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(Editor’s Note: What follows is the letter from the editor of Concussion Defense Reporter, Tony Corleto of Wilson Elser. To subscribe to CDR, which is complimentary, visit https://www.concussiondefensereporter.com/)
The Surgeon General has not determined … .
A recent publicity campaign features the image of a mother helping her 10-year-old son, in football gear, light a cigarette. The media reel for that campaign shows a coach, post-game, handing out cigarettes to youth football players. An adolescent male voice begins “Tackle football is like smoking “ and concludes “Choose flag under 14”. In a vacuum, one might presume the Surgeon General has issued a public health warning. Wrong. It’s just the Concussion Legacy Foundation (CLF) on its latest cycle.
On November 11, JAMA Pediatrics published the results of a two year review by a consensus panel of 11 pediatric experts in various fields (neurology, psychology, physical medicine and rehabilitation, sports and exercise, athletic training, epidemiology, prevention), to summarize current literature (1980 – 2018) and provide recommendations regarding the prevention, assessment and management of Sports Related Concussion in youth athletes. The conclusion: “There is not a recommended age or developmental stage at which contact and collision are most safely introduced for practice or competition”. The only age specific recommendation was in ice hockey, to delay body checking until 13.
CLF has taken the campaign against youth football to state legislatures, most recently in Massachusetts and New York. Previous efforts in Illinois and California failed, we expect the latest efforts to face the same fate. In this edition of Concussion Defense Reporter, we provide information about the proposed MA bill, including testimony from Scott Hallenbeck (USA Football), Dr. Julian Bailes and Jon Butler (Pop Warner).
Even though media remains ahead of the science, the law seems to get it. Two recent decisions denied class certification for concussion claims. In Jones v BRG (1:18-cv-07250, USDC, ND ILL, 8/1/19), district Court granted Riddell’s motion to strike class a proposed class of “All individuals who wore a Riddell helmet while participating in a High School and/or College Level football program between 1975 and the present”. Recognizing that the claims essentially sought recovery for personal injury, the court acknowledged that individual inquiries particular to each claimant’s activity, exposure and injury would predominate over any common claims about the products at issue, making individual litigation superior to class treatment. Similarly, in Archie v Pop Warner (2:16-cv-06603, USDC, CD CA, 9/1//19) district court found that a proposed class of “All persons who enrolled their minor children in Pop Warner tackle football from 1997 to present”, for statutory false advertising claims, failed to satisfy the predominance requirement of Rule 23(b)(3). As in Jones, the decision turned on a finding that specific individualized inquiry would be needed for each claimant in the proposed class to determine whether they had in fact been exposed to and relied on the alleged advertisement. This edition of Concussion Defense Reporter includes a detailed analysis of the Archie decision.
Cheerleading is again in the spotlight. We report two decisions, one in favor of a school district and one for a university. In a “second hit” case, Stevens v Azusa Pacific Univ. (2019 WL 2281585, Ca Ct, App., 5/29/19), the appeals court affirmed a ruling that the cheerleader assumed the risk of injury and that a qualified but uncertified coach did not “increase the risk” of harm. In Biancorosso v Troy Comm. Cons. SD (App. Ct. Ill no. 2-18-0613 8/29/19) the appeals court upheld summary judgment for the school district, over a flier’s claim that the district was negligent or reckless because a cheer mat did not prevent her concussion when she fell out of a stunt.
Last but not least: One NCAA MDL plaintiff has dropped his case because he feels benefit from infrared light therapy Carr v NCAA, Brigham Young (1:16-cv-08581, USDC ND IL) and the Minnesota Vikings overturn an adverse worker’s compensation award Noga v Minnesota Vikings Football Club, 2019 WL 3439661, S. Ct, 2019.
Concussed Football Player Sues School District After Coach Tells Him to ‘Man Up’ Among Stories in Latest Concussion Litigation Reporter
Concussion Litigation Reporter, November 2019, Vol. 8, No. 5
Timely reporting on developments and legal strategies at the intersection of sports and concussions—articles that benefit practicing attorneys who may be pursuing a claim or defending a client.
