A pair of Boston University (BU) brain researchers is pushing back against demands by the National Hockey League (NHL) that they release data, brain pathology slides, and interview records of former NHL players and their families. The scientists accumulated the records during their research on chronic traumatic encephalopathy (CTE), a neurodegenerative disease that has been linked to repetitive head trauma.
In affidavits unsealed yesterday in a class action lawsuit brought against the league by former players, BU neuroscientists Robert Stern and Ann McKee argued that giving the league the records would compromise both their ongoing research and the privacy of the players and families involved. The affidavits were first reported on yesterday by Rick Westhead of the Canadian sports network TSN. The NHL first subpoenaed the documents in September 2015.
Stern and McKee, a neuropsychologist and a neuropathologist, respectively, at BU’s Chronic Traumatic Encephalopathy Center, have studied the brains of former professional athletes, including hockey players, and are currently using MRI imaging to study scores of living National Football League and college football players in a large study funded by the National Institutes of Health. They say that assurances that players’ privacy will be protected are essential for the success of that $16 million study.
In the current litigation, the NHL’s medical expert, Rudy Castellani, asked the BU scientists for copies of gross pathology photographs, all brain slides, and clinical data of former NHL players in order to “verify the accuracy of the reports, evaluate for other pathological processes that may be significant, and conduct a full, independent neuropathological analysis of the cases.” (The scientists interviewed the former NHL players in some cases, and, in others, their surviving family members.)
Stern’s affidavit argues in part:
The [NHL] subpoena’s astonishing scope and breadth of coverage will, if enforced, impose an incredible burden and disrupt the CTE Center’s operations. This request will harm ALL ongoing CTE-related research, both at BU and at institutions that collaborate with BU and/or rely on BU findings as part of follow-on work.
McKee writes in her affidavit:
I strenuously object to providing the NHL … information on any … research subject whose family has not consented to the intrusive disclosure sought by the NHL. … I urge the Court to consider the devastating impact that the open-ended legal discovery the NHL seeks will have on the future of my research.
Castellani, the NHL’s expert, has argued in journal articles that a causal connection between repeated mild head trauma, brain degeneration, and dementia has not been established.
The NHL is contending with at least two lawsuits by former players. The family of the late Chicago Blackhawks defenseman Steve Montador sued the league after Montador, 35, died of undisclosed causes in 2015, as The Associated Press reported. More than 100 players are being represented in the class-action lawsuit that was consolidated from several lawsuits in 2014, according to The Boston Globe.
Among other things, the players have argued that the NHL failed to adequately warn players of the danger of the sport and deliberately promoted a culture of violence for commercial gain.
The NHL has not responded to a request for comment.
*Update, 8 February, 9:25 p.m.: This story has been updated to clarify the discipline of Robert Stern.