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District Court Denies Class Certification in Youth Football CTE Case

By Anthony B. Corleto, Daniel H. Lee, Madison A. Kucker, Ian A. Stewart and Patrick M. Kelly, of Wilson Elser

(Editor’s Note: The following appeared along with 8 other articles in Concussion Litigation Reporter.)

In a significant decision, the U.S. District Court for the Central District of California denied plaintiffs’ motion to certify a class of “All persons who enrolled their minor children in Pop Warner tackle football from 1997 to present.” The plaintiffs in Archie v. Pop Warner, USDC CD CA 2:16-cv-06603, sought class certification for statutory unfair competition (UC) and false advertising (FA) claims, under the California consumer protection statutes.

Archie was brought by the mothers of two former youth football players, each of whom died in their mid-twenties, a decade after they last played youth football; one from a self-inflicted gunshot wound, the other in a motorcycle accident. The mothers sued for money damages and to enjoin advertising that “youth tackle football is safe for minor children.” Front and center in the complaint are allegations that exposure to repetitive contact leads to chronic traumatic encephalopathy (CTE), the disease process found at autopsy of the brains of football players Aaron Hernandez and Junior Seau. The plaintiffs in Archie each claim that their son had CTE as the result of playing youth football. Worth noting, each also played football in high school and one played into college.

Focusing on the “predominance” requirement of Rule 23(b)(3), the court observed that each of the communications offered in support of the UC and FA claims were directed to coaches and other youth sport organizations rather than the public, and that class certification is “only available to those class members who were actually exposed to the business practices at issue.” The communications at issue included a website that went live in 2002, internal administrative materials and a 2012 letter to other national youth sport organizations about a meeting to “preserve the youth sports experience.” Plaintiffs also argued that the requirement to use helmets certified by the National Operating Committee on Standards for Athletic Equipment (NOCSAE) was misleading because Pop Warner failed to disclose that there is not a NOCSAE “youth specific” standard and because the warning label does not expressly call out the risk of “repetitive head trauma.” The court concluded that plaintiffs failed to show that the putative class members were exposed to the alleged misrepresentations, or that they were exposed to the allegedly misleading helmets before enrolling.

The court decided the motion on the papers in advance of the scheduled argument date.

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Parachute announces Canadian Guideline on Concussion in Sport to Protect Health of Active Canadians

Concussions in sport are a recognized public health problem because of their frequency of occurrence and their potential short- and long-term consequences. These include cognitive, emotional and physical symptoms, and when left undetected, even death. Parachute Canada (Parachute) works closely with concussion experts from across the country to better understand the most effective prevention, recognition and management strategies for concussion. Today, Parachute is announcing the new Canadian Guideline on Concussion in Sport.

Based on scientific evidence from the 5th International Consensus Statement on Concussion in Sport, and developed with Parachute’s Expert Advisory Concussion Subcommittee, the comprehensive Canadian Guideline creates the foundation for a more consistent approach to concussion across the country, which will allow participants to play safer and continue training, competing, and enjoying a full, active life.

The Canadian Guideline on Concussion in Sport is part of the Parachute-led Concussion Protocol Harmonization Project. With support from the Public Health Agency of Canada, and in collaboration with the Department of Canadian Heritage – Sport Canada, Parachute is working with National Sport Organizations to ensure concussion protocols that align with the Canadian Guideline are in place across Canada’s amateur sport community.

The announcement comes following the Conference of Federal, Provincial and Territorial Ministers Responsible for Sport, Physical Activity and Recreation in Winnipeg. Steve Podborski, Parachute President & CEO and Olympian, is available to media.

Quick Facts

    Sport and recreation-related injuries account for more than half of child and youth injuries treated in emergency departments across Canada.

    Among children and youth (10-18 years) who visit an emergency department for a sports-related head injury, 39% were diagnosed with concussions, while a further 24% were possible concussions.

    The Government of Canada is investing $1.4 million to develop a comprehensive, evidence-based approach to preventing, managing and raising awareness among Canadians about concussions.

Quotes

“I encourage all Canadians to incorporate more physical activity into their daily lives. However, I also want to encourage safe practices to prevent possible injuries. The Canadian Guideline on Concussion in Sport not only raises concussion awareness, but also provides parents, coaches, athletes and healthcare professionals with an evidence-based approach to preventing, identifying, managing and treating concussions.”

– The Honourable Jane Philpott, P.C., M.P., Minister of Health

“I am excited that the Canadian Guideline on Concussion in Sport is now available to all Canadians. It’s an invaluable tool, which will allow athletes, especially our young ones, to enjoy sport in a safe manner. I truly hope that this guideline will be used by all provinces and territories to ensure that proper return-to-play and return-to-learn protocols are followed by all.”

– The Honourable Carla Qualtrough, Minister of Sport and Persons with Disabilities

“We are honoured to work with the Public Health Agency of Canada and other elite members of the medical community, who are helping us better understand concussion prevention, recognition and management strategies to better equip Canadian athletes, coaches, educators and parents with the right information. The Canadian Guideline on Concussion in Sport will ensure there is consistent, evidence-based concussion information across the board for amateur sport organizations.”

– Steve Podborski, Parachute President & CEO

“I am 100% supportive of a national strategy on concussion to create a more consistent approach across the country. Many Canadian athletes compete in multiple sports, so having our sport organizations on the same page about concussion is critical to ensure our athletes are managed properly. This way they can continue competing, and excelling, at home and on the international stage.”

– Curt Harnett, Olympian, three-time Olympic medalist, Chef de Mission Rio 2016

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Plaintiff Fails to Show USA Water Polo Was Negligent in Concussion Case

Editor’s Note: What follows is an excerpt from a case summary that appeared in the July issue of Concussion Litigation Reporter. To subscribe, visit https://concussionpolicyandthelaw.com/subscribe/

A federal judge from the Central District of California has ruled that USA Water Polo “struck the proper balance between promoting vigorous competition and ensuring the safety of its competitors,” when it dismissed the claim of a mother, whose 16-year-old daughter, H.C., suffered a concussion in the pool.

The mother had claimed that USA Water Polo failed to have an adequate concussion policy or respond in a timely manner to the concussion, “aggravating” the initial injury and leading to post-concussion syndrome.

By way of background, H.C. played water polo for one of 500 USA Water Polo-registered clubs and was participating in a tournament organized and managed by USA Water Polo. On the first day of the tournament, H.C., while playing the goalie position, was hit in the face by a shot, which led to a concussion. H.C’s coach, allegedly lacking any concussion management training, allowed H.C. to continue playing in that game and in subsequent games where she …

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