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‘This Settlement is a Sell-Out,’ Claim Objectors

2014 October 6
by Paul D. Anderson Consulting, LLC

In a tour de force, the Sean Morey, et al. Objectors filed a lengthy Objection today. It can be found here. Included in the filing is a declaration from the foremost expert on clinical CTE. Neuropsychologist Dr. Robert Stern rips the proposed NFL Concussion Settlement – and backs it up with cold, hard facts. His recently filed declaration can be found here.

Here are some of the highlights.

I am confident that within the next five to ten years there will be highly accurate, clinically accepted, and FDA-approved methods to diagnose CTE during life.

Meanwhile, the proposed settlement eliminates awards for all future claims for CTE – living or dead.

Several key symptoms of CTE that are identified in the scientific and medical literature and in my clinical and research experience are not compensable.

*

The Test Battery, set forth in Exhibit 2 of the Settlement, is not appropriate for evaluating whether retired professional football players have neurodegenerative diseases such as CTE or Alzheimer’s disease…The specific tests selected, and the length of the battery would not be consistent with that given by the large majority of neuropyschologists who specialize in neurodegenerative disease and who evaluate patients for Mild Cognitive Impairment and Alzheimer’s disease dementia.

*

It is my scientific opinion, based on the medical and scientific literature and on my own clinical and research experience, that reliance on effort measures included in the Neuropsychological Test Battery would unfairly deprive at least some otherwise eligible person with measurable cognitive deficits of compensation.

*

To be eligible for compensation under Neurocognitive Impairment Level 1.5 or 2.0, the Class Member would have to be so severely impaired in several areas of cognitive functioning that they would require assistance in many activities of daily living (in level 1.5) or be almost fully dependent on another person for most activities of daily living, such as bathing and toileting (for level 2.0).

The Objectors summarize,

This complex procedural framework is a transparent attempt to minimize the cost of the settlement to the NFL  - a consideration of tremendous importance now that the Settlement is purportedly uncapped.

An ‘Appalling’ Saturday

2014 September 28

The NCAA has failed. Michigan has failed. Brady Hoke has failed.

Shane Morris was abused. His health and safety was recklessly disregarded. And for what? Michigan was taking a shellacking. Morris’ brain and body took a needless beating.

ESPN’s announcers, Ed Cunningham and Mike Patrick, declared Michigan’s incompetence multiple times:

 Ed: THEY HAVE GOT TO GET HIM OUT OF THE BALL GAME!

Mike: I’M TOTALLY WITH YOU. HE HAS GOT TO COME OUT.
I MEAN, HE WAS WOBBLY AFTER THAT. FORGET THE LIMPING.

Ed: YOU’VE GOT TO EJECT THIEREN COCKRAN. THAT IS TARGETING.
HE DROPS HIS HEAD. HE LAUNCHES. IF IT’S FORCIBLE CONTACT AND IT MOVES UP INTO THE HEAD AREA, I CANNOT BELIEVE COCKRAN WAS NOT CALLED FOR TARGETING AND NOT ONLY EJECTED FROM THIS GAME BUT THEN HE WOULD BE EJECTED FOR THE FIRST HALF OF THE SECOND. YOU HAVE TO CALL THAT A TARGETING PENALTY.

Mike: THAT CERTAINLY LOOKED LIKE IT.

Ed: I CAN TELL YOU THAT NUMBER 7 IS STILL IN THIS GAME IS APPALLING. IT IS APPALLING THAT HE WAS LEFT IN ON THAT PLAY. TO THROW THE BALL AGAIN AND AS BADLY AS HE WAS HIT BY COCKRAN AND COCKRAN SHOULD HAVE BEEN EJECTED AND MISSED THE REST OF THIS GAME AND NEXT WEEK.

Concerned spectators took to Twitter and unleashed their fury with Michigan’s gross incompetence:

But this is exactly how the NCAA envisions its concussion policy to work. “When in doubt, get checked out.” In other words, unless a player makes a self-diagnosis of a concussion, he is not coming out.

