The audio recording from this morning’s oral arguments are not posted yet. However, the AP has reported on a few quotes from the arguments. Most notably is the quote from the NFL’s lawyer, Paul Clement:
The science could determine that all that matters for CTE is the concussive hits you took before your 18th birthday.
OMG. Heads will roll at 345 Park Ave. Because USA Football and the thousands of moms who will hear that remark.
Twitter is also having a frenzy with the quote.
NFL cringes at this hypo: “science could determine that… CTE is the concussive hits you took before you[‘re] 18” https://t.co/SOnp41k652
— Paul D. Anderson (@PaulD_Anderson) November 19, 2015
NFL’s lawyer (paraphrasing): “Science may say hits before age 18 cause CTE.” Wow, NFL blames @USAFootball 4 #CTE?! https://t.co/SHevkhjiEk
— Chris Nowinski (@ChrisNowinski1) November 19, 2015
So if NFL lawyer is playing this hypo game, then why support tackle football before the age of 18? https://t.co/9fKohMLACE — The Concussion Blog (@concussionblog) November 19, 2015
Wow, that is so not the argument the NFL wants to make in federal court! https://t.co/sjdp7QTgHe — Patrick Hruby (@patrick_hruby) November 19, 2015
Given #NFL lawyer Paul Clement’s statements, “What does the NFL really know about #CTE?” Public Health demands full disclosure. @NIH@CDCgov
— NFLCSFacts (@NFLObjectors) November 19, 2015
To be fair, it was just a hypothetical.
Earlier this week, I noted the likely lineup for the oral arguments on Thursday. Since the parties have a limited time yet wide-ranging arguments, the Third Circuit ordered the parties vying for an opportunity to speak to split up their time accordingly. The Objectors are allotted thirty minutes and the proponents of the settlement are allotted thirty minutes. Since the Objectors are appealing the settlement, they will go first. The NFL and the Class will follow, and then the Objectors will get a rebuttal.
The following lineup has been solidified, subject to a division for rebuttal time and any last minute changes:
- Steven Molo on behalf of the Faneca Objectors (13 mins including rebuttal) – description of arguments: “substantive unfairness of settlement’s disparate treatment of CTE”
- Deepak Gupta on behalf of Armstrong Objectors (13 mins including rebuttal) – description of arguments: “inadequate representation of future-injury claimants”
- Howard Bashman on behalf of Heimburger Objectors (2 mins) – description of arguments: “inappropriateness of class certification”
- Jared Beck on behalf of Gilchrist Objectors (1 min) – description of arguments: “Daubert“
- Chip Becker on behalf of Alexander Objectors (1 min) – description of arguments: “Girsh factors”
- Samuel Issacharoff on behalf of the Class (17 mins)
- Paul Clement on behalf of the NFL and NFL Properties (13 mins)
Appellants Rebuttal
- Steven Molo
- Deepak Gupta
Third Circuit Panel
At the heart of the appeal is the NFL Concussion Settlement’s unfair treatment of CTE. Under the settlement, CTE is essentially eviscerated from the NFL-medico lexicon. No one will ever receive future compensation for CTE, even though scientists predict that within the next “five to ten years” CTE will be diagnosed in the living. No matter. Unless a player died and was diagnosed with CTE on or before April 22, 2015, no player will be compensated for CTE, ever! Take, for example, Ken Stabler.
In this latest excerpt of briefing from Deepak Gupta’s team, they attack the irrational treatment of CTE and the fact that players are forever releasing future CTE claims in exchange for nothing.
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The settling parties have been unable to justify the mismatch at the heart of the deal: the disparate treatment between those diagnosed with CTE before, and those diagnosed after, the date of approval. The parties’ “proxy” theory—that other, rarer conditions may stand in for CTE—offers no justification for this disparity, and fails to account for the fact that many with CTE will get nothing. The same is true for scientific uncertainty, which is a reason to preserve, not extinguish, future claims. The only credible explanation for the disparity is also the simplest: the deal was achieved by sacrificing future claimants’ interests to the winds.
