Exhibits From NFL Painkiller Suit 7/31/17

Case 3:16-cv-01030-WHA Document 256 Filed 07/31/17 Page 1 of 23
1 William N. Sinclair (SBN 222502)

(bsinclair@mdattorney.com)
2 Steven D. Silverman (Admitted Pro Hac Vice)
(ssilverman@mdattorney.com)
3 Stephen G. Grygiel (Admitted Pro Hac Vice)
(sgrygiel@ mdattorney.com)
4 Phillip J. Closius (Admitted Pro Hac Vice)
(pclosius@ mdattorney.com)
5 Alexander Williams (Admitted Pro Hac Vice)
awilliams@mdattorney.com
6 SILVERMANTHOMPSONSLUTKINWHITELLC
201 N. Charles Street, Suite 2600
7 Baltimore, MD 21201
Telephone: (410) 385-2225 Stuart A. Davidson (Admitted Pro Hac Vice)
8 Facsimile: (410) 547-2432 (sdavidson@rgrdlaw.com)
Mark J. Dearman (Admitted Pro Hac Vice)
9 Thomas J. Byrne (SBN 179984) (mdearman@rgrdlaw.com)
(tbyrne@nbolaw.com Jason Alperstein (Admitted Pro Hac Vice)
10 Mel T. Owens (SBN 226146) (jalperstein@rgrdlaw.com)
(mowens@nbolaw.com) ROBBINS GELLER RUDMAN
11 NAMANNY BYRNE & OWENS, P.C. & DOWD LLP
2 South Pointe Drive, Suite 245 120 East Palmetto Park Road, Suite 500
12 Lake Forest, CA 92630 Boca Raton, FL 33432
Telephone: (949) 452-0700 Telephone: (561) 750-3000
13 Facsimile: (949) 452-0707 Facsimile: (561) 750-3364
14 Attorneys for Plaintiffs
15 [Additional counsel appear on signature page.]
16 UNITED STATES DISTRICT COURT

17 NORTHERN DISTRICT OF CALIFORNIA
18 SAN FRANCISCO DIVISION
19 ETOPIA EVANS, as the Representative of the ) Case No. 3:16-cv-01030-WHA
Estate of Charles Evans, et al., )
20 OPPOSITION OF PLAINTIFFS
)
Plaintiffs, ) CARREKER AND WALKER TO
21 DEFENDANTS MOTION FOR SUMMARY
vs. ) JUDGMENT
22 )
ARIZONA CARDINALS FOOTBALL CLUB,) Date: July 13, 2017
23 LLC, et al., ) Time: 8:00 a.m.
24 ) Courtroom: 8, 19th Floor
Defendants. ) Honorable William Alsup
25 )
)
26
27
28
1 TABLE OF CONTENTS
2
3 TABLE OF CONTENTS ................................................................................................................ ii
4 TABLE OF AUTHORITIES ......................................................................................................... iii
5 INTRODUCTION ...........................................................................................................................1
6 I. PLAINTIFFS CLAIMS ARE WITHIN THE INTENTIONAL HARM

EXCEPTION TO WORKERS COMPENSATION EXCLUSIVITY ...................3
7
II. WALKERS CLAIM AGAINST THE CHARGERS REQUIRES TRIAL ............8
8
A. Walkers Claim is Proper for Trial Because California Law
9 Excepts Aggravation of Injury from Workers Compensation
Exclusivity. ..................................................................................................8
10
B. Walkers Claim is Proper for Trial Because California Law
11 Excepts Fraud Claims from Workers Compensation Exclusivity. .............9
12 C. Walkers Deposition Testimony Does not Trigger Workers

Compensation Exclusivity. ........................................................................10
13
D. Walkers Intentional Misrepresentation Claim Differs from his
14 Workers Compensation Claim..................................................................11
15 III. CARREKERS CLAIMS AGAINST THE BRONCOS AND PACKERS

REQUIRE TRIAL .................................................................................................12
16
A. Carrekers Claim against the Packers is Proper for Trial Because
17 Wisconsin Law Excepts Claims for Intentionally Harmful Conduct
from Workers Compensation Exclusivity. ...............................................12
18
B. Carrekers Claim Against the Packers is Proper for Trial Because
19 Wisconsin Law Precludes Workers Compensation Exclusivity for
Assaults. .....................................................................................................13
20
C. Carrekers Claim Against the Broncos is Proper for Trial Because
21 Colorado Law Excepts Intentionally Harmful Conduct from
Workers Compensation Exclusivity .........................................................14
22
D. Carrekers Deposition Testimony Does Not Trigger Workers
23 Compensation Exclusivity. ........................................................................15
24 E. Carrekers Intentional Misrepresentation Claims Against the

Packers and Broncos Differ from his Workers Compensation
25 Claims. .......................................................................................................18
26 CONCLUSION ..............................................................................................................................18
27
28
OPPOSITION OF PLAINTIFFSCARREKER AND WALKER TO DEFENDANTS
MOTION FOR SUMMARY JUDGMENT - ii -
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
10 College Hospital Inc. v. Superior Court,

