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The Latest Wave

By Paul D. Anderson Consulting, LLC

(What follows is an excerpt of an article Anderson wrote for a recent CLE in Kansas City. Anderson, an attorney at the Klaymann Law Firm, published the blog NFLconcussionlitigation.com)

On April 22, 2015, the Honorable Judge Anita B. Brody of the Eastern District of Pennsylvania granted final approval to the NFL Concussion Settlement.[1] What has been hailed by some as a “historic settlement” and a “huge victory” for the retired players is, in reality, a tremendous deal for the National Football League (“NFL”) and Class Counsel.[2] But a lousy one for the overwhelming majority of players and their families.

The NFL has all-but eliminated any future threat of concussion litigation,[3] saved itself from potentially damaging discovery and turned a PR nightmare into a salvageable message of philanthropy. Class counsel, too, will get to share in more than $112.5 million in class attorneys’ fees, for essentially promoting a slick advertising campaign in which they convinced 99% of the class members to “accept” the settlement—by not opting out.

On the other hand, the “overwhelming majority,” of class members, according to Class Counsel’s own actuarial data, “are not compensated because they never contract a compensable disease.”[4] Stated differently, the overwhelming majority of class members will receive nothing because the most prominent disease affecting retired players—CTE—is not compensable under the settlement.

While the merits of the NFL Concussion Settlement will be debated—and potentially litigated—for the next sixty-five years (i.e., the life of the settlement), one thing is certain: the NFL Concussion Litigation has triggered a new wave of litigation – concussion litigation.

THE GENESIS OF THE NFL CONCUSSION LITIGATION

In 2011, the first concussion-related lawsuit was filed against the NFL. The lawsuit asserted that the NFL knew or should have known since 1928 that football caused brain damage. But instead of warning the players about these dangers and seeking to make the game safer, the NFL engaged in a campaign of denial, deception and brain-rattling glamour, profiting and sensationalizing the big hits through NFL Films.

  1. The NFL Takes a Page Out of Industry’s Playbook: Manufacture Doubt

Doubt is our product since it is the best means of competing with the ‘body of fact’ that exists in the minds of the general public. It is also the means of establishing a controversy. – Tobacco Executive[5]

Like Big Tobacco, Big Pharma et al., the NFL knew that it was much easier to debate the science than to debate the logic.[6] Of course hitting your head repeatedly is not a good thing. But a finely-orchestrated “scientific” controversy could easily derail that logic. The NFL knew that if the message – FOOTBALL CAUSES BRAIN DAMAGE – was crystallized, its lifeblood – the moms of football-playing adolescents – could be in jeopardy. Enter the manufacture of doubt.[7]

Although the medical science defining the link between repeated blows to the head and neurological diseases has been established for more than eight decades,[8] the dangers of concussions and sub-concussive blows have been, at best, marginalized. Some would argue that this is because the brain is a highly complex organ for which the study of neurological disease is still in its infancy, (true), whereas others will argue that this “last-frontier” discovery is the result of the NFL’s campaign of denial and cover up, (also true).[9]

There can be no doubt that the NFL did in fact create junk science in order to obfuscate the truth. In 1994, then-Commissioner Paul Tagliabue formed the Mild Traumatic Brain Injury Committee with the specific task of “studying” concussions in professional football. The Committee was led by Dr. Elliot Pellman, a rheumatologist; Dr. David Viano, a biomechanical engineer; and Dr. Ira Casson, a neurologist.

Over the next 15 years, the Committee created a series of several controversial studies that refuted the link between concussions and neurodegenerative diseases (e.g. dementia, Alzheimer’s, ALS, CTE). In the Committee’s most controversial summary study,[10] published in Neurosurgery, the authors made four conclusions that would eventually cost the NFL approximately a billion dollars in the NFL Concussion Litigation.

First, “it can be concluded that mild TBIs in professional football are not serious injuries.”[11]

Second, in regard to the often-times deadly second-impact syndrome the Committee found that “[i]t is possible that this syndrome does not truly exist in this population of athletes.”[12]

Third, in dismissing the various grades of concussions and the necessity to hold concussed players out until they are asymptomatic, the authors found that their study “supports the suggestion that such arbitrary return-to-play guidelines may be too conservative for professional football.”[13]

Fourth, “[t]he results of this study indicate that many NFL players can be safely allowed to return to play on the day of the injury after sustaining a mild TBI.”[14]

The final kicker, on an interview which aired in 2007 on HBO Real Sports, Dr. Casson boldly stated the following in response to questioning:

  1. Is there any evidence, as far as you are concerned, that links multiple head injuries among pro football players with depression?
  2. No.
  3. With dementia?
  4. No.
  5. With early-onset of Alzheimer’s?
  6. No.
  7. Is there any evidence as of today that links multiple head injuries with any long-term problem like that?
  8. In NFL players?
  9. Yeah.
  10. No.