[…]
“The inadequacy of the representation” here “is apparent from examination of the settlement itself.” Nat’l Super Spuds v. N.Y. Mercantile Exch., 660 F.2d 9, 18 (2d Cir. 1981). This settlement creates a massive “disparity between the currently injured and [future-injury] categories of plaintiffs,” Amchem, 521 U.S. at 626—the class’s “most salient conflict,” Georgine, 83 F.3d at 630. Under the settlement’s terms, if a class member died with CTE before April 22, 2015—that is, if he had a current CTE claim on the day of approval—his estate will receive up to $4 million. But if a class member dies after April 22, 2015—that is, if he has a future CTE claim—his estate will “get no monetary award at all” for the very same injury. Id. Future injury plaintiffs, in other words, are forced to release all “claims relating to CTE,” A.77, yet they “will never enjoy the [CTE] benefits of the settlement”—benefits that were obtained at their expense. GM Trucks, 55 F.3d at 797.
It is hard to think of more “conspicuous evidence” of “an intra-class conflict.” Id. When a “settlement treats [one group] quite differently from [another],” it has “serious implications for the fairness of the settlement and the adequacy of representation of the class.” Id. at 777. That is especially true here, where the disparate treatment concerns the one injury that triggered this flood of litigation in the first place: death with CTE—the “industrial disease” of the NFL. A.5410.
What explains this eye-popping disparity if not a conflict of interest? Why would class counsel, who previously called CTE “the most serious and harmful disease that results from NFL and concussions,” A.2237, insist on up to $4 million in CTE compensation for those who have already died, but forever foreclose the possibility of CTE compensation for everyone else? Whose interest does that serve? How can we be sure that future CTE claims were not bargaining chips to benefit others?
The district court posited two justifications for the disparity. The lead justification was that “[a] prospective Death with CTE benefit would incentivize suicide because CTE can only be diagnosed after death.” A.144. Put differently, the court’s concern was that CTE claims are so valuable—and the settlement’s compensation for those who will be diagnosed with CTE in the future is so inadequate—that some class members will kill themselves to obtain the benefits. That justification is as perverse as it is fanciful.
[…]
Worse, these class members will “become bound to the settlement” even though they “lack adequate information to properly evaluate” it. Georgine, 83 F.3d at 633. The wide variation of CTE estimates in this case attests to that. Becauseany absent class member would have great “difficulty in forecasting what their futures hold,” Georgine, 83 F.3d at 31, any rational future-injury representative would insist on “an agreement that keeps pace with scientific advances,” as the district court explained. A.93. But this deal doesn’t do that. Instead, it “freez[es] in place the science of [2014],” Georgine, 83 F.3d at 31, by requiring only that the settling parties “meet at least every ten years and confer in good faith about possible modifications,” while giving the NFL veto power over “any prospective changes,” A.147.
Worse still, the uncertainty of the future creates especially “serious problems in the fairness” of this settlement, Georgine, 83 F.3d at 633, because it does not involve the small-dollar claims that Rule 23’s drafters had “dominantly in mind,” Amchem, 521 U.S. at 617. Rather, this case “involves claims for personal injury and death—claims that have a significant impact on the lives of the plaintiffs and [could one day] receive huge awards in the tort system.” Georgine, 83 F.3d at 633.
Each plaintiff thus “‘has a significant interest in individually controlling the prosecution of [his case]’; each ‘ha[s] a substantial stake in making individual decisions on whether and when to settle.’” Amchem, 521 U.S. at 616 (quoting Georgine, 83 F.3d at 633). Future-injury class members would thus “probably desire a delayed opt out like the one employed in Bowling v. Pfizer, Inc., 143 F.R.D. 141, 150 (S.D. Ohio 1992).” Georgine, 83 F.3d at 631. But here, too, class counsel came up short, instead bargaining for “an enormous legal fee,” GM Trucks, 55 F.3d at 801 further evidence that this settlement was beset with conflict, as discussed in Part II.
In short, the substance of this settlement should put this Court on high alert that future-injury class members did not receive fair and adequate representation here. The settlement facially discriminates against them as to the one injury at the heart of this litigation—an injury the settlement itself values at up to $4 million. The parties’ failure to justify the disparity leaves only one explanation: inadequate representation.
**********
This week may end up being the most pivotal moment in the future of the NFL Concussion Settlement Litigation. On Thursday, the Third Circuit will hear oral arguments on why the NFL Concussion Settlement should be reversed or affirmed.
And while oral arguments are often not decisive, they at least provide a glimpse of which way the judges are leaning. They also focus the issues that are potentially determinative, which in turn, allow observers to analyze a likely result.
