NFL Concussion Litigation

This morning, Mike Florio of ProFootballTalk.com penned a piece claiming, “yet another concussion lawsuit was filed.” Florio is a smart guy and he does an excellent job reporting and/or re-reporting.

However, after reading the article I figured it would be best if I corrected some of the statements made. To be clear, this is not an attack on Florio.

As I reported more than two months ago, Michael Haddix et al v. NFL was filed in Camden County Superior Court.

As the standard procedure goes when a concussion-related lawsuit is filed in state court, the NFL will remove the case to federal court.

On May 25th, the NFL filed a notice of removal, which moved the lawsuit to the District of New Jersey. This sets the path for the lawsuit to be consolidated with other 68-plus cases already in Philadelphia.

Next, the citation of Kevin Kolb returning to play after having a concussion is not new.

Almost every lawsuit filed by the Locks Law Firm, and other lawyers that used that complaint as a template, cites to the Kevin Kolb incident.

Florio then goes on to say, “it’s hard not to wonder when a current player will roll the dice and join the concussion lawsuit parade, or when a former player will pursue a class action on behalf of men who are still playing the game.”

Although the majority of lawsuits do not purport to represent current players, the first class action filed in federal court, Ray Easterling et al v. NFL, does seek to represent a class of all current NFL players:

Sub-class E. All current NFL players who have in the past and/or will in the future experience a concussion like symptom while playing or practicing and who, until now, have not been properly monitored, assessed, evaluated or otherwise examined to insure that any transitory or permanent injury is properly recognized, diagnosed and treated before allowing return to play.

Nonetheless, Florio’s point is well taken. The lawyers have purposefully omitted naming current players in the lawsuits because it would bolster the NFL’s argument that this is fundamentally a labor dispute.

Whether a current player will actually join the lawsuits has yet to be seen. But, my hunch is that the NFLPA has told its players not to join the concussion lawsuits.

Respectfully, “the NFL concussion guy!” (h/t Scott Andresen)

On Monday, a group of 15 retirees filed suit against the NFL alleging that it did not do enough to prevent the long-term damage caused by concussions.  The group is led by Hall of Famer Eric Dickerson and two-time Pro Bowler Hoyle Granger.

The lawsuit was filed in the Southern District of Texas by the law firm Provost Umphrey.

Among the 15 retirees suing, are the Estates of David Lunceford and Hall of Famer Ernie Stautner. The lawsuit alleges that both players were suffering from Alzheimer’s at the time of their death. Lunceford died at the age of 75 in May 2009, and Stautner died at the age of 80 in February 2006. Quizzically, the lawsuit does not specifically assert a wrongful-death claim.

Updated 5/22/2012 @ 9:23 a.m.

Yet another lawsuit was filed on Monday in the Superior Court of California — Los Angeles: Johnnie Morton et al v. NFL. It names 13 former players as plaintiffs. The most notable player is 12-season veteran Johnnie Morton who played primarily for the Detroit Lions and then played three seasons with the Kansas City Chiefs. According to a few astute Tweeps, they notified me that Morton also tried MMA fighting after walking away from football. Here’s a video of him getting knocked out in his first fight. 

This will undoubtedly be raised by the NFL as a contributing cause to Morton’s alleged cognitive decline.

The other 12 players named in the Morton suit are Kez McCorvey; Kurt Barber; Mike Sherrard; Stockar McDougle; Toi Cook; Brian Dudley; Brad Booth; Chris Hale; John Jackson; Dennis Clay; Norman Scott Byers and Darryl Crane.

There are now 81 concussion-related lawsuits filed against the NFL, which include more than 2,240 former players.

A month ago, the media went crazy when the first concussion lawsuit was filed against the NFL citing the so-called “bounty gate” allegations. The lead plaintiff in that lawsuit was ESPN analyst Lomas Brown.

The same lawyers that represent Brown filed a four-player lawsuit in Fulton County, Georgia today. The lawsuit names Robert Edwards, Kenneth Callicutt, Byron Ingram and Todd Kelly, along with their respective wives, as plaintiffs.

