and wholly speculative statement is, of course, useless as an allegation of medical causation. The undersigned judge pressed the question, asking, “does the complaint say that they took the tumor out; they did a biopsy . . . the doctors concluded that the tumor was the result of too many drugs? Or was that just the lawyer speculating . . . ?” Plaintiffs’ counsel replied, “The doctors have not said that.” The undersigned judge then asked how plaintiffs
The foregoing exchange suggests that plaintiffs think they can plead the causation element of their concealment claim simply by pointing to some recent internal organ-related problem — with no allegation whatsoever concerning etiology (even after extensive discovery and consultation with “a lot of experts“) — and baldly asserting their belief that it directly resulted from their use of medication in the NFL. Not so.
First, even if counsel‘s misleading insinuation that the lead plaintiffs suffer from an unusual array of such ailments proved true, that alone would mean little. These lead plaintiffs were carefully chosen from a pool of over a thousand putative class members (see Dkt. No. 175 (discussing the evolution of plaintiffs’ lineup over the history of this litigation)). That they suffer from certain medical ailments ostensibly informed their selection. Absent well-pled factual allegations to the contrary, they should not be mistaken for a representative sample indicating some causal nexus between use of medication in the NFL and subsequent “internal organ” problems.
Second, even assuming (and this has not yet been established) that the lead plaintiffs and their various ailments are a representative sample of the overall population of NFL retirees, that alone would still be insufficient to plead causation. Statistically, in any population as large as NFL retirees, some incidence of tumors and other organ-related ailments is to be expected, so the mere presence of such ailments does not speak to etiology. Additional factual allegations are required to indicate causation. Tellingly, the second amended complaint alleges (Dkt. No. 189 at 50 (emphasis added)):
197. The constant pain that Plaintiffs and other players experience from their injuries while playing for the Clubs leads directly to a host of health problems.
198. Leading experts recognize that former professional football players who suffer from permanent musculoskeletal injuries often cannot exercise due to pain or other physical limitations, leading to a more sedentary lifestyle and higher rates of obesity.
199. According to the Centers for Disease Control and Prevention, obesity is linked to: coronary heart disease, type-2 diabetes, endometrial cancer, colon cancer, hypertension, dyslipidemia, liver disease, gallbladder disease, sleep apnea, respiratory problems and osteoarthritis.
200. Surveys of former NFL players confirm that they suffer from significantly higher rates of all these disorders when compared to the general population.
In other words, the second amended complaint itself claims that musculoskeletal injuries sustained in the NFL can cause obesity and related “internal” ailments, further undermining any suggestion that the mere presence of such ailments among NFL retirees implies etiology tracing back to excessive use of medication. At best, the second amended complaint broadly claims that certain drugs are generally associated with certain adverse side effects but fails to allege any facts giving rise to a plausible inference that the lead plaintiffs’ particular ailments resulted from their excessive use of medication in the NFL (see id. at 50–52).
In short, the second amended complaint fails to plead allegations showing causation as to any suggested theory of liability based on “internal organ claims.” This order therefore concludes plaintiffs have not properly pled any claim for relief based on a club‘s alleged concealment of material facts relating to medication.2
C. Concealment (re Illegality).
Plaintiffs’ second theory of liability is that “the Clubs concealed material facts relating to . . . the illegality of their scheme” (Dkt. No. 216 at 5). Much of the second amended complaint is dedicated to alleging that the clubs’ handling and distribution of controlled
In short, plaintiffs have also not properly pled any claim for relief based on a club‘s alleged concealment of “the illegality of their scheme.”
D. Intentional Misrepresentation.
Plaintiffs’ third theory of liability is taken from the February 3 order. That order, construing the first amended complaint in plaintiffs’ favor, interpreted its allegations as potentially pleading that (1) the clubs represented that they cared about and prioritized players’ health and safety but acted to the contrary, (2) plaintiffs took medication and continued playing while injured (or, in Carreker‘s case, regularly used excessive amounts of medication) in reliance on the clubs’ fraudulent conduct, and (3) plaintiffs suffered their alleged damages as a result (see Dkt. No. 216 at 8–9). Plaintiffs have expressly adopted this theory as the sole basis for the second amended complaint‘s intentional misrepresentation claims (id. at 8).
