Shana De Caro discusses the latest developments in sports concussion litigation, including the 2017 class action against the NFL by retired players.
In this article I am going to discuss some of the latest developments and issues concerning something on everyone’s radar, concussions in amateur and professional sports. You cannot read any major news publications today without some mention of sports and head injuries. Concussions are on the minds of all of our jurors who are parents, athletic participants, or fans.
Brain Injury Statistics
Although my discussion today focuses on brain injury in the context of sports, it is important that we review the latest evidence regarding the silent epidemic of traumatic brain injury.
Earlier this year, the Centers for Disease Control released alarming new statistics on the occurrence of traumatic brain injuries (TBI) in the United States. Using 2013 data, the CDC reported approximately 2.8 million TBI-related emergency department (ED) visits, hospitalizations, and deaths in the United States.
Just under 2% of all hospital visits were related to traumatic brain injury. The highest rates of brain injury were reported in persons 75 years of age or older. The most common cause of TBI in all age groups was reported as falls followed by being struck by or against an object, and then motor vehicle crashes.
With this background in mind, let’s examine the legal landscape for sports related brain injuries in the past year.
The settlement of the class action lawsuit against the NFL by retired players has been finalized. Settlement funds have only been approved for 2 players, but the NFL still has appeal rights and no payments have been made. An elaborate mechanism has been set up for the administration of the settlement.
All Class Members must register and submit a claims package to the Claims Administrator by August 7th of this year to receive any Settlement benefits. Class Members include Retired NFL Football Players and authorized representatives of deceased or legally incapacitated or incompetent players.
The settlement between retired football players and the NFL provides limited compensation for any player who has developed, or may develop an enumerated qualifying neurocognitive conditions: 1- Moderate Dementia, as defined by the settlement terms, 2- Alzheimer’s Disease, 3-Death with documented Chronic Traumatic Encephalopathy (CTE) prior to July 7, 2014, 4-Parkinson’s Disease or 5- ALS. In players with these conditions, offsets will be applied that will reduce the final compensation. The categories of offsets include the number of eligible seasons played, age at onset, and prior documented brain injuries.
All other players are eligible to participate in The Baseline Assessment Program (BAP). The program allows every retired player to be seen by a board certified neuropsychologist or neurologist, approved by the league and plaintiff’s committee to receive a base line cognitive assessment. The medical evaluations available to retired players will include 1- a baseline level examination; 2-the identification of any symptoms of cognitive decline; and 3-a diagnosis of a qualifying condition if one exists. If there is no current diagnosis of a qualifying condition, the examiner will provide a report that may be used to establish a diagnosis in the future. The Baseline Assessment Program is the only mechanism for handling players’ claims. If a player decides to get evaluated, treated, or diagnosed by a physician outside of the Program approved doctor list, that player will be financially penalized by a reduction of 10% from any financial award.
Still undetermined are claims from at least 95 personal injury lawsuits against Riddell and related companies.
U.S. District Judge Brody, overseeing the class action settlement, ordered the parties to start litigating the claims against Riddell for failing to warn players of risks and defects with the designs of its helmets.
The question now is whether Judge Brody is going to allow those plaintiffs to file a new amended master complaint, and expand their claims to include conspiracy, fraud, and misrepresentation which significantly could open the door to punitive damages.
Riddell’s attorneys are expected to move to have all claims dismissed based upon the collective bargaining agreement between players and the league, arguing that mandatory arbitration pre-empts any claims by players in this case.
Attorneys representing several former players have already indicated that they are going to request their suits be returned to state courts, arguing that the federal court lacks jurisdiction over the Riddell claims.
Additionally, new lawsuits have been filed in state courts against Riddell involving claims of fraud, fraudulent concealment, and misrepresentation.
Efforts are continuing to attempt to make football safer, if that is indeed possible. The focus is on improving the design of the helmet.
A Seattle startup company, Vicis has introduced a new helmet, The Zero1, which has reportedly been purchased by 25 NFL teams in advance of the upcoming season.
No helmet can ultimately solve football’s concussion problem. Football is a concussion delivery system. Individuals will experience head collisions and impacts. Even if these helmets lessen the force of the blow, repeated impact over time (including sub-concussive blows) may imply consequences that we are still trying to understand. There is also a concern that as helmet technology improves, players will behave more recklessly as they will rely on the helmets for protection.
More available data doesn’t lead to conclusions about what amount of force is safe for players, because this is dependent on the unique anatomical configuration of a person’s head and neck.
One blow with a small amount of force may lead to a concussion in one individual, while another player may sustain repeated hits and experience no concussive symptoms.
One of the most effective ways to minimize risk is to create an atmosphere where players feel safe and comfortable reporting symptoms of a head injury. The most dangerous scenario is when a player returns to the field before fully recovered, as a second impact can be devastating.
Players continue to acknowledge that they either have or would hide concussions from the training staff.
Unfortunately, concussions are a part of football, no matter what changes in technology, rules, or improvements in the spotting and diagnosis.
Football is not the only professional sport confronting lawsuits by retired players for concussion related brain injury.
Class action certification is pending in suits by retired hockey players against the N H L before the U S District Court in Minnesota.
Hockey players, in claims similar to the case against the Football league, allege that the NHL failed to warn them about the risks of repeated head injuries, and failed to take proper steps to reduce the risk of brain damage, including rule changes to prevent fighting and other unsafe conduct on the ice.
