Professional Documents
Culture Documents
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Case 3:16-cv-01030-WHA Document 256 Filed 07/31/17 Page 2 of 23
1 TABLE OF CONTENTS
2
5 INTRODUCTION ...........................................................................................................................1
26 CONCLUSION ..............................................................................................................................18
27
28
OPPOSITION OF PLAINTIFFSCARREKER AND WALKER TO DEFENDANTS
MOTION FOR SUMMARY JUDGMENT - ii -
Case 3:16-cv-01030-WHA Document 256 Filed 07/31/17 Page 3 of 23
1 TABLE OF AUTHORITIES
2
Cases
3
Arendell v. Auto Parts Club, Inc.,
4 29 Cal. App. 4th 1261 (Cal. Ct. App. 1994) ........................................................................... 3, 7
5 Beck v. Hamann,
263 Wis. 131, 56 N.W. 2d 837 (1953) ...................................................................................... 12
6
Bily v. Arthur Young & Co.,
7
3 Cal. 4th 370 (Cal. 1992)........................................................................................................... 9
8
Building and Constr. Trades Dept, AFL-CIO v. Rockwell Intl Corp.,
9 756 F. Supp. 492 (D. Col. 1991) ................................................................................... 11, 13, 14
8 Statutes
12 Rules
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
OPPOSITION OF PLAINTIFFSCARREKER AND WALKER TO DEFENDANTS
MOTION FOR SUMMARY JUDGMENT - iv -
Case 3:16-cv-01030-WHA Document 256 Filed 07/31/17 Page 5 of 23
1 NOW COME the plaintiffs Alphonso Carreker and Reginald Walker (collectively,
2 Plaintiffs), through their undersigned attorneys, and submit the following opposition to
3
Defendants Motion for Summary Judgment on Workers Compensation Exclusivity (Def.
4
Mot.).
5
INTRODUCTION
6
7 Defendants base their summary judgment argument entirely on the principle of workers
8 compensation exclusivity under California, Colorado and Wisconsin law. Defendants contend that
9 Carrekers resistance to anti-inflammatory medication, which did not surface until he experienced
10
a heart problem some 22 years after he played NFL football, is a workers compensation injury
11
uncompensable under Colorado (Broncos) and Wisconsin (Packers) common law. Defendants
12
similarly argue that Walkers ankle injury, a separate aggravation of a different, earlier injury, is
13
compensable exclusively by Californias (Chargers) workers compensation law.
14
16 Defendants erroneously overread the exclusivity principle. Defendants ignore the scope of that
17 principles well-established exceptions, applicable here, for fraudulent and illegal conduct, actions
18
constituting or reflecting a deliberate intent to injure, and deliberate aggravation of existing
19
injuries. Defendants overlook material contradictory facts showing a genuine dispute exists for a
20
jury to resolve: whether the Chargers conduct towards Mr. Walker, and the Packers and Broncos
21
22 actions towards Carreker, were sufficiently deceptive and intentional to permit the Plaintiffs
24 Defendants corollary argument, that both plaintiffs have already filed for workers
25 compensation benefits for some of the same injuries for which they have sought recovery in this
26
lawsuit (Def. Mot. at 1, 2, 7) is unavailing. Carrekers and Walkers Medication-based claims,
27
in this lawsuit, are for injuries separate and distinct from the on-field injuries they suffered. In
28
Case 3:16-cv-01030-WHA Document 256 Filed 07/31/17 Page 6 of 23
1 rewriting the Plaintiffs actual allegations which Defendants have consistently done since the
2 Dent filing - Defendants underscore their need to obscure the actual relevant facts in service of
3
their unfounded Motion.
4
Illustrating the wild overbreadth of Defendants arguments, Carrekers sole remaining
5
claim is for a single injury resistance to anti-inflammatory medications from years of Defendant-
6
7 provided medications that arose some 22 years after Carreker last played NFL football.
8 Defendants say that Carrekers claim for that injury for which no team ever treated Carreker and
9 that did not even exist when Carreker was playing is barred by the workers compensation
10
exclusivity rule. By Defendants reckoning, then, virtually no claim by a worker could ever exist
11
outside the workers compensation regime. Plainly proving far too much, that argument is simply
12
wrong. The fight might well be on the proximate causation relationship between Carrekers
13
ailment and the Medications. But that is a trial fight, not a summary judgment fight, at least on
14
15 this record.
16 Defendants knew the Medications were dangerous. Defendants knew that their provision
17 of the Medications to keep the injured Plaintiffs on the field was medically wrong and injurious to
18
the Plaintiffs long-term health. Defendants knew Plaintiffs were unaware of the Medications
19
danger, and the serious threat their ingestion created for Plaintiffs long-term health. And
20
Defendants handling of the controlled substance Medications was illegal. But the Defendants
21
22 gave the Medications to the Plaintiffs anyway, without warnings, without crucial information of
23 the risks those Medications posed. As a result, Plaintiffs suffered later-in-life injuries, and are at
24 substantially increased risk for still further injuries. Workers compensation exclusivity is
25 inapplicable where, as here, Defendants deliberately chose to, and did, harm their workers and
26
violated federal law in doing so.
27
28
OPPOSITION OF PLAINTIFFSCARREKER AND WALKER TO DEFENDANTS
MOTION FOR SUMMARY JUDGMENT -2-
Case 3:16-cv-01030-WHA Document 256 Filed 07/31/17 Page 7 of 23
4 employer intentionally injured the worker. (Def. Mot. at 1, 9-13) That exception to exclusivity
5 means summary judgment is unwarranted here. Genuine issues of material fact exist concerning
6
whether the Chargers intentionally intended to injure Walkers ankle and whether the Broncos and
7
Packers intentionally intended to compromise Carrekers health by rendering him resistant to
8
salutary anti-inflammatory medications.
