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By Daniel Wiessner
(Reuters) – A U.S. appeals court on Tuesday seemed unlikely to revive a proposed class action lawsuit accusing the National Football League of allowing teams to over-prescribe painkillers to players so they could stay on the field while injured.
Judges on a 9th U.S. Circuit Court of Appeals panel in Pasadena, California, repeatedly pressed a lawyer for the eight retired players who filed the lawsuit on why he had not enlisted medical experts to testify about the impact the drugs had on players.
The plaintiffs had proposed suing on behalf of a potentially massive class of NFL players who received opioids, anti-inflammatory drugs, local anesthetics or other medications from teams between 1973 and 2008.
Circuit Judge Jay Bybee told the players’ lawyer Phillip Closius that evidence showing the large amount of drugs that teams prescribed to players was “staggering (and) shocking,” but that he had failed to link it to medical conditions suffered by the plaintiffs.
“You’re off to a good start but you didn’t connect all the dots and I think it’s a serious problem,” the judge said.
Bybee told Closius that he was “very, very confused” about the plaintiffs’ legal arguments and how they had shifted in the nine years since the case was filed.
“I’m having the same problem,” Circuit Judge Richard Tallman said.
The panel also included Circuit Judge Lawrence Van Dyke, who did not speak during the oral arguments.
Closius told the panel that medical experts could not testify to the effects that taking painkillers had on NFL players because the amount they used was unprecedented.
“You can’t let the NFL benefit from the fact that their conduct was so egregious that there’s no medical way to tell you what the effects are going to be,” Closius said.
The players who filed the 2014 lawsuit, including Hall of Fame Chicago Bears defensive end Richard Dent, are seeking to revive claims that the NFL was negligent in allowing teams to prescribe massive amounts of opioids and other painkillers, which caused players to develop addictions and other serious medical conditions.
The NFL has denied wrongdoing and has said that it audits teams’ use of prescription drugs.
U.S. District Judge William Alsup in San Francisco dismissed the case in late 2021, ruling that there was no evidence that the NFL’s alleged negligence had caused the players’ injuries.
Alsup in an earlier ruling had declined to certify a class, saying the class action claims were untenable because of variations in how the NFL’s 32 teams administered drugs and changes in practices over time. The players are appealing both decisions.
The 9th Circuit has twice revived the case, in 2018 and 2020. The appeals court had disagreed with Alsup’s rulings that the lawsuit was barred by the players’ collective bargaining agreements with the NFL and that the league did not have a duty to ensure player safety.
On Tuesday, the NFL’s lawyer, Pratik Shah, told the court that Alsup had given the plaintiffs opportunities to present more medical evidence to back up their claims, and they did not.
The case is Dent v. NFL, 9th U.S. Circuit Court of Appeals, No. 22-15261.
For the players: Phillip Closius of Silverman, Thompson, Slutkin & White
For the NFL: Pratik Shah of Akin Gump Strauss Hauer & Feld
Read more:
Judge denies class cert in ‘sprawling’ NFL opioid litigation
NFL must face negligence claims in players’ painkiller case – 9th Circuit
Court revives ex-NFL players’ painkiller lawsuit
(Reporting by Daniel Wiessner in Albany; edited by Alexia Garamfalvi)