Before proceeding further, however, this order rejects plaintiffs’ attempt to interpret the February 3 order as obviating any need to plead proximate causation. According to plaintiffs, the February 3 order found claims properly pled as to Jerry Wunsch and Jeffrey Graham even though those claims did not tie the plaintiffs’ damages to any club‘s actions. Thus, plaintiffs contend, the second amended complaint can properly plead intentional misrepresentation simply by identifying specific injuries from which they currently suffer, even if said injuries are not tied to any club‘s actions (Dkt. No. 216 at 10–11). This order disagrees.
The first amended complaint alleged the Seattle Seahawks gave Wunsch medication to get him through a game in 2003 even though he repeatedly said he could not play (it did not further describe why Wunsch felt unable to play that particular game but mentioned elsewhere
In short, the first amended complaint‘s allegations as to Wunsch and Graham did not, as plaintiffs suggest, feature damages wholly divorced from the clubs’ alleged misconduct. True, specific factual allegations in different claims may permit stronger or weaker showings of proximate causation, but this does not support plaintiffs’ position that proper pleading requires no plausible nexus whatsoever between their alleged damages and the clubs’ alleged misconduct. Nothing in the February 3 order or controlling law supports such an untenable standard. Indeed, plaintiffs’ own “plain reading” of the theory of liability articulated in the February 3 order requires that “a Club ‘acted contrary to their representations by driving players to return to play at the cost of their health and safety‘” (Dkt. No. 216 at 9 (emphasis added)).
The scope of plaintiffs’ intentional misrepresentation theory also requires clarification. During oral argument, plaintiffs’ counsel stated, “There are 14 clubs that we are not alleging this affirmative-misappropriation [sic] claim against. It‘s only 18 total clubs, nine of which have already been adjudicated, and nine more which we have said — we have conformed with the particularity requirement. But as to 14 others, there is no claim under affirmative misrepresentation as to them” (Dkt. No. 223 at 7:14–7:19). This statement contradicts the second amended complaint itself, which asserts intentional misrepresentation claims by “All Plaintiffs Against All Defendants” (Dkt. No. 189 at 114).3
With that clarification, this order turns back to the substance of plaintiffs’ intentional misrepresentation theory. The second amended complaint carries over most of the first amended complaint‘s allegations that the February 3 order cited as showing (1) the clubs represented that they cared about and prioritized players’ health and safety, and (2) plaintiffs believed such representations (see Dkt. No. 168 at 12–13; 189 at 18, 21, 115, 119–20). The nine claims sufficiently pled in the first amended complaint are pled with equal or greater particularity in the second amended complaint. This order therefore concludes those nine claims survive dismissal.
The second amended complaint also pleads the following allegations with particularity:
- While playing for the Los Angeles/St. Louis Rams on September 17, 1995, plaintiff Darryl Ashmore ruptured a disc in his neck. Club doctors and trainers, including Jim Anderson, kept Ashmore on the field for that game and the remainder of the season by giving him medication. Ashmore now suffers from “constant pain in his neck” (id. at 85-86).
- While playing for the Tennessee Titans in 2007, plaintiff Eric King sustained numerous injuries, including breaking his forearm. When an injury occurred during a game, club trainers Brad Brown, Don Moseley, Geoff Kaplan, Jason Williams, or Jon Takahashi gave King painkillers and anti-inflammatory drugs and told him to “get back in the game.” After King aggravated his forearm injury in 2008, the aforementioned club trainers gave him daily doses of
Toradol and other painkillers so he could keep playing. He had two surgeries on his forearm during his NFL career and now suffers from “constant pain,” including in his forearm (id. at 70, 104). - While playing for the New Orleans Saints in the middle of the 1989 season, plaintiff Robert Massey rolled his ankle during a game. He got a Toradol injection from club trainers Dean Kleinschmidt and Kevin Mangum, then finished the game. He now suffers constant pain from, among other things, his ankles (Dkt. No. 189 at 81, 90).
In summary, the second amended complaint sufficiently pleads intentional misrepresentation claims between Ashmore/Raiders, Ashmore/Rams, Carreker/Packers, Carreker/Broncos, Harris/Dolphins, Graham/Chargers, Killings/Vikings, King/Titans, Massey/Lions, Massey/Saints, Walker/Chargers, and Wunsch/Seahawks.