9
First, Defendants crabbed view of the intentional harm or deliberate intent to injure
10
11 exception to workers compensation exclusivity omits the exceptions predicate: that intentional
12 harm is simply not part of the workers compensation bargain. See Arendell v. Auto Parts Club,
13 Inc., 29 Cal. App. 4th 1261, 1265 (Cal. Ct. App. 1994) (intentional conduct is [t]he foundation
14
for potential avoidance of workers compensation exclusivity). Both Plaintiffs claims fit within
15
the exception. 1
16
Plaintiffs are not merely claiming that Defendants medication safety practices were
17
18 nonexistent or sloppy. Nor that Defendants knowingly condoned a dangerous workplace. Rather,
19 Plaintiffs claim, as the record shows, that Defendants illegally, affirmatively and knowingly acted
20 to cause harm each time they improperly administered dangerous Medications to their employees.
21 This case presents a difference of kind, not just degree, from the knowingly unsafe
22
workplace cases precluding civil liability in favor of workers compensation. 2 Defendants knew
23
24 1
Defendants cited cases (Def. Mot. at 1-8) underscore the fact-dependent nature of the intentional
harm exception to workers compensation exclusivity. Plaintiffs have no quarrel with the legal
25 rules existence or its underlying doctrinal rationale. But what counts here is the rules application
to the facts of this highly unusual case centrally involving Defendants routine and deliberate
26 misadministration of dangerous substances substantially certain to produce injury.
27 2
California law permits the Court, in circumstances such as these, to find an exception to workers
compensation exclusivity even if no statutory or judicially-recognized exception exists. See
28 Fermino v. Fedco, Inc., 7 Cal. 4th 701, 719-21, 30 Cal. Rptr. 2d 18, 872 P.2d 559 (1994) (rejecting
OPPOSITION OF PLAINTIFFSCARREKER AND WALKER TO DEFENDANTS
MOTION FOR SUMMARY JUDGMENT -3-
Case 3:16-cv-01030-WHA Document 256 Filed 07/31/17 Page 8 of 23
1 that the Medications they gave Plaintiffs were dangerous substances, controlled by a strict federal
2 regulatory labeling, packaging and warning scheme. Defendants recognized that danger, paying
3
lip service to that danger by providing boilerplate, generic information about the Medications. See,
4
e.g. Sinclair Decl. Ex. 1 (Carreker Dep. Ex. 9, comprising 4 separate documents (May 20, 1985;
5
May 2, 1986; July 29, 1987; July 24, 1988)), each stating: Many drugs are harmful to individuals
6
7 in strenuous activity. There are some drugs that cannot be taken while under the influence of
8 another drug.).
9 Despite this knowledge of substantially certain danger, the Defendants repeatedly provided
10
the Medications in mixtures, quantities and frequencies in violation of basic medical ethics and
11
the strong public policy embodied in the governing federal statutes. Defendants did so without
12
informing Plaintiffs of the dangers, intentionally misleading the Plaintiffs about those risks.
13
Defendants acted illegally, providing the Medications in ways that violated the Controlled
14
15 Substances Act, 21 U.S.C. 811-814 (2012), and Food Drug and Cosmetic Act, 21 U.S.C.
16 301-399 (2016). See Sinclair Decl. Ex. 2 (Walkers Supplemental Answers to Defendant NFL
17 Member Clubs First Set of Interrogatories, Answer 3); Sinclair Dep. Ex. 3 (Walkers Answers to
18
Defendant NFL Member Clubs Third Set of Interrogatories, Answer 12); Sinclair Decl. Ex. 4
19
(Carrekers Supplemental Answers to Defendant NFL Member Clubss Interrogatories, Answer
20
3); Sinclair Decl. Ex. 5 (Carrekers Answers to Defendant NFL Member Clubs Third Set of
21
22 Interrogatories, Answer 12); Sinclair Decl. Ex. 6 (Connor Dep. Ex. 9, minutes of conference call
23 of NHLPS leadership and Dr. Pellman, NFLs liaison to NFLPS, NFL cataloguing DEAs required
24 corrections to NFL Clubs medication practices and stating We dont want to give them the
25 fodder that we have all been doing this wrong. We dont want to show them our deficiencies.);
26
27 argument that sole exceptions to workers compensation exclusivity were those statutorily
codified, not foreclosing judicial power to recognize additional exceptions).
28
OPPOSITION OF PLAINTIFFSCARREKER AND WALKER TO DEFENDANTS
MOTION FOR SUMMARY JUDGMENT -4-
Case 3:16-cv-01030-WHA Document 256 Filed 07/31/17 Page 9 of 23
1 Sinclair Decl. Ex. 7 (Connor Dep. Ex. 12 (NFLPS summary of meeting with DEA, Management
2 of Controlled Substances in the NFL, describing DEAs list of illegal NFL Clubs medication
3
practices); Sinclair Decl. Ex. 8 (Connor Dep. Ex. 7, Pellman Dep. Ex. 11; Chargers club doctor,
4
David Chao emailing NFLPS president Dr. Connor: I asked [E]lliot [Pellman] if he would back
5
me up and say that everyone in the league does it the same way. He said he would not do that as
6
7 he doesnt know for a fact how I do it. (This after he agreed that we all do it this way.) Would
8 [yo]u be willing to speak to one reporter as the president of the NFLPS and tell a reporter that I do
9 it like all the other physicians in the NFL); Sinclair Decl. Ex. 9 (Connor Dep. Ex. 14, NFLPS
10
president email to member: This is a DEA issue. The people at risk here are those of us with
11
DEA registrations.).
12
Defendants medication practices differed dangerously from proper medication practices.
13
See Sinclair Decl. Ex. 10 (Connor Dep. Ex. 23, NFL Medical Liaison Dr. Pellmans agenda for
14
15 conference call dealing with DEA investigation of medication practices: according to DEA
16 physicians are to prescribe controlled substances in a manner that is consistent with the standard
17 of the medical communitynot the NFL medical community (emphasis added)). See also Sinclair
18
Decl. Ex. 6 (Connor Dep. Ex. 9, minutes of NFLPS and NFL Medical Liaison conference call re
19
Federal DEA Investigation, stating It is a physicians responsibility for prescribing per the
20
standard of the community.).
21
22 The Defendants were deeply concerned that the DEA not learn the ugly particulars of the
23 Clubs illegal medication practices. See Sinclair Decl. Ex. 6 (Connor Dep. Ex. 9, minutes of
24 conference call of NHLPS leadership and Dr. Pellman, NFLs liaison to NFLPS: We dont want
25 to give them [DEA] the fodder that we have all been doing this wrong. We dont want to show
26
them [DEA] our deficiencies.); Sinclair Decl. Ex. 11 (Connor Dep. Exs. 29-33, detailing NFLPS
27
and NFL squashing of club medication practices survey by Chargers doctor).
