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New York Daily News: Attorney accused of seeking double payment

Michael Kaplen was quoted in this article by The New York Daily News entitled Attorney accused of seeking double payment for representing Kevin Turner in NFL concussion lawsuit.

New York attorney Michael Kaplen says Brody will likely rule on the matter quickly since the distribution of payments is set to begin in January. It’s possible this outstanding legal matter could delay Turner’s estate receiving his payment package.

“Marks was on the committee (negotiating the settlement) and he’s entitled to part of the $112.5 million,” said Kaplen, the past president of the Brain Injury Association of New York State. “Now he’s trying to take money from two pots. It’s a great Christmas gift to him. Brody will give the motion a good, hard look. She may put (the attorneys’) feet to the fire and ask them to prove what it is they did to deserve these outrageous sums of money.”

New York Daily News: Supreme Court ruling paves way for NFL retirees to receive concussion benefits

Michael Kaplen was mentioned in this article by The New York Daily News entitled Supreme Court ruling paves way for NFL retirees to receive concussion benefits.

“It wasn’t unexpected,” Michael Kaplen, the past president of the Brain Injury Association of New York and an attorney specializing in brain injury cases, said of the Supreme Court’s decision. “But what you will see is players realizing they are not going to receive anything. Their lawyers are going to have to explain how their clients were hoodwinked into thinking this was such a great settlement.”

One of the problems of the settlement, Kaplen says, is that if an NFL player is diagnosed with the crippling, degenerative brain disease, chronic traumatic encephalopathy (CTE), after the date of the settlement, he would not be entitled to benefits. “They will get nothing,” said Kaplen. “There is going to be a revolution when guys realize they’re getting nothing. It will be interesting to watch the claims resolution process. It’s stacked against these players.”

Judges Skeptical of Ex-N.F.L. Players’ Appeal Over Head Injury Settlement – New York Times

The New York Times article quoted Michael Kaplen:

Michael Kaplen, a co-writer of a friend-of-the-court brief filed on behalf of the Brain Injury Association of America, went further. He said that arguing about whether C.T.E. was or was not compensated was a distraction from the more immediate physical, emotional and behavioral impairments that players receive from repeated head hits.

He also doubted the N.F.L. would willingly amend the settlement in the years ahead.

“I have a bridge to sell you if you believe the N.F.L. is going to come back in 10 years and reopen this,” he said.

In April 2015, the district court approved a settlement between the National Football League and the 5,000 retired players who had accused the league of hiding the dangers of concussions. The brief filed by Kaplen & De Caro supports the appeal by some of the players.

Click here to download a PDF of the New York Times article.

Click here to download a copy of the brief.

Concussion Deal Is Challenged in Court as Insufficient – The New York Times

The New York Times featured Michael Kaplen and Shana De Caro’s “friend-of-the-court” brief filed with the United States Court of Appeals for the Third Circuit on behalf of the Brain Injury Association of America.

In April 2015, the district court approved a settlement between the National Football League and the 5,000 retired players who had accused the league of hiding the dangers of concussions. The brief filed by Kaplen & De Caro supports the appeal by some of the players.

Click here to download a PDF of the New York Times article.

Click here to download a copy of the brief.

Concussion Cases Inspire New Course at George Washington’s Law School

Read the Article on The New York Times

Michael Kaplen

The professor Michael Kaplen is a plaintiffs’ lawyer who has worked on cases involving traumatic brain injuries for more than two decades. CreditDoug Mills/The New York Times

By 
APRIL 13, 2014

WASHINGTON — The revelations that hits to the head may lead to long-term brain damage have rocked the football world at all levels, alarming coaches, players and their parents and forcing the N.F.L. and the N.C.A.A. to tighten safety standards.

Given the consequences of the injuries, lawyers, too, have taken note, including those representing the 5,000 retired players who sued the N.F.L. over claims that the league hid the dangers of concussions. The notoriety of that case also prompted George Washington University’s law school to start what it said was the first course devoted to the legal implications of traumatic brain injuries.

The weekly seminar addresses brain injuries of all sorts, including those sustained in car accidents and in falls. But the concussion crisis gripping the N.F.L. is what caught the law school’s attention.

“We look for areas of the law that need attention,” said Gregory Maggs, the interim dean of the school, which offers about a half-dozen classes and seminars on health-care-related topics.