Two years later, the NFL was forced to implicitly acknowledge that the studies were flawed when it “accepted” the resignations of the principal authors of the studies: Drs. Casson and Viano.[15] But the damage was done and the lawsuits were being drafted.

  1. B.The Settlement That Freezes Science.

The study of CTE is nascent, and the symptoms of the disease, if any, are unknown. – Judge Anita B. Brody.

The NFL Concussion Litigation was initially framed as a CTE lawsuit, but as negotiations progressed it was transformed into a cognitive-disorder settlement, all-but eviscerating future awards of CTE. CTE has been described as the “industrial disease of football.” Some objectors analogized the failure to compensate CTE in this case to an asbestos settlement excluding compensation for mesothelioma.

The settlement provides compensation for individuals who have been diagnosed with ALS, Alzheimer’s, early-to-severe dementia, or Parkinson’s. The settlement also carves out a period in which certain CTE claims (“Death with CTE”) will be paid. Retired players who died and were diagnosed with CTE at anytime between January 1, 2006, and the date of final approval (i.e., April 22, 2015) will receive an award.[16] To be fair, the settlement will pay relatively generous awards to some individuals:

However, it forecloses any future awards for CTE. So, for example, if a retired player died today, and he was subsequently diagnosed post-mortem with CTE, his family would receive zilch under the settlement. Moreover, the settlement fails to compensate for the classic, clinical symptoms relating to CTE, including mood and behavioral disorders, depression, irritability, explosivity, suicidality, etc. CTE is described in the medical literature as manifesting in four stages; it is not until the final stages that cognitive disorders/dementia manifest.[17]

While it is true, at present, CTE can only be definitively diagnosed post-mortem, Dr. Robert Stern, among others, believe that an in-vivo CTE diagnosis will be forthcoming within the next five years.[18]Despite this, the settlement states that it will never pay an award for an in-vivo CTE diagnosis without the player manifesting “actual cognitive impairment.”[19] Thus, if a retired, living player is diagnosed with CTE at anytime in the next 65 years, he will not receive compensation under the settlement unlesshe is cognitively impaired. But that is not CTE. That is CTE + dementia.

This exclusion creates the potential to derail the science relating to CTE and cast further doubt upon the causality of CTE. The latter has already been emphasized by the commissioner of the National Hockey League. Gary Bettman recently stated, “From a medical and science standpoint, there is no evidence yet that one necessarily leads to the other.”[20] His support? The NFL Concussion Settlement. When pressed, Bettman said, his “views echoed those of the federal court judge who approved a settlement between the N.F.L. and thousands of retired players.”[21]

More troubling, the memorandum granting final approval reads like a Daubert analysis. See e.g., Final Approval Memorandum, at *82 (“Because of these [studies’] limitations, researches do not know the symptoms someone with abnormal tau protein in his brain will suffer from during life. No diagnostic or clinical profile for CTE exists.”); Id. at *83 (“No definitive clinical profile yet exists for CTE, however, and the idea that CTE progresses in defined stages—or even that it is associated with symptoms listed—has not been sufficiently tested in living subjects.”). Federal courts faced with future Daubert challenges relating to CTE may rely upon this decision to reject the introduction of expert CTE evidence because it is too “unreliable” or lacks “rigorous testing.”

The former—that the settlement may impede scientific advancements relating to CTE—may occur like this. Before the settlement was reached, families had an incentive—both financially and in a search for answers—to go through the grueling and emotional process of having a loved one’s brain examined for CTE. The financial incentive is no longer present since future CTE claims will not be paid. This in turn could reduce the “brain donations” that clinical researchers rely upon in order to study CTE.

The settlement also mandates that the parties confer at least once every ten years to determine whether adjustments to the qualifying diagnoses need to be made due to the advancements in science. But since CTE is not one which will be modified, the study of CTE may fall by the wayside. Without the NFL’s clout and other interested parties pushing for the advancement of the medical science relating to CTE, it may be difficult to generate funding to complete future studies.

Despite the many shortfalls, the settlement obviously avoids the cost and uncertainty of this complex litigation and ensures that certain individuals are compensated. But in the same stroke, it also delivers a hollow award to the overwhelming majority. The settlement must still survive an arduous appeals process. More than ten separate notice of appeals have been filed. The thrust of the appeals focuses on the exclusion of CTE from the settlement. Time will tell if this exclusion can withstand the Third Circuit’s scrutiny.