The entire world expressed doubt. Hoke directed Morris to return to play because, in Hoke’s words, Morris didn’t stay down.

I don’t know if he had a concussion or not, I don’t know that…. Shane’s a pretty competitive, tough kid. And Shane wanted to be the quarterback, and so, believe me, if he didn’t want to be he would’ve come to the sideline or stayed down. – Brady Hoke

Every player wants to play – they have been conditioned their entire lives to “play through pain” and to obey their coaches.

Hoke’s response punctuates why the NCAA’s concussion policy is a failure.

First, the toothless concussion management plan places the responsibility for reporting injuries on the student-athletes. The same student-athlete who is experiencing amnesia, who is not thinking clearly, or more bluntly, who is suffering from a brain injury.

Second, Hoke admits he does not know how to identify obvious signs and symptoms of an apparent concussion – certainly Morris’ injuries were enough to trigger doubt.

Third, member institutions can continue to publicly violate the NCAA’s concussion policy with no accountability. See here, here and here.

Meanwhile, Hoke – who is paid more than $2 million a year – articulated the NCAA’s defense in concussion lawsuits: It’s the player’s fault. We are not responsible.

And, of course, the NCAA won’t take any action. The NCAA won’t investigate. The NCAA won’t inquire with Michigan as to why a player’s life was put in jeopardy. Nope. The NCAA apparently has more important things to do than to live up to its founding purpose of protecting student-athletes.

One last note, Hoke’s actions arguably constitute a fireable offense pursuant to his contract,

“The University has the right to terminate the employment of the Head Coach for cause in the event of only the following…(c) Conduct of Head Coach which offends public decency or morality as shall be determined by the standards prevailing in the community…(g) Fraud or willful malfeasance in the performance of any duties or responsibilities under this Agreement.”

What say you? Were you outraged? Were you offended?

Michigan has the right and power to terminate Brady Hoke – for cause. There is solid legal precedent. Remember Mike Leach?

Let’s see how concerned Michigan is with the health and safety of its student-athletes.

Update – September 30, 7:59 am

Public outrage forces Michigan’s hand. Michigan’s athletic director issued a lengthy statement early Tuesday morning. It essentially admits that Michigan’s policies failed and that Morris did, indeed, suffer a concussion. The full statement from Dave Brandon is below:

Ultimate responsibility for the health and safety of our student-athletes resides with each team’s coach and with me, as the Director of Athletics. We are committed to continuously improving our procedures to better protect the health and welfare of our student-athletes.

I have had numerous meetings since Sunday morning to thoroughly review the situation that occurred at Saturday’s football game regarding student-athlete Shane Morris. I have met with those who were directly involved and who were responsible for managing Shane’s care and determining his medical fitness for participation.

In my judgment, there was a serious lack of communication that led to confusion on the sideline. Unfortunately, this confusion created a circumstance that was not in the best interest of one of our student-athletes. I sincerely apologize for the mistakes that were made. We have to learn from this situation, and moving forward, we will make important changes so we can fully live up to our shared goal of putting student-athlete safety first.

I have worked with Darryl Conway, my Associate Athletic Director for Student-Athlete Health and Welfare, to develop a detailed accounting of the events that occurred. Darryl is the person who oversees all athletic training personnel and serves as the liaison to the physicians we work with through the University of Michigan Health System and University Health Services.

It is important to note that our athletic trainers and physicians working with Michigan Athletics have the unchallengeable authority to remove student-athletes from the field of play. Michigan Athletics has numerous medical professionals at every football competition including certified athletic trainers and several physicians from various relevant specialties.

I, along with Darryl and our administrative and medical teams, have spent much of the last two days carefully reviewing the situation regarding Shane Morris. We now understand that, despite having the right people on the sidelines assessing our student-athletes’ well being, the systems we had in place were inadequate to handle this unique and complex situation properly.

