Richard Dent v. National Football League

Background

The plaintiffs, retired NFL players, sought certification of a nationwide class consisting of NFL players who played between January 1, 1973, and December 31, 2008, and received medications from an NFL club. The proposed class included players who received opioids, non-steroidal anti-inflammatory drugs, corticosteroids, or local anesthetics.

The remaining claim was a California common-law negligence claim based on negligent voluntary undertaking. The plaintiffs alleged that the NFL voluntarily undertook to ensure proper recordkeeping, administration, and distribution of medications by NFL clubs, but failed to perform that undertaking with reasonable care. The court noted that the court of appeals had previously held that the plaintiffs plausibly pleaded this theory, while affirming dismissal of their other negligence theories.

Class-certification standards

The court applied Federal Rule of Civil Procedure 23. For a class under Rule 23(b)(3), plaintiffs had to satisfy Rule 23(a)’s requirements of numerosity, commonality, typicality, and adequacy, and also show that common questions predominated over individual questions and that a class action was superior to other methods of resolving the dispute.

The plaintiffs also sought an issue class under Rule 23(c)(4), covering whether the NFL assumed a duty to the class and breached that duty while leaving causation and damages for individual proceedings.

Reasons for denying Rule 23(b)(3) certification

The court found that common questions of law did not predominate. The proposed class involved players who played for 32 different teams, over 35 years, and who were injured in at least 23 states. Under California choice-of-law rules, the court explained, it would need to compare the laws and interests of the potentially affected states. The plaintiffs’ briefing compared only New York, Arizona, California, and Illinois and did not provide the comprehensive analysis needed to show that one body of law could govern the nationwide class or that differences among state laws would be manageable.

The court also found that club-specific factual questions predominated. The NFL’s audit records showed substantial differences among teams in recordkeeping, the kinds and amounts of medications used, and medication practices over time. The court reasoned that these differences could affect liability, not merely damages. It also stated that determining whether the NFL breached its undertaking would require examining the reasonableness of club physicians’ and trainers’ conduct, which was governed by the law of the jurisdictions where they practiced.

The audit program itself changed during the proposed class period. The NFL changed which medications were audited, recommended standardized forms, later included non-steroidal anti-inflammatory drugs in the audit program, and eventually required electronic recordkeeping. The court concluded that the plaintiffs had not shown a common method of proving liability across those changing circumstances.

The court also relied on a survey of 644 retired players. Forty-eight percent reported using no prescription opioids during their NFL careers, and among those who reported opioid use, many identified sources other than doctors, including non-medical sources. The court found no practical class-wide method to account for medication obtained from sources the NFL had not allegedly undertaken to regulate.

Because common questions did not predominate and individual class members had substantial incentive to pursue their own claims, including some claims exceeding two million dollars, the court denied certification under Rule 23(b)(3).

Rule 23(c)(4) issue class

The court also denied certification of an issue class. It reasoned that deciding whether the NFL should have recognized the need for protective services would still require evidence about what the NFL knew concerning safeguards and practices at each club. A class-wide decision would therefore devolve into numerous club-by-club inquiries. The court further concluded that a class verdict would be difficult for state courts to integrate with later individual trials concerning causation and damages.

Disposition

The court denied the plaintiffs’ motion for class certification. It stated that the most efficient way to litigate the case was on a non-class basis. The order addressed class certification and did not decide whether the NFL was ultimately liable on the negligence claim. Judge William Alsup signed the order on August 31, 2021.