Some of the best appellate lawyers in the country are slated to argue the respective sides. The NFL has, once again, called on Paul Clement to save the settlement. Also advocating for affirming the settlement, the Class will likely be represented by Professor Samuel Issacharoff.
On the opposite side, seeking reversal of the settlement, there are several lawyers vying for an opportunity to speak. The two most prominent are Deepak Gupta and Steven Molo. Molo’s group has been a tour de force throughout the objection process, providing critical assessment and analysis of the settlement’s inadequacies. Gupta’s group, similarly, has submitted some stellar appellate briefs that effectively identify the deficiencies of the settlement that arguably compel reversal.
Simply put, the parties are well represented, and you can all-but guarantee that this case is headed for the Supreme Court, though the granting of certiorari is less than certain. But first, the Third Circuit must weigh in.
Rather than summarize the arguments on appeal, Gupta’s Opening brief frames the issues so well that it deserves to be excerpted below. Over the next four days, I also intend to republish here what I deem to be the most compelling arguments. (If you can’t wait, you can read the full Opening brief here and the Reply brief here. The rest of the briefing from all sides can be found here.).
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Submitted by Gupta Wessler PLLC, et al on behalf of the Armstrong Objectors
By the summer of 2013, the NFL’s executives faced a crisis. Despite the League’s campaign to obscure the effects of concussions in pro football, the autopsy of a beloved former player had led to the discovery several years earlier of chronic traumatic encephalopathy. Characterized by mood and behavioral problems, and even suicide, CTE is a neurodegenerative condition caused only by repeated head trauma. Of 91 former NFL players’ brains examined, CTE has been found in 87.
The discovery of CTE set off a wave of lawsuits by over 5,000 players—a legal and public-relations nightmare for the NFL. But those in the NFL’s boardroom that summer were even more alarmed by what they saw on the horizon, and what the rapidly evolving science foretold: a tsunami of claims by the far larger number of players who would be diagnosed with CTE in the decades to come.
So the NFL wanted an end game: It would pay those with present injuries, including families of players who had already died with CTE. In exchange, the NFL would secure a sweeping global release of all former players’ future CTE claims, without paying any of them. This bargain would result in a stark disparity: The family of a player who dies with CTE before the class-action settlement’s approval gets up to $4 million. But an identically situated player who dies a day after the settlement’s approval releases his claim and gets paid nothing—for the exact same diagnosis.
Why did the NFL believe it could get the plaintiffs’ lawyers to go along with such a lopsided deal? Because, for these lawyers and their injured clients, “the critical goal is generous immediate payments.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 (1997). “That goal,” however, “tugs against the interest” of those with future claims, id., who would prefer to reduce payouts now in favor of “sturdy back-end opt-out rights” and a deal that “keep[s] pace with changing science.” Id. at 610-11.
Why did the NFL and the lawyers think they could disregard the thousands of former players who may be diagnosed with CTE in the future? Because none of the lawyers at the negotiating table independently represented their interests. The personal-injury cases had been consolidated before a single judge in Philadelphia, who appointed a Plaintiffs’ Steering Committee and ordered it to mediate with the NFL in July 2013. But the court never appointed independent counsel for the future claimants, whose rights the Committee had every incentive to trade away.
Just a few weeks later, in August 2013, the NFL and the lawyers emerged with a signed term sheet. There had been no formal discovery, and no litigation beyond a motion to dismiss. Yet the plaintiffs’ lawyers secured the right to seek a nine-figure fee award. The NFL got the sweeping release it wanted, and the present claimants got their compensation. Meanwhile, thousands of potential future CTE claimants—including the 34 Armstrong Objectors—were left on the sidelines.
Neither “the terms of the settlement” nor “the structure of the negotiations” can provide this Court with any assurance that the interests of future claimants were truly represented during the negotiation process. Amchem, 521 U.S. at 627. As to substance: The settling parties are unable to defend the disparate treatment at the heart of this deal. They cannot explain why a player who dies with CTE tomorrow loses the millions that would go to that same player if he died last year.
As to procedure: The supposedly independent “futures” subclass counsel was not, in fact, independent. He was picked by, and from within, the Plaintiffs’ Steering Committee. And the subclass representative was recruited only after the deal had already been hashed out by the lawyers. He doesn’t even allege a claim based on CTE—either for himself or for the thousands of players he supposedly represents. A “representative” who abandons the most valuable claims of those he represents, for nothing, is no representative at all—certainly not an adequate one.
