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Tregg Duerson, Personal Representative of the Estate of David R. v. National Football League

May 11, 2012


The opinion of the court was delivered by: James F. Holderman, Chief Judge:


Tregg Duerson ("Duerson"), representing the estate of David R. Duerson, brought this wrongful death suit in state court. (Dkt. No. 1, Ex. A ("Compl.").) Duerson's complaint alleges that David Duerson, a former defensive safety for the 1985 Chicago Bears Super Bowl Championship Team, committed suicide last year as a result of brain damage he incurred while playing in the National Football League ("NFL"). (Id. Count I, ¶¶ 1, 19-20.) The complaint includes four counts against the NFL, including negligence (Count I), fraudulent concealment of the linkage between brain trauma and permanent brain damage (Count II), conspiracy to publish false information (Count III), and negligent failure to warn (Count IV). Id. The complaint also contains two counts against Riddell, Inc. and Riddell Sports Group, Inc. (collectively "Riddell"), the companies that manufactured the helmets David Duerson wore while playing professional football, including strict liability (Count V) and negligence (Count VI) for failure to warn of the defects in its helmet design. Id.

The NFL removed the case to federal court on April 5, 2012. (Dkt. No. 1.) Subsequently, this court denied the NFL's motion to stay this case pending a decision of the Panel on Multidistrict Litigation in MDL 2323 to consolidate this action with other pending federal cases, and ordered the parties to brief Duerson's motion to remand. (Dkt. No. 32.) For the reasons explained below, Duerson's motion to remand is denied.


David Duerson was drafted by the Chicago Bears in 1983. (Compl., Count I, ¶ 8.) He played safety for the Bears from 1983-1989. (Id. ¶ 8.) David Duerson then spent the years 1990-1993 playing for the New York Giants and the Arizona Cardinals. (Id. ¶ 9.) During his eleven-year NFL career, David Duerson allegedly "sustained at least three (3) documented concussive brain traumas, in 1988, 1990 and 1992, as well as numerous undocumented concussive brain traumas." (Id. ¶ 11.) He played through the concussions because he was unaware that doing so could cause any harm. (Id. ¶ 16.)

Beginning in 2001, David Duerson began to suffer the symptoms of Chronic Traumatic Encephalopathy ("CTE"), a form of brain damage, allegedly because of the cumulative effect of the concussions he suffered while playing in the NFL. (Id. ¶¶ 3-4, 19.) Symptoms included intense headaches, lack of short term memory, language difficulties, vision trouble, and problems with impulse control. (Id. ¶ 5.) On February 17, 2011, David Duerson committed suicide by shooting himself in the chest (Id. ¶ 1), allegedly as a result of the CTE caused by the injuries he sustained while playing football in the NFL (Id. ¶ 20).

Count I of Duerson's complaint alleges that the NFL negligently caused David Duerson's CTE and death by, among other things, failing to educate players about the risks of concussions and the dangers of continuing to play after suffering head trauma, failing to ensure rapid diagnosis and treatment of David Duerson's condition, and failing to implement policies to prevent David Duerson from returning to play with his injuries. (Id. ¶ 23.)


The NFL contends that removal is appropriate here because Duerson's action, although explicitly raising only state law claims, actually arises under federal law. See 28 U.S.C. §§ 1331, 1441(a). Even when a lawsuit raises only state law claims, the lawsuit can still arise under federal law "if a federal cause of action completely preempts a state cause of action." Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 24 (1983). Here, the NFL asserts that § 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a), completely preempts at least some of Duerson's state law claims, thus creating federal jurisdiction.

Section 301 preempts all state law claims that are "substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985). The court may consider any of Duerson's claims that are preempted to be federal claims over which it may exercise jurisdiction. Sluder v. United Mine Workers of Am., Int'l Union, 892 F.2d 549, 556 (7th Cir. 1989). It may then exercise supplemental jurisdiction over the rest of Duerson's claims, all of which arise out of the same set of factual circumstances and thus form part of the same case or controversy. See 28 U.S.C. § 1337.

The NFL points to two labor agreements upon which it contends Duerson's claims are substantially dependent. Both are collective bargaining agreements ("CBAs") between the National Football League Management Council (the bargaining representative of the football clubs which are members of the NFL) and the National Football League Players Association (the bargaining representative of NFL players). The first is the 1982 CBA which was in place from 1982 to 1986. (Dkt. No. 41, Ex. 1 ("1982 CBA").) The second is the 1993 CBA which was in effect from 1993 to 2000. (Dkt. No. 41, Ex. 2 ("1993 CBA").) The NFL is not a party to either CBA.

As an initial matter, Duerson contends that neither CBA could possibly be relevant because the allegations of his complaint relate only to 1987 through 1993, years during which the CBAs were not in effect. The complaint itself, however, does not support that argument. Paragraph 11 of Count I of the complaint alleges that "[d]uring his eleven (11) year career . . . DAVE DUERSON sustained at least three (3) documented concussive brain traumas, in 1988, 1990, and 1992, as well as numerous undocumented concussive brain traumas." (Compl., Count I, ¶ 11.) Paragraph 12 then alleges that "[t]he NFL failed to prevent, diagnose and/or properly treat DAVE DUERSON's concussive brain traumas in 1988, 1990 and 1992 and throughout his career." (Id. ¶ 12.) Numerous other paragraphs also include the phrase "throughout his career" or phrases similar to it. (See, e.g., id. ¶ 14 ("Prior to and during DAVE DUERSON's NFL career . . . ."); id. ¶ 15 (same); id. ¶ 19 (". . . during his NFL playing career . . ."); id. ¶ 22 (". . . during their NFL careers . . ."); id. ¶ 23("During his playing career . . .").

Duerson's reply represents that, if the case is remanded to state court, Duerson will amend his complaint to delete the nonessential words "and throughout his NFL career" wherever they appear. Even accepting that representation, however, an amendment would not remove the complaint's necessary reference to periods during which the CBAs were in effect. For example, ¶ 11 would still refer to "numerous undocumented concussive brain traumas" that David Duerson suffered at some unspecified time. More to the point, it is not possible for Duerson successfully to limit the time period to which his complaint refers. To prove the complaint's claims, Duerson must show that the CTE from which David Duerson suffered was caused by repeated blows to the head during his time as an NFL player. When making that showing, it would be exceedingly implausible to contend that the CTE was caused only by trauma suffered from 1987 through early 1993, and not by trauma from 1983 to 1986 or later in 1993. Any attempt to exclude head trauma suffered on certain dates from the claim would thus likely fail. Accordingly, the CBAs were in effect during at least some of the events alleged in the complaint.

That leaves the question of whether Duerson's claims are "substantially dependent" on an interpretation of any of the CBAs terms. In making that inquiry, the court is mindful that "'not every dispute . . . tangentially involving a provision of a collective-bargaining agreement, is pre-empted by § 301.'" Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413 n.12 (1988) (alteration in original) (quoting Lueck, 471 U.S. at 211). Instead, "for preemption to exist, resolution of a claim must require interpretation of a CBA, not a mere glance at it." In re Bentz Metal Prods. Co., 253 F.3d 283, 289 (7th Cir. 2001) (en ...

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