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Duersons’ Lawsuit Gets the National Media’s Attention

2012 February 24
by Paul Anderson

Updated 2/24/12 @ 2:05 pm

On Thursday, the law firm of Corboy and Demetrio along with the family of the late Dave Duerson announced that Tregg Duerson filed a wrongful death lawsuit on behalf of his late father. As you may recall, Dave Duerson took his life last year after shooting himself in the chest and requesting that his brain be donated to the “NFL’s brain bank.”

The lawsuit was filed in Cook County Circuit Court; however it is doubtful it will remain in Illinois for long. I have received a copy of the complaint from Duersons’ lawyer, William T. Gibbs. Read it here: Duerson Complaint

The lawsuit is very similar to the other three wrongful death suits filed against the NFL. It asserts six counts against the NFL and Riddell Helmets pursuant to the Illinois Wrongful Death Act: 1) negligence, 2) fraudulent concealment, 3) conspiracy, 4) failure to warn, 5) strict liability against Riddell and 6) Negligence against Riddell.

Just like the first concussion-related lawsuits, I expect the NFL to file a notice of removal asking the court to consolidate this suit with the other 32 suits.  Pear, Barnes and Maxwell were initially filed in state court, but the NFL quickly filed a notice of removal, seeking that the lawsuits be removed to federal court. Judge Manuel Real denied the former players attempt to send it back to state court. Ruling that the lawsuits involve a federal question, mainly the Labor Management Relations Act, and as such should remain in federal court.

Furthermore, the Duerson lawsuit involves the same questions of fact and law (e.g. whether the NFL is responsible for concealing the dangers of concussions), making it even more likely that it will be consolidated with the other 32 concussion-related lawsuits in Philadelphia.

Now, let me digress from my usual position of providing objective legal reporting to address a few articles I read recently from respectable media outlets that made a few false assertions. I’m sure it was not done intentionally. Respectfully, I will qualify the following paragraphs by saying, (1) I am neither an expert, a lawyer nor a professional journalist and (2) I am not paid, however, I believe, under the circumstances, I do a pretty good job in reporting the facts.

From Maggie Hendricks at NBC 5 Chicago:

“Though other former players have sued the NFL over negligence in concussions, this the first to allege the NFL contributed to a player’s death. The suit claims the NFL knew the harmful effects of concussions, but concealed those facts from Duerson.”

False: This is the fourth concussion-related wrongful death lawsuit that alleges the NFL contributed to a player’s death. See Dronett v. NFL, Estate of Wally Hilgenberg v. NFL and the Estate of Pete Duranko v. NFL.

From Dan Pompei at WSTB:

“A federal judge in Philadelphia had consolidated the 657 complaints into 18 lawsuits. Never before has the league been sued over brain issues like this. And of the 657 cases, you can bet none are anywhere near as strong as Duerson’s. The difference in Duerson’s case is that his was the only brain that was studied and found to have advanced brain damage called chronic traumatic encephalopathy.–20120224,0,3542096.column

False: First off, no, there are not 657 complaints—yes, that is roughly the number of plaintiffs. There are currently 32 lawsuits, and Duerson’s suit brings the total to 33. Although Fridays seem to be the plaintiffs’ lawyers’ favorite day to file new concussion-related lawsuits, so I’m sure the number will continue to rise.

Secondly, I have no clue where Pompei pulled the “18 lawsuits” from; I reached out to him, but to no avail.

Next, Duerson’s brain is not the only brain that showed signs of CTE. In fact, according to Boyd v. NFL , Brent Boyd is the only living, former player that has been diagnosed with CTE. Furthermore, both Pete Duranko and Wally Hilgenberg’s brains showed signs of CTE and CTEM.

Finally, probably the most laughable assertion, is Pompei’s “bet” that Duerson’s case is the “strong[est].” Take this bet now, quickly, before he reneges.

Not only is every concussion-related wrongful death lawsuit suspect ab initio, but causation will be even tougher to prove here than in the other personal injury suits. Further, if this case ever came in front of a jury, the defense would be quick to point out that Dave Duerson sat on the panel for disability benefits and reportedly denied coverage for several former players suffering from concussion-related illnesses, and Duerson testified in front of Congress that there was not a definitive link between concussions and cognitive decline.

Please forgive me for my deviation from the norm; however, I feel it is my duty to expose the falsehoods for what it is. Remember folks, these are professional, paid journalists. I guess much of my cynicism arises from being a victim of copyright infringement by a “veteran” reporter, Mike Mastovich, from the Tribune Democrat. Instead of a sincere apology from him and his editor, I was told it was an “oversight,” and that they would correct it. The correction was laughable and disingenuous at best.

Now, back to reporting about the NFL concussion lawsuits!

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