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The opioid crisis continues to kill Americans at an alarming rate. Experts trace the rise in addiction and subsequent health issues, including overdose fatalities, to the large number of prescription painkillers issued beginning in the 1990s. According to a group of former National Football League players, part of that trend included NFL teams pushing painkillers on injured players to get them back to playing more quickly. A group of former players filed a class action against the NFL, alleging it negligently put players at increased risk of dependency and further injury. While the litigation has been ongoing since 2015, the Ninth Circuit recently weighed in again and allowed the lawsuit to move forward.
The former players originally filed a host of claims against the NFL. After extensive litigation, however, the players amended their claims to per-se negligence and a “voluntary undertaking negligence" claim. In 2019, a district court judge held that the players were prohibited from suing for both because the NFL did not directly oversee the use of painkillers on players. The Ninth Circuit panel, on appeal, disagreed in part. According to the unanimous panel, the players can move forward with their voluntary undertaking negligence claim.
Under this theory of liability, organizations and people that voluntarily provide services to someone and then fail to take reasonable care in performing that service can be liable for any harm caused. The Ninth Circuit panel held that the players had alleged enough in their complaint to move forward on this claim and sent the case back down to the district court to proceed. The NFL has required teams to submit reports regarding their use of medications for over 30 years.
According to the complaint, the NFL itself acknowledged that players used painkillers more “than in virtually any other industry, population or endeavor." The reason, according to the complaint, is that players, teams, and the NFL have a huge financial incentive to keep players on the field despite injuries, bruises, and other ailments that would otherwise limit their performance. This, in turn, makes players “at longer-term risk for developing abuse or addiction." In addition, the players allege, this exacerbated existing injuries, since players injured themselves more by playing through the pain instead of resting and rehabilitating.
The case cannot yet proceed to trial, however, as Section 301 of the Labor-Management Relations Act prohibits claims founded directly on rights created by collective bargaining agreements, such as the players have with the NFL. The panel directed the Ninth Circuit to examine whether NFL's general disclaimer of liability for individual players' medical treatment is relevant enough to preempt the players' claims that the NFL failed to safely distribute pain killers to keep marquee players in the game.
As litigation over opioid use continues, Purdue Pharma may not be the only defendants who will have to defend policies that have resulted in devastating health consequences across the nation.