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“Kill the head and the body will die.”

2012 April 16

The above title comes from a fiery pre-game speech that defensive coordinator Greg Williams delivered to the New Orleans Saints last year. The quote is also now part of the court record in the NFL concussion lawsuits.

On Monday, the 59th concussion-related lawsuit was filed against the NFL. Although the lawsuit doesn’t name a high-profile player that was a victim of the bounty scandal, it did attract a frenzy of attention from the national media. As I predicted when the Williams’ speech was first released,

The first paragraph of the complaint cites the now infamous quote that has — according to some — added extra ammunition to the former players’ lawsuits against the NFL. Although the NFL will likely raise an objection, there is no doubt the plaintiffs’ lawyers will try to play the inflammatory speech to the jury.

We need to find out in the first two series of the game, that little wide receiver, No. 10, about his concussion. We need to f****** put a lick on him right now. — Williams

To be admissible the judge must find that the propounded evidence is both relevant and not overly prejudicial. See Federal Rules of Evidence 403. In other words, the evidence cannot be so one-sided that it distracts the jury from the issue(s) at trial.

For example, during a murder trial the prosecutor will try to introduce several pictures of the victim’s maimed and bloody body. The defense will make an objection, arguing that some of the pictures are severally prejudicial to the defendant because it either incites or inflames the jury. On balance, the judge will have to determine if the picture’s probative value is substantially outweighed by the danger of unfair prejudice. See State v. Bocharski 22 P.3d 43 (Ariz. 2001).

Similarly, IF the concussion cases ever go to a jury, the judge will have to determine if the Williams’ audio is relevant to the issue of whether the NFL is liable for concealing vital information about concussions that subsequently caused the former players’ cognitive decline.

As Professor Michael McCann opined,

 

Of course, we will never know until the cases goes to trial, and since there may be multiple trials throughout the country, some judges may allow the recording into evidence and others may exclude. In either event, it will remain an academic exercise until a victim (i.e. possibly Kurt Warner) of the bounty scandal files a lawsuit. At that time, it will indeed be relevant.

Here, the four players named in the lawsuit — Myron Guyton, Lomas Brown, Jessie Small, and Willie Whitehead — do not allege that they were victims of the bounty scandal. However, they do allege that the bounty scandal is part of the NFL’s “win-at-all-cost mentality” and that it “encouraged its players to think of themselves as gladiators.”

The complaint includes some original and unique allegations different from the other 58 lawsuits. Other than the bounty allegations, the complaint includes a quote – that I tweeted the other day — from the 17th Annual Meeting of the American Football Coaches Association,

 

In addition, the complaint is the first to assert a cause of action for negligent hiring. The claim is directed at the hiring and supervision of the now-defunct 1994 Mild Traumatic Brain Injury Committee (MTBI). Specifically, the lawsuit alleges that the NFL hired Drs. Pellman, Casson, and Viano knowing that they “were not suited to serve on the MTBI Committee or otherwise influence the NFL’s concussion policy.”

The plaintiffs are represented by Von DuBose and E. Marcus Davis. DuBose is also a certified player’s agent. This explains why there is an entire section of the complaint devoted to a player signing an NFL contract and not being warned about the risks of concussions, labeled “How Athletes Become NFL Players.”

Finally, the lawsuit asserts six counts: fraudulent misrepresentation; negligent misrepresentation; negligence; negligent hiring, retention and supervision; medical monitoring; and loss of consortium. Since this lawsuit was filed in state court, the NFL will have to (1) file a Notice of Removal — removing the case to federal court, (2) file a Notice of a Potential Tag-Along Action with the Judicial Panel on Multi-District Litigation (JPML), and then barring any objections, (3) the JPML will transfer the case to Philadelphia.

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