28
OPPOSITION OF PLAINTIFFSCARREKER AND WALKER TO DEFENDANTS
MOTION FOR SUMMARY JUDGMENT -5-
Case 3:16-cv-01030-WHA Document 256 Filed 07/31/17 Page 10 of 23
1 The Defendants behavior here goes far beyond the simple failure to assure thatthe
2 physical environment of a workplace is safe. Johns-Manville Products Corp. v. Super. Ct., 27
3
Cal. 3d 465, 475, 165 Cal. Rptr. 858, 612 P. 2d 948 (1980). Supplying Plaintiffs with inordinate
4
amounts of dangerous drugs has no proper place in the employment relationship [and] may not
5
be made into a normal part of the employment relationship merely by means of artful
6
th
7 terminology. Fermino v. Fedco, Inc., 7 Cal. 4 701, 717-18, 30 Cal. Rptr. 2d 18, 872 P. 2d 559
8 (1994). What matters, then, is not the label that might be affixed to the employer conduct, but
9 whether the conduct itself, concretely, is of the kind that is within the compensation bargain. Id.
10
Providing massive quantities of controlled substances is outside Defendants proper role. Id. at
11
718.
12
Ferminos rule, that intentional conduct that is not a normal risk of employment, is outside
13
the employers proper role, or is contrary to public policy falls outside workers compensation
14
th
15 exclusivity (Fermino, 7 Cal. 4 at 714-15), applies here. The Defendants illegal and dangerous
16 pharmacological free-for-all was the equivalent of punching someone in the nose and claiming I
17 did not intend to do any harm. Defendants crossed the boundary between a cavalier disregard for
18
player safety and systemically egregious intentional behavior, triggering the exception to workers
19
compensation exclusivity. See Fermino, 7 Cal. 4th 701, 714-15, 717-18. Cf. Ihama v. Bayer Corp.,
20
2005 WL 3096089, at * 2 (N.D. Cal. Nov. 14, 2005) (employment discrimination case, finding
21
22 workers compensation exclusivity inapplicable to claim that arises from conduct that allegedly
23 violates the FEHA, undermines the public policy of the state and exceeds the normal risks of
24 employment).
25 Defendants cite DePiano v. Montreal Baseball Club, Ltd., 663 F. Supp. 116, 117 (W.D.
26
Pa. 1987) (Def. Mot. at 5, 12), for the proposition that allegations of medical mistreatment of a
27
professional athlete for the purpose of keeping him in the game demonstrates a different motive
28
OPPOSITION OF PLAINTIFFSCARREKER AND WALKER TO DEFENDANTS
MOTION FOR SUMMARY JUDGMENT -6-
Case 3:16-cv-01030-WHA Document 256 Filed 07/31/17 Page 11 of 23
1 from that required by the intent to harm exception to the workers compensation exclusivity rule.
2 DePiano involved no serious facts of intentional medical mistreatment such as discovery in our
3
case has confirmed. 3 Under New York law, which governed DePiano, that an injury is
4
substantially certain to occur from the challenged conduct does not trigger the intentional harm
5
exception. See DePiano, 663 F. Supp. at 117.
6
7 However, Wisconsin law governs Mr. Carrekers claim against the Packers. Under
8 Wisconsin law, that an injury is either subjectively or objectively substantially certain to occur
9 triggers the exception. See, e.g., West Bend Mut. Ins. Co. v. Berger, 192 Wis. 2d 743, 754 (Wis.
10
Ct. App. 1995) (Def. Mot. at 8, 10) (A person intends to injure or harm another if [one] intend[s]
11
the consequences of [ones] act, or believe[s] that they are substantially certain to follow.).
12
California law governs Mr. Walkers claim against the Chargers. Under California law, a
13
desire to cause the injurious consequences or a belief that they were substantially certain to result
14
th
15 triggers the exception to exclusivity. See Arendall v. Auto Parts Club, Inc., 29 Cal. App. 4 1261,
16 1265 (Cal. Ct. App. 1994). The Chargers and Packers indiscriminate administration of copious
18
respectively shows those Defendants knew that injuries were substantially certain to result. See
19
Sinclair Decl. Ex. 12 (Walker Dep. 148:7-16); Sinclair Decl. Ex. 13 (Carreker Dep. 313:15
20
314:5); Sinclair Decl. Ex. 14 (Chao Dep. 198:1 200:2). At the very least, the question is for a
21
22 jurys resolution.
23
24
25
26
3
The list of other pro athlete cases prohibited by the workers compensation exclusivity principle
27 (Def. Mot. at 5) all turn on their specific facts and do not involve the same facts of rampant abuse
of medications that plaintiffs have demonstrated here.
28
OPPOSITION OF PLAINTIFFSCARREKER AND WALKER TO DEFENDANTS
MOTION FOR SUMMARY JUDGMENT -7-
Case 3:16-cv-01030-WHA Document 256 Filed 07/31/17 Page 12 of 23
4 Defendants cite Stalnaker v. Boeing Co., 186 Cal. App. 3d 1291 (1986) for a broad
5 exclusivity principle supposedly barring Walkers ankle injury claim. But Stalnaker teaches that
6
for claims like Walkers ankle injury, [a defendant] which engages in intentional misconduct
7
following a compensable injury may be held liable in an action at law for aggravation of the
8
4
injury. Id. at 1300 (emphasis in original). Underscoring the distinction between a workplace
9
injury and a separate, intentionally wrongful aggravation of that injury compensable at common
10
11 law, Stalnaker found the claim at issue different from Plaintiffs claims here - barred by the
12 workers compensation exclusivity doctrine because [i]t is apparent that the harm complained of
13 is not an aggravation of a work-related injury but the injury itself. Id. at 1300 (emphasis added).