8 Cal. 4th 704 (Cal. 1994)........................................................................................................... 9
11
DePiano v. Montreal Baseball Club, Ltd.,
12 663 F. Supp. 116 (W.D. Pa. 1987) .......................................................................................... 6, 7
13
Digliani v. City of Fort Collins,
14 873 P. 2d 4 (Col. Ct. App. 1993) .............................................................................................. 14
15 Fermino v. Fedco, Inc.,

7 Cal. 4th 701, 30 Cal. Rptr. 2d 18, 872 P.2d 559 (1994) ...................................................... 3, 6
16
Gibson v. Southern Guar. Ins. Co.,
17 623 So. 2d 1065 (Ala. 1993) .................................................................................................... 10
18 Gouger v. Hardtke,
19 167 Wis. 2d 504, 482 N.W. 2d 84 (1992) ................................................................................. 13
20 Ihama v. Bayer Corp.,

2005 WL 3096089 (N.D. Cal. Nov. 14, 2005) ........................................................................... 6
21
Johns-Manville Products Corp. v. Super. Ct.,
22 27 Cal. 3d 465, 165 Cal. Rptr. 858, 612 P. 2d 948 (1980) ......................................... 6, 9, 10, 11
23 Lowman v. Piedmont Executive Shirt Mfg. Co.,
24 547 So. 2d 90 (Ala. 1989) ......................................................................................................... 10
25 Malhotra v. Copa De Oro Realty, LLC,

2015 WL 12656293 (C.D. Cal. Sep. 23, 2015)......................................................................... 15
26
Ramey v. General Petroleum Corp.,
27 173 Cal. App. 2d 386 (1959) .......................................................................................... 9, 10, 11
28
MOTION FOR SUMMARY JUDGMENT - iii -
1 Schwindt v. Hershey Foods Corp.,

81 P. 3d 1144 (Col. App. 2003) ................................................................................................ 14
2
Stalnaker v. Boeing Co.,
3
186 Cal. App. 3d 1291 (1986) ............................................................................................ 7, 8, 9
4
Ventura v. Albertsons, Inc.,
5 856 P. 2d 35 (Colo. App. 1992) ................................................................................................ 14
6 West Bend Mut. Ins. Co. v. Berger,

192 Wis. 2d 743 (Wis. Ct. App. 1995) ................................................................................. 7, 12
7
8 Statutes
9 21 U.S.C. 301-399 (2016) .......................................................................................................... 4
10 21 U.S.C. 811-814 (2012) .......................................................................................................... 4
11 Cal. Civil Code Sec. 3294 ............................................................................................................... 9
12 Rules
13 Fed. R. Civ. P. 56 (c)(2) ................................................................................................................ 18
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
MOTION FOR SUMMARY JUDGMENT - iv -
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
15 Their lengthy tour of general principles of workers compensation notwithstanding, the
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
23 claims to go forward in court.
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
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
MOTION FOR SUMMARY JUDGMENT -2-
1 I. PLAINTIFFS CLAIMS ARE WITHIN THE INTENTIONAL HARM

EXCEPTION TO WORKERS COMPENSATION EXCLUSIVITY
2
3 Defendants recognize that workers compensation exclusivity is inapplicable where the
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
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
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
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
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
17 amounts of dangerous, federally controlled substances to Messrs. Walker and Carreker,
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
1 II. WALKERS CLAIM AGAINST THE CHARGERS REQUIRES TRIAL

2 A. Walkers Claim is Proper for Trial Because California Law Excepts
3 Aggravation of Injury from Workers Compensation Exclusivity.
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.
20 Aggravation of an existing injury, through the intentionally harmful conduct of intentional

21 misrepresentations, is a separate and distinct injury under Stalnaker. Besides, in Stalnaker, the
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
1 record facts show the Chargers behavior reflecting just such an intent. See Sinclair Decl. Ex. 2
2 (Walkers Supplemental Answers to Defendant Member Clubs First Set of Interrogatories,
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,
8 186 Cal. App. 3d at 1301.
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
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)).
14 C. Walkers Deposition Testimony Does not Trigger Workers Compensation

Exclusivity.
15
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
MOTION FOR SUMMARY JUDGMENT - 10 -
1 D. Walkers Intentional Misrepresentation Claim Differs from his Workers

Compensation Claim.
2
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
12 suffered muscular-skeletal injuries exacerbated by the Clubs administration of Medications to
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
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
1 See Sinclair Decl. Ex. 13, (Carreker Dep., 69:23 70:2). At a minimum, the Packers conduct and
2 the intent it reflects is a jury question.
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
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
1 D. Carrekers Deposition Testimony Does Not Trigger Workers Compensation

Exclusivity.
2
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
11 standard on admissibility of evidence offered in opposing summary judgment).
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
20 question about the teams intent.
21 More importantly, Mr. Carrekers deposition testimony was not as unequivocal as

