Baker et al v. BRG Sports, Inc. et al

Filing 101

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 10/5/2018: The plaintiffs' short-form complaints are dismissed for the reasons described in the accompanying Memorandum Opinion and Order. Plaintiffs are given four we eks, until November 2, 2018, to file amended short-form complaints and, if they wish, an amended master complaint. Defendants are given a little over three weeks after that (given the Thanksgiving holiday), until November 28, 2018, to file a single motion to dismiss. Their supporting memorandum may not exceed thirty pages, exclusive of the table of contents. Plaintiffs are given two weeks, until December 12, 2018, to file a response, which likewise may not exceed thirty pages. Defendants ar e given one week, until December 19, 2018, to file a reply, which may not exceed fifteen pages. In addition, the parties are directed to confer and attempt to agree upon a schedule for discovery and are to file a status report in this regard by no l ater than October 19, 2018. Any proposed deadlines should be expressed as intervals after the date of the Court's ruling on the anticipated motion to dismiss. The case is set for a status hearing, to be conducted by telephone, on 12/10/2018 at 8:30 AM. Counsel are to set up a call-in number and are to provide it to the Court and all counsel in advance of the status hearing. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARK ADAMS, et al.,

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Plaintiffs,
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vs.
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BRG SPORTS, INC., et al.,
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Defendants.
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FREDDIE ADAMS, et al.,
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Plaintiffs,
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vs.
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BRG SPORTS, INC., et al.,
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Defendants.
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QUINCY BAKER, et al.,
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Plaintiffs,
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vs.
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BRG SPORTS, INC., et al.,
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Defendants.
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Case No. 17 C 8544

Case No. 17 C 8972

Case No. 18 C 129

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
The plaintiffs in these cases, all of whom played high school football, have sued
BRG Sports, Inc. and Riddell, Inc., which design, manufacture, and sell football helmets,
alleging that defective designs, inadequate warnings, and negligence caused them

injuries. The cases were originally filed in the Northern District of California in February
2017 and were later transferred here. The complaints have gone through several
iterations. They were initially filed on behalf of a group (actually three groups, as there
are three suits for reasons of which the Court is unaware). While the cases were still in
the Northern District of California, plaintiffs said they would file them as individual cases
following transfer. After the cases were transferred here, this Court adopted a different
approach in order to attempt to avoid unnecessary effort and expense. Specifically, the
Court took the approach sometimes used in mass-tort multidistrict litigation—of which
these cases are in effect a mini version—and suggested that plaintiffs file a "master
complaint" containing common allegations plus individual "short-form complaints"
adopting the master complaint or at least its applicable parts and including allegations
specific to each individual plaintiff. Plaintiffs adopted that approach, and defendants
have moved to dismiss.
As indicated, the Court told plaintiffs to include common allegations in the master
complaint and individual allegations in the short-form complaints. In retrospect, the
Court should have been somewhat more specific about what topics should be in each.
The way plaintiffs did it, the individual short-form complaints include the following:
identification of the parts of the master complaint the plaintiff is adopting; the state of
residence of the plaintiff; identification of when and where the plaintiff played football;
allegations about the nature of the injuries the plaintiff suffered playing football and
symptoms the plaintiff has experienced from those injuries; a statement that the plaintiff
wore a helmet designed or manufactured by defendants; and a listing of the causes of
action set forth in the master complaint that the plaintiff is adopting. Somewhat

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conspicuously missing are allegations relating to causation, a point to which the Court
will return later in this opinion.
Defendants' motion to dismiss invokes Federal Rules of Civil Procedure 8(a) and
12(b)(6). A plaintiff's complaint must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The complaint
must include enough facts to state a claim for relief that is plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible on its face "when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Id. But "[u]nder Rule 8, a
plaintiff only needs to give enough details about the subject-matter of the case to
present a story that holds together." United States ex rel. Presser v. Acacia Mental
Health Clinic, LLC, 836 F.3d 770, 776 (7th Cir. 2016) (internal quotation marks omitted).
Finally, in considering a motion to dismiss for failure to state a claim, the Court
construes the complaint in the light most favorable to the plaintiff, accepts the plaintiff's
factual allegations as true, and draws reasonable inferences in favor of the plaintiff.
See, e.g., Ancich v. Home Depot U.S.A., Inc., 852 F.3d 643, 648 (7th Cir. 2017).
A.