14
Walkers claim is within the exception Stalnaker recognized for medication-caused
15
aggravation of his ankle injury, not the ankle injury itself. Walker suffered an ankle injury. The
16
Chargers illegally, and in contravention of sound medical practice, gave Walker medications so he
17
18 could continue to play on his injured ankle. The Chargers did not tell Walker of the risk that the
19 Medications would aggravate the existing injury.
22
plaintiff (who relied on no record citations, but only on the Complaint and briefing) adduced no
23
factsindicating that BSI intended that Stalnaker be injured. Id. at 1300. Here, in contrast, the
24
25
26 4
Defendants uncompensable aggravation of injury statutes and cases (Def. Mot. at 7), turn on
variants of negligence and recklessness. Our case, differently, turns on inveterate intentional
27 wrongdoing and the correlative objectively inferable intent to cause injury. Cases like ours,
involving fraud and intentionally harmful conduct, fall outside workers compensation exclusivity.
28
OPPOSITION OF PLAINTIFFSCARREKER AND WALKER TO DEFENDANTS
MOTION FOR SUMMARY JUDGMENT -8-
Case 3:16-cv-01030-WHA Document 256 Filed 07/31/17 Page 13 of 23
1 record facts show the Chargers behavior reflecting just such an intent. See Sinclair Decl. Ex. 2
3
Answers 1, 3); Sinclair Decl. Ex. 3 (Walkers Answers to Defendant NFL Member Clubs Third
4
Set of Interrogatories, Answers 12, 16). Providing dangerous Medications, contrary to both legal
5
requirements and good medical practice, without providing information or warnings, are facts
6
7 showing the Chargers acted deliberately with the specific intent to injure Mr. Walker. Stalnaker,
9 B. Walkers Claim is Proper for Trial Because California Law Excepts Fraud
Claims from Workers Compensation Exclusivity.
10
11 Stalnaker cited Johns-Manville Products Corp. v. Super. Ct., 27 Cal. 3d 465 (1980), which
12 Defendants here do not mention. In Johns-Manville, the California Supreme Court described the
13 contours and content of the intentional harm exception to the workers compensation exclusivity
14
rule. Johns-Manville, among other things, stated that fraud claims, such as Walkers intentional
15
5
misrepresentation claims, are not within the exclusivity bar. Johns-Manville cited Ramey v.
16
General Petroleum Corp., 173 Cal. App. 386, 402 (1959), as declar[ing] that the Legislature
17
18 never intended that an employers fraud was a risk of the employment. Johns-Manville, 27 Cal.
19 3d at 476. Just so, here.
20 Johns-Manville further concluded, in language equally applicable here, why the exclusivity
21 bar does not preclude Walkers claims:
22
While we do not purport to find in them a tidy and consistent rationale, we perceive in
23 [cited cases] a trend toward allowing an action at law for injuries suffered in the
24 5
The Defendants insisted that Plaintiffs intentional misrepresentation claims must satisfy the Rule
9(b) pleading standard [Dkt. 231], showing that these claims are fraud claims and therefore not
25 within the workers compensation exclusivity bar. See College Hospital Inc. v. Superior Court, 8
Cal. 4th 704, 721 (Cal. 1994) (discussing Cal. Civil Code Sec. 3294: [f]raud means an intentional
26 misrepresentation, , deceit, or concealment of a material fact known to the defendant with the
intention on the part of the defendant of thereby depriving a person of property or legal rights or
27 otherwise causing injury); Bily v. Arthur Young & Co., 3 Cal. 4th 370, 379 (Cal. 1992) (jury
instructions for fraud required proof of an intentional misrepresentation made by defendant)
28
OPPOSITION OF PLAINTIFFSCARREKER AND WALKER TO DEFENDANTS
MOTION FOR SUMMARY JUDGMENT -9-
Case 3:16-cv-01030-WHA Document 256 Filed 07/31/17 Page 14 of 23
1 employment if the employer acts deliberately for the purpose of injuring the employee or
if the harm resulting from the intentional misconduct consists of aggravation of an initial,
2 work-related injury.We conclude the policy of exclusivity of workers compensation as
a remedy for injuries in the employment would not be seriously undermined by holding a
3 defendant liable for the aggravation of the plaintiffs injuries, since we cannot believe that
many employers will aggravate the effects of an industrial injury by not only deliberately
4 concealing its existence but also its connection with the employment. Nor can we believe
that the Legislature in enacting the workers compensation law intended to insulate such
5 flagrant conduct from tort liability.
6 Johns-Manville Products Corp. v. Super. Ct., 27 Cal. 3d 465, 478 (1980). Flagrant [mis]conduct
7 aptly describes the Chargers treatment of Walker. See also Ramey v. General Petroleum Corp.,
8
173 Cal. App. 2d 386, 402 (1959) (fraud is exception to workers compensation exclusivity). Cf.
9
Gibson v. Southern Guar. Ins. Co., 623 So. 2d 1065, 1066 (Ala. 1993) (This Court has recognized
10
that the intentional tort of outrageous conduct and the tort of intentional fraud are not barred by
11
12 the exclusivity provisions of the Act and can exist in a workers' compensation setting. (citing
13 Lowman v. Piedmont Executive Shirt Mfg. Co., 547 So. 2d 90, 95 (Ala. 1989)).
16 Mr. Walker testified I dont think so when asked whether he thought the Chargers
17 doctors or trainers were trying to hurt him. See Nash Decl. Ex. at 209:1-11. That testimony, from
18 a medically unsophisticated and vulnerable plaintiff, is consistent with Mr. Walkers testimony
19
that he trusted the doctors and trainers to put his best interests first. See Sinclair Decl. Ex. 12
20
195:16-19; 197: 12-15. But Mr. Walker also testified that had he been informed about the effects
21
of the medications, I definitely wouldnt have taken pills to the level I was at. Sinclair Decl. Ex.
22
23 12 at 202:8-14. Mr. Walker answered yes when asked Would you have preferred to have not
24 played football at all, then, to taking the pills. Sinclair Decl. Ex. 12 at 203: 15-18. A reasonable
25 jury could indeed find that the Chargers engaged in intentionally harmful misconduct in concealing
26 the long-term aggravating effects of the Medications on Mr. Walkers ankle. This is a jury
27
question, not a summary judgment issue.