Callicutt is already a named plaintiff in a lawsuit filed by The Locks Law Firm. This, surprisingly, has occurred more than a dozen times with other players. Presumably, Callicutt will be dismissed as a plaintiff in the Carl Harriston et al complaint, and Gene Locks will withdraw as Callicutt’s attorney.

According to a source, there are a handful of ongoing disputes regarding what client belongs to which attorney. It is unknown whether the attorneys here will dispute who gets Callicutt as a client. At the end of the day, Callicutt will get to choose whom he wants to act as his lawyer.

Updated: 5/18/12 @ 9:30 pm

On Friday, a class action was filed in the Eastern District of Louisiana on behalf of eleven players: Charlie Granger et al v. NFL et al. It also includes allegations related to bounty gate and Gregg Williams. Further, the lawsuit alleges that the NFL “spent nearly $5.5 million on lobbying firms to address a host of issues from player concussions to Internet gambling….” This likely suggests that the NFL has the power and influence to control the conversation regarding concussions. However, I am not so sure this connection has merit since it was Congress that forcefully voiced its discontent with the NFL in 2009 and 2010.

Just like the previous complaint, the named plaintiffs do not allege that they were victims of bounty gate. Rather, the complaint attacks the culture of the NFL for glorifying violent hits to the head and encouraging players to think of themselves as gladiators. Similarly, the lawsuit alleges that the NFL concealed vital information regarding the risks related to concussions; primarily directing the allegations at the Mild Traumatic Brain Injury Committee.

The Edwards lawsuit asserts six counts: fraudulent misrepresentation; negligent misrepresentation; negligence; negligent hiring, retention and supervision; medical monitoring; and loss of consortium. The Granger complaint asserts two additional counts: fraudulent concealment and conspiracy.

Since the Edwards 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.

There are now 78 concussion-related lawsuit filed against the NFL and more than 2,200 former players involved. As I repeatedly say, these numbers will continue to increase in the coming weeks and months.

Updated: 5/19/12 8:23 am

Yet another lawsuit was filed on Friday, this time in Los Angeles. The lawsuit, Sam Cunningham et al v. NFL, names 12 former players as plaintiffs. Some notable players include, Sam “Bam” Cunningham, Alvin Garrett (aka “little monkey“),Charlie Phillips, and Jim Wilks.

This brings the total lawsuits to 79 and includes more than 2,210 players.

I recently wrote an exclusive article for Sports Litigation Alert. It provides in-depth legal analysis of the issues confronting Judge Holderman. You can check it out here.

As you may be aware, Dave Duerson’s family filed a wrongful death complaint in February. The NFL and Riddell Helmets removed the case to federal court, and Duerson filed a motion to remand.

Duerson and the NFL & Riddell Helmets submitted their briefs to Judge Holderman on Friday. A decision is expected within the coming weeks.

Duerson is essentially arguing that the wrongful death complaint does not belong in federal court. Conversely, the NFL wants Duerson’s case consolidated with the other concussion-related lawsuits in Philadelphia.

The controversy hinges on whether the lawsuits are “fundamentally a labor dispute” governed by the collective bargaining agreement (CBA), or if the state-law claims are independent of the CBA and therefore not preempted.

Judge Holderman has a difficult and complex ruling to make—the case law and sports labor law experts are split on the issue. But, if he rules in favor of Duerson and sends the case back to state court, it will undoubtedly become the first test case in the concussion lawsuits against the NFL.

In other words, a lot is riding on Judge Holderman’s ruling.

Judge Brody will have to make a similar decision when she eventually rules on the NFL’s motion to dismiss. However, that decision is not expected until 2013.

That is why Judge Holderman’s decision may be groundbreaking. If Judge Holderman determines the claims are not preempted — and sends the case back to state court — Duerson and the NFL will immediately start discovery, with an anticipated trial date set for 2014. Of course, there is no guarantee, IF and when, a trial will take place.

There is also no telling what may be uncovered during the discovery process, but it will provide an indicator for how the other lawsuits will play out. Although 2014 sounds like an eternity, it will indeed shape-up well before the other 60-plus lawsuits engage in significant action.

For example, if damning evidence is discovered (i.e. depositions of the Mild Traumatic Brain Injury Committee: Drs. Pellman, Casson and Viano, among others), the strength of the NFL’s defense will be tested. This will create a windfall effect for all of the other concussion lawsuits. As one attorney closely involved in the lawsuits told me in response to Duerson’s case potentially being a test case, “It definitely can’t hurt.”

