Category Archives: Professional

June 2017 issue of Concussion Litigation Reporter Is Out, See the Table of Contents

Hackney Publications has announced that the latest Concussion Litigation Reporter has hit the streets, completing its first five years in this very important space

The following articles appear in the latest issue:

  • Appeals Court Frees School District of Hospital Company’s Indemnity Claim in Concussion Case
  • Judge Grants Summary Judgment to Arena Football One
  • WIAA to Provide Concussion Insurance for Member School Student-Athletes
  • North Carolina Return to Play Lawsuit Puts Spotlight on Such Protocols
  • Discovery and Spoliation on Center Court in Concussion Case: Bouchard vs USTA
  • Concussion Defense Lawyer David White Sounds Off on the Rising Tide of Concussions and Mounting Litigation
  • Harvard Report Compares NFL’s Health Policies and Practices to Those of Other Professional Sports Leagues
  • Equation Makes It harder to ‘Outsmart’ Concussion Tests, like ImPACT
  • NCAA Moves to Eliminate Two-a-Day Football Practices
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Pennsylvania Court rules, ‘The NCAA is the Supreme Regulatory Body in College Athletics’ and that It Must Face a Trial

(Editor’s Note: What follows is an excerpt from the recent issue of Concussion Litigation Reporter. To read the full article, please subscribe at http://concussionpolicyandthelaw.com/subscribe/)

By Paul Anderson, of The Klamann Law Firm

As the NCAA tries to fend off a tidal wave of litigation, its legal defense is quickly eroding. In the latest blow to the NCAA, a trial court in Pennsylvania ruled that the NCAA must face a trial over its alleged failure to protect the health and safety of student athletes.

The case arises from a lawsuit filed by former college football player, Matt Onyshko, who played at the California University of Pennsylvania between 1999 and 2003. He was diagnosed with amyotrophic lateral sclerosis (“ALS”) in 2008. In 2013, he filed a claim against NCAA asserting that the NCAA failed to “adequately supervise, regulate, and minimize the risk of long-term brain injury.”

The NCAA, as it has done repeatedly in litigation, claimed that it did not “owe a legal duty” to protect the health and safety of student athletes. Instead, the NCAA claimed, this duty resides with the member schools. The NCAA doubled down on this assertion and even stated that it “lacks the enforcement mechanisms to implement legislation over its member institutions.”

Flatly rejecting this, the Court stated:

This argument also lacks merit because the NCAA is the supreme regulatory body in college athletics with the stated purpose of ‘hav[ing] a clear moral obligation to make sure we do everything we can to protect and support student-athletes.’

Notably, this “stated purpose” was a quote directly from the NCAA’s President, Mark Emmert, during a congressional hearing where he was grilled by Senator Jay Rockefeller for the NCAA’s tone-deaf response to the Derek Sheely lawsuit. The landmark Sheely lawsuit against the NCAA and other defendants was subsequently settled for $1.2 million.

The Court also rejected the NCAA’s no-duty argument based on “inherent risks” in football. The NCAA often relies on this argument to assert that it has no duty to protect against inherent risks in sports. And since a concussion is an “inherent risk” in football, so the argument goes, the NCAA owes no duty to protect against this risk.

But the Court found that “this argument lacks merit because it oversimplifies and conflates the risk of injury with the negligent treatment, management and prevention of such injuries. While suffering a head injury in the course of playing football is likely a danger inherent to the sport, the negligent treatment and management of such injuries, leading to severe long term damage is beyond the scope of the inherent risk assumed by players.”

This reasoning is consistent with Judge David Boynton’s ruling in the Sheely lawsuit, where that court also denied the NCAA’s motion for summary judgment.

Finally, the Court rejected …

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Technology Preventing Brain Injury Inspired by Woodpeckers

By Brooks Schuelke of Perlmutter & Schuelke, PLLC

It is difficult to imagine that a bird and a football player have much in common, but they do, and the lowly woodpecker just may hold the key to making safer football helmets.

The history of football is rife with attempts to make a better helmet for players to prevent skull fractures. While the technology does exist to prevent or diminish skull fractures, there is little to no protection from brain injuries. This is where the woodpeckers come into play.

Dr. Gregory Myer, is the director of research and the human performance lab at the Cincinnati Children’s Hospital Sports Medicine division. Myer was contacted by Xennovate Medical’s CEO, David Smith, who was enthused about the possibilities of a possible breakthrough in brain injury care. The idea proposed came about as a result of studying woodpeckers.

Smith explained to Myer that woodpeckers prevent concussions by wrapping their tongues around their jugular veins to increase blood flow to the brain. This keeps the brain from moving about inside the skull while the bird hammers on wood. Myer understood that since the bird could not protect its head from the outside, the adaptation of winding its tongue around its jugular would prevent brain injuries. Mayer began research on the “Q Collar,” also known as the Neuroshield, which is designed to be worn around the neck and increase blood flow to human brains.

The initial prototype Neuroshield performed well in field tests with high school football teams, soccer teams and a SWAT team. The promising results may give the Neuroshield a chance that it could be pressed into service for the U.S. military. Although there is still more research to conduct, if the theory behind preventing brain trauma is correct, the collar may become an integral part of daily life and even be used while riding a bike or motorcycle. It is anticipated that the collar manufacturer, the Performance Sports Group, may put the product on the market by 2018.

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