28
OPPOSITION OF PLAINTIFFSCARREKER AND WALKER TO DEFENDANTS
MOTION FOR SUMMARY JUDGMENT - 10 -
Case 3:16-cv-01030-WHA Document 256 Filed 07/31/17 Page 15 of 23
3 Defendants argument that Mr. Walkers workers compensation claims encompass the
4 injuries he claims against the Chargers wishes away the stark factual and legal distinction between
5 on-field injuries from playing football and Mr. Walkers intentional misrepresentation claim for
6
medication-induced aggravations of on-field injuries. See Sinclair Decl. Ex. 2, Plaintiff Reginald
7
Walkers Supplemental Answers to Defendant NFL Member Clubs First Set of Interrogatories,
8
June 20, 2017 (Answer 1: Mr. Walker states that he suffers from muscular/skeletal injuries
9
resulting directly from the Clubs illegal distribution of Medications associated with the following
10
11 injuries he sustained during his employment. Supp. Answer 1: Mr. Walker states that he has
13 keep players on the field or in practice. Specifically, he suffers from the following injuries, all of
14
which he contends were caused in whole or in part by the Clubs administration of Medications
15
and/or failure to provide information relating to said administration.).
16
Medications, provided with intentional misrepresentations, aggravated Mr. Walkers on-
17
18 field ankle injury. This constitutes a distinct injury not subject to workers compensation
19 exclusivity. See, e.g., Johns-Manville, 27 Cal. 3d at 477 (In the present case, plaintiff alleges that
20 defendant fraudulently concealed from him, and from doctors retained to treat him, as well as from
21 the state, that he was suffering from a disease caused by ingestion of asbestos, thereby preventing
22
him from receiving treatment for the disease and inducing him to continue to work under hazardous
23
conditions. These allegations are sufficient to state a cause of action for aggravation of the disease,
24
as distinct from the hazards of employment which caused him to contract the disease.); Ramey v.
25
26 General Petroleum Corp. 173 Cal. App. 2d at 402 (cited in Johns-Manville; despite employees
27 workers workers compensation recovery for physical injury from work, different injury resulted
28
OPPOSITION OF PLAINTIFFSCARREKER AND WALKER TO DEFENDANTS
MOTION FOR SUMMARY JUDGMENT - 11 -
Case 3:16-cv-01030-WHA Document 256 Filed 07/31/17 Page 16 of 23
1 from defendants fraudulent concealment of cause of action and was not based on performance of
2 employment services). Cf. Building and Constr. Trades Dept, AFL-CIO v. Rockwell Intl Corp.,
3
756 F. Supp. 492, 495 (D. Col. 1991), affd, 7 F. 3d 1487 (10th Cir. 1993) (Def. Mot. At 3)
4
(distinguishing cases in which fraud produces compensable injury and cases in which fraud
5
produces a second injury not within the exclusivity rule).
6
7 Finally, Mr. Walkers testimony shows the error of Defendants argument that his workers
8 compensation claims and his remaining medication-based claim completely overlap. See Sinclair
9 Decl. Ex. 12 at 247:3-11 (Q. Are any of these injuries the same ones youre seeking compensation
10
for in this lawsuit? A. I dont know what came from the medications and what didnt.).
11
III. CARREKERS CLAIMS AGAINST THE BRONCOS AND PACKERS REQUIRE
12 TRIAL
13 A. Carrekers Claim against the Packers is Proper for Trial Because Wisconsin
Law Excepts Claims for Intentionally Harmful Conduct from Workers
14
Compensation Exclusivity.
15
Mr. Carrekers intentional misrepresentation claims are not rooted in mere negligence, nor
16
even recklessness. 6 Rather, they are based on intentional wrongdoing of a nature and magnitude
17
18 that falls outside the workers compensation exclusivity principle. As West Bend Mut. Ins. Co. v.
19 Berger, 192 Wis. 2d at 754 teaches, the intentional harm exception to workers compensation
20 exclusivity is triggered when a defendants actions are sufficiently dangerous that injury is
21 substantially certain to result. Injuries are substantially certain to result from repeated massive
22
ingestions of dangerous controlled substances given without warnings or proper medical attention.
23
24
25
26 6
Hence the inapplicability of Defendants cited cases. See, e.g., Beck v. Hamann, 263 Wis. 131,
136, 56 N.W. 2d 837, 840 (1953) (Def. Mot. at 10) (Under the present provisions of the act, we
27 cannot hold that gross negligence on the part of an employer places his liability to the employee
outside the compensation act.)
28
OPPOSITION OF PLAINTIFFSCARREKER AND WALKER TO DEFENDANTS
MOTION FOR SUMMARY JUDGMENT - 12 -
Case 3:16-cv-01030-WHA Document 256 Filed 07/31/17 Page 17 of 23
1 See Sinclair Decl. Ex. 13, (Carreker Dep., 69:23 70:2). At a minimum, the Packers conduct and
3
B. Carrekers Claim Against the Packers is Proper for Trial Because Wisconsin
4 Law Precludes Workers Compensation Exclusivity for Assaults.
5 West Bend Mut. Ins. Co. v. Berger, 192 Wis. 2d 743 (Wis. Ct. App. 1995) (Def. Mot. at 8,
6
10), recognizes Wisconsins exception to workers compensation exclusivity for co-employee
7
assaults intended to cause bodily harm. Defendants ignore that, for all material purposes, Carreker
8
and the Packers team doctors and trainers were co-employees. See Sinclair Decl. Ex. 15, (Burress
9
Dep. 25:12-18). Under West Bend, the question whether Defendants intended, subjectively or
10
11 objectively, to harm Carreker by providing the Medications presents a factual dispute. Intent,
12 under Wisconsins law, is measured by whether the defendant actually intended the harm or
13 believes injurious effects are substantially certain to follow the defendants actions. While [t]he
14
magnitude of potential injury is not dispositivea substantial certainty of any injury, great or
15
small, may warrant inferring intent as a matter of law. Id. at 640 (citing Gouger v. Hardtke, 167
16
Wis. 2d 504, 515, 482 N.W. 2d 84, 89 (1992)). That inference here, on summary judgment, is
17
18 drawn in Plaintiffs favor, underscoring that a genuine issue of material fact exists.