The plaintiffs’ lawyers are anxiously awaiting Judge Holderman’s ruling because it will effectively provide a roadmap for how Judge Brody may rule on the Section 301 preemption issue, and allow the plaintiffs to see the NFL’s hand (i.e. defense strategy). Accordingly, the parties’ respective positions may be bolstered or severely weakened.

At bottom, if Judge Holderman rules against Duerson – following Judge Manuel Real’s prior decision – nothing dramatic will have occurred. On the other hand, if the case is sent back to state court, it will be BREAKING NEWS.

Sit tight, it’s about to be a fun ride!

Heading into my last final of my law school career I started hearing rumors that Junior Seau had died.

I tried telling myself there is no way my childhood hero could have actually taken his life, just FOCUS on your final! Turn off your phone, focus.

Throughout my three-hour exam, all I could think about was the hard-hitting, ferocious, Seau…I grew up emulating this guy. There is no way he could have possibly died.

I finished my exam at 4:10 pm (CST), I turned my phone on and had 16 emails – a lump grew in my throat – the same feeling I had when I woke up to the message my father had died of a heart attack.

Law school was over, celebrate!

But, I wasn’t satisfied, no joy, no happiness…Junior Seau…dead…of an apparent suicide.

I just finished my law school career, I should be ecstatic, right?

It was confirmed, my childhood hero, ICON, Mr. Say Ow……DEAD OF AN APPARENT SUICIDE…SHOT HIMSELF IN THE CHEST!!!

My father would show me films of Seau; he bought me Seau’s jersey when I was in 5^th grade. I wore it once a week. It was my pride and joy. It made me feel tough, it made me feel invincible…I had Jr. Seau as my guiding force…the hardest hitting, most feared linebacker in the league.

The toughest guy in the NFL, dead at 43, apparently shot himself in the chest, perhaps to show the world chronic traumatic encephalopathy (CTE) is REAL. It’s here to stay, a devastating disease that completely takes over your brain, controls who you are, doesn’t let go until it kills you!

It took one of the toughest guys in the NFL. The guy I — and so many others — grew up emulating, Mr. Say Ow!

In 1994 — the same year the Mild Traumatic Brain Injury Committee was created – Seau was named NFL’s Man of the Year.

Could Seau become the face of future player safety?

A new safety and health benefit plan dedicated to any and all players – vested or not – that will provide lifetime-neurological treatment to all past and current players?

Will this be a game changer? We can only hope so, so we never have to see another football legend die of an apparent suicide.

CTE can only be diagnosed postmortem. We can only suspect that Seau was suffering from the debilitating disease that eats away one’s frontal lobes, controls impulse behavior and subsequently leads to death— often by apparent suicide.

Seau is not an anomaly, at least six former NFLers have died of COMPLETELY unnatural causes—Terry Long, Andre Waters, Mike Webster, Shane Dronett, Dave Duerson, Ray Easterling, and the latest, Mr. Seau.

How many lives will have to be destroyed?

The shield can only dodge so many PR hits.

Two suicides within two-and-a-half weeks?

I’m ready to wake up from this nightmare; unfortunately the guys that sold their soul — and brain — to the game they loved will never wake up.

Video

By Andrew M. Blecher MD

If you are reading this then you are already well aware of the current concussion crisis in the NFL. No matter where on the spectrum your opinions lie regarding this topic, there is one question that still remains: How did we get here? Surely if something has gone wrong then there must be someone to blame for it. Was it the league’s fault? The coaches? The players? The doctors? Maybe it is the injury itself that’s to blame? Perhaps it was just the perfect storm of a number of factors that put us in this situation? To truly get to the bottom of this, it is important to have a better understanding of the doctor-patient relationship. Not just in general, but specifically as it applies to concussed athletes in the NFL. Ultimately we may not find blame here, but we should at least shed some light on the realities of the situation.