This inadequacy is underscored by class counsel’s refusal to file a fee request until after final approval, leaving many critical questions unanswered. That procedure violates the rule in this circuit that “a thorough judicial review of fee applications is required in all class action settlements.” In re GM Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 819-20 (3d Cir. 1995). “There was no excuse for permitting so irregular, indeed unlawful, a procedure,” Redman v. RadioShack Corp., 768 F.3d 622, 638 (7th Cir. 2014)—an independent ground for reversal.
**********
The following is an essay written by Professor Douglas E. Abrams of the University of Missouri School of Law. It was written in anticipation of the upcoming Veterans Clinic Symposium, “Traumatic Brain Injury: Lessons Learned from Our Nation’s Athletes and Military.”
By Professor Abrams
The University of Missouri School of Law, where I teach, operates a Veterans Clinic. Under the supervision of faculty director Angela K. Drake, students help veterans and their families secure disability benefits before the Board of Veterans’ Appeals and the Court of Appeals for Veterans’ Claims.
Each Veterans Day, the clinic’s symposium explores a cutting-edge topic important to veterans’ affairs. This month’s day-long symposium will explore “Traumatic Brain Injury – Lessons Learned From Our Nation’s Athletes and Military.” The symposium begins at 8:00 am and is free and open to the public; advance registration is requested, but not required. The symposium will be live streamed and also available afterwards.
Relevance for Youth Sports
I recommend the symposium to youth sports parents, coaches, and administrators for two reasons. The first reason concerns citizenship, and the second concerns safety.
First, expert panelists will discuss treatment of traumatic brain injury (TBI) in physically- and emotionally-wounded veterans. This discussion concerns all Americans, inside and outside the sports world. Veterans have earned service-related medical care and other promised benefits; providing what they are due is a solemn national obligation. Americans have debated war and peace throughout nearly every conflict the nation has fought, and debate has accompanied the Iraq and Afghanistan wars. But the national obligation to honor commitments made to service members should remain inviolate and beyond debate.
I also commend the symposium to youth sports audiences because continued cross-pollination between athletic and military TBI medical research can help advance the effective treatment of injured athletes at all levels of competition, including youth leagues. Medical researchers report that the effects of TBI in injured athletes can resemble effects suffered by troops injured by bomb blasts and who suffer other head trauma in Iraq and Afghanistan. The upcoming law school symposium recognizes that athletic and military brain injuries are marked by both important differences and important similarities.
Athletes and Troops
The symposium’s title, which recites athletes first and veterans second, initially surprised me, but the order makes good sense because the military can learn much from sports. As a youth hockey coach for more than 40 years, I remain awed by the quality and quantity of recent medical research and commentary concerning traumatic brain injuries in adult and child athletes.
In its new Policy Statement, “Tackling in Youth Football,” the American Academy of Pediatrics synthesizes competent studies whose conclusions frequently diverge. Because the pace of TBI research in football and other youth sports has accelerated in only the last decade or so, however, early lack of consensus will spur further research.
Youth leaguers and veterans alike are fortunate because the sheer magnitude of exposure to physical and emotional harm from TBI has already drawn careful attention from leading health and safety advocates, notably MomsTeam Institute of Youth Sports Safety. The Institute’s Executive Director Brooke de Lench has written widely for years about concussions in football and other sports, which she correctly calls “the predominant youth sports safety issue of the 21st century.”
A word search on www.MomsTeam.com produces a treasure trove of articles with valuable information, insights, and recommendations. The Institute’s Youth Sports Concussions Safety Center now has more than 4,000 pages of information, videos, and other resources, and it is constantly being updated. This summer the National Collegiate Athletic Association (NCAA) and the Department of Defense awarded the Institute a Mind Matters Challenge grant for its application, “Creating a Safe Concussion Reporting Environment: A Multi-Media Approach.”
Common Challenges
At the upcoming symposium, I will join Kansas City lawyer Paul Anderson and retired National Football League player Marvin Washington on a panel to discuss traumatic brain injury in athletics. I am not a physician, and I will speak as a citizen. I am concerned about fulfilling our national obligation to veterans, and also about responding effectively to what medical organizations call a public health crisis among the nation’s youth athletes, who number in the millions each year. In the 20 minutes or so allotted to me, I will talk about two challenges shared by athletic and military TBI researchers:
- We must continue learning and adapting. In athletic and military research alike, strategies for treating traumatic brain injury have evolved over the years. This evolution must continue.