19 Here, the certainty of injury resulting from overprovision of dangerous Medications to the
20 unwitting Carreker warrants precisely that inference. See Sinclair Decl. Ex. 13, (Carreker Dep.,
21 68:9 - 69:14). Numerous teams, including the Packers, gave players handouts noting the dangers
22
of medications (without specifying which medications might cause which risks or injuries). See,
23
e.g. Sinclair Decl. Ex. 1, (Carreker Dep. Ex. 9, comprising 4 separate documents (May 20, 1985;
24
May 2, 1986; July 29, 1987; July 24, 1988)), each stating: Many drugs are harmful to individuals
25
26 in strenuous activity. There are some drugs that cannot be taken while under the influence of
27 another drug.) Like some other teams, Green Bay administered liver and kidney function tests to
28
OPPOSITION OF PLAINTIFFSCARREKER AND WALKER TO DEFENDANTS
MOTION FOR SUMMARY JUDGMENT - 13 -
Case 3:16-cv-01030-WHA Document 256 Filed 07/31/17 Page 18 of 23
1 players, reflecting knowledge of medication-induced injury. See Sinclair Decl. Ex. 15, (Burruss
2 Dep. 166:18-23). Numerous letters from Dr. Lawrence Brown to the Club doctors and trainers
3
noted the dangers of the medications. See Sinclair Decl. Ex. 16, (Brown Dep. Exs. 5, 10, 22). At
4
minimum these facts generate a disputed genuine issue of material fact concerning whether the
5
injuries were substantially certain to ensue.
6
7 C. Carrekers Claim Against the Broncos is Proper for Trial Because Colorado
Law Excepts Intentionally Harmful Conduct from Workers Compensation
8 Exclusivity
9 Colorado law, like California and Wisconsin law, provides an exception from workers
10
compensation exclusivity for intentionally harmful employer conduct. See, e.g., Building and
11
Constr. Trades Dept, AFL-CIO v. Rockwell Intl Corp., 756 F. Supp. 492, 495 (D. Col. 1991),
12
affd, 7 F. 3d 1487 (10th Cir. 1993) (Def. Mot. At 3) (distinguishing cases in which fraud produces
13
compensable injury and cases in which fraud produces a second injury not within the exclusivity
14
15 rule); Digliani v. City of Fort Collins, 873 P. 2d 4, 7 (Col. Ct. App. 1993) (Def. Mot. at 8) (citing
16 Ventura v. Albertsons, Inc., 856 P. 2d 35 (Colo. App. 1992) for proposition of employer liability
17 for intentional torts if employer deliberately intended to cause the injury); Schwindt v. Hershey
18
Foods Corp., 81 P. 3d 1144, 1146 (Col. App. 2003) (employer may be held liable to an employee
19
for common law damage claims for intentional tort committed by the employer or the employers
20
alter ego if the employer deliberately intended to cause the injury and acted directly, rather than
21
22 constructively through an agent (quoting Ventura, 856 P. 2d at 39)). The Broncos administration
23 of large amounts of unlabeled, unpackaged controlled substances to Carreker (see Sinclair Decl.
24 Ex. 13 (Carreker Dep. 313:4 314:4), coupled with the knowledge that such drugs were dangerous
25 (see Sinclair Decl. Ex. 16 (Brown Dep. Exs. 5, 10, 22) creates, at minimum, a jury question
26
whether the Broncos intentionally injured Mr. Carreker.
27
28
OPPOSITION OF PLAINTIFFSCARREKER AND WALKER TO DEFENDANTS
MOTION FOR SUMMARY JUDGMENT - 14 -
Case 3:16-cv-01030-WHA Document 256 Filed 07/31/17 Page 19 of 23
3 Defendants claim that Mr. Carrekers deposition testimony admits away the intentional
4 harm exception. This argument fails. Mr. Carrekers answers about whether he believed the
5 Packers and Broncos personnel were trying to harm him would require Mr. Carreker to know
6
what was in those persons hearts and minds. Summary judgment cannot be based on objectionable
7
testimony. See Fed. R. Civ. P. 56 (c)(2). Carrekers foundationless testimony about what
8
Defendants were thinking would remain inadmissible at trial. See Malhotra v. Copa De Oro
9
Realty, LLC, 2015 WL 12656293, at * 3 (C.D. Cal. Sep. 23, 2015) (discussing more lenient
10
12 The welter of facts showing both Clubs knew the Medications were dangerous (see Sinclair
13 Decl. Ex. 16 (Brown Dep. Exs. 5, 10, 22)) and repeatedly provided vast quantities of these
14
dangerous drugs (see Sinclair Decl. Ex. 13 (Carreker Dep. 312:25 314:5 (Broncos), 68:9- 69:14
15
(Packers)), without any warnings (see Sinclair Decl. Ex. 13 (Carreker Dep. 128:15-20 (Q. Is there
16
any specific side effect of a particular drug that, had you known about it, you would have refused
17
18 to take the medication? A. I think that could go with all of them.) in violation of federal statutes
19 embodying a strong public policy against the Defendants medication practices, creates a jury
26 in them.but I cant say what was true and what was not true. They never explained anything to
27 me but other than the fact that they were going to help me with my pain, manage my pain.); 124:6-
28
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MOTION FOR SUMMARY JUDGMENT - 15 -
Case 3:16-cv-01030-WHA Document 256 Filed 07/31/17 Page 20 of 23
1 9 (I dont know if they [Green Bay doctors] ever lied to me about anything. Because like I said,
2 I believed everything they told me. I had no reason to disbelieve anything they told me.); 125:1-
3
7 (The biggest thing I know I can say right now is that I wish I knew by taking a lot of stuff, at
4
one point would be damaging to a personAt that time in my life, I had no idea about side effects
5
or what side effects did to you.); 125:20-25 (I think all doctors or trainers in the NFL should
6
7 have something on the wall or have a meeting with these guys to inform them if you are taking
8 certain medications forheavily the way we take them at a certain time, that you are at risk for
9 certain other diseases that can pop up or whatever.); 126:5-18 (The warning labels need to be
10
thereThats something that needs to be talked about. Thats something that needs to be shared
11
with these guys, because I dont think they know. Because youre taking painkillers. Youre taking
12
muscle relaxers. Youre taking anti-inflammatoriesyou dont know, if by taking all this stuff
13
together, what it can do to you. You dont know the side effects, so I think all that stuff need[s] to
14
15 be discussed.);127:24-25 128:1-14 (Q. Is there anything that, had you been told about it with
16 Green Bay, you would not have taken the medication? A. Absolutely. Especially when I really
17 had a serious injury, I would have just requested that let me heal properly, naturally; and I cannot
18
play in pain with this injury. If it takes me two weeks to--to healI need to have that instead of
19
having me go right back out there and play and knowing Im out there high or taking all this
20
stuffjust to playIf it took me a month for stuff to heal, let it heal on its own, instead of giving
21
22 me stuff to get me back on the field.); 128:15-20 (Q. Is there any specific side effect of a
23 particular drug that, had you known about it, you would have refused to take the medication? A.