22
Defendants describe it. That testimony reflects both the players unwarranted trust in the team
23
medical personnel as well as evidence of the intent to harm. See Sinclair Decl. Ex. 13 (Carreker
24
Dep., 122:11-18 (I trusted those guys [Green Bay doctors]. Those were my friends. I believed
25
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
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
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
1 E. Carrekers Intentional Misrepresentation Claims Against the Packers and

Broncos Differ from his Workers Compensation Claims.
2
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
23 /s/ William N. Sinclair

William N. Sinclair
24
201 N. Charles Street, Suite 2600
25 Baltimore, MD 21201
Telephone: (410) 385-2225
26 Facsimile: (410) 547-2432
27
28
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
Case 3:16-cv-01030-WHA Document 256-1 Filed 07/31/17 Page 1 of 4
EXHIBIT 6
EXHIBIT 7
EXHIBIT 8
EXHIBIT 9
EXHIBIT 10
EXHIBIT 11
EXHIBIT 13
CONFIDENTIAL
Page 1
1 UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA
2 SAN FRANCISCO DIVISION
3
4 ETOPIA EVANS, et al.,
5 Plaintiffs,
CIVIL ACTION FILE
6 vs.
NO. 3:16-CV-01039-WHA
7 ARIZONA CARDINALS FOOTBALL
CLUB, LLC, et al.,
8
Defendants.
9 ~~~~~~~~~~~~~~~~~~~~~~~~~~
10
11
12 VIDEO DEPOSITION OF
13 ALPHONSO CARREKER
14
15
December 9, 2016
16
9:17 a.m.
17
18
19
38th Floor Conference Room
20 1180 Peachtree Street, NE
Atlanta, Georgia
21
22
23
S. Julie Friedman, CCR-B-1476
24
25
Veritext Legal Solutions

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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

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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

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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

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Page 5
1 THE VIDEOGRAPHER: And we are on the

2 record. The time is approximately 9:17 a.m.
3 Today's date is December 9th, 2016.
4 This is the beginning of videotape
5 deposition of Mr. Alphonso Carreker.
6 Would counsel present please identify
7 themselves and who they represent for the
8 record.
9 MR. GRYGIEL: Steve Grygiel for the
10 plaintiffs and for the witness.
11 MR. OLESON: Nathan Oleson for the
12 defendants. Also with me is Dan Nash also for
13 defendants.
14 THE VIDEOGRAPHER: Thank you, Counsel.
15 Would the court reporter please swear the
16 witness.
17 ALPHONSO CARREKER, having been first duly
18 sworn, was examined and testified as follows:
19 CROSS-EXAMINATION
20 BY MR. OLESON:
21 Q. Good morning, Mr. Carreker.
22 A. Good morning.
23 Q. Can I ask you to state your full name for
24 the record.
25 A. Alphonso Carreker.

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Page 68
1 sleep on a pillow to this day. I mean, it hurts that

2 bad, so it never goes away.
3 Q. Right. I -- I understand that. I'm just
4 trying to get a sense for when you first had the
5 burner, how long did they give you medications for
6 that?
7 A. Probably the whole season, and that and
8 for other things.
9 Q. Okay. And you say the whole season. Did
10 you -- Is it your testimony that you received
11 medications every single day while you were with the
12 Packers?
13 A. You wouldn't receive it every day. They
14 will give you enough to last to the end of the week.
15 Q. Okay. And what medications were you given
16 when you were with the Packers?
17 A. All --
18 MR. GRYGIEL: Objection. Objection.
19 Foundation. Form.
20 THE WITNESS: I'm going to say
21 painkillers. That could be Vicodin, Tylenol 3.
22 I don't if it was Percocet.
23 I mean, everybody -- The NFL was stuck on
24 hydrocodrones. You got that when you got on a
25 plane, if you needed them.

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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 --

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1 I -- I remember taking three or four of those things

2 sometimes. They -- they just --
3 As you get on the plane, they give you a
4 bag of -- with two or three beers in them on ice; and
5 the next guy giving you is some pain pills, and
6 you -- whatever, either pain pills or muscle
7 relaxers; and you chugging those things down with a
8 beer and -- and sitting down and eating the sandwich
9 they gave you.
10 Q. What do -- Do you remember what the T-3
11 pills look like?
12 A. No, sir. I just know they were big.
13 That's what they called them, the T-3s, Tylenol with
14 codeine.
15 Q. Okay. And you said you were --
16 specifically remember taking them when you came back
17 from away games; is that correct?
18 A. I was just -- I'm just trying to
19 recollect to -- to give you an answer, an example.
20 I always took them when I got on the
21 plane, or you take them after a game. And the colder
22 it get, the more stiffer you got.
23 Q. How about Motrin 800s? Do you
24 specifically remember taking those while you were
25 with the Packers?

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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 MR. GRYGIEL: Objection.

