Metropolitan News-Enterprise


Thursday, February 7, 2019


Page 1


Ninth Circuit:

Ex-Players’ Action Against NFL Clubs Over Policy on Injuries Is Time-Barred


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday affirmed the dismissal of a putative class action brought by 12 former professional football players and the estate of a one-time fullback against all 32 National Football League clubs alleging a practice of filling players with drugs to keep them in games despite their injuries, with long-term physical consequences.

A three-judge panel, in a memorandum opinion, affirmed the decision by District Court Judge William Alsup of the Northern District of California to axe the lawsuit based on the running of the statute of limitations.

The suit over the clubs’ alleged “return to play” policy was brought, under various theories, on May 21, 2015. The complaint alleges:

“As far back as the mid-1960s, Club doctors and trainers were providing players with pain killers, anti-inflammatories. and sleep aids…to get them back in the game as soon as possible, despite being injured, and keep them there. Though the Medications have changed over the ensuing decades, the manner in which they have been distributed has not.”

Deception Alleged

It adds:

“Players from every decade since the 1960s describe the same thing—Club doctors and trainers providing injections or pills, often not telling the players what they were receiving, misstating the effects of the Medications (if they addressed the effects at all), and rarely if ever talking about the need for informed consent or the long-term effects of what they were taking. These doctors and trainers dispensed the Medications to their football patients in an amount and manner they would never do with their non-football patients.”

Allegations include this, as summarized by Alsup:

“In 1998, while playing for the Oakland Raiders, plaintiff Darryl Ashinore hurt his wrist during practice. With an important game against the Seattle Seahawks approaching, the club doctor. Warren King, told Ashinore ‘that the injury was only a sprain and that he would be fine with painkillers and anti-inflammatories.’’ Ashinore played the game. The next morning. Dr. King told him his wrist was broken. Ashmore played the rest of the season with a wrist cast, painkillers, and anti-inflammatory drugs. His wrist is now permanently damaged.”

On Nov. 30, 2016, an amended complaint was filed adding a cause of action under the Racketeer Influenced and Corrupt Organizations Act (“RICO”)—which, by the time Alsup dismissed the action on July 22, 2017, was the only cause of action left standing.

Four-Year Statute

The plaintiffs argued that the four-year statute of limitation for RICO actions did not begin to run until March 2014 when the players came to realize there had been a fraudulent scheme.

The opinion points to the U.S. Supreme Court’s 2000 opinion in Rotella v. Wood, noting (with emphasis added):

“In Rotella, the Court rejected the ‘injury and pattern discovery’ rule instead holding, “we have been at pains to explain that a discovery of the injury, not discovery of the other elements of a claim, is what starts the clock [for civil RICO claims].”

The players pointed to the Ninth Circuit’s 2005 decision in Living Designs, Inc. v. E.I. DuPont de Nemours & Co. There, Circuit Judge (now Chief Judge) Sidney Thomas wrote:

“The limitations period for civil RICO actions begins to run when a plaintiff knows or should know of the injury which is the basis for the action….Thus, Plaintiffs’ RICO claims accrued when Plaintiffs had actual or constructive knowledge of [the defendant’s] fraud.”

Yesterday’s opinion responds:

“However, Living Designs is distinguishable. In that case, it was not until plaintiffs discovered defendant’s fraud that they discovered their injury….In this case, plaintiffs knew of their injury—that their careers had been ‘cut short’—as soon as their careers ended due to physical injuries. Therefore, the district court properly dismissed plaintiffs’ RICO claim as time barred.”

The players also argued that the period for bringing their actions should be equitably tolled based on the defendants’ fraudulent concealment of their scheme. The opinion says the amended complaint fails to allege lack of actual or constructive knowledge notwithstanding diligent efforts to uncover the facts.

It adds:

“Plaintiffs’ amended complaint is replete with allegations demonstrating plaintiffs’ knowledge of the facts on which their RICO claim is based, such as the receipt of pills on airplanes, in unmarked containers, and without prescriptions. Accordingly, plaintiffs’ RICO claim is untimely, and equitable tolling is not warranted.”

The case is Evans v. Arizona Cardinals, 17-16693.


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