Defendants' arguments that lack merit
A number of the defendants' arguments lack merit. The Court lists them (there

are others, but this is a reasonably comprehensive list):
1.

Defendants say that plaintiffs don't describe whether they have undergone

medical treatment or that they have received a specific diagnosis. See Defs.' Mem. at
11-14 (and elsewhere). As a result, defendants contend, they cannot tell whether
plaintiffs are suing for past, present, or future injuries. The Court disagrees; the

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individual complaints adequately describe the injuries and symptoms that each plaintiff
claims. (The fact that these are stated in the same or similar ways by different plaintiffs
is not in the least bit problematic; one would expect that different people who
experienced strikes to the head from which they were not adequately protected would
suffer the same or similar types of injuries.) Defendants cite no case requiring a
medical diagnosis or specific treatment to be alleged in a complaint in order for a case
to proceed. That is an issue of the sufficiency or weight of the evidence, not the
adequacy of the plaintiff's complaint. The same is true of defendants' criticism that
plaintiffs have described only "subjective complaints." Id. at 12.
2.

Defendants object that although the master complaint alleges negligent

marketing, none of the plaintiffs identify any particular marketing to which they were
exposed. Id. at 15-16. The negligence claim, however, is not confined to marketing;
plaintiffs allege that "[d]efendants were negligent in the design, testing, marketing, and
engineering of the helmets [worn] by plaintiffs." Case No. 17 C 8972, dkt. no. 90 ¶ 172
(emphasis added). This along with the other detailed allegations of what plaintiffs
contend was negligent about each of these activities—design, testing, marketing, and
engineering—is more than sufficient to meet plaintiffs' obligations under Rule 8(a). The
specific marketing to which particular plaintiffs were exposed is a matter of evidence
appropriately explored during discovery; the complaint need not include this level of
detail in a case like this one.
3.

Defendants argue that the complaints are deficient because, for the most

part, they do not identify the particular helmet model that the particular plaintiff used. Id.
at 17. This is not fatal or even close to it. As an initial matter, one would not expect a

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high school football player to recall the particular model of helmet that he used. That
aside, the particular model is not the type of detail that is required for a complaint to
satisfy Rule 8(a). It is sufficient to allege that the plaintiff used a helmet manufactured
by the defendant; the rest is appropriately addressed during discovery.
Defendants point out that two of the plaintiffs, Lesley Williams and Ryan Carver,
do identify a particular supposed helmet model, the "Riddell Air," which defendants say
does not exist. (Evidently another manufacturer, Schutt, makes an "Air" model, but
Riddell doesn't.) Id. at 17-18. It may be that these plaintiffs' allegations about the
model name are wrong and that they actually used a Riddell helmet at some relevant
point, or it may be that the allegations about the model name are right and that these
plaintiffs thus have no viable claim against Riddell. But the Court cannot appropriately
adjudicate this factual question on a motion to dismiss for failure to state a claim. That
said, plaintiffs are advised that these complaints, like all complaints, must comply with
Federal Rule of Civil Procedure 11, and if plaintiffs' counsel have filed claims for
particular plaintiffs without an appropriate basis to allege that they actually used a
Riddell helmet, counsel face the possibility of sanctions, not to mention eventual
dismissal of these plaintiffs' claims.
4.

Defendants say that some of the short-form complaints appear to

incorporate allegations from the master complaint that don't appropriately apply to the
particular plaintiff. Id. at 19-23. One example involves plaintiff Bryce Gardner, who
played football only after 2012 but incorporates allegations involving a marketing
campaign that ran from 2006-11, which defendants say "has no relevance" to Gardner's
claims. Id. at 20. With regard to this example, the Court cannot definitively conclude at

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this stage of the case that the way defendants marketed helmets at an earlier point in
time has no bearing at all on the claims of a plaintiff who used a helmet at a later time.
But that aside, the proposition that a particular complaint includes surplusage is not a
basis to dismiss the complaint; at most, it serves as a basis to strike the surplusage. In
sum, the Court does not agree with defendants' contention that the claimed overincorporation "cloud[s] and obfuscat[es] the true nature" of the plaintiffs' claims. Id.
B.

