The Latest Wave
The following is an excerpt of an article I presented at a recent CLE in Kansas City.
On April 22, 2015, the Honorable Judge Anita B. Brody of the Eastern District of Pennsylvania granted final approval to the NFL Concussion Settlement. What has been hailed by some as a “historic settlement” and a “huge victory” for the retired players is, in reality, a tremendous deal for the National Football League (“NFL”) and Class Counsel. But a lousy one for the overwhelming majority of players and their families.
The NFL has all-but eliminated any future threat of concussion litigation, saved itself from potentially damaging discovery and turned a PR nightmare into a salvageable message of philanthropy. Class counsel, too, will get to share in more than $112.5 million in class attorneys’ fees, for essentially promoting a slick advertising campaign in which they convinced 99% of the class members to “accept” the settlement—by not opting out.
On the other hand, the “overwhelming majority,” of class members, according to Class Counsel’s own actuarial data, “are not compensated because they never contract a compensable disease.” Stated differently, the overwhelming majority of class members will receive nothing because the most prominent disease affecting retired players—CTE—is not compensable under the settlement.
While the merits of the NFL Concussion Settlement will be debated—and potentially litigated—for the next sixty-five years (i.e., the life of the settlement), one thing is certain: the NFL Concussion Litigation has triggered a new wave of litigation – concussion litigation.
THE GENESIS OF THE NFL CONCUSSION LITIGATION
In 2011, the first concussion-related lawsuit was filed against the NFL. The lawsuit asserted that the NFL knew or should have known since 1928 that football caused brain damage. But instead of warning the players about these dangers and seeking to make the game safer, the NFL engaged in a campaign of denial, deception and brain-rattling glamour, profiting and sensationalizing the big hits through NFL Films.
A. The NFL Takes a Page Out of Industry’s Playbook: Manufacture Doubt
Doubt is our product since it is the best means of competing with the ‘body of fact’ that exists in the minds of the general public. It is also the means of establishing a controversy. – Tobacco Executive
Like Big Tobacco, Big Pharma et al., the NFL knew that it was much easier to debate the science than to debate the logic. Of course hitting your head repeatedly is not a good thing. But a finely-orchestrated “scientific” controversy could easily derail that logic. The NFL knew that if the message – FOOTBALL CAUSES BRAIN DAMAGE – was crystallized, its lifeblood – the moms of football-playing adolescents – could be in jeopardy. Enter the manufacture of doubt.
Although the medical science defining the link between repeated blows to the head and neurological diseases has been established for more than eight decades, the dangers of concussions and sub-concussive blows have been, at best, marginalized. Some would argue that this is because the brain is a highly complex organ for which the study of neurological disease is still in its infancy, (true), whereas others will argue that this “last-frontier” discovery is the result of the NFL’s campaign of denial and cover up, (also true).
There can be no doubt that the NFL did in fact create junk science in order to obfuscate the truth. In 1994, then-Commissioner Paul Tagliabue formed the Mild Traumatic Brain Injury Committee with the specific task of “studying” concussions in professional football. The Committee was led by Dr. Elliot Pellman, a rheumatologist; Dr. David Viano, a biomechanical engineer; and Dr. Ira Casson, a neurologist.
Over the next 15 years, the Committee created a series of several controversial studies that refuted the link between concussions and neurodegenerative diseases (e.g. dementia, Alzheimer’s, ALS, CTE). In the Committee’s most controversial summary study, published in Neurosurgery, the authors made four conclusions that would eventually cost the NFL approximately a billion dollars in the NFL Concussion Litigation.
First, “it can be concluded that mild TBIs in professional football are not serious injuries.”
Second, in regard to the often-times deadly second-impact syndrome the Committee found that “[i]t is possible that this syndrome does not truly exist in this population of athletes.”
Third, in dismissing the various grades of concussions and the necessity to hold concussed players out until they are asymptomatic, the authors found that their study “supports the suggestion that such arbitrary return-to-play guidelines may be too conservative for professional football.”
