CHICAGO (CN) – Due to their failure to appoint a trustee, the Seventh Circuit was skeptical Thursday that former hockey enforcer Derek Boogaard’s family can pursue claims against the National Hockey League for his opioid addiction and overdose death.
NHL attorney Joseph Baumgarten of Proskauer Rose told a Seventh Circuit panel Thursday that “the absence of a trustee is dispositive in this case,” because Minnesota law is controlling and requires that a trustee bring any wrongful death claim.
Boogaard’s parents were appointed personal representatives of Boogaard’s estate, but not trustees.
“[A wrongful death] action commenced by someone other than a trustee is a legal nullity,” Baumgarten said, paraphrasing Minnesota Supreme Court precedent on the issue.
If the Chicago-based appeals court agrees with the NHL, the Boogaard family may have no way of holding the league responsible for any actions contributing to Boogaard’s death.
The 250-pound, 6-foot-7 Boogaard was known as the Boogeyman, the league’s most fearsome enforcer – intimidating the opposition with his size and fighting prowess.
In his six-season career with the Minnesota Wild and then the New York Rangers, he scored only three goals, and was involved in 66 on-ice fights.
But the game took a serious toll on Boogaard. During the 2008-2009 season with the Minnesota Wild, he was prescribed over 40 drugs and became addicted to pain pills, often taking up to 10 per day, according to his family. He died of an accidental overdose in May 2011.
His family claims the NHL knew about Boogaard’s opioid addiction, but continued to prescribe him pain pills and did not take his attempts to enter rehab seriously.
A federal judge dismissed all of the family’s claims in June due to the lack of a trustee, finding that it is now too late to appoint Boogaard’s parents as trustees.
On Thursday, U.S. Circuit Judge Frank Easterbrook was most concerned with whether the federal court correctly exercised supplemental jurisdiction over the case rather than remanding it to state court.
His concern turned into a harangue when it became clear that the Boogaard family’s attorney, J. Timothy Eaton of Taft Stettinius & Hollister, was not prepared to address the issue, despite having opposed the case’s removal to federal court.
“The fact that both parties ignored their obligation [to brief the jurisdiction issue] does not mean that we will ignore ours,” Easterbrook said. “We have to think about this.”
The judge again hammered on the issue during Baumgarten’s argument time.
“It’s a jurisdictional issue that was disputed in the district court and then it simply vanished on appeal,” Easterbrook said. “This needs to be addressed by the parties.”
The attorneys disputed whether a remand would keep the Boogaards’ claims alive.
A post-mortem study of Boogaard’s brain also revealed that he had Stage II Chronic Traumatic Encephalopathy, or CTE, as a result of numerous concussions during his career, which the family says contributed to his addiction. CTE is known to cause deterioration in parts of the brain that control judgment and impulse control.
Compared to the National Football League, the NHL has been substantially less active in addressing concerns about the risk of CTE in its players.
Only 19 hockey players’ brains have been studied for indications of the disease, compared to over 200 deceased football players’ brains.
The NHL has not accepted any link between head injuries and CTE, and continues to litigate a class action brought by players over the league’s handling of concussion injuries.
U.S. Circuit Judge Amy Coney Barrett and U.S. District Judge Joseph Stadtmueller rounded out the panel.
The Seventh Circuit is expected to issue a ruling in the matter within three months.
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