Wrongful Death Lawsuit against NHL will require Expert Witnesses


Derek BoogaardCo-authored by Peter Radetich.

On May 12, 2013, the family of Derek Boogaard filed a wrongful-death lawsuit in Chicago against the National Hockey League. The suit alleges that the NHL was responsible for the physical trauma and brain damage that occurred to the former enforcer during his six-year career. As a result of Boogaard’s injuries, he became addicted to prescription painkillers. This ultimately resulted in his death after an overdose of the painkillers.

Background of the Case
At the time of his death, Boogaard was playing for the NHL’s New York Rangers. He was found dead in his Minneapolis, Minnesota apartment on May 13, 2011 when he was only twenty-eight years old. In his NHL career, Boogaard participated in at least sixty-six fights over the course of 277 regular-season games. Boogaard’s last NHL game was on December 9, 2010, where he suffered a concussion during a fight in Ottawa, Ontario.

The lawsuit alleges that the NHL “breached its duty to Boogaard” because of its failure to monitor his prescriptions and establish proper procedures for administering the medicines. The lawsuit points out that NHL teams’ physicians, dentists, trainers, and staff “provided copious amounts of prescription pain medications, sleeping pills, and painkiller injections . . . to combat the injuries and pain he endured.”[1] Boogaard was given at least 13 injections of Toradol, which is a masking agent for pain, by doctors of at least seven separate NHL teams and prescribed 1,021 pills during the 2008-2009 season with the Minnesota Wild alone.[2]

The lawsuit states that “due to his ingestion of an inordinate amount of pain medications prescribed by NHL team physicians, Derek Boogaard became addicted opioids . . . and the NHL should have known that enforcers/fighters [are at an] increased risk for injuries, concussions and addiction.”[3] Furthermore, the suit contends that “on numerous occasions, the NHL allowed and encouraged Derek Boogaard, after suffering concussions, to return to play and fight in the same game and/or practice.”[4]

Boogaard’s attorney, William T. Gibbs, stated that “the NHL drafted Derek Boogaard because it wanted his massive body [6-foot-7 and about 270 pounds] to fight in order to enhance ratings, earnings and exposure. Fighting night after night took its expected tool on Derek’s body and mind. To deal with the pain, he turned to team doctors who dispensed pain pills like candy. Then, once he became addicted to these narcotics, the NHL promised his family that it would take care of him. It failed.”[5]

Boogaard was under the assistance of the Substance Abuse and Behavioral Health Program, which is financed jointly by the NHL and the NHL Players Association (“NHLPA”). He was in and out of rehab several times, missing parts of multiple seasons while trying to combat his addiction. In the end, it was never enough as Boogaard’s addiction only worsened over the years and he habitually found himself back in rehab.

C.T.E and the Brain
Following his death, Boogaard’s brain was donated to the Sports Legacy Institute at Boston University Medical School. Studies are done here on the brains of athletes that participate in high-contact sports. An autopsy revealed that Boogaard had developed chronic traumatic encephalopathy, C.T.E., which is a brain disease caused by repeated hits to the head. While C.T.E can only be diagnosed posthumously, scientists say that it shows itself in symptoms. These include memory loss, impulsiveness, mood swings, and even addiction.[6] Doctors hypothesized that had Boogaard lived, this condition likely would have worsened and developed into middle-age dementia.[7] Dr. Ann McKee, a neuropathologist, was “wowed” at the amount of brain damage that occurred to Boogaard at such a young age.[8] Typically, the disease progresses over the course of one’s lifetime, however the amount of damage Boogaard already sustained was shocking.

Derek Boogaard is not the only former enforcer to suffer from C.T.E. Former NHL-ers Rick Rypien, Wade Belak, and Bob Probert also died under similar circumstances. Rypien committed suicide four months after Boogaard’s death while in his late twenties. Belak was thirty-five when he died, in what was initially described as a suicide, nevertheless, his family and friends contend it was an accident. Both men suffered from depression and substance abuse, similar to Boogaard. Probert, who played sixteen seasons in the NHL, fought with alcohol abuse and drug addictions. Ultimately, he died of heart failure in 2010 at the age of forty-five.

Expert Witnesses
In order to prevail in these types of cases, Boogaard’s attorneys will likely rely on expert witness testimonies.  The expert witnesses will discuss and highlight particular elements of the medical and psychological treatment of Boogaard.

Neuropsychology Expert Witness
One type of expert that the plaintiffs are likely to rely on is a neuropsychologist. They study the structure and function of the brain as it relates to specific psychological processes and behaviors. Dr. Robert A. Stern, a neuropsychologist and a co-director at the Center for the Study of Traumatic Encephalopathy, stated, “[Boogaard] had problems with [drug] abuse the last couple years of his life, and that coincided with some of the cognitive and behavior and mood changes.”[9] He went on to say that “what we are pretty sure of is, once the disease starts, it continues to progress.”[10] Neuropsychologists, such as Dr. Stern, will be able to provide useful testimony to describe the ill effects of repeated head trauma coupled with extensive drug abuse.

Neuropathology Expert Witness
A neuropathologist is another expert witness can be useful in demonstrating the harmful effects that trauma and drug abuse can have on the brain. Neuropathologists study diseases of nervous system tissue, such as C.T.E., which is conducted through small surgical biopsies or whole autopsy brains. This was done with Boogaard’s brain. Subsequently, a neuropathologist would be able to comment on the existence of C.T.E and the damage that occurred to his brain by the end of his career.

Psychology Expert Witness/ Psychiatry Expert Witness
A psychologist and/or psychiatrist will also frequently be valuable in providing expert testimony. Over the last few years of Boogaard’s life, friends and family noticed a drastic change in Boogaard’s behavior. Matt Shaw, who coached Boogaard as an assistant coach with the minor league hockey team the Houston Aeros and then the Minnesota Wild asked him one day, “What’s up? What’s up with you? Where is the guy I know?”[11] Wild teammate John Scott stated that “his demeanor, his personality, it just left him. He didn’t have a personality anymore. He was just kind of – a blank face.”[12] A psychologist or psychiatrist, such as those who have seen patients deteriorate over the course of treatment just like Boogaard did, can opine on the potential causes and effects of such a decline.

Medical Expert Witness
Additionally, other medical practitioners who could speak to the negative effects that drug abuse had on the body would also be useful. Using their expertise, they could weigh in on whether the amount of pain medication given to Boogaard was excessive and if the NHL failed to adequately monitor how the drugs were administered.

Going Forward
Traumatic head injuries to professional athletes in hockey are becoming more prevalent as the speed of the game increases and players get bigger and stronger. After sustaining a serious injury, like a concussion, players are routinely given medications to dull their pain and allow them to play – even when they should not. Consequently, Derek Boogaard stands as the latest example of the long lasting,  and sometimes even fatal effects of athletes placed into contact sports. Naturally, for players like Boogaard, receiving appropriate medical and psychological treatment is crucial after receiving a traumatic injury, and it appears that the NHL failed to provide this to multiple players. Expert witnesses can not only assess where the liability may fall, but ultimately improve the game that so many fans have come to love.