Presentation on theme: "Concussion Litigation: The NFL and Beyond How We Got Here and What’s Ahead Paul D. Anderson, Esq. Summa Cum Laude, University of Missouri-Kansas City School."— Presentation transcript:
1Concussion Litigation: The NFL and Beyond How We Got Here and What’s Ahead Paul D. Anderson, Esq.Summa Cum Laude, University of Missouri-Kansas City School of Law
2Concussion Most common head injury in sports Mild trauma-induced alteration of mental statusMay or may not be associated with LOCFunctional injuryAcceleration-deceleration, shearing or impact forces
4Second-Impact Syndrome (SIS) Multiple concussive events before first concussion is resolved: After sustaining a concussion:“brain cells that are not irreversibly destroyed remain alive, but exist in a vulnerable state” - The Second Impact in Catastrophic Contact Sports Head TramaAre significantly vulnerable for recurrent, cumulative, and even catastrophic consequences of a second concussive injury - Validity of ImPACT for Measuring Attention & Precessing Speed Following Sports-Related ConcussionUntil recently, most athletes have been unaware of the long-term consequences of concussions and lacked an adequate understanding of concussion symptoms.
5Chronic Traumatic Encephalopathy (CTE) Also known as Punch-Drunk Syndrome, Dr. Harrison Stanford Martland stated in the October 13, 1928 issue of the Journal of the American Medical Association:“[S]ome time fight fans and promoters have recognized a peculiar condition occurring among prize fighters which, in ring parlance, they speak of as "punch drunk." Fighters in whom the early symptoms are well recognized are said by the fans to be "cuckoo," "goofy," "cutting paper dolls," or "slug nutty." Frequently it takes a fighter from one to two hours to recover from a severe blow to the head or jaw.”CTE is a type of neurodegenerative disease or dementia caused by repeated concussive or sub-concussive blows (hits just below the force required to cause concussion).
6Pathophysiology of CTE Repetitive trauma triggers degeneration of brain tissueAccumulation of protein, tauNeruofibillary/astrocytic tanglesSpindle shaped threadlike neuritesDifferent from Alzheimer’s DementiaSuperficial cortical layers of frontal & temporal lobes w/o beta amyloid
7Stages of CTE FOUR Stages of Deterioration Affective changes & psych problemsSocial issues & erratic behavior with memory lossEarly Parkinson’s like symptomsGross cognitive dysfunctionDementiaLate Parkinson’s like symptomsSpeech & gait abnormalities4. Full-blown encephalopathy
8Traumatic Encephalopathy Related to Sports Injury Chin, Toshkezi and Cantu Sports-related Chronic Traumatic Encephalopathy Tau-immunoreactive Neurofibrillary Tangles
9The ‘League of Denial’ Football Didn’t Cause Your Problems You can be safely returned to play after suffering a concussionTake some smelling salts – this will allow you to return to playThere is no causal effect between football and neurodegenerative diseasesThe evidence of CTE is so flawed, it is unlikely CTE existsDr. No – Ira Casson – HBO Real Sports Video:
10First NFL Concussion Lawsuit On July 19, 2011, seventy-five plaintiffs filed a mass action lawsuit in the Superior Court of California in Los Angeles for cognitive Injury from multiple concussions received during play in the NFL.
11Pandora’s Box Busted Wide Open First Federal Class Action filed August 19, 2011: Ray Easterling et al v. NFLLawsuits started to be filed throughout the United StatesTo date, 225+ concussion-related lawsuits v. NFLMore than 4,400 former players30+ wrongful death complaints
12MDL IS FORMEDOn January 31, 2012, the United States Judicial Panel on Multidistrict Litigation (MDL) issued a Transfer Order, finding that the various concussion suits filed, “involved common questions of fact, and that centralization under Section 1407 in the Eastern District of Pennsylvania [would] serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.”MDL Transfer Order (Docket No. 31), MDL No. 2323Currently close to 200 lawsuits are pending in PhiladelphiaMaster Complaint filed June 2012NFL filed Motion to Dismiss Aug. 30thPreemption issue has been fully briefedArguments took place on April 9th
13Master Complaint Defendants: NFL NFL Properties, Riddell Helmets, and subsidiariesClaims asserted:NegligenceNegligent MisrepresentationNegligent Hiring and RetentionFraudFraudulent ConcealmentWrongful Death and Survival ActionsCivil Conspiracy (member clubs, indp. contractors, etc.)Loss of ConsortiumMedical Monitoring
14Primary Claims Asserted Elements of Negligence:Duty – to protect health and safety of playersBreach – failing to implement concussion standardsCausation (but for and proximate cause)DamagesElements of Fraud:Misrepresentations madeKnew they were falseMade with the intent to defraudPlayers justifiably relied on said misrepresentationsPlayers were damaged
15The NFL Steals Big Tobacco’s Playbook: Manufacture Doubt
16American Football Coaches Assoc. 1937 “During the past 7 years the practice has been too prevalent of allowing players to continue playing after a concussion. Again this year is true. Sports demanding personal contact should be eliminated after an individual has suffered a concussion.”
17‘Doubt is Our Product’ The industry template of deception Big Tobacco, Asbestos, Big Pharma, etc.Internal Memo from Big Tobacco Executive“Doubt is our product it is the best means of competing with the ‘body of fact’ that exists in the minds of the general public.It also the means of establishing controversy.”Debating the science is much easier than debating the logicE.g. Hit Counts
18The MTBI Committee is Formed to Perpetuate Doubt – Backed by “Science” The NFL created the Mild Traumatic Brain Injury Committee in 1994, and appointed a rheumatologistPellman was Taglibue’s personal physicianIn 2004 this Committee published their findings that showed “no evidence of worsening injury of chronic cumulative effects” from multiple concussions.In fact, the Committee concluded that “many NFL players can be safely allowed to return to play” on the same day they sustain a concussion if a doctor clears them.
19Pellman, Casson, Waeckerle, et al From 1994 – published 14 studies that were fatally flawed. The summary was published in 2006:It can be concluded that mild TBIs in professional football are not serious injuriesNo NFL player experienced second-impact syndrome, chronic cumulative injury or chronic traumatic encephalopathy from repeated injuriesNo signs of CTE in active, contemporary football players.Our studies support that arbitrary return to-play guidelines may be too conservative for professional footballThe results of our studies indicate that many NFL players can be safely allowed to return to play on the day of the injury after sustaining a mild TBI.Far-reaching negative implications
20Congressional Beat down 2007 Hearing on NFL Retirement SystemBrent Boyd – “This is fraud, corruption, collusion. It’s rampant in the NFL.The late Dave Duerson (is fed lies from the NFL and NFLPA) denies the link between football and chronic brain damage – my dad had Alzheimer's and he never played footballGayle Sayers – “The NFL is a $7-plus billion industry, yet it struggles to do right by the retired players whose sacrifices built this game. I believe this failure is at the core of a general crisis in the game.”2009 Concussion in SportsGoodell scolded -Greg Aiello – “It’s quite obvious from the medical research that’s been done that concussion can lead to long-term problems.”
21NFL’s Complete About Face 2009 memo to all teams re: concussions and RTPPoster telling players about concussions2011 Indp. Trainer to watch for concussionsIndp. Neurologist to clear players.2011 Kick off moved backMillions of $$$ donated
23NFL’s Complete About Face NFLEvolution.comNFL Donates $30 millionIndependent Neurologist on SidelinesConcussion Assessment ToolsMadden RuleX2 Impact: Concussion SoftwareIpad
24Oral Arguments Took place April 9 at 10:00am Paul Clement (NFL) v. David Frederick (Players)
25Two Years of Litigation No DiscoveryNFL tries to slam courtroom door shut – Motion to DismissApril 9, 2013 – Oral Arguments on NFL’s Motion to DismissJuly 8, 2013 – Judge Brody Orders parties to mediationAugust 29, 2013 – Proposed Settlement AnnouncedNow, WE wait.
26Settlement Denied Judge Brody notes her concerns Not enough money to pay all claimants for 65+ yearsOrders the production of dataConcerned about NCAA ReleaseReport from Special Master forthcomingWe, continue to, wait.
28Qualifying Neurological Injury ($675 million) Diagnosed with any of the following diseases:Alzheimer's - $3 millionDementia - $3 millionParkinson’s - $3 millionALS - $5 millionPost-mortem CTE - $4 millionSevere Cognitive Impairment – to be determinedSliding-scale determinations based on several factors:Age; number of years you played in the leagueIf the player died prior to 2006, his family will be excludedIf the funds are deemed insufficient, a one-time payment of $37.5 million will be paid.
29NCAA Concussion Litigation September 2011 – FirstClass Action filed v. NCAASeeks to represent all former student athletes65 + college athletes & 13 lawsuits pendingMDL is formed in ChicagoMediation talks ongoing
30MLS CONCUSSION LITIGATION Bryan Namoff v. DC UnitedEddie Johnson files suit v. Portland TimbersBU announces CTE found in soccer & rugby player
31NHL Concussion Litigation Boogaard wrongful death suitNHL Class Action filed Nov (Gary Leeman, Scott Parker & 11 others)FightingIs it an essential part of the game?Enforcers (e.g. Boogaard, Rick Rypien, Wade Belak) all showed signs of CTE
32Major League BaseballMLB Implements Rule 7.13 – Eliminating egregious collisions at home plateRyan Freel (36) – suicide; history of multiple concussionsCTE foundNew helmets in place this year, per CBARawlings S100 Pro CompLining inside hats to prevent skull fracturesBrandon McCarthy