As a sports medicine physician, I have taken care of thousands of concussed athletes at all levels. 8 year old hockey players, high school soccer players, collegiate football players, professional moto-cross racers and skaters, you name it. For all of them, the doctor-patient dynamic is similar. However, for the NFL players, that dynamic is entirely different. Let’s begin by looking at the usual non-NFL doctor-patient relationship. If I evaluate a concussed athlete either on the sideline of a collage stadium or during clinic in my office, the roles are clearly defined. An injured athlete is being evaluated by an independent expert in the field of concussions. Either the athlete has sought me out in the office or the school has asked me to be there because I am good at what I do. I am not employed by the athlete or by the team. I answer to nobody and base my decisions on my training and my instinct. When I diagnose a player with a concussion I educate them and their family that they should not be participating in activities that put them at risk of further head injury until they have fully recovered from the concussion, however long that will be. This education may not be easy. After all, the athlete wants to get back to play ASAP. The athlete considers the concussion to be minor and it doesn’t inhibit their ability to play (so they think). That’s the thing about concussions. It affects cognitive function and diminishes one’s ability to make rational, thoughtful decisions. Therefore it can be extremely difficult to properly educate the athlete about why they must not be playing.

Why is this education so important? Because I cannot go home with them and hold their hand and prevent them from going skateboarding, or skiing, or playing pick-up basketball. I might be able to hold them out of their sanctioned sport by giving them a note that says they aren’t cleared, but ultimately they must be convinced of what I am telling them in order to protect themselves. They aren’t cleared to play in a sanctioned event at their institution because of my note and because the institution doesn’t want to assume the liability. But nobody is stopping them from doing what they do on their own time in their backyard or in their driveway. So ultimately the athlete and the family must trust that what I’m saying is in their own best interest. And why wouldn’t it be? Because after all I am an independent expert who is a patient advocate who answers to nobody.

Now let’s look at the doctor-patient relationship in the NFL. Many people may believe that the NFL team doctors are the very best of the best and are carefully sought out by NFL teams and are hired by the teams to provide the best medical care to their players so that their multi-million dollar investments are well protected. Makes sense right? Unfortunately this is not necessarily the case. NFL team doctors are not paid salaries by the teams. In fact, most team doctors pay the teams for the right to be the team doctors. Yes, you read that correctly. A medical group or hospital system will often pay the team for the right to be the team physicians. Why? Because they receive a marketing package to promote themselves as the team physicians. Is this valuable? Well many physicians think so and are willing to pay hundreds of thousands of dollars a year (sometimes approaching $1 million/year) for the right to be NFL team physicians. This is not to say that some team physicians are not incredible doctors, because many times they are in fact the best of the best. However, that’s usually not how they got the job. They got the job because of the marketing rights for the group or hospital. So now who is managing the concussions on an NFL sideline? Is it an independent expert in the field, or is it whomever is the best-trained representative of the medical team that paid for the rights to be there?

If you correctly understand this situation, then you would guess that historically the doctor on the sidelines to evaluate concussions would be either an orthopedic surgeon or an internist. Respectively they might be outstanding doctors in their field, but neither of them likely has had specific training in managing concussions. Even if they had, let’s look at what that training might have entailed. For years there were many different guidelines for diagnosing and managing concussions. These were not based on any scientific evidence but instead on the opinions of various experts from the fields of neurology and neurosurgery. By and large these guidelines stated that it was OK to send an athlete back into the game if their concussion symptoms were minimal and temporary. So now let’s look at a typical NFL concussion situation and see how this plays out.

