District Court Denies Class Certification in Youth Football CTE Case

By Anthony B. Corleto, Daniel H. Lee, Madison A. Kucker, Ian A. Stewart and Patrick M. Kelly, of Wilson Elser

(Editor’s Note: The following appeared along with 8 other articles in Concussion Litigation Reporter.)

In a significant decision, the U.S. District Court for the Central District of California denied plaintiffs’ motion to certify a class of “All persons who enrolled their minor children in Pop Warner tackle football from 1997 to present.” The plaintiffs in Archie v. Pop Warner, USDC CD CA 2:16-cv-06603, sought class certification for statutory unfair competition (UC) and false advertising (FA) claims, under the California consumer protection statutes.

Archie was brought by the mothers of two former youth football players, each of whom died in their mid-twenties, a decade after they last played youth football; one from a self-inflicted gunshot wound, the other in a motorcycle accident. The mothers sued for money damages and to enjoin advertising that “youth tackle football is safe for minor children.” Front and center in the complaint are allegations that exposure to repetitive contact leads to chronic traumatic encephalopathy (CTE), the disease process found at autopsy of the brains of football players Aaron Hernandez and Junior Seau. The plaintiffs in Archie each claim that their son had CTE as the result of playing youth football. Worth noting, each also played football in high school and one played into college.

Focusing on the “predominance” requirement of Rule 23(b)(3), the court observed that each of the communications offered in support of the UC and FA claims were directed to coaches and other youth sport organizations rather than the public, and that class certification is “only available to those class members who were actually exposed to the business practices at issue.” The communications at issue included a website that went live in 2002, internal administrative materials and a 2012 letter to other national youth sport organizations about a meeting to “preserve the youth sports experience.” Plaintiffs also argued that the requirement to use helmets certified by the National Operating Committee on Standards for Athletic Equipment (NOCSAE) was misleading because Pop Warner failed to disclose that there is not a NOCSAE “youth specific” standard and because the warning label does not expressly call out the risk of “repetitive head trauma.” The court concluded that plaintiffs failed to show that the putative class members were exposed to the alleged misrepresentations, or that they were exposed to the allegedly misleading helmets before enrolling.

The court decided the motion on the papers in advance of the scheduled argument date.

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Court Rules School District Is Shielded by Immunity in Concussion Case

(Editor’s Note: What follows is an excerpt of one of the articles that appeared in the October issue of Concussion Litigation Reporter.)

A federal judge from the Southern District of Georgia has found that a school district is entitled to immunity in a lawsuit in which it was sued by a high school football player who suffered a concussion in a 2016 game and then remained in the game, suffering additional “blows to the head.” While the legal victory was absolute for the district, the court delivered a mixed ruling to the coach, who was also named in the suit, finding that while he was entitled to qualified immunity for the § 1983 claim against him that he is not entitled to official immunity on the state law claims brought against him in his individual capacity.

The impetus for the lawsuit were the injuries sustained by plaintiff Tyler Bowen as a member of Telfair County High School’s football team. While playing in a football game on Sept. 9, 2016, Tyler suffered a concussion. The football team’s coach and Telfair County High School employee, Matthew Burleson, allowed Tyler to continue playing after Tyler exhibited symptoms of a concussion, according to the complaint. Tyler then suffered more blows to the head during the game. A doctor later diagnosed Tyler with a concussion, his symptoms including cognitive impairment, memory alteration, mood swings, diminished academic ability, and reduced ability to complete everyday activities.

Bowen sued in state court naming Matthew Burleson and Telfair County School District (TCSD) as two defendants among others. The plaintiff alleged negligence and intentional tort claims in addition to a 42 U.S.C. § 1983 claim. The case was removed to the federal court on Oct. 31, 2018. Defendants Matthew Burleson and TCSD subsequently moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c).

The court noted that the defendants’ motion is based on three arguments: 1) Matthew Burleson has qualified immunity for the § 1983 claim against him; 2) TCSD has sovereign immunity under the Georgia Constitution for the state law claims against it; and 3) Burleson has official immunity under the Georgia Constitution for the state law claims against him in his individual capacity.

“Qualified immunity offers complete protection to government officials acting in their discretionary capacity when sued in their individual capacities so long as their conduct does not violate clearly established law,” wrote the court, citing Harlow v. Fitzgerald, 457 U.S. 800, 815-18, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). “An official act within his or her discretionary authority when the ‘objective circumstances . . . compel the conclusion that his actions were undertaken pursuant to the performance of his duties and within the scope of his authority.’ Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991). Burleson was acting within his discretionary authority here; there is nothing in the complaint alleging that Burleson was acting outside his authority, and the plaintiff alleges Burleson was an employee of TCSD acting within the scope of his employment at the time of the alleged injury.