What makes this case different than the NFL litigation is that discovery is actually proceeding. Many damaging documents against the league have already been discovered and leaked to the press. New issues in discovery that the district court must decide include release of records pertaining to drug policies and protocols, as well as records related to drugs and dose levels prescribed to individual players. Players’ attorneys argue that these records are relevant to how drugs, including anti-depressives and opioids were masking concussion symptoms and used to keep players on the ice even though they were injured.
The NHL has a take no prisoners attitude, arguing that the science of brain injury is not sufficiently established to prove a link between repetitive head trauma and increased risk for conditions such as dementia, ALS, and CTE.
In court filings, NHL commissioner, Gary Bettman asserted, “the science has not advanced to the point where causation determinations can be responsibly made.” The league unsuccessfully sought production of documents from the Boston University CTE Center to discredit current research on the link between repetitive head trauma and CTE.
The causation battle between players and the league has important implications for all sports concussion litigation.
College athletics is also a focus for brain injury litigation.
A class action settlement against the NCAA still awaits final court approval. The terms provide for rule changes and establishment of concussion safety protocols. All players will now receive a seasonal, baseline test, and all athletes who have sustained a concussion will now need to be cleared before returning to play. A medical professional, trained in the diagnosis of concussions, will be present at all contact-sport games. The proposed settlement also provides that any player who played a NCAA sport at a member school any time prior to July 15, 2016, is entitled to free medical screening and may receive free medical testing, “medical monitoring,” up to two times over the next 50 years. The settlement does not include any financial compensation for student-athletes.
The federal district court in Illinois has extended the deadline to request exclusion from, or object to the settlement till Aug. 4th. A new fairness hearing is scheduled for Sept. 22, 2017.
Separately, in newly filed cases, against individual colleges and universities, players are seeking to hold their own schools liable for improper concussion management.
In the scientific community, increased attention and research is being devoted to repetitive head trauma, known as sub-concussive blows.
What happens to the developing brain in young athletes as a result of the hundreds of head impacts during a single season of football that do not result in a clinical diagnosis of a concussion?
A study published in the Journal Radiology in December 2016, utilizing DTI technology, sought to answer this question.
The researchers found a significant relationship between multiple head impacts and white matter track pathology. The more impacts an athlete received, the more changes were found in the DTI studies. The findings add to a growing body of literature demonstrating that a single season of contact sports can result in brain changes, regardless of clinical findings or concussion diagnosis.
The debate about the long-term effects of repetitive head trauma and the development of CTE continues.
The April 27, 2017 on-line version of The British Journal of Sports Medicine is devoted to the 5th International Consensus Conference on Concussion in Sports. A disturbing article entitled, “A systematic review of potential long-term effects of sports-related concussions” purportedly reviewed almost 4,000 studies and found that only 47 met their inclusion criteria. The article was sponsored by sports organizations including FIFA and International Ice Hockey, and authored by professionals who engage in forensic consulting for the defense of sports related brain injury lawsuits.
The authors acknowledge the association between cognitive deficits and a history of multiple concussions and that retired football players may be at increased risk for mild cognitive impairment, but “The extent to which repetitive neurotrauma causes static or progressive changes in brain microstructure and physiology, and contributes to later life mental health and cognitive problems, is poorly understood and requires further study.”
My own cynicism colors my view of these conclusions. All published case studies were excluded from the review criteria, and the leading neuro-pathologists involved in CTE research were not invited to participate. Though Dr. Robert Cantu, an authority on sports concussions and sports related brain injury, was listed as one of the study authors after publication he said, “If you exclude animal studies and case studies, you can say cause-effect is not proven. But, the fact is that virtually every case has had repetitive brain trauma and that is the only constant with case histories. The fair thing to me is to say reporting of head trauma is associated with virtually every case of CTE.” He highlighted who the sponsoring organizations were and suggested that their association is not what cause people to agree with that statement over objections but, they all have a reason to be pleased if someone says there is no cause-effect.
The search for an accurate way of diagnosing a concussion continues.
Neuro-optic eye tracking has shown promise as a means of rapidly and accurately detecting brain abnormalities resulting from concussions and other head injuries. Researchers believe that because nerves in the eye are exquisitely sensitive to brain injury, they serve as an excellent early indicator of a concussion. Software is used to monitor eye movements while the patient watches a film clip.
Their eye movements correlate to specific neurologic functions to quantify physiologic changes within the brain. This software has recently received FDA approval.
Concussions are a part of sports and we are still learning the full impact they may have on our nation’s youth. While we may engage in a civilized debate about the merits of allowing children to play tackle football or head a soccer ball, without question, parents, and children should be aware of the risks of concussions and concussion symptoms.
To help parents talk to children about brain injuries, Dr. Robert Cantu, co-director of the C TE at the Boston University School of Medicine, authored a book entitled: Concussions and Our Kids.
He advises sitting down with your child early in pre-season or during the first week of practice when they are relaxed, to discuss the importance of their health so they understand it’s OK to seek professional help when something is not right. Parents need to discuss the common symptoms associated with concussions
And use age appropriate language. (Concepts such as being “foggy or confused” may be appropriate for high school athletes, but are meaningless to a five year old. For younger children, Cantu recommends using language such as “feeling differently” or just discussing headaches, dizziness or feeling like you want to throw up.)
When discussing cognitive problems, it can be couched in language about problems with school and home work.
Emphasize that if recognized and treated, symptoms usually clear up and the athlete may go back to his or her sport. You need to remind your child that severe consequences can occur when people try to play through their symptoms, do not report them, and don’t get the proper rest.
Finally Cantu recommends that all children receive base line testing before the start of the season so that when a concussion or suspected concussion occurs there is someway of evaluating the healing process.
For more information on concussions in sports, see our guide here.
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