2 Q. (By Mr. Oleson) -- the Green Bay Packers
3 doctors?
5 Foundation.
6 THE WITNESS: I don't know if they ever
7 lied to me about anything. Because like I said,
8 I believed everything they told me. I had no
9 reason to disbelieve anything they told me.
10 I -- That was their job to me, and I
11 trusted them as my friend and as a former
12 employee that we were going to -- that they were
13 there to help me with whatever physical problems
14 that I had, and they helped me manage the pain
15 that I was going through to help me play
16 football throughout the whole year.
17 I had no other reason to think that these
18 were dishonest people at all.
19 Q. (By Mr. Oleson) Okay. And I'm -- I just
20 want to make it clear or make sure I understand you.
21 Sitting here today, there's no statement
22 that you can look back on from the Green Bay Packers
23 doctors that you now know wasn't true?
25 Foundation.

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1 THE WITNESS: The biggest thing that I

2 know I can say right now is that I wish I knew
3 by taking a lot of stuff, at one point would be
4 damaging to a person or -- I had --
5 At that time in my life, I had no idea
6 about side effects or what side effects did to
7 you. I didn't think these things could come
8 back and harm any -- anyone in no kind of manner
9 at all; or by taking them to try to manage pain
10 to play football, that it will increase the --
11 the risk of me having more arthritic problems,
12 because I'm playing under the -- under the fact
13 that -- under hypnosis that I've got -- that I'm
14 not hurt as bad as I am, because I -- I am
15 taking pain medicine. So I had no idea anything
16 about that.
17 Q. (By Mr. Oleson) So what -- what things do
18 you wish you had been told by the Green Bay Packers
19 doctors?
20 A. I think all doctors or all trainers in the
21 NFL should have something on the wall or have a
22 meeting with these guys to inform them if you are
23 taking certain medications for -- heavily the way we
24 take them at a certain time, that you are at risk for
25 certain other diseases that can pop up or whatever.

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1 That's -- That's one of the things that

2 needs to change, and I don't know if they have done
3 that or not. I'm kind of further removed from the
4 NFL 15, 20 years, but it needs --
5 The warning labels need to be there.
6 That -- That's something that needs to be talked
7 about. That's something that need to be shared with
8 these guys, because I don't think they know.
9 Because you're taking painkillers. You're
10 taking muscle relaxers. You're taking
11 anti-inflammatories. A lot of guys are taking
12 multivitamins with these things now, and they've got
13 all kinds of stuff that these guys are taking to try
14 to help them keep their body at -- at, you know, at
15 optimum levels of play; and you don't know, if by
16 taking all this stuff together, what it can do to
17 you. You don't know the side effects, so I think all
18 of that stuff need to be discussed.
19 So even when I took a multivitamin -- it
20 just came to my head -- I would take it to the head
21 trainer. Say, hey, is this okay? Is this something,
22 especially when they started testing us for steroids.
23 Q. That's something you did do when you were
24 in the NFL?
25 A. Yeah.

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1 Q. Okay. With the multivitamins you took?

2 A. Uh-huh.
3 Q. When did you take multivitamins, just with
4 both the Packers and the Broncos?
5 A. I think I might have tooken them probably
6 about after my fourth or fifth year. I didn't know
7 anything about them. I mean, I'm -- Like I said,
8 I'm learning from the veterans; but I didn't want
9 to --
10 'Cause at -- at some point, they start
11 testing us for steroids; and any kind of different
12 things, L-tryptophan, all that stuff like that that's
13 in certain vitamins, you can get suspended for, so
14 it's most the time, you see a guy get suspended on TV
15 for a growth hormone or steroid, it's -- it's
16 something he bought at GNC that's got one ingredient
17 that's messing it up.
18 So it would kind of behoove you, if you
19 didn't want to get suspended, to say, hey, look at
20 that and tell me if there's anything in here.
21 And they'll say, hey, no. Get rid of
22 that. You don't want that.
23 Q. And back to the things you wish you had
24 been told. Is -- Is there anything that, had you
25 been told about it with Green Bay, you would not have

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1 taken the medication?

2 A. Absolutely. Especially when I really had
3 a serious injury, I would have just requested that
4 let me heal properly, naturally; and I cannot play in
5 pain with this injury.
6 If it takes me two weeks to -- to heal, I
7 think I -- I need to have that, instead of having me
8 go right back out there and play and knowing I'm out
9 there high or taking all this stuff playing just
10 to -- just to play.
11 I think they should just let me just --
12 If it took me a month for stuff to heal, let it heal
13 on its own, instead of giving me stuff to get me back
14 on the field.
15 Q. Is there any specific side effect of a
16 particular drug that, had you known about it, you
17 would have refused to take the medication?
18 MR. GRYGIEL: Objection. Foundation.
19 THE WITNESS: I think that could go with
20 all of them.
21 I mean, I really never knew anything about
22 renal failure until I retired; and I didn't know
23 anything about -- you know, that's the
24 kidneys -- or people having liver disease,
25 people having heart issues, or things of that

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1 because of excess of taking of prescription med.