Let’s turn back the clock for a few moments because, as historian David McCullough says, “History is who we are and why we are the way we are.” In 1905, football was at a crossroads because 18 collegiate players were killed, and scores more were seriously injured, that year. Most of these casualties would likely be diagnosed today as multiple concussions, skull fractures, or other traumatic brain injury from game action. In 2015, even one on-the-field death among several thousand college football players would attract national attention. Far fewer collegians played football in 1905, so 18 deaths in a single season was an astounding percentage of all players.
With football facing possible extinction from public scorn late in 1905, President Theodore Roosevelt summoned officials from the Big Three teams – Harvard, Yale and Princeton – to the White House to hammer out rules changes and other safety measures that continued to evolve. Death on the college gridiron was serious business because, with a national professional league still more than a decade away, the collegiate game was the most prominent football played in America.
Change came slowly. As the White House conference convened, some intercollegiate football players wore skimpy protective equipment and soft leather helmets without face guards, but game photos show that most players went helmetless. Helmets did not become mandatory in NCAA play until 1939.
The effects of serious head injury have reached football’s radar screen only recently. In 2004, for example, Michael McCambridge wrote America’s Game: The Epic Story of How Pro Football Captured a Nation. It is a well-researched, 552-page history of professional football, but the book never mentions the word “concussions.”
Former Tampa Bay Buccaneers president Gay Culverhouse reports that, as late as 2006, rushing a player back from a concussion was “standard operating procedure in the NFL. Concussions were not taken seriously. . . . This was the culture of the time.” The NFL’s public concern about head injury did not begin until a few years later.
Over the years, the military has similarly learned much about traumatic brain injury, sometimes the hard way. A few years after President Roosevelt’s 1905 football summit, World War I brought unprecedented carnage as the first mechanized total war. The United States and the rest of the world were unprepared for the battlefield horror, and for treating the emotional and physical devastation that it inflicted on so many returning troops. In a world accustomed to warfare that often took a greater toll from disease than from battlefield hostilities, medical science had to play catch up.
Many Americans today have undoubtedly flinched at haunting photographs of muddy World War I troops staring blankly ahead in their trenches. Their condition was called “shellshock” in those days, and that is about all anyone knew. A century later, medical science can better confront what was likely Post Traumatic Stress Syndrome (PTSD) in many of the affected troops.
Fast forward to the Vietnam War, when the nation shortchanged many veterans who returned home in emotional and physical distress. The abdication of responsibility stemmed partly from lack of national will after a long war that was unpopular to many Americans. But the frequently inadequate medical care in those earlier years also stems partly from the fact that the day’s most advanced medical knowledge was not good enough, at least when compared with what medical science understands now.
The point is that in athletics and the military alike, what passed for TBI prevention and treatment even a few decades ago does not pass today. A decade and more from now, medical science will likely know more than it knows today. Even as many medical studies reach divergent conclusions, vigilance defines the essence of medical work in progress.
- Younger troops suffering traumatic brain injury may have special vulnerability and special needs. Some recent medical research suggests that concussions in children can be more serious than concussions in adults because children’s brains are still developing. In various contexts, medical breakthroughs also suggest that children’s brains continue developing past the general age of majority (18) until about the age of 24. These tentative findings may influence approaches to TBI prevention and treatment of thousands of veterans below this age.
Child and adolescent athletes may be more susceptible than adult athletes to concussion’s after-effects, and to repeated sub-concussive blows to the head that occur over the span of one or more seasons. Adolescent athletes may also be prone to “second-impact syndrome,” which Lindsey Barton Straus explains is a rare but usually fatal condition caused by a second blow to head before the brain has healed from an initial concussion. Because concussed children may require longer recovery periods than concussed adults, continued hits during practice sessions or games can produce devastating physical and emotional consequences even if none by itself would cause injury. Military attention seems warranted, pending further studies.
Conclusion
“[T]he concussion problem in football and other contact sports is far more serious than any of us want to believe, and it is time to do something about it,” writes former football player, professional wrestler, and Minnesota Governor Jesse Ventura. He writes in the Introduction to a book on sports concussions, but, as a Navy veteran during the Vietnam era, he could say the same thing about concussions in the military.