With his permission, I can share that Shane Morris suffered an ankle injury during the third quarter of Saturday’s game. He was evaluated for that injury by an orthopedic surgeon and an athletic trainer several times during the game. With each of these evaluations it was determined that his ankle injury did not prevent him from playing.

In the fourth quarter, Shane took a significant hit and stumbled after getting up. From the field level and without the benefit of replays, medical and coaching staffs did not see the hit. Because they did not see the hit, the athletic training staff believed Shane stumbled because of his ankle injury. The team neurologist, watching from further down the field, also did not see the hit. However, the neurologist, with expertise in detecting signs of concussion, saw Shane stumble and determined he needed to head down the sideline to evaluate Shane.

Shane came off the field after the following play and was reassessed by the head athletic trainer for the ankle injury. Since the athletic trainer had not seen the hit to the chin and was not aware that a neurological evaluation was necessary, he cleared Shane for one additional play.

The neurologist and other team physicians were not aware that Shane was being asked to return to the field, and Shane left the bench when he heard his name called and went back into the game. Under these circumstances, a player should not be allowed to re-enter the game before being cleared by the team physician. This clearly identifies the need for improvements in our sideline and communication processes.

Following the game, a comprehensive concussion evaluation was completed and Shane has been evaluated twice since the game. As of Sunday, Shane was diagnosed with a probable, mild concussion, and a high ankle sprain. That probable concussion diagnosis was not at all clear on the field on Saturday or in the examination that was conducted post-game. Unfortunately, there was inadequate communication between our physicians and medical staff and Coach Hoke was not provided the updated diagnosis before making a public statement on Monday. This is another mistake that cannot occur again.

Going forward, we have identified two changes in our procedures that we will implement immediately:

We will have an athletic medicine professional in the press box or video booth to ensure that someone will have a bird’s eye view of the on-field action, have television replay available and have the ability to communicate with medical personnel on the sidelines.

We are also examining how to reinforce our sideline communication processes and how decisions will be made in order to make sure that information regarding student-athlete availability to participate is communicated effectively amongst the medical team and to our coaches.

We have learned from this experience, and will continue to improve ways to keep our student-athletes’ health and safety our number one priority.

 

Objectors Seek Potentially Damning Discovery

2014 September 14
by Paul D. Anderson Consulting, LLC

After losing their bid for appellate intervention, the Sean Morey Objectors are now launching a reasonably calculated attack on the merits of the proposed settlement — through the tools of discovery.

The Objectors have propounded discovery requests on Class Counsel and the NFL relating to (a) the process by which the settlement was developed and (b) the merits of the NFL’s defenses – i.e., what the NFL knew, or should have known, about concussions. The Objectors are also seeking to depose an NFL representative on a variety of topics relating to its denial of the long-term risks of TBI. In addition, the Objectors are seeking to depose Class Counsel: Chris Seeger, Arnold Levin and Dianne Naste.

Below are the documents:

Objector’s Motion for Discovery

Discovery Requests and Depo Notices

Explosive Data Released

2014 September 14
by Paul D. Anderson Consulting, LLC

Pursuant to Judge Brody’s Order, the NFL and Class Counsel submitted the long-awaited actuarial data behind the proposed settlement. This adds more fuel to the fire that the proposed settlement is a WIN for the NFL and a significant loss for the victims – i.e. the players.

Below is the data:

Class Counsel’s Analysis

The NFL’s Analysis

In a stark admission of the deal’s lousiness, Class Counsel concedes the majority of players — unless they opt out — are giving up their right to sue in exchange for no compensation:

The overwhelming majority, approximately 15,000, are not compensated because they never contract a compensable disease. – Class Counsel’s Analysis, p. 4

First Down — Third Circuit Show Down

2014 September 8
by Paul D. Anderson Consulting, LLC

On Wednesday, the Third Circuit will hear the first challenge—of presumably many to come—to the proposed NFL Concussion Settlement.

The request for review was lodged by the so-called Sean Morey Intervenors who have publicly challenged the settlement’s terms on numerous fronts.

