Attorney Makes a Case Why the NFL Need Not Fear the Plaintiffs’ Collateral Estoppel Argument

(What follows is an excerpt of a story written by attorney Jarett L. Warner of Havkins Rosenfeld, Ritzert & Varriale for Concussion Litigation Reporter)

The number of former players joining the litigation against the NFL for neurological and wrongful death claims relating to concussions incurred during their playing days is mounting as fast as the instances of discord in the New York Jets’ locker room. The number is now more than 4,000 former players.

Most recently, former Pro-Bowler and two time Super Bowl champion, defensive end Neil Smith, filed a lawsuit claiming that he suffers from cognitive impairment and the early onset of dementia caused by concussions sustained during his playing career. He even claims that he sustained three concussions during one game during his 1988 rookie season that were undiagnosed and untreated.

Recent developments have led some to believe that the NFL has taken a huge blow of its own to its defenses in the litigation. Last month, ESPN published a 1999 letter from the Director of the NFL Disability Board to the attorney of former Hall of Famer Pittsburgh Steeler Mike Webster denying additional disability benefits based on the determination of the NFL Disability Board that it had “determined that Mr. Webster’s disability arose while he was an active player” and that medical reports reflects that “his disability [was] the result of head injuries he suffered as a football player with the Pittsburgh Steelers and Kansas City Chiefs.”

The plaintiffs in the NFL Concussion litigation will undoubtedly argue that the Disability Board’s determination that Mike Webster’s injuries were caused while playing in the NFL establishes that the NFL had prior evidence that concussions lead to permanent neurological and other health problems. The Disability Board is also likely to have similar records relating to other former players.

Based on this evidence, the plaintiffs will likely request that the Court preclude the NFL from arguing that concussions cause long term neurological and other health issues. The plaintiffs will base this argument on the legal principle of collateral estoppel.

Collateral estoppel (also known as issue preclusion) precludes litigants from challenging the determination of an issue in a subsequent action if it was already fully and fairly litigated in a prior litigation. In order to give the previous determination preclusive effect, “the issue must have been actually litigated in the prior proceeding, the parties must have been given a full and fair opportunity to do so, and the issue must provide the basis for the final judgment entered therein.” Hartley v. Mentor Corp., 869 F.2d 1469, 1471 (U.S. Court of Appeals for Fed. Cir. 1989). The factual issues between the prior and current litigation would need to be identical.

However, it is unlikely that the NFL will be collaterally estopped from arguing causation between the concussions and the long-term health problems of former players.

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