Sources:
Am. Acad. of Pediatrics, Policy Statement, Tackling in Youth Football, http://pediatrics.aappublications.org/content/early/2015/10/20/peds.2015-3282.full.pdf+html?sid=12d9b3d5-b5d8-42f0-85c0-fd0eb9f062ce (Oct. 25, 2015)
Gay Culverhouse, Throwaway Players: The Concussion Crisis From Pee Wee Football to the NFL at p. 74 (2012)
Brooke de Lench, Praise For MomsTEAM Is Nice, But The Fight To Make Youth Sports Safer Isn’t Over, http://www.momsteam.com/blog/brooke-de-lench/praise-momsteam-nice-but-fight-make-youth-sports-safer-not-yet-over#ixzz22VEOtiR9 (May 23, 2012)
Historian Addresses Wesleyan, N.Y. Times, June 4, 1984 (quoting David McCullough)
Lindsey Barton Straus (reviewed by William P. Meehan III), Second Impact Syndrome: A Rare But Usually Fatal Condition, http://momsteam.com/health-safety/concussion-safety/general/second-impact-syndrome-signs-and-symptoms#ixzz3pnUD8tAW
Jesse Ventura, Introduction, in Christopher Nowinski, Head Games: Football’s Concussion Crisis from the NFL to Youth Leagues, p. ix (2007)
Douglas E. Abrams, Confronting the Youth Sports Concussions Crisis: A Central Role for Responsible Local Enforcement of Playing Rules, Mississippi Sports Law Review, vol. 2, p. 75 (2013).
Thank you to Prof. Drake for reviewing this article in draft form.
Originally published on MomsTeam.com: http://www.momsteam.com/health-safety/traumatic-brain-injury-lessons-learned-from-our-nations-athletes-military#ixzz3r1NsyG00
On November 11, 2015, the Veterans Clinic at the University of Missouri School of Law will host a symposium on traumatic brain injuries. I, along with several panelists, will be speaking at the symposium. I hope you can join and honor our heroes.
You can find all the details here, http://law.missouri.edu/faculty/category/veterans-clinic/15-symposium-veterans/ , and below:
On May 19, 2005, the New England Journal of Medicine published Dr. Susan Okie’s article, “Traumatic Brain Injury in the War Zone,” which reported on the case of Sgt. David Emme, who was severely brain-injured by an improvised explosive device (IED) while part of a convoy transporting Iraqi volunteers for military training. Knocked unconscious, temporarily blinded and unable to hear in his left ear, Sgt. Emme regained consciousness 10 days later in the neuroscience unit of Walter Reed National Military Medical Center. He was unable to speak. After five months of extensive therapy, Sgt. Emme regained most of his vision, but was still struggling with verbal communication, reasoning, memory and problem-solving.
Sgt. Emme was one of 450 service members treated at Walter Reed from 2003 to 2005 for traumatic brain injury (TBI). Many of these cases – 56 percent – were considered “severe.” The numbers reflect the reality of today’s modern wars. Unlike the casualties of war suffered long ago, when soldiers with brain trauma died from their injuries, the use of Kevlar body armor and helmets in today’s conflicts increases survival rates. But state-of-the-art helmets cannot completely protect the head or prevent closed brain injury caused by blasts. More than 30,000 service members suffer from TBI, with an estimated economic cost of $76.5 billion.
CTE is caused by head trauma. It is progressive and degenerative, marked by depression, anger, disorientation, memory loss and suicidal ideation. CTE is definitively diagnosed only after death. According to the U.S. Department of Veterans Affairs, “TBI may happen from a blow or jolt to the head or an object penetrating the brain. When the brain is injured, the person can experience a change in consciousness that can range from becoming disoriented and confused to slipping into a coma.” Evidence of CTE has been found in the brains of veterans, just as it has been found in NFL players.
To be sure, there is an overlap between injuries observed in our nation’s athletes and in our nation’s service members returning from recent conflicts. The Department of Veterans Affairs (DVA), in conjunction with Boston University, is carefully studying brain injury. In fact, DVA maintains the brain repository in Bedford, Mass., from which many of the studies discussed above emanate.
The Veterans Clinic at the University of Missouri School of Law is pleased to present its second annual symposium focusing on the legal and practical issues arising from traumatic brain injury, a very real concern for athletes and our military.