Defendants' arguments with potential merit
Some of the points the defendants make have merit, but they involve matters that

can at least potentially be cured by repleading.
1.

The primary meritorious point that defendants make concerns causation.

In the current format, plaintiffs have included causation allegations only in the master
complaints and have left them out of the individual short-form complaints. Defendants
correctly protest that these allegations are worded in a way that obfuscates whether
each and every plaintiff is alleging that his injury is caused by the defendants'
negligence, defective design, and/or inadequate warnings.
There are, as defendants correctly point out, two aspects to causation. The first
is general causation, that is, whether the product or exposure has the capacity to cause
the injury the plaintiff alleges. The second is specific causation, that is, whether the
product or exposure in fact caused the plaintiff's injury. Both must be alleged. See,
e.g., Wells v. Smithkline Beecham Corp., 601 F.3d 375, 376-77 (5th Cir. 2010) (Texas
law).
General causation, in the Court's view, can appropriately be included in the
master complaint in the present case. That is what plaintiffs have done, and their

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allegations on this point in the master complaint are sufficient.
Specific causation is a different matter. That must be determined and, in the
Court's view, alleged on a plaintiff-by-plaintiff basis. But plaintiffs have not done that.
Rather, they have tried to allege specific causation on a group basis and only in the
master complaint. And these allegations are worded in a way that leads one to believe
that plaintiffs may be trying to bury individual causation problems by taking a "safety in
numbers" approach. For example, on the failure to warn claim, plaintiffs say this about
causation:
[H]ad Riddell actually provided full, understandable, and effective
warnings to Plaintiffs regarding the risks of long-term brain injuries while
wearing supposedly protective head gear (Riddell helmets), certain
Plaintiffs would have avoided certain head contact they thought was safe,
certain Plaintiffs would not have chosen to continue playing football, and
certain Plaintiffs may have chosen to wear a safer and better designed
helmet.
Case No. 17 C 8972, dkt. no. 90 ¶ 24 (emphasis added). Nothing in either the master
complaint or the individual complaints identifies which plaintiffs fit into which of these
categories; indeed, the individual complaints are silent on this point.
There are also problems with plaintiffs' other specific causation allegations. As
defendants point out, see Defs.' Mem. at 24, plaintiffs do not allege that they would not
have suffered their injuries had the helmets been designed differently or used different
materials. This is critical to the issue of causation on their design defect claim, count 2
in the master complaint. 1 Their formulaic allegation in that count that the defective

Defendants argue that they provided warnings adequate to advise plaintiffs of the
possibility of injury, and they cite other allegations by plaintiffs to the effect that no
helmet can prevent all injuries and that playing football can lead to concussions. The
first of these contentions cannot properly be adjudicated on a motion to dismiss for
failure to state a claim. The second may ultimately undermine plaintiffs' cases, but at
1

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design was "a proximate and producing cause of the long-term brain injuries suffered by
Plaintiffs and other damages" is not enough by itself. Case No. 17 C 8972, dkt. no. 90 ¶
182. Likewise, the short-form complaints say nothing about whether or how defendants'
negligence (count 1) caused plaintiffs' injuries.
2.

The bottom line is that the individual short-form complaints are deficient in

their current form because they do not include any causation allegations, let alone
adequate causation allegations. This is a potentially curable defect, so the Court
overrules defendants' argument that the Court should dismiss all of the plaintiffs'' claims
with prejudice. But the short-form complaints will have to be amended to include
allegations regarding causation that are sufficient to pass muster under Rules 8(a) and
12(b)(6).
3.

Other criticisms that defendants make regarding the causation allegations

lack merit. Defendants describe, by way of example, a number of the specific incidents
alleged by plaintiffs in which they suffered concussions or other head injuries while
playing football, and they say that plaintiffs don't describe what they could have done
differently to avoid this. See Defs.' Mem. at 27. This misses the point; plaintiffs'
contention is that a better designed helmet would have prevented or lessened the
severity of their injuries from these incidents and that adequate warnings would have
led them to avoid playing football altogether, use a better helmet, or play the game
differently. Defendants' contention that the circumstances of certain injuries undermines

this point the Court is required to read the complaint in the light most favorable to
plaintiffs, and the existence of arguably contradictory allegations in the complaint does
not defeat their claims as a matter of law. (The Court does not adjudicate at this point
whether a warning about the possibility of concussions is sufficient to adequately warn
helmet users regarding the injuries and consequences the plaintiffs say they suffered.)
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these particular plaintiffs' claims lacks merit.
Defendants also argue that science has not demonstrated a cause-and-effect
relationship between concussions, other football-related head trauma, and permanent
brain injury. See id. at 29-30. But a plaintiff is not required to prove his case in his
complaint, and a Rule 12(b)(6) motion is quite obviously not a proper vehicle to assess
the scientific literature or the evidentiary support for plaintiffs' theory of causation.
4.