3. MOTION FOR SUMMARY JUDGMENT.
The clubs also move for summary judgment as to most claims surviving dismissal on the basis that said claims are time-barred. Both sides agree that Maryland law applies, and that the applicable limitations period is three years (Dkt. Nos. 212 at 15; 216 at 13).
Maryland follows the discovery rule, under which the limitations period starts running “when the plaintiff has knowledge of circumstances which would cause a reasonable person in the position of the plaintiff to undertake an investigation which, if pursued with reasonable diligence, would have led to knowledge of the alleged tort.” Lumsden v. Design Tech Builders, Inc., 749 A.2d 796, 802 (Md. 2000) (quotation omitted). Importantly, “[k]nowledge of facts . . . not actual knowledge of their legal significance, starts the statute of limitations running . . . . The discovery rule, in other words, applies to discovery of facts, not to discovery of law. Knowledge of the law is presumed.” Moreland v. Aetna U.S. Healthcare, Inc., 831 A.2d 1091, 1096 (Md. Ct. Spec. App. 2003) (citing Doe v. Archdiocese of Wash., 689 A.2d 634, 641–43 (Md. Ct. Spec. App. 1997), for the proposition that “a cause of action in tort generally accrues at the same time the act that constitutes the tort occurs — regardless whether the victim
Applying the foregoing principles here, almost all of plaintiffs’ surviving claims are clearly time-barred. With only two exceptions, those claims are predicated on damages supposedly attributable to musculoskeletal injuries sustained prior to 2012. The two exceptions are Walker‘s claim against the Chargers, which is based on an ankle sprain sustained in 2014, and Carreker‘s claims against the Packers and the Broncos, which are based on continuous excessive use of medication instead of musculoskeletal injuries sustained in the NFL and also may have accrued after May 2012.
In addition to noting the dated nature of plaintiffs’ musculoskeletal injuries, the clubs point out that, prior to May 2012, most of the plaintiffs also filed workers’ compensation claims for the very same injuries they assert here. Both arguments are well-taken — so much so, in fact, that plaintiffs’ opposition brief responds by attempting to altogether disavow the second amended complaint‘s boilerplate but insistently repeated allegations that each plaintiff believes their current injuries are “directly attributable” to past injuries sustained in the NFL and covered up by medication (Dkt. No. 216 at 19–20 (bold and italics in original, footnote omitted)):
Plaintiffs’ causes of action seek recovery for later-in-life injuries they sustained as a result of Defendants’ misrepresentations and concealment in connection with the provision and administration of the dangerous Medications. They are not seeking recovery for injuries they may have sustained as a result of any other cause. In other words, the injuries at issue in this case are not the injuries that Plaintiffs sustained on the field as a result of playing football, and thus, are not the injuries that were at issue in Plaintiffs’ workers compensation or disability claims. The injuries for which Plaintiffs seek compensation fall into two discrete categories: (1) internal organ injuries; and (2) musculoskeletal injuries . . . the cause of those injuries — the exorbitant amount of often illegally dispensed Medications — were not and could not have [been] discovered in the exercise of reasonable diligence until shortly before Plaintiffs filed this lawsuit, after conferring with counsel.
Even if this order accepted the foregoing position, it would be of no help to plaintiffs. If the injuries underlying plaintiffs’ claims were attributable to excessive use of medication, rather than to musculoskeletal damage sustained as a result of playing with injuries, that would eviscerate the theory of liability identified in the February 3 order and adopted as the sole basis
CONCLUSION
For the foregoing reasons, the clubs’ motion is GRANTED. All claims save and except those for intentional misrepresentation between Ashmore/Raiders, Ashmore/Rams, Carreker/Packers, Carreker/Broncos, Graham/Chargers, Harris/Dolphins, Killings/Vikings, King/Titans, Massey/Saints, Massey/Lions, Walker/Chargers, and Wunsch/Seahawks are DISMISSED. For the reasons previously stated in the February 3 order, this dismissal is without further leave to amend. Plaintiffs’ counsel have had ample opportunity to plead and the time has come to deem the pleadings settled.
Summary judgment is GRANTED in favor of the clubs as to all claims that survive dismissal save and except those for intentional misrepresentation between Carreker/Packers, Carreker/Broncos, and Walker/Chargers.
The deadline for plaintiffs to file their class certification motion, to be heard on a 49-day briefing schedule, is continued from May 18 to JUNE 1.
IT IS SO ORDERED.
Dated: May 15, 2017.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE