1. A Whack to the Side of the Head: Concussion Litigation
Linda Sharp
Jodi Baker
Peg Ciccolella

2. Main Aspects of the Presentation
The Science Regarding Concussions
What do we know now?
When did we know the extent of the dangers?
The Lawsuits Against the NFL
The major allegations
The likelihood of success
The Lawsuits Against the NCAA

3. Brief Anatomy of the Brain
The brain is part of the central nervous system and is contained within the bony cavity of the cranium; it is divided into four lobes:

4. Definition of Concussion
Shaking of the brain within the skull
Contusion of the brain
1.7 million people annually

5. Signs and Symptoms Headache Ringing in the ears Nausea Irritability
Confusion
Disorientation
Dizziness
Others based on location of trauma
Loss of consciousness
Usually indicates a more severe concussion
Difficulty concentrating
Blurred vision
Sensitivity to light
Sleep disturbance
Post-traumatic amnesia

6. Long Term Effects Post-Concussion Syndrome Second Impact Syndrome
Chronic Traumatic Encephalopathy (CTE)

7. Quote Regarding Concussions
“During the past 7 years the practice has been too prevalent of allowing players to continue playing after a concussion. Again, this year this is true. Sports demanding personal contact should be eliminated after an individual has suffered a concussion.”
17th Annual Meeting of American Football Coaches Association (1937)

8. Evolution of Knowledge of Concussions
Head injuries in the Civil War
Early 1900s
Medical research on concussions
Research on concussions related to war but not sport
1930s
Coaches and concern regarding concussions
1940s
Medical research continues
1945 – Quigley – Three concussions and you’re out
1950 – 1970s
Continue to see medical research regarding head injuries
Limited research regarding concussion in sport
More focus on sport towards the end of this timeframe
1980s
Significant increase in discussion of concussions in sport
Prevalence of head injury in sport increases
Return to play guidelines and severity are analyzed in the research
1990s
NFL and NCAA begin to address head injury in sport
Medical research continues and becomes more specific to sport
2000s
Concussion research becomes much more substantial
NCAA and NFL studies are completed on concussions
2010 – 2012
Changes are implemented in management of concussions
Research continues at a very high level

9. Former Players v. NFL
Beginning in July, 2011, 21 player lawsuits have been filed in six states.
Plaintiffs are 300-plus former NFL players/spouses/family.
Plaintiffs suffer from a variety of degenerative brain diseases and other neurological disorders.
In January 2012, the U.S. Judicial Panel on Multidistrict Litigation heard arguments on whether to consolidate the lawsuits.
If consolidated, the case will likely be heard by U.S. District Judge Anita Brody in Philadelphia (1st suits filed there).

10. Allegations in the NFL Lawsuits
Negligence by NFL in failing to act reasonably and exercise the duty to enact league-wide guidelines and rules regulating post-concussion medical treatment and return- to-play standards
Wilful and Wanton Misconduct by NFL in deliberately disregarding the safety of players despite evidence of substantial risk
Fraudulent Concealment by NFL of the long-term effects of concussions
Strict Liability and Failure to Warn by Riddell, helmet manufacturer

11. Fraudulent Concealment
In 1994, the NFL created the “Mild Traumatic Brain Injury Committee” to “study” effects of concussions on NFL players.
MTBI Committee was chaired by Dr. Elliott Pellman, a rheumatologist.
After 14 years of study, Committee concluded that “because a significant percentage of players returned to play in the same game…it can be concluded that mild TBI’s are not serious injuries.”
In response to studies showing links between concussions and cognitive decline, Committee attacked the research.

12. Fraudulent Concealment, cont’d.
Committee discounted research and misrepresented the science as “isolated incidents” and “no magic number for how many concussions is too many.”
As of June 2010, Committee had not amended its statement that “Current research with professional athletes has not shown that having more than one or two concussions leads to permanent problems. …It is important to understand that there is no magic number for how many concussions is too many.”

13. Is the NFL the New “Big Tobacco”?
At the October 2009 Congressional hearings of the House Judiciary Committee, Linda Sanchez (D-CA) analogized the NFL’s denial of a causal link between NFL concussions and cognitive decline to the Tobacco Industry’s denial of the link between cigarette consumption and ill health effects.
The MTBI Committee “seems eerily similar to the Tobacco Industry Research Committee of yesteryear.” (McGlamry, plaintiffs’ counsel)

14. Defenses
Exclusivity of CBA—Defense argues that CBA covers disability and W/C issues.
Plaintiffs argue that NFL misled NFLPA; NFL is not the direct employer of players.
Lack of Causation—Defense argues that thousands of collisions occurred before NFL
Plaintiffs argue trend data show neurological problems at higher rates for NFL players.
Assumption of Risk—Defense argues that NFL players assumed the risk of head injuries
Plaintiffs argue that many of the dangers were concealed by the NFL

15. Defenses, cont’d.
Lack of reasonable reliance (fraudulent concealment)—Defense argues that NFL players and the NFLPA were or could have been aware of the medical literature that existed, so there was no reliance on information provided by NFL.
Plaintiffs argue that the NFL had its own Committee doing research and promulgating information on risks related to concussions, and players had every right to rely on this information, which should have been provided in their best interests.
The culture nurtures an environment in which players rely on the NFL and teams to act in the players’ interests—the benevolent despot.
Players need to stay on the playing field to continue their employment.

16. Plaintiffs v. NCAA Consolidated Suit
Proposed Joint Status Report: January 2012
Class certification?
Plaintiffs’ Claims:
Negligence
Fraudulent Concealment
Unjust Enrichment
Medical Monitoring

17. Negligence: Duty? Scope?
To regulate, educate, disclose, monitor, and warn,
to minimize medical risks of concussions.
Assumption of Duty:
NCAA Regulations: 1970s to present
NCAA Sports Medicine Handbook
NCAA Funded Studies: Early 2000s
Linked concussions to long term risks.
Recommended return-to-play policy.
Concussion Management Plan (CMP): 2010
Duty of NCAA: To protect student-athletes. To warn, disclose, educate, and legislate re long-term medical risks.
Breach: numerous failures.
Studies: NCAA funded studies in order to protect athletes.

18. Negligence: Duty? Scope?, cont’d.
NCAA Denies Duty:
Each member institution is responsible for protecting the health of its student-athletes.
NCAA Admits:
Funding studies; tracking incidence; knowledge of medical risks but not practices by schools.
NCAA Affirmative Defense: Assumption of risk
Implied: voluntary participation
Express: signed forms re risks of concussions
Q: What did the NCAA know ? When did it know it?

19. Fraudulent Concealment
Plaintiffs:
NCAA had explicit knowledge of risks and actively concealed. Induced false belief in student-athletes that they should continue to play.
Prior to CMP in 2010, athletes were unaware of risks due to NCAA misconduct.
NCAA:
Denies.
“Justifiable” reliance?

20. Unjust Enrichment and Medical Monitoring
Plaintiffs: NCAA profits from student-athletes and then neglects them.
NCAA: 96% of revenue returned to members.
Medical Monitoring:
Plaintiffs: Class includes past, present, and future.
NCAA: Challenges class.
Q: Outcome of case?

21. CONCLUSION QUESTIONS