[1] In re Nat’l Football League Players’ Concussion Injury Litig., 2015 WL 1822254 (E.D.Pa.)(April 22, 2015)(final order approving settlement)

[2] NFL Concussion Settlement Press Release, Mediator Judge Layn Phillips

[3] But see Green v. Arizona Cardinals Football Club LLC, 21 F. Supp. 3d 1020 (E.D. Mo. 2014)(granting remand; only case in the country to get out of the MDL and proceed to discovery)

[4] See NFL Concussion Liability Forecast, prepared at the direction of Class Counsel, (Feb. 10, 2014)http://nflconcussionlitigation.com/wp-content/uploads/2014/09/6167-Special-Master-Report.pdf

[5] See David Michaels, Doubt is Their Product: How Industry’s Assault on Science Threatens Your Health (Oxford University Press, 2008)

[6] See id.

[7] See Professor Daniel Goldberg, Mild Traumatic Brain Injury, the National Football League, and the Manufacture of Doubt: An Ethical, Legal, and Historical Analysis, The Journal of Legal Medicine, Vol 34, Issue 2 (June 19, 2013)

[8] See Martland HS: Punch drunk. JAMA 91:1103-1107, 1928

[9] See Mark Fainaru-Wada and Steve Fainaru, League of Denial (Crown Archetype, 2013)

[10] Pellman, Elliott, et al. Concussion in professional football. Neurosurg. Focus 21 (4):E12, 2006

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Alan Schwarz, “N.F.L. Head Injury Study Leaders Quit,” The New York Times (Nov. 24, 2009).http://www.nytimes.com/2009/11/25/sports/football/25concussion.html

[16] The settlement provides a grace period of 270 days to receive a diagnosis if a player dies before the final approval date.

[17] See Ann McKee, et al., The Spectrum of Disease in Chronic Traumatic Encephalopathy, 136 Brain 43 (2013)

[18] Declaration of Robert A. Stern, PH.D. (Oct. 6, 2014); see also Barrio JR, et al., In vivo characterization of CTE using [F-18]FDDNP PET brain imaging. Proc. Natl. Acad. Sci. USA. (April 21, 2015)

[19] Section 6.6 of the Settlement Agreement provides for modifications to qualifying diseases based on the advancements of science. However it expressly rules out in-vivo CTE diagnoses: “For the avoidance of any doubt, the identification of a condition—for example, through a blood test, genetic test, imaging technique, or otherwise—that has not yet resulted in actual cognitive impairment and/or actual neuromuscular impairment experienced by the Retired NFL Football Player does not qualify as a Qualifying Diagnosis.” Section 6.6(b)

[20] Pat Iverson, “Gary Bettman says ‘no evidence yet’ that playing hockey causes brain damage” SB Nation (May 21, 2015) http://www.sbnation.com/nhl/2015/5/21/8641783/gary-bettman-says-no-evidence-yet-that-playing-hockey-causes-brain

[21] Ken Belson, “Gary Bettman Denies Brain Disease Link.” The New York Times (June 3, 2015)http://www.nytimes.com/2015/06/04/sports/hockey/gary-bettman-denies-brain-disease-link.html?_r=0

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NCAA Concussion Lawsuits a Plea for Strict Liability

(Editor’s Note: What follows is a brief excerpt from a contributed article in the June 2015 Concussion Litigation Alert. For the rest of the article and numerous others, please subscribe at http://concussionpolicyandthelaw.com/subscribe/)

By Barbara Osborne, J.D.

University of North Carolina at Chapel Hill

As of this writing, the NCAA Concussion Litigation settlement has still not been approved.  U.S. District Court Judge Lee rejected first settlement, expressing uncertainty whether the $70 million testing fund was enough and lack of clarity in the way that the NCAA would enforce its concussion management policy.  The new offer, filed April 15, 2015, does not specify a limit on the amount of funding to provide testing for student-athletes and former student-athletes who have suffered brain injuries.

While NCAA-bashing has become a popular sport of its own, the plaintiffs in the various lawsuits are misguided in directly their claims at the NCAA.  The NCAA is a voluntary membership association; schools are not required to join an association.  If a school chooses the join, they assume the responsibility of following the rules.  However, the concept of institutional autonomy is a bedrock principle of NCAA membership.  Schools independently determine how to manage their athletics programs and are only subject to NCAA interference if they violate an NCAA rule.