Fourth, “[t]he results of this study indicate that many NFL players can be safely allowed to return to play on the day of the injury after sustaining a mild TBI.”
The final kicker, on an interview which aired in 2007 on HBO Real Sports, Dr. Casson boldly stated the following in response to questioning:
Q. Is there any evidence, as far as you are concerned, that links multiple head injuries among pro football players with depression?
Q. With dementia?
Q. With early-onset of Alzheimer’s?
Q. Is there any evidence as of today that links multiple head injuries with any long-term problem like that?
A. In NFL players?
Two years later, the NFL was forced to implicitly acknowledge that the studies were flawed when it “accepted” the resignations of the principal authors of the studies: Drs. Casson and Viano. But the damage was done and the lawsuits were being drafted.
B. The Settlement That Freezes Science.
The study of CTE is nascent, and the symptoms of the disease, if any, are unknown. – Judge Anita B. Brody.
The NFL Concussion Litigation was initially framed as a CTE lawsuit, but as negotiations progressed it was transformed into a cognitive-disorder settlement, all-but eviscerating future awards of CTE. CTE has been described as the “industrial disease of football.” Some objectors analogized the failure to compensate CTE in this case to an asbestos settlement excluding compensation for mesothelioma.
The settlement provides compensation for individuals who have been diagnosed with ALS, Alzheimer’s, early-to-severe dementia, or Parkinson’s. The settlement also carves out a period in which certain CTE claims (“Death with CTE”) will be paid. Retired players who died and were diagnosed with CTE at anytime between January 1, 2006, and the date of final approval (i.e., April 22, 2015) will receive an award. To be fair, the settlement will pay relatively generous awards to some individuals:
However, it forecloses any future awards for CTE. So, for example, if a retired player died today, and he was subsequently diagnosed post-mortem with CTE, his family would receive zilch under the settlement. Moreover, the settlement fails to compensate for the classic, clinical symptoms relating to CTE, including mood and behavioral disorders, depression, irritability, explosivity, suicidality, etc. CTE is described in the medical literature as manifesting in four stages; it is not until the final stages that cognitive disorders/dementia manifest.
While it is true, at present, CTE can only be definitively diagnosed post-mortem, Dr. Robert Stern, among others, believe that an in-vivo CTE diagnosis will be forthcoming within the next five years. Despite this, the settlement states that it will never pay an award for an in-vivo CTE diagnosis without the player manifesting “actual cognitive impairment.” Thus, if a retired, living player is diagnosed with CTE at anytime in the next 65 years, he will not receive compensation under the settlement unless he is cognitively impaired. But that is not CTE. That is CTE + dementia.
This exclusion creates the potential to derail the science relating to CTE and cast further doubt upon the causality of CTE. The latter has already been emphasized by the commissioner of the National Hockey League. Gary Bettman recently stated, “From a medical and science standpoint, there is no evidence yet that one necessarily leads to the other.” His support? The NFL Concussion Settlement. When pressed, Bettman said, his “views echoed those of the federal court judge who approved a settlement between the N.F.L. and thousands of retired players.”
More troubling, the memorandum granting final approval reads like a Daubert analysis. See e.g., Final Approval Memorandum, at *82 (“Because of these [studies’] limitations, researches do not know the symptoms someone with abnormal tau protein in his brain will suffer from during life. No diagnostic or clinical profile for CTE exists.”); Id. at *83 (“No definitive clinical profile yet exists for CTE, however, and the idea that CTE progresses in defined stages—or even that it is associated with symptoms listed—has not been sufficiently tested in living subjects.”). Federal courts faced with future Daubert challenges relating to CTE may rely upon this decision to reject the introduction of expert CTE evidence because it is too “unreliable” or lacks “rigorous testing.”
The former—that the settlement may impede scientific advancements relating to CTE—may occur like this. Before the settlement was reached, families had an incentive—both financially and in a search for answers—to go through the grueling and emotional process of having a loved one’s brain examined for CTE. The financial incentive is no longer present since future CTE claims will not be paid. This in turn could reduce the “brain donations” that clinical researchers rely upon in order to study CTE.
