The intersections between law and science continue to increase as more issues turn on when and how injury is defined and the light science can (or can not) shed on the questions. The point is illustrated by the latest ruling in the NHL concussion litigation (online here). There, the court rejected some reasoning from football cases, and denied a motion to dismiss. At 9-10, the court explained:
“The NHL originally filed two motions to dismiss, based on two distinct grounds. First, the NHL filed a Motion to Dismiss Master Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b), seeking dismissal of Plaintiffs’ claims as time-barred. (See Mem. Opinion and Order dated Mar. 25, 2015 [Doc. No. 126], at 8.). The Court denied that motion because it could not determine, from the face of the Master Complaint, when Plaintiffs’ causes of action accrued and, therefore, whether those claims are barred by the applicable statute of limitations. (See id. at 13, 33.) In particular, the Court explained that when the alleged injuries (e.g., “an increased risk of developing serious latent neurodegenerative disorders and diseases” and “latent or manifest neuro-degenerative disorders and diseases”) “occurred” or “resulted,” and when Plaintiffs discovered or should have discovered the link between the type of injuries they suffered and the increased risk of developing neurodegenerative disorders, are matters that are proper subjects of discovery. (Id. at 13–14.)4 Only after additional discovery is completed can it be determined within which of (at least) four potential categories each Plaintiff-retiree belongs: (1) retirees whose cause of action arose while they were active players, and who filed a lawsuit as retired players within the statute of limitations; (2) retirees whose cause of action arose while they were active players, and who filed a lawsuit as retired players outside of the statute of limitations; (3) retirees whose cause of action arose after they retired, and who filed a lawsuit within the statute of limitations; and (4) retirees whose cause of action arose after they retired, but who filed a lawsuit outside of the applicable statute of limitations.“