2 I had no idea of that. I'm 25, 24 years
3 old. I'm living the life. I'm having -- I've
4 got a great wife. I'm making great money. You
5 know, I'm -- I'm on top of the world.
6 But I didn't know any of that. No.
7 Q. (By Mr. Oleson) Recalling when you were
8 24 or 25, if you were told back then there may be a
9 chance of liver disease if you take this drug, would
10 you have taken it?
12 Foundation.
13 THE WITNESS: I wouldn't have took as
14 much. I would have -- I would have asked
15 what's the regulations? I mean, if -- If I'm
16 taking 60, 70 of these pills a week, is that too
17 much? Well, that's excessive.
18 I don't know what was excessive. I -- I
19 would have liked if someone would have told me
20 what would have been excessive.
21 I mean, don't just hand me a bag of pills
22 and say take them as needed; and you've got
23 three different ones. I just thought that --
24 I'm thinking it back now. That was just a
25 little excessive.

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1 lie to you about medications?

3 Foundation.
4 THE WITNESS: I can't say that they ever
5 lied to me about medications. I don't think
6 those guys were truthful with me as far as
7 taking a certain amount of medications every day
8 or every week in the milligrams, in the amount,
9 and the volumes that I was taking or that we
10 were taking could be harmful for you.
11 That would have been something that would
12 have been -- that -- that should have been said
13 that wasn't, so I can't say that they lied to
14 me. They just didn't inform me.
15 Q. (By Mr. Oleson) Okay. And that was going
16 to be my follow-up question is -- is they never told
17 you there's no problem with this dosage. It's just
18 that they never told you what the potential
19 consequences would be for the dosage?
21 Foundation.
22 Q. (By Mr. Oleson) Is that what you're
23 saying?
24 MR. GRYGIEL: Objection to form.
25 Foundation.

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1 You knew -- You knew that these guys

2 needed help. There's no way they can do that without
3 it. No way. If they did, they -- they wouldn't have
4 played as long as they did.
5 Q. And we asked it earlier. I'll try to ask
6 it this way and the way that -- that you understood
7 the best, I think, which was: Did you ever see any
8 of the team doctors lie to any other player about
9 medications while in Green Bay?
11 Foundation.
12 THE WITNESS: No, sir.
13 Q. (By Mr. Oleson) Okay. And you talked
14 earlier about the -- the information that you wish
15 you would have had from the team doctors.
16 Do you know if they wanted to hide that
17 information from you?
19 Foundation.
20 THE WITNESS: No. Like I said, these are
21 my friends. I thought they were doing the right
22 thing by us, and I really believed they felt
23 they were. I just think that we shouldn't have
24 had the opportunity to take as much.
25 I think they were giving -- They were

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1 doing their job by keeping us on the field,

2 period.
3 Q. (By Mr. Oleson) And how about the
4 trainers in Green Bay? Do you believe that they were
5 trying to harm you if they weren't --
6 A. No.
7 Q. -- telling you --
8 A. I don't think about it.
10 Foundation.
11 THE WITNESS: I'm sorry. I didn't let you
12 finish the question but --
13 MR. OLESON: Okay.
15 Foundation.
16 Q. (By Mr. Oleson) Let me -- let me --
17 Let's do it all over again.
18 A. Okay.
19 Q. And I'll go. He'll go. Then you go.
20 A. Okay.
21 Q. The trainers in Green Bay, do you believe
22 that they intended to harm you in any way if -- when
23 they didn't give you the information that you wish
24 you would have had about medications?

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1 Warmath or something like that.

2 And I went to see him after I busted up my
3 back lifting weights. He says, "Fonzo, you have a
4 herniated disc. The only way we can fix this thing
5 where you can come back to play next year, we got to
6 cut you." And that's what he did.
7 And if I didn't trust his opinion, I'd
8 have went and got another opinion somewhere else, so,
9 of course, I trusted him.
10 MR. OLESON: Okay. Why don't we go ahead
11 and take a break. It's, I mean --
12 MR. GRYGIEL: I was just going to ask
13 that. Thank you.
14 THE VIDEOGRAPHER: And we are off the
15 record. The time is 12:02.
16 (Recess from 12:02 p.m. to 12:56 p.m.)
17 THE VIDEOGRAPHER: And we are back on the
18 record. The time is 12:56.
19 You may continue.
20 Q. (By Mr. Oleson) Mr. Carreker, we're back
21 on the record. You understand that you're under oath
22 as you were before?
23 A. Yes, sir.
24 Q. Okay. Did you take any medications or
25 anything else during the break that would make you

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Page 189
1 taking them. You know, you have a good day. You