24 I think that could go with all of them.); 129:13-25 (I wouldnt have took as muchIf Im taking
25 60, 70 of these pills a week, is that too much? Well, thats excessive. I dont know what was
26
excessiveI would have liked if someone would have told me what would have been excessive.
27
I mean, dont just hand me a bag of pills and say take them as needed; and youve got three different
28
OPPOSITION OF PLAINTIFFSCARREKER AND WALKER TO DEFENDANTS
MOTION FOR SUMMARY JUDGMENT - 16 -
Case 3:16-cv-01030-WHA Document 256 Filed 07/31/17 Page 21 of 23
1 ones.); 131:2-14 (I cant say that they [Green Bay trainers] ever lied to me about medications.
2 I dont think those guys were truthful with me as far as taking a certain amount of medications
3
every day or every week in the milligrams, in the amount, and the volumes that I was taking or
4
that we were taking could be harmful for you. That should have been said that wasnt, so I cant
5
say they lied to me. They just didnt inform me.); 144:13-25 145:1-2 (Q. Do you know if they
6
7 [Green Bay doctors] wanted to hide that information from you? A. No. Like I said, these are my
8 friends. I thought they were doing the right thing by us, and I really believed they felt they were.
9 I just think that we shouldnt have had the opportunity to take as muchThey were doing their
10
job by keeping us on the field, period.); 148:7-9 (trusted Denver doctor); 189:12-13 (They just
11
give them [Medications] to you and tell them, you can take them as needed. Nobody monitored
12
me.) 190:21-22 (Here, take these as you need it. Nobody ever questioned me.); 308:21-22
13
(Answering whether he believed any Broncos doctor intended to harm him by giving medications:
14
15 No. II totally trust those guys, because they were my friends.) 309:3-4 (Answering question
16 whether he believed Broncos trainers intended to harm him when giving medications: No. I had
17 total confidence in those guys. These were my friends.); 309:18-24 (No, I dont think [Broncos]
18
doctors lied to me, but I think they should haveI wish theyd been a little more informative to
19
me about the amount ofconcern about the amount of medication that they knew I was taking
20
and any other guy on the team. I wish that would have been discussed.); 310:14-17 (I thought
21
22 that if someone was giving me somethingand Im totally trusting in them, theyre doing their
23 job to take care of me. You get what Im saying?); 355-58 (no Packers or Broncos personnel
24 provided information about the drugs provided, despite administer[ing] drugs to take together all
25 the time)
26
27
28
OPPOSITION OF PLAINTIFFSCARREKER AND WALKER TO DEFENDANTS
MOTION FOR SUMMARY JUDGMENT - 17 -
Case 3:16-cv-01030-WHA Document 256 Filed 07/31/17 Page 22 of 23
3 Mr. Carrekers workers compensation claims, just like Mr. Walkers, were for on-field
4 injuries. They were not for intentional misrepresentations producing Mr. Carrekers latent injury
5 that surfaced some 22 years after he stopped playing professional football. Mr. Carrekers
6
testimony reflects the distinction between the claims. See Sinclair Decl. Ex. 13 (Carreker
7
deposition, 353-354 (never saw workers compensation checklist, such as Exhibit 10, that dealt
8
with medications as opposed to the injuries listed)
9
CONCLUSION
10
11 Plaintiffs claims in this highly unusual case are far afield from the sort of workplace
12 injuries covered by workers compensation exclusivity. Acting outside the proper role of an
13 employer, the Defendants acted not just illegally, but intentionally, administering cataracts of
14
dangerous substances without required warnings, packaging and monitoring, while fraudulently
15
inducing the Plaintiffs trust and deceiving the Plaintiffs with false assurances that the medications
16
were safe. Defendants motion should be denied.
17
18
DATED: June 27, 2017 William N. Sinclair
19 Andrew G. Slutkin
Jamison G. White
20 Steven L. Leitess
Stephen. G. Grygiel
21 Philip Closius
SILVERMANTHOMPSONSLUTKINWHITELLC
22
28
OPPOSITION OF PLAINTIFFSCARREKER AND WALKER TO DEFENDANTS
MOTION FOR SUMMARY JUDGMENT - 18 -
Case 3:16-cv-01030-WHA Document 256 Filed 07/31/17 Page 23 of 23
1
Rachel L. Jensen (SBN 211456)
2 ROBBINS GELLER RUDMAN
& DOWD LLP
3 655 West Broadway, Suite 1900
San Diego, CA 92101
4 Telephone: (619) 231-1058
Facsimile: (619) 231-7423
5
Attorneys for Plaintiffs
6
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
OPPOSITION OF PLAINTIFFSCARREKER AND WALKER TO DEFENDANTS
MOTION FOR SUMMARY JUDGMENT - 19 -
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EXHIBIT 6
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EXHIBIT 7
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EXHIBIT 8
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EXHIBIT 9
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EXHIBIT 10
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EXHIBIT 11
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EXHIBIT 13
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CONFIDENTIAL
Page 1
Page 2
1 APPEARANCES OF COUNSEL
2 On behalf of the Plaintiffs:
3 SILVERMAN THOMPSON SLUTKIN WHITE
STEPHEN G. GRYGIEL, ESQ.