It’s the third quarter and the quarterback gets sacked. He is slow to get up and wobbles a little bit. He comes over to the sideline and says he has a headache but otherwise he feels fine. His team is down by a touchdown and he wants to get back into the game. Should he? And if not, who is going to stop him? Does the athletic trainer or the team doctor have an obligation to examine the athlete? Well, historically the answer is not really. If the athlete doesn’t seek out medical assistance then he may not get it. If he is minimizing his symptoms and wants to be tough and get back out there (which of course is the culture of the game because continuing to play after getting your bell rung is a badge of honor) then he might not present to be evaluated or may even go so far as to refuse to be evaluated because he states that he is completely fine. Remember, the concussed athlete does not make good decisions due to the concussion itself. If the athlete happens to be lucky enough to be evaluated by the team physician, then hopefully he will have a thorough physical exam and cognitive evaluation and the diagnosis of concussion will be made. Was that always the case? We can’t say for sure, but even if it was, then what? The physician must decide whether the athlete can return to play. With any return to play decision the physician takes two important things into consideration: 1) Is the player at risk of further injury by playing? 2) Is the player at risk of long term or permanent damage by playing? Historically there have not been solid answers to these questions. Guidelines have said that if symptoms are minimal and temporary (which of course they will be because the athlete is minimizing them) then return to play is OK. What’s the real danger of returning to play anyway? Is it Second Impact Syndrome? Typically that is the correct answer, but no NFL player has ever suffered Second Impact Syndrome. In fact, Second Impact Syndrome is so rare that arguably there are less than 20 true occurrences that have ever been reported, and they all occurred in adolescents, not grown men. So we never really knew for sure that there was a risk of worsening the injury by returning an NFL player back into the game on the same day. There were also no good long-term studies that told us without a doubt that there was a risk of permanent long term damage either. So the athlete wants to play, the team wants the athlete to play and now the doctor must determine if it is OK to play. Well there is no written evidence-based guideline for the physician to rely on to give a reason not to play. Even if the physician’s instinct might be extremely conservative and want to hold the player out, does the physician really want to be the only doctor in the NFL who is doing this? As they say, NFL stands for “Not For Long” and the physician might find himself no longer on the sidelines if he is holding all of his team’s players out against their will and the wishes of the team. After all, the doctor is easily replaceable with someone else who wants to be part of the marketing package. So with no real reason to hold the player out and many pressures to put them back in (including the athlete’s own desire to go back in) . . . . back in they go.

Maybe the athlete will take a few aspirin for the headache, but that’s where the treatment ends. And what about the educational part where the player gets taught about his condition? No time for that because the clock is running and the game is going on. How about after the game? Well the player finished the game just fine and just has a headache and does not want to be bothered by the medical staff with education about head injuries. The player might not even trust the medical staff’s opinion anyway since the athlete believes that the medical staff works for the team. The athlete didn’t seek out that specific physician for an opinion so how can he trust him to be an independent patient advocate looking out for his best interest? And is the athlete going to now go see his own personal doctor to be evaluated for the concussion? Of course not. Many of these players didn’t even have personal doctors and even if they did they would be minimizing their symptoms and wouldn’t feel the need to go. So unless they had family or friends who forced them to go get evaluated, it wasn’t going to happen. So where should the educational part have come from? Should it have been mandated by the league? Who would have provided it and who would have really listened? With no educational part to the concussion management protocol, the athlete goes right back to practice and on to the next game.

This is how for years NFL players with mild concussions were able to keep playing and keep putting themselves at risk for the next head injury. It wasn’t until all of these players got older and their permanent long term effects became well-documented that we were finally able to recognize the true seriousness of concussions. We now know that these injuries have cumulative effects. We now know that it is not OK for a concussed athlete to ever go back into the game. We now have league guidelines for head injuries and we have independent experts in the field of concussion who thoroughly evaluate all concussed players. We now have the tools to save the athletes from themselves. Younger players are learning from the older players and the culture is slowly changing. Should all of these revelations have occurred years ago? Absolutely. But they didn’t. So whose fault was it? The player, the doctor, the league, the culture, the concussion, the perfect storm? ……..You decide.

Dr. Andrew Blecher is a Board Certified Sports Medicine physician at the Southern California Orthopedic Institute. He provides concussion management for both amateur and professional athletes including youth sports, high school and college, and he also has experience as a physician in the NFL as well as for the Los Angeles X-Games. He is a Certified ImPACT Consultant and has lectured extensively on concussions from hospital grand rounds to national conferences. By providing continuing education to other physicians, athletic trainers, coaches, parents and athletes, he strives to improve concussion awareness and prevention. Dr. Blecher is also the Director of the SCORE Concussion program which, in partnership with the Wells Fargo Play it Safe Program, provides comprehensive concussion insurance coverage for 10 Los Angeles area High Schools.

You can also follow him on Twitter for the latest concussion information: @the_jockdoc

[scribd id=91421344 key=key-39btmpqrwu1vtefkjac mode=list]