2 have a bad day. You have a great week. You have a,
3 well, kind of almost decent week.
4 Q. But when you said you didn't think you
5 needed to take as much as you were taking, were they
6 telling you to take more than you wanted to take or
7 were you just taking more?
8 MR. GRYGIEL: Objection to form.
9 Foundation.
10 THE WITNESS: They never told me to
11 tell -- as much as they wanted to tell you.
12 They just give them to you and tell them, you
13 can take them as needed. Nobody monitored me.
14 So when they told me to take them as
15 needed, if I needed -- If I was feeling some
16 uncomfortness for by sitting, riding in the car
17 going home and by the time I get home my -- my
18 knee is killing me from being bent, I would take
19 a pain medicine.
20 So as needed mean something was bothering
21 me or was sore, then I would take it, especially
22 when it got unbearable.
23 So if they gave me 30; and when those 30
24 were gone -- I'm just hypothetically saying --
25 they gave me another 30. There was never any

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1 questions about you're taking too many. These

2 are too strong. You need to be careful. No.
3 It was just okay. Okay. You need some
4 more? Wait right here. That's how it was.
5 Q. (By Mr. Oleson) So when you ran out of,
6 let's say, your 30 that you -- you may have, you
7 would go back to them and say I'm out of painkillers?
8 A. Right.
9 Q. And would you ask for more than?
10 A. Yes. Well, they just give them to me.
11 Q. But did they tell you, you had to take
12 them?
14 THE WITNESS: Did they tell me I had to
15 take them. No. They take as needed. Take
16 these as you need them. Whenever you feel any
17 discomfort, here you go. I mean, it -- it's
18 kind of --
19 At that point, it's kind of absurd to
20 have -- keep giving me ten at a time. You know
21 what I'm saying. Here, take these as you need
22 it. Nobody never questioned me.
23 But when I asked for some more and told
24 them I was out of them, they just gave them to
25 me.

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1 A. No. Because I trusted the people I was

2 with. I saw them every day. They were my friends.
3 Q. Okay. And I know we talked about this a
4 little bit before. I think we talked about Green Bay
5 and maybe a little bit about the Broncos.
6 Were you friendly with the team doctors
7 for the Broncos as well?
8 A. Oh, yes. Now I -- I'm sorry. I can't
9 remember their names, but yes. I -- Usually I saw
10 these guys on a weekly basis for three years, and
11 they were on the plane with us. They drank beer with
12 us. We ate dinner together at the team meal. We ate
13 breakfast at the breakfast meal before a game.
14 I got a chance to meet their wives. They
15 got a chance to meet my wife. We were friends.
16 Q. Do you believe that any of the doctors at
17 the Broncos had any intention of harming you when
18 they gave you medications?
20 Foundation.
21 THE WITNESS: No. I -- I totally trust
22 those guys, because they were my friends.
23 Q. (By Mr. Oleson) How about the trainers at
24 the Broncos? Do you believe they had any intention
25 of harming you when they gave you medications?

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Page 309

2 Foundation.
3 THE WITNESS: No. I had total confidence
4 in those guys. They were my friends.
5 Q. (By Mr. Oleson) And I think we talked
6 about this before. I just want to make sure.
7 Do you believe that the Broncos doctors
8 ever lied to you while you were at the Broncos?
9 MR. GRYGIEL: Objection. That was asked
10 and answered.
11 Q. (By Mr. Oleson) Go ahead.
12 THE WITNESS: So I should answer it?
13 MR. GRYGIEL: Yeah. You can answer it.
14 THE WITNESS: Okay. Ask me that question
15 again.
16 Q. (By Mr. Oleson) Sure. Do you believe
17 that the Broncos doctors ever lied to you?
18 A. No. I don't think they lied to me, but I
19 think they should have -- I think -- I wish they'd
20 been a little bit more informative to me about the
21 amount of -- of -- concern about the amount of
22 medication that they knew I was taking and any other
23 guy on the team. I wish that would have been
24 discussed.
25 Q. Do you remember having any conversation

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1 with any of the doctors or trainers at the Broncos

2 about any of the side effects of the medications you
3 were train -- taking?
5 Foundation.
6 THE WITNESS: No, sir. We never even
7 talked about any of that.
8 Q. (By Mr. Oleson) Do you remember that you
9 never talked about it, or you just don't remember if
10 you did talk about it?
11 A. No. I remember that we never talked about
12 that before. I never talked about it with any of the
13 team members.
14 I -- I would have -- I thought that if
15 someone was giving me something and they -- And I'm
16 totally trusting in them, they're doing their job to
17 take care of me. You get what I'm saying?
18 I'm not saying the thing I'm just going to
19 go behind Fonzo's back and not tell him.
20 No. I never thought any of that. Like I
21 said, we were friends.
22 Q. Did any of the Broncos trainers lie to
23 you?
24 I have -- I think I may have asked it
25 already.

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1 and the doctors at the Packers?