The NFL and Class Counsel oppose this request for review, arguing that the appeal is premature.

The Third Circuit identified the issues it intends to hear on Wednesday:

[T]he court directs counsel to be prepared to address at oral argument on September 10, 2014, whether, under Fed. R. Civ. P. 23(f), this court may exercise jurisdiction over an interlocutory appeal challenging settlement class certification where the lower court has issued a preliminary order conditionally certifying the class but has not yet held a final fairness hearing. Counsel also should be prepared to discuss the merits of this appeal, in addition to this jurisdictional question.

In other words, much of the argument will likely focus on a threshold procedural issue that will hinge on whether the Third Circuit has jurisdiction to hear the present dispute. Or, as the NFL and Class Counsel contend, the petition is premature and it should not be addressed until after a record is fully developed by Judge Brody; i.e., after the fairness hearing and an order granting or denying final class certification.

More importantly, the Third Circuit will also hear the merits of the appeal. This is, in essence, a full frontal attack on the proposed settlement. Sean Morey’s group asserts three central points, which they contend “doom” class certification:

1)   The deal compensates only certain individuals diagnosed with CTE, while ignoring hundreds and perhaps thousands of others;

2)   An award can be reduced by up to 75% if a player has suffered a stroke – despite the fact that a contributing factor could have been the NFL’s allegedly illegal administration of Toradol; and

3)   Players who played in the NFL Europe – who were subject to the same fraudulent conduct and policies – will receive no credit for those seasons.

Legal minutia aside — make no mistake — this is argument is very significant.

Courtroom football is back! And it’s sure to include a long appellate season — after a hard-fought regular season in the lower court.

*Oral Arguments are scheduled to be made by the following parties:

Petitioners (aka Sean Morey, et al) – Steve Molo

NFL – Brad Karp and/or Bruce Birenboim

Class Counsel – Samuel Issacharoff

Sporting KC CLE

2014 August 22
by Paul D. Anderson Consulting, LLC

Let me play Coach – Lawyers Representing Clients in the Sports World

Tuesday, September 23, 2014 • Seminar 4:00 – 5:40 PM • Soccer Match 7:00 PM Sporting Kansas City Stadium, One Sporting Way, Kansas City, KS 66111

Credit: Missouri – 2.0 Hours / Kansas – Pending Cost: $135 KCMBA Member* $155 Non-Member*

Fee includes CLE seminar, tour of the stadium, tickets to the soccer match (Sporting KC v. Real Esteli) in the Coors Light Cold Zone, and all-inclusive food and beverages (brats, hot dogs, pretzels, popcorn, peanuts, nachos, soda, water, draft beer).

Register by clicking here.

 

DESCRIPTION

Join us for a panel discussion with some of the local experts on cases they are working on, and the legal issues currently facing the sports world. We will talk to Greg Cotton from Sporting Kansas City regarding his in-house role, and delve into the recently concluded O’Bannon v. NCAA trial and the new cases filed against the NCAA and conferences such as the Big 12 seeking a free market for the payment of college athletes. We will also address the recently filed concussion cases against the NFL and the NCAA and so much more.

SCHEDULE

3:30 PM Registration

4:00 PM Seminar

5:40 PM Adjourn

7:00 PM MLS Soccer Match (Sporting Kansas City v. Real Esteli)

MODERATOR

Leon Versfeld, Versfeld & Hugo, LLC

PANEL

Greg Cotton, Sporting Kansas City

Mit Winter, Polsinelli PC

Paul D. Anderson, The Klamann Law Firm

William (Bill) C. Odle, Shook Hardy & Bacon LLP

Criminal Defendants Add New Tool to War Chest

2014 August 3

As the science of concussions and their long-term effects advance, so too does the many ways in which a criminal defendant may seek to be set free.

Criminal defendants and their lawyers are looking to prior sport-related brain injuries as a causative factor for the illegal behavior.

According to the Observer-Reporter, former high school football player, Jordan Clemons, is facing the threat of the death penalty after being charged with brutally murdering his girlfriend.