Article 3 of the NCAA Constitution delineates expectations for members.  All active members are required to have a Concussion Management Plan (3.2.4.17) since August 2010.  In January 2015, requirements for a Concussion Safety Protocol (3.2.4.17.1) and to provide that information to a Concussion Safety Protocol Committee (3.2.4.17.1.1) were added.  The addition of these requirements to the organizational constitution begs the question:  do these rules establish a duty by the NCAA to student-athletes relative to head injury?   If so, should the NCAA be liable for student-athletes who suffer head injury as a result of athletics participation?

The basic elements of a negligence claim are duty, breach, causation and damage.  Duty is established by a special relationship between the parties or by statute.  Historically, the NCAA does not have a duty to protect student-athletes, as they are not members of the NCAA.  Student-athletes are third party beneficiaries of the relationship between the NCAA and the member school.  As such, the duty to provide a safe program for student-athletes lies within each member institution.  However, if one were to equate the constitution and bylaws of the organization with that of our governing Constitution and statutes, it is possible to make a straight-faced argument that the NCAA voluntarily assumed a duty through these membership requirements.

Assuming that duty was established by the membership requirements, an injured student-athlete would still have to prove breach and causation in order to succeed in a negligence claim.  Breach could be established if … (to read more, please subscribe at the link above.)

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Lead NCAA Concussion Plaintiff Fires Lawyer to Stop Bad Settlement

The NCAA concussion settlement is losing steam. Witness the following press release put out by the NCPA:

Former Eastern Illinois University football player Adrian Arrington, lead plaintiff in the Arrington v. NCAA concussion lawsuit, terminated his relationship with his lawyer and opposes the preliminary settlement that the law firm asked the judge to approve. 

Arrington released the following statement: 

“The preliminary settlement is completely unacceptable and I never agreed to it.  In fact, the first time I learned about it was in the media.  I feel that I have been misinformed and the preliminary settlement doesn’t address the reasons I filed the lawsuit in the first place.  I would like the judge to reject the preliminary settlement.  I plan to secure new legal representation to continue this fight to protect future players in NCAA sports.

Arrington sustained several concussions while playing football for Eastern Illinois and ultimately decided to stop playing football for health reasons.  He often sustains seizures so powerful that his shoulder frequently dislocates during the event, and suffers from memory loss.  Arrington is 28 years old, has two children, and says he is unable to secure employment because of his condition. 

Arrington recently initiated contact with the NCPA to discuss the lawsuit and ways to help raise awareness among players and families from low-income communities about minimizing the risk of traumatic brain injury in contact sports.   

Arrington spoke with NCPA Executive Director Ramogi Huma.  Huma stated, “Adrian clearly has a tremendous passion for protecting young athletes.  He is serious about making change and will not stand for anything less.”   

During their initial conversation, Huma praised Arrington for his effort to help protect current, former, and future college athletes.  Huma also shared his concerns about the shortcomings of the preliminary settlement to which Arrington’s former lawyers agreed.  The preliminary settlement does not mandate rules to help minimize traumatic brain injury that were adopted on the NFL level i.e. reducing contact during practices and mandatory return-to-play protocols.  In addition, the preliminary settlement does not provide players suffering from brain damage any direct financial support or funds for treatment.  Meanwhile, the preliminary settlement would pay the lawyers approximately $15 million in legal fees. 

Huma stated, “It is a disservice to the current and former players suffering from traumatic brain injuries sustained in NCAA sports.  It is our hope that the judge rejects this preliminary settlement. 

Huma put Arrington in contact with former USC football player and filmmaker Bob DeMars who recently completed a documentary called “The Business of Amateurs”.  DeMars spoke to Arrington and sent him a link that allowed him to be one of the few people to privately view the documentary.  The film includes tragic concussion-related events and highlights gaps in the preliminary settlement agreed to by Arrington’s former lawyers. 

DeMars stated, “Adrian appreciated the opportunity to watch the film and become more informed as he contemplated his legal options.  I respect him immensely for seeking answers and for making the right call.” 

Huma also connected Arrington with former Northwestern football player Kain Colter who began the effort to unionize Northwestern football players last year.  The unionization effort centers largely on empowering players to establish enforceable rules to minimize the risk of traumatic brain injury. 

Colter stated, “Adrian is on the right side of history.  He’s doing everything he can to help protect generations of future players.”  

In addition to mounting a formidable legal challenge to force NCAA sports to protect players, Arrington posted a You Tube video on May 29, 2015 to help inform players and their families about various health and safety issues college athletes face.   

In the video, Arrington states, “I’m a man that went to college that wants to provide…to be out of school to have that degree that nobody can take from me, I still can’t do certain things with that degree because I have a disability in terms of seizures, memory loss… 

In its defense in the Arrington v. NCAA lawsuit, the NCAA stated, “The NCAA denies that it has a legal duty to protect student-athletes.” 

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