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Will the NFL Concussion Lawsuits Be a Game Changer?

2012 February 8
by Paul D. Anderson Consulting, LLC

This will be a several part series discussing the allegations of the lawsuits and the arguments the players and the NFL will make. Part I will provide a short background discussing the allegations of the lawsuits. The allegations come directly from the lawsuits and do not reflect the opinion of the author.

Part I: How we got here

Over the past ten months, nearly 2,500 former NFL players have launched an assault against the NFL for its alleged concealment of the risks related to concussions.

Many fans will argue that it’s a no-brainer that repeated blows to the head cause later-life cognitive impairment. For example, look at the Great Muhammad Ali, after several years of boxing he now suffers from Parkinson’s, which some neurologist link to repeated hits to the head.

Likewise, former NFL players suffering (or living with the fear of suffering) with brain disease claim that the NFL is responsible for their injuries. But why do the former players think the NFL is responsible?

It all started in 1994 when the NFL created the Mild Traumatic Brain Injury Committee (MTBIC). The mission of the MTBIC was to study the effects of concussions and to implement rules and guidelines to protect players from concussions. The Committee was led by Drs. Elliot Pellman, Ira Casson, and David Viano.

The neurological community was also conducting similar studies. According to Dr. Bennet Omalu, a forensic pathologist, “The concept of permanent brain damage and dementia following repeated blows to the head is a very well established and generally accepted principle in medicine.”

Despite this generally accepted principle, it is widely reported that the MTBIC spent over a decade refuting the link between concussions and long-term brain injuries. All of the lawsuits include allegations that the NFL engaged in a misinformation campaign that led to the following conclusions:

  • Returning to play after a concussion “does not involve significant risk of a second injury either in the same game or during the season.”
  • There is “no evidence of worsening injury or chronic cumulative effects of multiple MTBIs [mild traumatic brain injuries] in NFL players.”
  • “Many NFL players can be safely allowed to return to play on the day of injury” and that “the current decision making of NFL team physicians seems appropriate for return to the game after a concussion.”
  • And potentially the most damning action came from an interview in 2007 of Dr. Casson on HBO’s Real Time Sports

 

Now that you know the potent allegations the plaintiffs’ lawyers plan on using to prove the NFL’s culpability, let’s discuss the lawsuits.

Updated 5/23/12

As of May 22, 2012, eighty-one lawsuits have been filed against the NFL. The lawsuits assert claims of negligence, negligent misrepresentation, fraudulent misrepresentation, fraudulent concealment, medical monitoring, conspiracy, one wrongful death claim, and loss of consortium on behalf of the players’ wives.

Essentially, the plaintiffs argue that the NFL and its employees knew about the risks of concussions and instead of confronting the issue, it spent several years concealing the truth while profiting immensely at the expense of the players’ health.

You may wonder why the lawsuits don’t name the doctors as defendants. Under the doctrine of respondeat superior (aka vicarious liability) the employer (NFL) is responsible for the negligent actions of its employees.

The MTBI Committee and its members (Drs. Pellman, Viano and Casson) were employees of the NFL. As such, the NFL would be liable for the alleged negligent and fraudulent actions of the Committee. Specifically because the doctors were acting within the scope of their employment and under the supervision of their employer (NFL).

The lawyers did not name the doctors individually as a defendant because the NFL was purportedly responsible for creating and monitoring the actions of the Committee, and furthermore, the NFL is the one with the deep pockets.

If a judgment is rendered against the NFL, the NFL could attempt to seek indemnification from the members of the Committee. In other words, the NFL would ultimately be responsible, but it could try to make the doctors contribute money for the damages.

The NFL, in theory, could potentially be liable for several billion dollars. For example, the average cost of health care for a former player suffering with a brain injury is estimated at nearly $88,000 per year. Take this number and multiply it by the number of potential plaintiffs that could join the lawsuits, at least 7,000, and then multiply the sum by the average player’s remaining life expectancy. This gives you a glimpse of the astronomical numbers the NFL could be on the hook for in damages and future medical monitoring.

The Panel on multidistrict litigation (MDL), on January 31st, heard arguments to determine if the twenty-four lawsuits should be consolidated and transferred in front of a single judge. The Panel ruled that the pending lawsuits should be sent to Judge Brody in the Eastern District of Pennsylvania.

This ruling sets the stage for pretrial proceedings to begin. The plaintiffs’ lawyers will have to work together to draft a master complaint, and then overcome the NFL’s motion to dismiss in order to keep the lawsuits in court. If the plaintiffs overcome the motion to dismiss, which likely won’t be decided until early 2013, full-blown discovery will begin and then another round of briefing (class certification and summary judgment) will take place.

Assuming the plaintiffs survive the motion to dismiss, pretrial proceedings will last throughout 2013 and 2014 and a trial date, if any, wouldn’t be set until at least late 2015. If a trial were to take place, the lawsuits would be sent back to the court where they originated. For example, Dorsey Levens’ lawsuit was filed in Atlanta, but due to the creation of the MDL it was sent to Philadelphia, if the lawsuit is set for trial it would take place in Atlanta.

There is also a chance that Judge Brody might suggest a bellwether case, so the parties can try one case and have it be an indicator for the future lawsuits. If the plaintiffs were to win a bellwether case, then the NFL would likely enter into a global settlement. On the other hand, if plaintiffs lose, then there would likely be multiple trials throughout the country, with each lawyer believing that his case is stronger than the bellwether case. Of course, the short-term goal for the plaintiffs is that the NFL will reassess its position, if it loses the motion to dismiss, and start talking a global settlement.

 

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