2 A. No.
3 Q. Okay. Do you know if anybody from the
4 Broncos discussed medications with anybody else at
5 another club?
7 THE WITNESS: I have no idea.
8 Q. (By Mr. Oleson) Okay. How about at the
9 Packers? Do you know if anybody in the Packers
10 discussed medications with anybody else at another
11 club?
12 MR. GRYGIEL: Same objection.
13 THE WITNESS: I have no idea.
14 Q. (By Mr. Oleson) Okay. You talked about
15 beer on the plane with the Packers. Did you also
16 have beer on the plane with the Broncos?
17 A. I believe we did. Yes.
18 Q. Do you recall that specifically or --
19 A. I'm just going off of the norm. The
20 planes have beer on them, anyway, so --
21 Q. Well, what I'm trying to do is: Do you
22 specifically remember with the Broncos you had beer
23 on the plane?
24 A. There was beer on the plane.
25 Q. Okay. Do you recall with the Broncos

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1 specifically taking any medications on the plane?

2 A. Oh, sure.
3 Q. Do you recall what you took?
4 A. From A to Z as far as pain medication. It
5 could have been hydrocodrone, OxyContin. It could
6 have been Tylenol. It could have been whatever. It
7 could have been the same stuff that we've seen in
8 these documents. I just couldn't think of the name
9 of them as far as muscle relaxers.
10 It could have been the Motrin. I know
11 they had the Motrin 800s. All that stuff is on the
12 plane.
13 Like I said, when we got on the plane, the
14 doctor and the trainer would walk down from the --
15 They were in the front row. They -- front -- what do
16 you call it -- the first class, and they would walk
17 from that to the end of the plane asking players are
18 you feeling all right? Is there anything you need?
19 Some guys, they broke out the IV on them
20 right there. Plugged them up.
21 And they, "Fonzo, what's wrong with you?"
22 I said, "Man, my shoulder's killing me.
23 My neck's killing me. My back's hurting me. I'm
24 spassing (ph.) up."
25 "All right. I'll be right back for you."

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1 They'll give me the Motrin. They give me

2 some muscle relaxers. They'll give me a Tylenol 3.
3 They'll give me the pain pill, and I'll take all
4 three of those and right then.
5 So that was every away game.
6 Q. I believe you --
7 A. We --
8 Q. -- testified earlier, though, that you
9 didn't take Tylenol 3 at the Broncos.
10 A. I'm just giving you names.
11 Q. Okay.
12 A. I'm just giving you names. I -- I don't
13 know which one they were. Whatever they gave me, I
14 took it. I didn't say that they did not give it to
15 me. I just don't remember that.
16 I'm just telling you is that pain medicine
17 to me was pain medicine. Whether it was a Percocet,
18 hydrocodrone, OxyContin, whatever it was, when they
19 gave it to me, I took it; and I think that's how it
20 was with everyone.
21 We didn't question whether we didn't like
22 it or not. We just took it. You needed relief.
23 Q. So I -- What I just want to understand,
24 though, is: Do you recall specifically any
25 particular medication that you took on the plane with

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1 Q. (By Mr. Oleson) Okay. How about for

2 Broncos? Do you have any knowledge that how
3 medications are dispensed or distributed to players
4 on the Broncos since you've left the club?
6 Foundation.
7 THE WITNESS: No.
8 MR. OLESON: Okay. I don't think we have
9 anything further at this time.
10 MR. GRYGIEL: Okay. I've got a few
11 questions.
12 THE WITNESS: Yes.
13 REDIRECT EXAMINATION
14 BY MR. GRYGIEL:
15 Q. If you would be so kind, Mr. Carreker, as
16 to turn to Exhibit No. 10.
17 A. Okay.
18 Q. And you see this is the checklist that
19 says, "Check Appropriate Statements"?
20 A. Yes.
21 Q. Did you ever see such a checklist that
22 dealt with medications as opposed to the injuries
23 that are referred to?
24 MR. OLESON: Object to form.
25 THE WITNESS: Repeat that question.

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1 strenuous activity," closed quote.

2 Do you see that sentence?
3 A. Yes.
4 Q. What, if anything, did any team trainer
5 tell you about the drugs that would be harmful to
6 you, for example, in strenuous activity?
8 Go ahead.
9 THE WITNESS: None.
10 Q. (By Mr. Grygiel) Did a team doctor ever
11 tell you what drugs specifically would be harmful to
12 you in strenuous activity?
13 MR. OLESON: Same --
14 THE WITNESS: No --
15 MR. OLESON: -- objection.
16 THE WITNESS: -- sir.
17 Q. (By Mr. Grygiel) Do you consider
18 participating in practice in the NFL to be a
19 strenuous activity?
20 A. Yes, sir.
21 Q. Do you continue -- Okay. Strike that.
22 Do you consider playing in national
23 football games to be a strenuous activity?
24 A. Yes, sir.
25 Q. Did any team member of any kind ever give

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1 you any information about drugs specifically by

2 nature, type of drug, painkiller, muscle relaxant
3 that would be harmful to you to in strenuous
4 activity?
5 MR. OLESON: Object --
6 THE WITNESS: No.
7 MR. OLESON: -- to the form.
9 Q. (By Mr. Grygiel) Okay. The next sentence
10 says, quote, "There are some drugs that cannot be
11 taken while under the influence of another drug,"
12 closed quote.
13 What, if anything, were you told by team
14 trainers about those drugs?
15 A. Taken --
17 Go ahead.
18 THE WITNESS: Going to object?
19 MR. OLESON: Go ahead.
20 THE WITNESS: Drugs that's taken together?
21 Q. (By Mr. Grygiel) Yeah.
22 A. Oh, they -- they administer drugs to take
23 together all the time.
24 Q. Did any trainer ever discuss with you what
25 drugs couldn't be taken while you were taking some

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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.
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?

