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NHL moves to bar testimony of four expert witnesses in concussion litigation

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16th February 2018

On February 9, 2018, two proposed classes of NHL players asked U.S. District Court Judge Susan Richard Nelson not to bar expert testimony of four experts. The players argued that the experts provided necessary information that is pertinent to their lawsuit. The suit began when former NHL players claimed that the NHL failed to inform them of the health risks caused by concussions and head-related trauma even though the league had knowledge of such information.

The NHL argued that epidemiologist Dr. R. Dawn Comstock’s opinions are not admissible because they have not been peer-reviewed. In their motion, the players argued that Dr. Comstock’s opinion—that NHL hockey players are at an increased risk of developing long term neurological disorders—is one of general causation. According to the players, the NHL misconstrues Dr. Comstock’s opinion and claims that her opinion is one of direct causation. The NHL argued that testimony from Dr. Robert C. Cantu, a neurosurgeon, should not be admitted because his testimony reveals that the connection between head injuries and neurological damage remains scientifically unproven. In their motion, the players argued that Dr. Robert Cantu’s testimony should be admitted because proving the exact steps from a head injury, to neurological damage later in life, is not necessary to show that there are potential common issues experience by the potential class of players.

The NHL argued that testimony from Dr. Stephen T. Casper, an expert in the history of medicine, should not be admitted because a historical analysis of medical knowledge should be performed by a scientist. In their motion, the players argued that Dr. Casper’s range of knowledge on the history behind head injuries is well reasoned and could be used to undermined the NHL’s experts who frequently use historical information regarding head injuries. The NHL also argued that the value of journalist and historian D’Arcy Jenish’s specialized knowledge and impressive credentials would generally qualify him to testify. However, the NHL argued that his testimony should not be admitted because it would attribute the NHL’s motive, intent, or state of mind, it would simply regurgitate content and documents, and his testimony is the product of a flawed methodology that fails to satisfy the legal standard for expert testimony.

In their motion, the players argued that they would only oppose the exclusion of Jenish’s testimony that would usurp the jury’s role in ultimately determining state of mind. The class of players also argued that Jenish would not simply regurgitate content; instead, he will “draw on his deep reservoir of special knowledge to present facts in helpful context and opine based on [the] evidence.” Finally, the players argued that the legal standard is highly flexible when it comes to non-scientific expert testimony, and thus his testimony should be allowed.

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