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Boogaard v. National Hockey League

United States Court of Appeals, Seventh Circuit

May 25, 2018

Len Boogaard and Joanne Boogaard, Personal Representatives of the Estate of Derek Boogaard, Deceased, Plaintiffs-Appellants,
National Hockey League, et al., Defendants-Appellees.

          Argued January 11, 2018

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:13-cv-04846 - Gary Feinerman, Judge.

          Before Easterbrook and Barrett, Circuit Judges, and Stadtmueller, District Judge.[*]

          Barrett, Circuit Judge.

         Len and Joanne Boogaard appeal the dismissal of the wrongful-death action they brought as the personal representatives of the estate of their son, Derek Boogaard. They devote their appeal almost entirely to argu-ments that would spark excitement-or fear-in the heart of a civil procedure student. There is a Hanna v. Plumer prob-lem-whether Federal Rule of Civil Procedure 17(b)(3) con-trols the Boogaards' ability to bring this suit. 380 U.S. 460 (1965). There is an Erie Railroad Co. v. Tompkins question- whether federal or state law applies if Rule 17(b)(3) does not control. 304 U.S. 64 (1938). There is a choice-of-law prob-lem-whether Illinois, Minnesota, or New York law applies if this is a matter of state law. And there is even a relation-back issue-whether, if Minnesota law applies, Federal Rule of Civil Procedure 17(a)(3)'s relation-back provision can save the Boogaards from an error that it is otherwise too late to correct.

         At the end of the day, however, it is an argument to which the Boogaards give short shrift that disposes of their case: forfeiture. For the reasons that follow, we agree with the district court that by failing to respond to the National Hockey League's argument that their complaint fails to state a claim, the Boogaards forfeited any argument that it does. Their suit thus fails regardless of whether they can run the procedural gantlet of showing that they are the proper par-ties to bring it.


         Because we are reviewing a dismissal under Rule 12(b)(6), we treat the allegations contained in the Boogaards' complaint as true. That does not mean, however, that we vouch for their accuracy. It means only that at this stage of the case, the Boogaards are entitled to have every factual in-ference drawn in their favor. In what follows, then, we re- count the facts as the Boogaards tell them in the complaint they filed against the National Hockey League.

         Derek Boogaard ("Derek") was a professional hockey player with the National Hockey League ("NHL").[1] He joined the NHL in 2005 as a member of the Minnesota Wild, where he remained until the summer of 2010. During his time with the Wild, team doctors repeatedly prescribed Derek with pain pills relating to various injuries and proce-dures. He became addicted to those pills by 2009.

         In September of that year, the NHL placed Derek into its Substance Abuse and Behavioral Health Program. The Pro-gram is the product of a 1996 agreement (which we'll call the "substance abuse agreement") between the NHL and its players' union to create a comprehensive system for address-ing substance abuse among NHL players. When a player en-ters the Program, he is initially permitted to receive his full NHL salary without penalty so long as he complies with the Program. If the player violates the Program's rules, however, he receives penalties of increasing severity.

         Pursuant to the Program, Derek was checked into a Cali-fornia rehabilitation facility for in-patient treatment of his opioid and sleeping-pill addictions. Upon leaving that facility, he was subject to the NHL's mandatory "Aftercare Program, " which required him to refrain from using opioids and Ambien and to submit to random drug testing. The NHL told Derek that his failure to follow the Aftercare Program conditions could result in his permanent suspension.

         Derek signed a contract with the New York Rangers in the summer of 2010. Before long, he began asking trainers for Ambien, leading an NHL doctor to remind him that he could not use Ambien or opioids. But Derek still relapsed. And over the following months, NHL doctors made Derek's situation worse by violating various conditions of the Aftercare Program. They prescribed him Ambien and pain medication. They failed to impose penalties when Derek reported that he had purchased pain medications off the street over Christmas break. They again failed to impose penalties when Derek failed urine tests in January and March. And when Derek was admitted to a recovery center in California to treat opioid dependence, they allowed him to leave the facility without a chaperone. While on one such trip, Derek purchased thousands of dollars of opioids off the street; on another, he overdosed on pills and died.

         This litigation began two years later. Its procedural history is complicated, so we will keep it to the highlights. Derek's estate sued the NHL and the other defendants in Illinois state court. The original complaint asserted eight claims, four of which it characterized as arising under Illi-nois's Wrongful Death Act and another four under Illinois's Survival Act. The complaint alleged that the NHL had failed to prevent the over-prescription of addictive medications to Derek, had breached its voluntarily undertaken duty to monitor and curb Derek's drug addiction in the Program, had been negligent in monitoring Derek for brain trauma during his career, and had negligently permitted team doctors to inject Derek with an intramuscular analgesic called Toradol.

         The NHL removed the case to federal court. It argued that federal jurisdiction existed under the doctrine of complete preemption, which applies when the scope of a federal law is so broad that it essentially replaces state-law claims. The district court agreed and denied the estate's motion to remand. It held that at least two of the claims were founded directly on rights created under the parties' collective bargaining agreement-the claims that the NHL had breached its duties under the Program to care for Derek and address his ...

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