Clemons’ lawyer recently filed a motion with the court citing his client’s extensive history of brain injuries, including multiple concussive and sub-concussive blows from football. His lawyer requested that a neurologist and psychologist evaluate his client.

The court, correctly, granted his request.

Clemons’ lawyer explained the purpose of his motion, “Diminished capacity is often the phrase used when a defendant’s state of mind does not meet the legal requirements for first-degree murder, which requires a premeditated, willful and deliberate killing with specific intent to kill. If capacity is diminished but a defendant is found to have committed the act, it falls to a lesser degree of murder.”

While not a complete defense, Clemons’ lawyer is seeking medical evidence to establish that his client lacked the necessary mental state to be found guilty for first-degree murder, which could potentially allow the jury to find Clemons guilty of a lesser charge such as second-degree murder. It also sets the stage for the introduction of mitigating factors if Clemons is found guilty of first-degree murder.

This could mean the difference between life in prison and death.

Lawyers have an ethical obligation to provide competent representation. This is an ever-evolving ethic, which is especially true in the rapidly advancing area of “neurolaw.”

A recent decision by the Alaska Court of Appeals highlights the necessity of investigating a client’s brain-injury history.

In Starr v. State, A-11250, 2014 WL 2834502 (Alaska Ct. App. June 18, 2014), a woman was convicted of second-degree murder after stabbing her boyfriend. She subsequently sought post-conviction relief, contending that her lawyer provided ineffective counsel by failing to investigate her concussion history. In her motion, the defendant included an affidavit from a neuropsychologist who opined that Starr’s “behavior surrounding the stabbing was consistent with her having suffered a concussion.” Id.

In reversing the trial court’s decision to deny the defendant’s application for post-conviction relief, the Court of Appeals admonished the trial court for violating the defendant’s due process rights when it “skipped Starr’s failure-to-investigate claim…[and] deprived Starr of the opportunity to establish that she has actually suffered a concussion and that the concussion had impacted her culpability….” Id.

This case breathes new life into the word “competency.” A lawyer clearly has an ethical obligation to investigate his or her client’s brain-injury history and pursue all possible defenses.

As evidenced by the recent cases like Clemons and others, lawyers are taking this ethic seriously.

Expect Titus Young’s lawyers to assert this defense as well.

 

(h/t @concernedmom9)

Guest Post: InfraScanner-Concussion Awareness and Advocacy

2014 July 12
by Paul D. Anderson Consulting, LLC

Last season a 16-year-old New York prep football player died following a helmet-to-helmet collision. Damon Janes walked to the sidelines, collapsed, and was taken to a local hospital. After 3 hours a CT scan showed bleeding in his brain and was then transported to a trauma hospital, 2 hours away. Janes succumbed to the injuries 3 days later.

After a 10-round fight, 32 year old heavy weight champion Magomed Abdusalamov allegedly told New York State Athletic Commission physicians that he did not feel right. After a neurological test that required him to read a series of numbers, they sutured a cut above his left eye and allegedly told him he had a broken nose. They allegedly advised him to have his injuries looked at by a doctor within a day or two when he returned home to Florida. What they did not realize was that Abdusalamov’s brain had already started bleeding.

The State Athletic Commission Inspector assigned to monitor Abdusalamov that night noticed blood in Abdusalamov’s urine sample after commission doctors cleared the fighter – a possible sign of internal bleeding. According to reports, he suggested Abdusalamov’s trainers hail a cab to take him to the hospital emergency department. Abdusalamov was in a coma for weeks following emergency brain surgery to remove a large blood clot hours after the fight. Abdusalamov may never walk or talk again.

Prompt medical care after a traumatic injury can be the difference between life and death — also known as the “golden hour”. The InfraScanner offers a solution to two secondary impacts of concussion: brain bleeding and excess radiation exposure from a head CT scan. These are two very real concerns that are often overlooked in discussions about concussion management.