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1 Q. (By Mr. Grygiel) What about with -- for

2 the Broncos?
3 A. No --
4 MR. OLESON: Same --
5 THE WITNESS: -- sir.
6 MR. OLESON: -- objection.
7 Q. (By Mr. Grygiel) What did you understand
8 that to mean -- Do not take any medications in the
9 training camp or during the regular season unless
10 they are given to you by the team physician or team
11 physician's agents?
12 A. That meant to me that anything I needed, I
13 come to the physician for the -- the team or the
14 agent -- I mean, the trainer, the head trainer.
15 Q. Looking at these forms, did you ever
16 review them with trainers, discuss their meaning?
19 Q. (By Mr. Grygiel) Did you ever discuss
20 this particular form, Exhibit 9, with any doctor for
21 the Broncos?
22 MR. OLESON: The same objection.
23 THE WITNESS: No, sir. I -- I don't -- I
24 don't believe I have.
25 Q. (By Mr. Grygiel) Ever discuss Exhibit 9

800-726-7007 305-376-8800
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The officer must note in the certificate prescribed
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EXHIBIT 16

Exhibits From NFL Painkiller Suit 7/31/17

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Case 3:16-cv-01030-WHA Document 256 Filed 07/31/17 Page 1 of 23

1 William N. Sinclair (SBN 222502)

15 [Additional counsel appear on signature page.]

16 UNITED STATES DISTRICT COURT

3 TABLE OF CONTENTS ................................................................................................................ ii

4 TABLE OF AUTHORITIES ......................................................................................................... iii

6 I. PLAINTIFFS CLAIMS ARE WITHIN THE INTENTIONAL HARM

12 C. Walkers Deposition Testimony Does not Trigger Workers

15 III. CARREKERS CLAIMS AGAINST THE BRONCOS AND PACKERS

24 E. Carrekers Intentional Misrepresentation Claims Against the

10 College Hospital Inc. v. Superior Court,

15 Fermino v. Fedco, Inc.,

20 Ihama v. Bayer Corp.,

24 547 So. 2d 90 (Ala. 1989) ......................................................................................................... 10

25 Malhotra v. Copa De Oro Realty, LLC,

1 Schwindt v. Hershey Foods Corp.,

6 West Bend Mut. Ins. Co. v. Berger,

9 21 U.S.C. 301-399 (2016) .......................................................................................................... 4

10 21 U.S.C. 811-814 (2012) .......................................................................................................... 4

11 Cal. Civil Code Sec. 3294 ............................................................................................................... 9

13 Fed. R. Civ. P. 56 (c)(2) ................................................................................................................ 18

15 Their lengthy tour of general principles of workers compensation notwithstanding, the

23 claims to go forward in court.

1 I. PLAINTIFFS CLAIMS ARE WITHIN THE INTENTIONAL HARM

3 Defendants recognize that workers compensation exclusivity is inapplicable where the

17 amounts of dangerous, federally controlled substances to Messrs. Walker and Carreker,

1 II. WALKERS CLAIM AGAINST THE CHARGERS REQUIRES TRIAL

20 Aggravation of an existing injury, through the intentionally harmful conduct of intentional

2 (Walkers Supplemental Answers to Defendant Member Clubs First Set of Interrogatories,

8 186 Cal. App. 3d at 1301.

14 C. Walkers Deposition Testimony Does not Trigger Workers Compensation

1 D. Walkers Intentional Misrepresentation Claim Differs from his Workers

12 suffered muscular-skeletal injuries exacerbated by the Clubs administration of Medications to

2 the intent it reflects is a jury question.

1 D. Carrekers Deposition Testimony Does Not Trigger Workers Compensation

11 standard on admissibility of evidence offered in opposing summary judgment).

20 question about the teams intent.

21 More importantly, Mr. Carrekers deposition testimony was not as unequivocal as

1 E. Carrekers Intentional Misrepresentation Claims Against the Packers and

23 /s/ William N. Sinclair

1 UNITED STATES DISTRICT COURT

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1 THE VIDEOGRAPHER: And we are on the

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1 sleep on a pillow to this day. I mean, it hurts that

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1 I -- I remember taking three or four of those things

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1 MR. GRYGIEL: Objection.

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1 THE WITNESS: The biggest thing that I

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1 That's -- That's one of the things that

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1 Q. Okay. With the multivitamins you took?

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1 taken the medication?

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