Concussion Settlement Is Deeply Flawed

Michael V. Kaplen and Shana De Caro
The National Law Journal

July 21, 2014

TONY DORSETT: The former running back for the Dallas Cowboys said that the preliminary settlement announced between the NFL and former players for concussion injuries is inadequate. AP / NFL Photos

An analysis of the proposed National Football League settlement affecting about 20,000 retired players that U.S. District Judge Anita Brody preliminarily approved on July 7 exposes significant flaws. Many classes of players are not adequately represented, and most NFL players are all but ignored by the attorneys who negotiated the agreement. Certain, small and discrete groups are designated for compensation, but players experiencing physical, emotional and behavioral impairments remain excluded.

No specific amount was identified in the deal, but Brody previously rejected a $675 million settlement between the parties as insufficient. This latest proposal purports to generously provide financial stability for players with traumatic brain injury, but a closer look reveals a systematic design to exclude most players from participation and to reduce payments to the small group who meet arbitrary criteria. It imposes unfair and illogical restrictions on the categories of compensable injuries and requires NFL participation for excessively long periods.

The settlement excludes many known conditions and creates arbitrary distinctions based upon years of service and age of the player at the time of onset. In addition, the class representative attorneys have an inherent conflict in simultaneously representing players in different categories with differing injuries, unfairly favoring some of them with no rational basis.

A glaring, wide-ranging inadequacy is the complete omission of any player who has suffered physical, emotional and behavioral consequences across the entire spectrum of mild, moderate or severe brain injury. This proposal is limited to players who have demonstrable cognitive injuries from moderate or severe traumatic brain injury and excludes those suffering emotional and behavioral difficulties but not cognitively impaired.

The subgroup with behavioral and emotional symptoms of chronic traumatic encephalopathy (CTE) is also excluded from compensation. The families of former players with postmortem evidence of CTE who died from suicide, such as Junior Seau and Dave Duerson, would receive no benefits under this settlement if they died after preliminary approval was granted.

Inexplicably omitted are traumatic epilepsy, seizure disorders, hormonal deficiencies and stroke, though well known to be caused by isolated or repeated head trauma.

Many retired players receive Medicaid and Medicare benefits or may be entitled because of football-related brain trauma. Settlement funds must be expended to satisfy these statutory liens for past traumatic brain injury benefits and additional funds segregated to satisfy Medicare’s future interests (Medicare set-aside). Considering these limitations, the gross sum recovered may provide little or no financial benefit. Player compensation determined by years of play and age at time of symptom onset ignores the reality that the permanent consequences of brain injury can be sustained at any time in a professional career, from preseason forward. This settlement ignores players whose careers are terminated by preseason traumatic brain injury.

The baseline assessment program purportedly evaluates and provides benefits to players who meet its criteria. Neuropsychological testing, in isolation, disregards the physical, emotional and behavioral injuries historically recognized in postconcussive syndrome. Mood changes, depression, impulsivity and aggressive disorder are excluded. Persistent and debilitating headaches, dizziness and sleep disorders are excluded.

The baseline assessment program deliberately disregards prior neuropsychological testing and overlooks pre- and post injury observations of family members, friends and associates all embodied within a meaningful diagnosis. The baseline assessment program embraces inappropriate measures of exaggeration, malingering and effort to deny valid claims. These “tests” purportedly distinguish the malingerer from one with legitimate brain damage, implicitly assuming that a test can establish this distinction.

This supposition disregards and dismisses fundamental, recognized characteristics of traumatic brain injury. The conclusion of malingering presupposes that a brain-injured person cannot fail the exam. Performance below recommended cutoffs is not the essential condition of “malingering.”

For those few who meet the baseline assessment program criteria and are deemed to have sustained a qualifying neurocognitive impairment, benefits are limited to medical treatment and examination, counseling and pharmaceuticals. These ostensible benefits fail to provide most players with many required and valuable services. These players require home and community- based services to help them live as independently as feasible.

Spouses of qualifying retired players are improperly and unfairly treated. The settlement deducts a percentage from the player’s award and redistributes it to the spouse. No compensation is provided for spouses who abandon their own careers to care for their husbands.

The underpinnings of this lawsuit were the deliberate, long-standing NFL misrepresentations concerning the known health risks associated with concussions. This proposal changes nothing. The court has an obligation to protect all class members. Any settlement that fails to should be rejected as fundamentally unfair and contrary to the best interests of the majority of class members.

Michael V. Kaplen and Shana De Caro are partners at De Caro & Kaplen in Pleasantville, N.Y.
Kaplen teaches a course in traumatic brain injury at George Washington University Law School. De Caro is chairwoman-elect of the traumatic brain injury litigation group of the American Association for Justice.

Copyright 2014. ALM Media Properties, LLC. All rights reserved.

Written by
Michael Kaplen

Board Certified* Civil Trials, National Board of Trial Advocacy. Board Certified* Medical Malpractice, American Board of Professional Liability Attorneys.

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Written by Michael Kaplen
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