JACO_MMA Scan_4

The InfraScanner is a non-invasive portable screening device that uses near-infrared (NIR) technology to assist medical professionals with a more accurate, expedited clinical assessment of the presence or absence of an intracranial hematoma in a matter of minutes. This cutting edge device is a groundbreaking tool for TBI and concussion management. It helps determine if a patient needs to be sent to a Trauma center for a CT scan and neurosurgical intervention or kept for close observation.

One CT scan is equal to 300-400 chest x-rays to the head and has been clinically established by peer review journals to increase the likelihood of cancer. 18.7 million head CT scans are given annually. The likelihood of a positive scan in this patient group is less than 10% and may be as low as 1-3% 1. Because of a CT scan’s dangerously high levels of ionization radiation exposure known to cause cancer, the InfraScanner will lead to better patient care while at the same time reducing healthcare costs.

The InfraScanner was developed for use by the US Marine Corps and has been battlefield tested since 2008. There is currently no other FDA approved technology available which is similar.  The InfraScanner is currently being used by Emergency Medical Services, hospitals, sports medicine and has been in use by the Pittsburgh Steelers team neurosurgeon, Dr. Joseph Maroon, for the past two years.

For more information go to med-logic.us

 

________________________________

1 Fox, W. Christopher, Min S. Park, Shawn Belverud, Arnett Klugh, Dennis Rivet, and Jeffrey M. Tomlin. Contemporary Imaging of Mild TBI: The Journey toward Diffusion Tensor Imaging to Assess Neuronal Damage. Neurological Research, n.d. Web.

Featured Study – Media Framing and Football Injuries: An Opportunity to Shift the Narrative

2014 June 11
by Paul D. Anderson Consulting, LLC

By Dr. Jimmy Sanderson

I am sure many of us remember when the now infamous 2011 NFC Championship game between the Chicago Bears and Green Bay Packers, when Bears quarterback Jay Cutler received significant criticism for not finishing the game after sustaining a knee injury.

Many of us also probably remember watching Washington Redskins quarterback Robert Griffin III during a 2013 playoff game against the Seattle Seahawks continuing to play after sustaining a knee injury before being removed from the game.

For me, my colleague Dr. Melinda Weathers, and a team of undergraduate students in the Department of Communication Studies at Clemson University, these two incidents provided a compelling opportunity to examine how the print media talked about players’ injury decisions.

On a surface level, it appeared that Cutler was widely criticized for not finishing the game, particularly by his peers, while Griffin was praised as a warrior.

In the study we conducted, we examined 177 news articles that reported on these two incidents to see how these two quarterbacks were framed by the media.

Not surprisingly, Cutler was portrayed as a sissy, the severity of his injury was questioned, and he was blamed for it. However, what was interesting is that many more articles shifted the blame away from Cutler to other people in the Bears organization, and – one of the key findings for us – was that there was significant support for Cutler for not returning to the game.

With Griffin III, only a small portion of the reports assigned any responsibility to him. Rather, the blame was shifted to Coach Mike Shanahan and other Redskins officials, including team doctors, and the severity of his injury was emphasized. Griffin was also positioned as hero for his resiliency in fighting through injury that – and another key finding here – was part of the game.

Our results are not exhaustive and much more work needs to be done. However, they do offer a starting point for conversations about the role the media can play in the way we talk about injuries in football and there were a couple of key takeaways for us in this research.

First, it was surprising to see significant support for Cutler, especially given how much criticism he received from his peers. The press can play a role in shifting attitudes about health issues – and when we consider how many kids participate in football – injuries in football are a public health issue – we wonder if the press begins to praise players who do not continue to play through injuries and put their health first, if that might have a trickle down effect?

Second, while there was evidence of shifting narratives about playing through pain, there was still the notion that playing through injuries, regardless of the long-term consequences, is privileged. For example, one report about Griffin noted that, “In the macho world of the NFL this earns much street cred.”

