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Comparing the Concussion Lawsuits and the Tobacco Lawsuits

CBSSports.com football columnist Tony Barnhart recently interviewed television legal analyst and former college football player Jack Ford about the concussion crisis and its legal impact.

Barnhart asked Ford to draw an analogy “between where concussion lawsuits are now and where the tobacco lawsuits used to be?”

“There are some significant parallels,” Ford said. “Now we’re seeing all of these lawsuits being filed against the NFL. There’s some I think being contemplated against colleges, maybe even high schools out there down the road. The parallels to the tobacco industry are this: When the tobacco lawsuits started early on, the tobacco industry always won. The notion was you assumed the risk if you were a smoker. You knew [cigarettes] were dangerous. You chose to buy that pack of cigarettes, light it up. You assumed the risk. The argument has always been for football [that] it’s a dangerous game. It’s a violent game. We all played it. We all have injuries as a consequence that we’re all living with. The argument would be for concussions, initially, you knew that that was a hazard. You assumed the risk for that.”

He followed that up with the following query – “What changed in the tobacco lawsuits and what could change in football?”

“Where things changed with the tobacco litigation is when they started to discover deception. That the manufacturers, the people who were doing publications, the publicists, were hiding facts and were trying to spin things a different way to attract people to smoke. If you get to a position where they discover that the NFL — and I don’t know that they did this, I’m not saying that they did — but if anybody discovers that somebody was out there hiding facts, hiding test results, burying them so that they could continue to play the game and as a consequence players were hurt who could have been better protected, that makes for an interesting argument that a court would pay attention to. I don’t know what a jury would do or appellate courts would do. But it gives them an argument that would be similar to the arguments that were eventually successful in the tobacco litigation.”

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