Guest Post: Lomas Brown and the Concussion Issue

By Holt Hackney, Publisher of Concussion Litigation Reporter (http://concussionpolicyandthelaw.com/concussion-litigation-reporter/)

Lomas Brown is a friend of mine.

Lomas and I hung out a bit at the University of Florida when the NFL Hall of Famer used to come over to the rented apartment I shared with a roommate, who was buds with one of the guys on the football team. Lomas was “Lo” and I was “Hack.” He was one of the most genuine and approachable people you would ever want to meet.

I lost contact with Lomas after he was drafted by the Detroit Lions and went on to a stellar NFL career. I reached out to him a couple years ago when he was selected to the Hall of Fame. Never heard back. But I still felt then and feel now that he is one of the good guys. Listening to him on ESPN as he has blossomed into a candid and entertaining analyst has only confirmed that.

That openness got him in trouble last month when he admitted that he once let a Green Bay Packer defensive end through to have a straight shot at his quarterback to get his quarterback knocked out of the game.

“We were playing Green Bay in Milwaukee,” Brown told ESPN Radio. “We were getting beat [24-0] at the time and Mitchell just stunk up the place. He’s throwing interceptions, just everything. So I looked at Kevin Glover, our all-pro center, and I said, ‘Glove, that is it.’

“I said, ‘I’m getting him out the game.’ So I got the gator arms on the guy at the last minute, he got around me, he hit Scott Mitchell, he did something to his finger … and he came out of the game. Dave Krieg came in the game.”

Many of his former teammates and media types piled on. Some took a more objective approach, such as Dan Wetzel of Yahoo! Sports, who theorized that the admission of Lomas Brown, who is one of thousands of plaintiffs in the NFL concussion litigation, would undermine the plaintiffs’ case.

“How does a player who admits he blatantly attempted to put his own teammate’s health at risk continue to sue the NFL for putting its players’ health at risk?,” wondered Wetzel.

I asked our editor, Paul Anderson, what he thought of Wetzel’s position.

“It’s doubtful Lomas’ statements will have an impact on the merits of his lawsuit against the NFL for its alleged fraudulent misrepresentations about the dangers of concussions,” Anderson said. “However, it will certainly be something the NFL will wave in front of a jury to solidify the inherent risks of football, and moreover, the fact that Lomas purposefully sought to injure his fellow teammates may be frowned upon by the jury. The jury may consider Lomas’ admission and when it comes down to calculating damages, it may determine that Lomas deserves much less than say, Kevin Turner.”

Anderson went on to suggest another potential impact from Brown’s admission.

“Quarterback Scott Mitchell, the alleged victim of Lomas’ intentional missed block, could in theory sue Lomas for battery. The assumption of the risk doctrine generally bars claims involving injuries inherent in the sport. A participant owes a duty to refrain from increasing inherent risks. A participant assumes the risk that he’ll be injured by his opponent, but a participant arguably does not assume the risk that he will be intentionally injured by a teammate. Lomas arguably breached this duty when he intentionally missed a block so Mitchell would be injured and taken out of the game.”

He added that Lomas’ situation “highlights the importance of attorneys counseling their clients to keep their mouth shut–any statement can be used against a plaintiff as an admission. Hopefully for Lomas, his regrettable statement will not harm his case against the NFL, and he will be able to mend his relationship with Mitchell.”

As for my friend Lo, his path got thornier last week when he went on the air to offer a mea culpa that was somewhat clumsy. His twitter account then got high-jacked as someone made him look like an insensitive jerk. He is neither. This may be the reason that ESPN has not pulled the plug on Lomas. He can still be seen and heard on the network, though a bit more chastened than he was before.