4 26th Floor
201 North Charles Street
5 Baltimore, Maryland 21201
410.385.2225
6 410.547.2432 Fax
sgrygiel@mdattorney.com
7
On behalf of the Defendants:
8
AKIN GUMP STRAUSS HAUER & FELD LLP
9 NATHAN J. OLESON, ESQ.
DANIEL NASH, ESQ.
10 Robert S. Strauss Building
1333 New Hampshire Avenue
11 Washington, DC 20036-1564
202.887.4000
12 202.887.4288 Fax
noleson@akingump.com
13 dnash@akingump.com
14 also Present:
Terry Wetz, Videographer
15
16
17
18
19
20
21
22
23
24
25
Page 3
1 INDEX OF EXAMINATIONS
2 WITNESS:
Alphonso Carreker
3 Page
4 CROSS-EXAMINATION 5
By Mr. Oleson
5
REDIRECT EXAMINATION 353
6 By Mr. Grygiel
7 RECROSS-EXAMINATION 361
By Mr. Oleson
8
9 INDEX TO EXHIBITS
10 Defendant's
Exhibit Description Page
11
Exhibit 1 11-4-16 Plaintiff Alphonso 219
12 Carreker's Supplemental Answers to
Defendant NFL Member Clubs' First
13 Set of Interrogatories
14 Exhibit 2 7-15-04 Bert Bell/Pete Rozelle NFL 269
Player Retirement Plan,
15 Application for Disability
Benefits
16
Exhibit 3 2-6-90 Colorado Department of 291
17 Labor and Employment, Division of
Labor, Employer's First Report of
18 Injury
19 Exhibit 4 12-17-91 Workers' Compensation, 292
Final Admission of Liability,
20 CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER APPROVED AUGUST
21 26, 2016, DEN_EVANS_0000000136,
34-41
22
Exhibit 5 State of California, Division of 298
23 Workers' Compensation, Workers'
Compensation Claim Form,
24 CONFIDENTIAL, CARREKER 0000158-163
25
Page 4
1 INDEX TO EXHIBITS
2 Defendant's
Exhibit Description Page
3
Exhibit 6 3-9-11 Deposition of Alphonso 319
4 Carreker, Before the Workers'
Compensation Appeals Board of the
5 State of California, CONFIDENTIAL,
CARREKER 0000548-655
6
Exhibit 7 State of California Workers 321
7 Compensation Appeals Board
Compromise and Release,
8 CONFIDENTIAL, CARREKER 0001883
-1988
9
Exhibit 8 USDC for the Eastern District of 325
10 Pennsylvania, In Re: National
Football League Players'
11 Concussion Injury Litigation,
Short Form Complaint,
12 CONFIDENTIAL, CARREKER
0002446-2452
13
Exhibit 9 1985-1988 Acknowledgement Forms 327
14 for Taking Drugs With the Club
Signed By Witness, CONFIDENTIAL,
15 CARREKER 0001030, 1043, 1057, 1068
16 Exhibit 10 7-19-90 Acknowledgement, 332
CONFIDENTIAL, CARREKER 0000176;
17 4-1-90 List of Injuries at
Physical Exam, CONFIDENTIAL, 179;
18 2-23-89 Release, CONFIDENTIAL,
227; 1991 List of Injuries at
19 Physical Exam, CONFIDENTIAL, 516
20
21
22
23 (Original Defendant's Exhibits 1 through 10 have
been attached to the original transcript.)
24
25
Page 5
Page 68
Page 69
1 Muscle relaxers.
2 And those big orange Motrin 800s, you got
3 those as much as you want, because you need to
4 go through practice. Those -- Those are the
5 things that would take the swellingness out or
6 your knees or your joints, anything that you
7 hurt that will get you able to get back on the
8 practice field, so you can at least run, try to
9 stay in shape.
10 So at some point in the NFL, you're taking
11 stuff every day. You're -- you're -- You're
12 constantly putting problem on top of problem on
13 top of problem, so at some point, you are taking
14 something every day.
15 Q. (By Mr. Oleson) So do you
16 specifically require -- remember taking Tylenol 3
17 with the Packers?
18 A. Yeah. T-3s are what they call them.
19 Yeah.
20 Q. Okay.
21 A. Yeah.
22 Q. Do you know how much you took?
23 A. I don't know, man. On a game, you -- you
24 come in after a game, especially after away game, I
25 had to have that just to get off the plane. Some --
Page 70
Page 122
1 Foundation.
2 THE WITNESS: In my life --
3 Q. (By Mr. Oleson) Sure.
4 A. -- that they -- that they told me that was
5 untrue?
6 Q. Correct.
7 A. No. I can't really say that, because if I
8 needed something for a headache, back spasm, or my
9 neck pain or back pain, they gave me something that
10 it always pretty much worked. It always worked.
11 So like I said, I trusted those guys.
12 Those were my friends. I believed in them.
13 If I still saw some of the ones that's not
14 dead, I would still talk with them; but I can't say
15 what was true and what was not true. They never
16 explained anything to me but other than the fact that
17 they were going to help me with my pain, manage my
18 pain.
19 Q. Okay. So there's never a time where they
20 said anything about a medication that you learned
21 later that was not a true statement?
22 MR. GRYGIEL: Objection. Form.
23 Foundation.
24 THE WITNESS: I'm still not getting where
25 you're coming from.
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1 other drug?
2 A. No.
3 Q. Did any doctor ever do that?
4 A. No, sir.
5 Q. Did anybody from the Packers ever do --
6 MR. OLESON: Let me --
7 Q. (By Mr. Grygiel) -- that?
8 A. No, sir.
9 MR. OLESON: -- object to form.
10 Q. (By Mr. Grygiel) Did anyone from the
11 Broncos ever do that?
12 A. No, sir.
13 MR. OLESON: Object to form.
14 Q. (By Mr. Grygiel) Looking at the third
15 sentence, take a read at that for me.
16 A. Do not take any medications at training
17 camp or during the regular season unless they are
18 given to you by the team physician or his agents
19 employed by the club, et cetera, trainer, nurse,
20 referred physician.
21 Q. Did you ever take drugs from any sources
22 other than the Packers when you played for the
23 Packers?
24 MR. OLESON: Object to form.
25 THE WITNESS: No, sir.
Page 358
Rule 30
EXHIBIT 16
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