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NHL Wins Boogaard Wrongful Death Opioid Case

By George Khoury, Esq. on June 08, 2018 | Last updated on March 21, 2019

The death of Derek Boogaard is sad. He overdosed on prescription painkillers while under the NHL's care for pain pill addiction. After his death, many disturbing facts came to light.

Despite specific requirements of his drug treatment program stating that he not be given certain types of pills, team doctors prescribed the exact pills he was not supposed to have. Despite him failing drug tests, consequences specifically designed to encourage compliance with drug treatment programs did not follow those failures. And as a result of the systemic failures, Boogaard's family sued for wrongful death.

But, due to procedural failings, the NHL prevailed in the recent appeal over wrongful death lawsuit.

Can't Ignore Procedure

The Seventh Circuit Court of Appeals didn't hold back on swinging the door shut on Boogaard's parents. The court seemed to even bait them into filing a supplemental briefing on jurisdiction, just to knock them down on that issue, in addition to every other issue that the Boogaards were actually appealing.

The court explained in calling for supplemental briefing:

Before we reach the merits, we have some housekeeping to do. Every brief filed by an appellant in our court must contain a "jurisdictional statement" explaining why we have authority to decide the appeal. The Boogaards hedge in theirs. Their jurisdictional statement consists of the observation that the NHL removed the case to federal court on a theory of complete preemption. In other words, rather than assuring us that jurisdiction exists, the Boogaards essentially say "the NHL says that jurisdiction exists." The statement does not endorse (or indeed, even acknowledge) the district court's jurisdictional ruling, presumably because the Boogaards continue to disagree with it. Despite the Boogaards' evident belief that jurisdiction is lacking, their brief goes on to ask us to review the merits of the district court's decision.

Then, after two pages of destroying the supplemental brief they filed, the court states: "The Boogaards' late-coming jurisdictional challenge therefore fails."

Adding to the injury of the loss, the court explained that because of a state law procedural failure to have a court appointed trustee assigned to represent the estate in the lawsuit before the estate closed (which it was too late to do now) the Boogaards lacked the ability to bring the action. Further, the appellate court explained that because of the Boogaards' failure to appeal an alternative grounds for dismissal, even the grounds they appealed on were successful, the result would not have changed.

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