The settlement also mandates that the parties confer at least once every ten years to determine whether adjustments to the qualifying diagnoses need to be made due to the advancements in science. But since CTE is not one which will be modified, the study of CTE may fall by the wayside. Without the NFL’s clout and other interested parties pushing for the advancement of the medical science relating to CTE, it may be difficult to generate funding to complete future studies.
Despite the many shortfalls, the settlement obviously avoids the cost and uncertainty of this complex litigation and ensures that certain individuals are compensated. But in the same stroke, it also delivers a hollow award to the overwhelming majority. The settlement must still survive an arduous appeals process. More than ten separate notice of appeals have been filed. The thrust of the appeals focuses on the exclusion of CTE from the settlement. Time will tell if this exclusion can withstand the Third Circuit’s scrutiny.
 In re Nat’l Football League Players’ Concussion Injury Litig., 2015 WL 1822254 (E.D.Pa.)(April 22, 2015)(final order approving settlement)
 NFL Concussion Settlement Press Release, Mediator Judge Layn Phillips
 But see Green v. Arizona Cardinals Football Club LLC, 21 F. Supp. 3d 1020 (E.D. Mo. 2014)(granting remand; only case in the country to get out of the MDL and proceed to discovery)
 See NFL Concussion Liability Forecast, prepared at the direction of Class Counsel, (Feb. 10, 2014) http://nflconcussionlitigation.com/wp-content/uploads/2014/09/6167-Special-Master-Report.pdf
 See David Michaels, Doubt is Their Product: How Industry’s Assault on Science Threatens Your Health (Oxford University Press, 2008)
 See id.
 See Professor Daniel Goldberg, Mild Traumatic Brain Injury, the National Football League, and the Manufacture of Doubt: An Ethical, Legal, and Historical Analysis, The Journal of Legal Medicine, Vol 34, Issue 2 (June 19, 2013)
 See Martland HS: Punch drunk. JAMA 91:1103-1107, 1928
 See Mark Fainaru-Wada and Steve Fainaru, League of Denial (Crown Archetype, 2013)
 Pellman, Elliott, et al. Concussion in professional football. Neurosurg. Focus 21 (4):E12, 2006
 Alan Schwarz, “N.F.L. Head Injury Study Leaders Quit,” The New York Times (Nov. 24, 2009). http://www.nytimes.com/2009/11/25/sports/football/25concussion.html
 The settlement provides a grace period of 270 days to receive a diagnosis if a player dies before the final approval date.
 See Ann McKee, et al., The Spectrum of Disease in Chronic Traumatic Encephalopathy, 136 Brain 43 (2013)
 Declaration of Robert A. Stern, PH.D. (Oct. 6, 2014); see also Barrio JR, et al., In vivo characterization of CTE using [F-18]FDDNP PET brain imaging. Proc. Natl. Acad. Sci. USA. (April 21, 2015)
 Section 6.6 of the Settlement Agreement provides for modifications to qualifying diseases based on the advancements of science. However it expressly rules out in-vivo CTE diagnoses: “For the avoidance of any doubt, the identification of a condition—for example, through a blood test, genetic test, imaging technique, or otherwise—that has not yet resulted in actual cognitive impairment and/or actual neuromuscular impairment experienced by the Retired NFL Football Player does not qualify as a Qualifying Diagnosis.” Section 6.6(b)
 Pat Iverson, “Gary Bettman says ‘no evidence yet’ that playing hockey causes brain damage” SB Nation (May 21, 2015) http://www.sbnation.com/nhl/2015/5/21/8641783/gary-bettman-says-no-evidence-yet-that-playing-hockey-causes-brain
 Ken Belson, “Gary Bettman Denies Brain Disease Link.” The New York Times (June 3, 2015) http://www.nytimes.com/2015/06/04/sports/hockey/gary-bettman-denies-brain-disease-link.html?_r=0
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