“To overcome qualified immunity a plaintiff must demonstrate: (1) that the official’s conduct violated a statutory or constitutional right and (2) the right was clearly established at the time of the challenged conduct. Randall v. Scott, 610 F.3d 701, 715 (11th Cir. 2010); see also Pearson v. Callahan, 555 U.S. 223, 232-36, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009) (holding that courts have discretion to conduct the two-part analysis in whichever order is appropriate given the situation).

“(The plaintiff) incorrectly assert that Pearson no longer requires a plaintiff to satisfy both parts of the analysis. Instead, Pearson does away only with the Saucier rule, which was the requirement that courts conduct their analysis of the two parts in order. Pearson, 555 U.S. at 236-42 (explaining why the ordering requirement in Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001) is sometimes cumbersome when applied at the trial level). Therefore, if the plaintiff has not pleaded facts to satisfy both parts of the analysis, his § 1983 claim will fail.”

With this hurdle in mind, the plaintiff set out to show his “substantive due process rights to physical safety, bodily integrity, and freedom from unreasonable risk of harm under the Fourteenth Amendment.”

The court relied heavily on Davis v. Carter, 555 F.3d 979, 982 (11th Cir. 2009), which held that “conduct by a government actor will rise to the level of a substantive due process violation only if the act can be characterized as arbitrary or conscience-shocking in a constitutional sense.”

It added that in Davis v. Carter, “the Eleventh Circuit considered whether a football coach’s conduct at a training session constituted a violation of a student’s substantive due process rights. 555 F.3d at 980-81. There, the defendant coach failed to provide water to the student, ignored the student’s complaints that he was dehydrated, and continued to subject the student to drills even though he had collapsed. Id. The student died the morning following the training session, allegedly as a result of the coach’s conduct. Id. at 981. In reversing the district court and granting the coach’s motion to dismiss, the Eleventh Circuit ruled that the coach’s deliberate indifference to the student did not shock the conscience. Id. at 984.”

In the instant case, (the plaintiff alleges in his complaint) that “defendants Burleson and TCSD were negligent and, in the alternative, acted intentionally with ‘actual malice’ to injure the plaintiff. The factual underpinnings for these claims are essentially that Burleson knew or should have known that Tyler Bowen was concussed and prevented him from reentering the game. (Id.) The plaintiff also adds-without elaboration that Burleson ‘acted with actual malice and intent to cause injury to Tyler Bowen.’ (Id. at ¶¶ 32-33.)

“… To conclude, (the plaintiff’s) well-pleaded facts set forth at most a negligence claim which does not constitute a conscience-shocking violation of his substantive due process rights. Accordingly, defendant Burleson is entitled to qualified immunity as to the § 1983 claim against him. See Davis, 555 F.3d at 984.”

Turning to the TCSD’s Sovereign Immunity defense, the court wrote that…

(To read this and more stories like this, visit www.hackneypublications.com/CPL/)

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Concussion Legacy Foundation Goes for Shock Value with Video PSA

The Concussion Legacy Foundation, which has advocated for waiting to enroll children in tackle football until age 14, sought to drive its point home with a recent Video PSA.

Writes the Foundation:

“As evidence continues to mount regarding the dangers of the game, spreading this message is more important than ever.

“A study led by Boston University researchers published Monday in the Annals of Neurology concluded that the risk and severity of developing chronic traumatic encephalopathy (CTE) is not correlated to number of concussions, but is instead correlated with the number of years playing tackle football. The study shows any future high school, college or NFL player who starts tackle football at age 5 will have ten times the odds of developing CTE than if he had started at 14.

“Moreover, the link between tackle football and CTE may actually be stronger than the link between smoking and lung cancer. In light of this shocking discovery, we felt compelled to raise the stakes.

“In collaboration with health and wellness marketing agency Fingerpaint, we unveiled a new PSA today aimed at convincing parents to wait to allow their children to play tackle football until age 14. The “Tackle Can Wait” PSA drives home the message that youth tackle football is unacceptably dangerous for children.

“The new website TackleCanWait.com features videos and interactive graphics to help explain this eye-opening research, which we believe every parent should be aware of”

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