One of the issues with health and safety in sports, but particularly football, is that the culture is at present, incompatible with players advocating for their health. Speaking up for oneself is often seen as “unmanly” and this norm perpetuates through all levels of football to predispose players to not seek attention, even when their own well-being is at stake.

Equating manliness with playing through pain, no matter the cost, has too long gone unquestioned and the press may begin to sow the seeds for a culture change by doing so.

Can a player still be “tough” and put their health first? That is the big question facing the culture of football.

Dr. Jimmy Sanderson is an Assistant Professor in the Department of Communication Studies at Clemson University. His research centers on the influence of social media and sports with particular emphases on sports media, sports organizations, and communicate between athletes and fans and he is beginning research on concussion and health issues in sports. His work has appeared in multiple academic journals and he also is the author of It’s a Whole New Ballgame: How Social Media is Changing Sports published by Hampton Press. Connect with him on Twitter @Jimmy_Sanderson

Court Rejects NFL Team’s Preemption Argument

2014 May 14
by Paul D. Anderson Consulting, LLC

A significant victory was won today on behalf of our clients and all employees of Missouri. We are one step closer to obtaining justice for players that are suffering from cognitive injuries due to the ongoing denial and cover up by the NFL and its members clubs. The Court, in effect, determined that professional-sport teams are not immune from liability.

On May 14, 2014, Chief Judge Catherine Perry issued an Order remanding Green, et al v. Arizona Cardinals Football Club, LLC, 4:14-cv-00461-CDP (E.D. Mo.) (“Green”), to the Circuit Court for the St. Louis, Missouri, from which it was removed. Doc. #33, 4:14-cv-00461-CDP. The District Court denied defendant’s motion to stay proceedings and remanded Green over the defendant’s objections.

In Green, the Court held that the players’ claims were neither created by nor require the interpretation of a CBA. Id, at p. 13. As for the negligence claim, the Court held as follows:

“Unlike the negligence claim in Gore [v. Trans World Airlines, 210 F.3d 944 (8th Cir. 2000)], here the duties arise out of the common law based upon the employer-employee relationship and not out of any particular terms in the CBAs. The reasonableness of the Team’s actions towards [Plaintiff] Scott cannot depend upon an interpretation of a CBA, as Scott was never bound by the contract. It stands to reason, then, that the other plaintiffs’ negligence claims do not necessarily depend upon an interpretation of the CBAs, so far as the duties owed them and the standards applied to their claims derive from the same source as for Scott.” Id. at p.

As for the negligent misrepresentation and fraudulent concealment claims, the District Court held that, “[a]s with their negligence claims, the plaintiffs’ negligent misrepresentation and fraudulent concealment actions arise independent of the CBAs as a function of the common law and thus are not preempted.” Id. at pp. 16-17.

“Because the plaintiffs’ claims can be determined without interpreting the CBAS,” the Court stated, “I do not have subject-matter jurisdiction over this case.” Id.

Mike Florio, of ProFootballTalk.com, breaks down the ruling further,

The primary concussion litigation, with more than 4,000 plaintiffs, resulted in a proposed nationwide settlement before the question could be resolved as to whether the cases should be kicked out of court.  Now, via NFLConcussionLitigation.com, one of the other concussion cases has survived the NFL’s effort to deliver an early knockout punch.

The U.S. District Court for the Eastern District of Missouri, in a case brought by receiver Roy Green (pictured) and other former members of the St. Louis (now Arizona) Cardinals, concluded that the lawsuit may proceed in Missouri state court.  Which means that the discovery process will proceed.

One result of this ruling – the public will no longer be denied the right to learn what the football industry has concealed from, and misrepresented to, society.

Which means that the NFL has moved closer to the day on which it will have to disclose what it knew and when it knew it about the long-term risks of concussions.

And the impact it could have on the pending NFL concussion litigation.

The outcome also could result in the plaintiffs in the settled case to quit trying to persuade Judge Anita Brody to approve the settlement, opting instead to proceed with the litigation.  If the players in that case secure the same victory Roy Green and others have realized in Missouri, the value of the claims would potentially skyrocket.