Table of Contents
Concussed High School Football Player Sues School District After Coach Allegedly Tells Him to ‘Man Up’ and ‘Get Back Out There’
NFHS Sparks Controversy With Position Paper Claiming No Linkage Between CTE and Playing High School Football
Mets Fan Sues Team After Getting Hit in the Head by a T-shirt Fired from a T-shirt and Suffering Concussion
Doctor and Co-Founder of Tulane’s Center of Sport Talks Concussions
WWE Challenges Lawsuit Brought by Former Wrestlers
Chronic Traumatic Encephalopathy: Basic Issues to Consider in Traumatic Brain Injury Litigation
Study Finds No Link Between Youth Contact Sports and Cognitive, Mental Health Problems
Federal Trade Commission Sues Dallas-Based Maker of Brain Health Supplements, Citing Deceptive Claims
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Montgomery McCracken is pleased to announce that the firm has partnered with Hackney Publications to launch Sports Medicine and Law, a complete source for news, case summaries, articles, and strategies concerning sports medicine and the law, whether they arise at the professional, collegiate, high school, and amateur levels. Members of Montgomery McCracken’s Sports Injury Practice, including partner Steven Pachman and associates Dylan Henry and Kim Sachs, will serve as editors. Sports Medicine and Law is provided free to members of the sports industry, and readers can subscribe here.
Montgomery McCracken’s Sports Injury practice defends and advises colleges, universities, and high schools, medical professionals (physicians, athletic trainers, and nurse practitioners), coaches, and organizations on a national basis since 2005 in traumatic brain injury (TBI) cases, with a focus on concussion, second impact syndrome, and chronic traumatic encephalopathy (CTE).
Pachman is a partner in Montgomery McCracken’s Litigation Department. His practice concentrates on the defense of TBI cases, and representing individuals and school systems in catastrophic sports injury matters arising out of alleged premature return-to-play decisions and other negligence theories in the sports’ context. His representations include a number of high-profile, nationally-publicized concussion and other TBI cases against NCAA member colleges and universities, high schools, and school personnel, including athletic trainers, coaches, physicians, and nurse practitioners. These cases involve catastrophically-injured football players and other athletes who allegedly sustained prior concussions and second impact syndrome as well as players diagnosed with CTE following a post-mortem autopsy of the brain. Pachman also regularly advises school officials and attorneys, risk managers, athletic departments and their staff, and health care professionals on institutional liability issues concerning sport-related concussions, second impact syndrome, and other sport-related injuries.
Pachman is a frequent speaker on legal matters concerning the proper management of sport-related concussions and other sport-related injuries and has authored a number of articles on the topics of how to minimize the risk of legal liability for sport-related injuries and defend against lawsuits arising out of catastrophic sport-related events. Pachman is regularly quoted by national media, including ESPN, The New York Times, The Washington Post, and CBS Sports, and has guest lectured at colleges and law schools, including the University of Michigan, the University of Oklahoma, the University of North Carolina at Chapel Hill, the University of Maryland, Villanova University, and Virginia Tech. Additionally, he has presented before the NCAA, the Big 10, the Big 12, the Ivy League, the National Athletic Trainers’ Association, the College Athletic Trainers’ Society, and the American Academy of Neurology.
Henry is an associate in Montgomery McCracken’s Litigation Department. He focuses his practice on commercial litigation. Dylan counsels individuals, school systems, and organizations on catastrophic sports injury matters, the proper management of sport-related concussions and other sport-related injuries, and TBI matters. He frequently presents and has authored articles on these legal issues and how these individuals and institutions can minimize their risk of legal liability for sport-related injuries and defend against lawsuits arising out of sport-related events.
Sachs is an associate in Montgomery McCracken’s Litigation Department and recently joined the firm’s Sports Injury practice.
About Montgomery McCracken
Montgomery McCracken is a full-service law firm with offices in Pennsylvania, New York, New Jersey and Delaware. The firm represents leading businesses, multinational corporations, nonprofit organizations and individuals across a wide range of industries in complex litigation matters, significant corporate transactions and challenging disputes. For more information about Montgomery McCracken or its practice areas, please visit us online at www.mmwr.com or on Twitter at @MMWR_Law.
About Hackney Publications
Hackney Publications delivers valuable and important information about the legal side of the sports industry. Its overriding mission, through its publications, is to maintain a narrow editorial focus on issues that matter to its subscribers. The company was founded by journalist Holt Hackney, who has spent more than 30 years writing about sports, business and the law. Besides SFL, Hackney Publications also produces Legal Issues in College Athletics, Sports Litigation Alert, Journal of NCAA Compliance, Legal Issues in High School Athletics, Concussion Litigation Reporter, and Professional Sports and the Law.