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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Court Extends Opt-Out and Objection Deadline in NCAA Concussions Lawsuit Settlement

Attorneys representing all current and former NCAA student-athletes announced date changes made by the court, affecting the concussions settlement that will provide a 50-year medical-monitoring program for student-athletes to screen for post-concussion syndrome and early-onset neurodegenerative disease that may have resulted from concussions or the accumulation of subconcussive hits while playing NCAA sports.

One of the participating plaintiff’s law firms gave the following synopsis:

What are the changes?

The court’s scheduling order extends the deadline to request exclusion from or object to the settlement and includes the following date changes: a new opt-out and objection deadline of Aug. 4, 2017, and a new Fairness hearing date of Sept. 22, 2017, at 10 a.m.

What is the case about?

The suit was filed against the NCAA for allegedly failing to uphold its promise to protect student-athletes against the life-altering effects of concussions, traumatic brain injuries and the accumulation of subconcussive hits.

Who is affected?

The settlement affects student-athletes who played an NCAA-sanctioned sport at a member school, an estimated 4.4 million current and former athletes in 43 different men’s and women’s sports, and more than a thousand NCAA member institutions, ranging from Division I schools to Division III schools.

What are the settlement benefits?

The core benefits provided in the settlement include:

A 50-year medical monitoring program that will screen for post-concussion syndrome and early-onset neurodegenerative disease that may have resulted from concussions or the accumulation of subconcussive hits while playing NCAA sports. If a class member qualifies through written screening, examinations will include neurological and neurocognitive assessments. The program will be funded by a $70 million medical monitoring fund, paid by the NCAA and its insurers.

Significant changes to and enforcement of the NCAA’s concussion management policies and return-to-play guidelines. All players will now receive a seasonal, baseline test to better assess concussions sustained during the season. All athletes who have sustained a concussion will now need to be cleared before returning to play, under the terms of the settlement. Additionally, a medical professional trained in the diagnosis of concussions will be present at all contact-sport games. The settlement also stipulates reporting mandates for concussions and their treatment.

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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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