Defendants also argue that plaintiffs' complaints overlook state-specific

legal requirements. The Court agrees with defendants, at least for purposes of the
motion to dismiss, that the law of the state where a plaintiff's alleged injury occurred
governs because that is the most significant contact in a case of this type and no other
state has a greater relationship with the claims. See Townsend v. Sears, Roebuck &
Co., 227 Ill. 2d 147, 164, 879 N.E.2d 893, 903 (2007).
Two of the plaintiffs played football in Louisiana. It appears that a statute in that
state establishes the exclusive theories of liability in a products liability case, including
defective construction or composition, defective design, inadequate warning, or failure
to conform to the manufacturer's express warranty. See La. Rev. Stat. § 9:2800.52-58.
Defendants appear to contend that because the two plaintiffs who played football in
Louisiana do not cite the Louisiana statute in their short-form complaints, their claims
are defective. See Defs.' Mem. at 39-40. If that is what defendant are contending, they
are taking an unduly formulaic approach to pleading in the Court's view. At the
appropriate time, these plaintiffs' claims will be evaluated under the appropriate state's
law; their failure to cite the Louisiana statute in their complaints is not fatal. (The Court
also notes that plaintiffs' claims include allegations of defective design, inadequate

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warning, and, potentially, defective composition, all of which appear to be permitted
under the Louisiana statute.) That said, any plaintiff whose claims arise under
Louisiana law would be well-advised to take the statute into account in filing an
amended short-form complaint.
Many of the plaintiffs played football in Texas and Iowa which, according to
defendants, impose a "feasible alternative design" requirement for a claim based on
design defect. See id. at 41-44. Plaintiffs address this question in the master
complaint, but defendants point out that some of plaintiffs' allegations about this are
relatively vague, see id. at 43 (first paragraph), and some of their more specific
allegations may not apply to each and every individual given when plaintiffs allege that
certain new materials were available. See id. at 43-44. Without addressing at this time
whether these claimed defects are material, plaintiffs would be well-advised to get more
specific about this in their amended short-form complaints or any further amendments to
the master complaint.
C.

What happens next
The Court is, via this order, dismissing the short-form complaints for the reasons

described above, with leave to amend. At this point, at the Court explained to the
parties in open court earlier today, the pace is going to pick up considerably. The Court
appreciates that plaintiffs will have a chore ahead of them in communicating with ninetysome plaintiffs to prepare amended short-form complaints. But the Court is entitled to
assume in setting the schedule for this that counsel—who filed the first of these cases
over eighteen months ago—have already considered and addressed with their clients
the critical issue of causation. Thus it should not reasonably take plaintiffs and counsel

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all that long to determine whether they can amend to include the appropriate and
necessary allegations consistent with their obligations under Rule 11. The same is true
on the defense side; the Court has now ruled on the overwhelming majority of the
arguments offered for dismissal, and at this point we are down to a few well-defined
brass tacks.
Conclusion
The plaintiffs' short-form complaints are dismissed for the reasons described
above. Plaintiffs are given four weeks, until November 2, 2018, to file amended shortform complaints and, if they wish, an amended master complaint. Defendants are given
a little over three weeks after that (given the Thanksgiving holiday), until November 28,
2018, to file a single motion to dismiss. Their supporting memorandum may not exceed
thirty pages, exclusive of the table of contents. 2 Plaintiffs are given two weeks, until
December 12, 2018, to file a response, which likewise may not exceed thirty pages.
Defendants are given one week, until December 19, 2018, to file a reply, which may not
exceed fifteen pages.
Date: October 5, 2018
________________________________
MATTHEW F. KENNELLY
United States District Judge

The Court encourages defendants to deal with issues common to different plaintiffs
together, rather than with each plaintiff separately.

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