Held for two hours on Monday afternoons, the course is taught by Michael Kaplen, a plaintiffs’ lawyer who has worked on cases involving traumatic brain injuries for more than two decades. He says he has found that many universities, companies, health care providers and courts are inadequately prepared to deal with people with brain injuries, putting the onus on lawyers to find solutions.

“It’s a constant battle that really defaults every step of the way to the legal profession to handle on behalf of the millions of people who get injured,” Kaplen told his students last month. “The legal profession becomes in one way or another the champion because nobody else is there to do it. The lawyer has to become the doctor, has to become the social worker, has to become the neuroscientist and put that together for the individual.”

Cases involving brain injuries rely on technical information, so Kaplen spent the first few weeks of the semester describing the anatomy of the brain, the mechanism of a brain injury and the diagnosis of injuries. He brings several models of the brain and the skull to class, as well as Silly Putty, which he uses to demonstrate how nerves stretch and sometimes snap in accidents.

The class also discussed the epidemiology of brain injuries, how they are defined and the legal ramifications of those definitions, as well as how some people look for outward symptoms that may not exist, which might affect their ability to be effective jurors.

Unlike some law school classes that focus either on theory or on practice, the seminar blends the intellectual with the practical, such as the admissibility of testimony and the presence of third-party observers in independent medical examinations.

The class overlaps with another health-related course, so only three students signed up this semester. But the group, which includes a practicing doctor and a former teacher, seemed happy with the extra attention.

“It’s only in the last five years have I paid attention to concussions,” said Katherine Noethe, who was interested in the class because her mother had a brain injury and because the issue had gripped the N.F.L. “Now, when you see a big hit, you think, It’s a concussion. From a legal perspective, you think, Who’s liable?”

Given the popularity of football and the coverage of concussions, it was inevitable that a law school would offer a class on the topic, lawyers said, because the financial and health ramifications were too hard to ignore.

“There’s no doubt this is a hot topic,” said Mason P. Ashe, a sports lawyer who teaches at Georgetown. “It makes sense from a medical standpoint for there to be a class dedicated to it.”

After weeks of reviewing the fundamentals, Kaplen spent an entire class last month on concussions in football and other sports. He rifled through an 86-slide PowerPoint presentation that noted that concussions sustained in sports were different from others because the players often hid them and felt pressure to continue playing. Athletes who do not properly heal are also susceptible to catastrophic brain swelling from a second concussion.

The number of concussions is vastly underreported, Kaplen said. “We are really facing a public health crisis,” he said.

Kaplen addressed chronic traumatic encephalopathy, a progressive brain disease caused by numerous hits to the head that has been discovered in former athletes during autopsies. The students also discussed the Lystedt Law, which requires athletes suspected of concussions be removed from a game and not allowed to return until a doctor clears them.

The law raised questions about who was qualified to identify head injuriesand about the Catch-22 that coaches and leagues face when it comes to players’ health, Kaplen said. Some leagues claim that they are not responsible for the health of their players; those that do become liable.

“Sports associations take the easy way out: They claim to only schedule games and no more,” Kaplen said in a delivery that sounded as if he were peppering a witness. But, he added, “Once you start doing something, you better do it right.”

During the last half-hour of the class, Kaplen left no doubt about what he thought of the N.F.L. on this issue: that the league became liable once it began studying concussions two decades ago. He flipped to slides with titles that read, “Football Is a Concussion Delivery System,” “The Big Lie” and “Refusal to Acknowledge Link.” He then played video clips of Commissioner Roger Goodell being questioned by members of Congress in 2009 about football’s connection to concussions and long-term brain damage.

“He could get away with that in a congressional hearing, but could he get away with that in court?” Kaplen said. “He just wants to obfuscate.”

Kaplen pointed to a copy of a poster that described concussions and was placed in N.F.L. locker rooms. “You can’t put out all these posters like this and attempt to walk away from your misdeeds in the past,” he said.

Players, though, will have difficulty winning cases against their teams and leagues because it is hard to prove that concussions they sustained during their careers led to current problems. And because no one forced the players to play, Kaplen said, “did they assume this risk, or were these players misled, and did the N.F.L. create an obligation?”

Daniel Carr, another student, said after the class, “It’s an evidentiary thing, but it’s really complicated, and I don’t think I have my hands around it yet.”

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