About the Veterans Clinic
Students in the University of Missouri School of Law Veterans Clinic help veterans and their families secure disability-related benefits. Student work is done primarily at the Board of Veterans’ Appeals level and before the Court of Appeals for Veterans’ Claims.
On November 19, in Philadelphia, the Third Circuit will hear oral arguments on the former players’ bid to reverse the NFL Concussion Settlement. (CA3 Order). The various briefs are set forth below:
Retired Players’ Opening Briefs
- Armstrong, et al
- Faneca Objectors Opening Br.
- Miller, et al
- Gilchrist Brief
- Brain Injury Association of America NFL Concussion Litigation Amicus Brief
- Andrew Stewart
- Public Citizen Brief
NFL and Class Counsel Response
Retired Players’ Reply
- Armstrong, et al Reply
- Alexander Reply
- Molo Reply
- Carrington Reply
- Zuckerman Reply
- Miller Reply
- O’Brien Reply
- Andrew Stewart Reply
Third Circuit’s Order
On Thursday, news broke—then retracted, then confirmed—that Ken Stabler passed away at the age of 69 following a battle with colon cancer.
Stabler was among the thousands of players who filed a concussion lawsuit against the NFL. In his 2012 lawsuit, Stabler alleged that he “suffered repeated and chronic head impacts during his career…and…has experienced cognitive and other difficulties including, but not limited to, headaches, dizziness, depression, fatigue, sleep problems, irritability, and numbness/tingling in neck/cervical spine.”
In other words, symptoms consistent with CTE.
That is perhaps one reason why his family announced that they intend to donate Stabler’s brain and spinal cord to Boston University’s Center for CTE—to determine definitively whether Stabler suffered from CTE.
The family also hopes to advance the science relating to degenerative brain disease in athletes.
This is a courageous move by Stabler’s family, and hopefully other families will follow Stabler’s lead. Because, unfortunately, the NFL Concussion Settlement does not incentivize families for going through the process of having their loved one’s brain donated to science.
Nope; instead, families who later learn that their loved one was diagnosed with the “industrial disease of football” will be left without recourse since the NFL Concussion Settlement bargained away those rights.
If it is determined that Stabler had CTE, his family will receive nothing under the settlement. Stabler’s death will likely be a sad and constant reminder of the deficiencies of the NFL Concussion Settlement: no future CTE claims will ever be paid.
Unless a former player’s death fell within a discrete window between January 1, 2006 to April 22, 2015 and subsequently received a CTE diagnosis, the settlement forecloses any compensation for future CTE claims.
So, for example, while Dave Duerson’s family will rightfully receive compensation for “Death with CTE” under the settlement, Stabler, who was exposed to similar brain trauma, will receive nothing for suffering years of “repeated and chronic impacts.”
The same unfair result—assuming they receive a post-mortem diagnosis of CTE—will strike the families of Charlie Sanders, Damion Cook, Adrian Robinson, John David Crow, and many more to come.
Although Stabler’s family won’t be compensated, perhaps his brain donation will provide a significant contribution to the ongoing, and essential, study of CTE.
Rest in peace, Mr. Stabler.
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.[1] 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.[2] 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,[3] 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.”[4] 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[5]
Like Big Tobacco, Big Pharma et al., the NFL knew that it was much easier to debate the science than to debate the logic.[6] 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.[7]
Although the medical science defining the link between repeated blows to the head and neurological diseases has been established for more than eight decades,[8] 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).[9]
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,[10] 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.”[11]
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.”[12]
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.”[13]
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.”[14]
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?
A. No.
Q. With dementia?
A. No.
Q. With early-onset of Alzheimer’s?
A. No.
Q. Is there any evidence as of today that links multiple head injuries with any long-term problem like that?
A. In NFL players?
Q. Yeah.
A. No.
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.[15] 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.[16] 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.[17]
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.[18] 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.”[19] 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.”[20] 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.”[21]
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.
[1] In re Nat’l Football League Players’ Concussion Injury Litig., 2015 WL 1822254 (E.D.Pa.)(April 22, 2015)(final order approving settlement)
[2] NFL Concussion Settlement Press Release, Mediator Judge Layn Phillips
[3] 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)
[4] 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
[5] See David Michaels, Doubt is Their Product: How Industry’s Assault on Science Threatens Your Health (Oxford University Press, 2008)
[6] See id.
[7] 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)
[8] See Martland HS: Punch drunk. JAMA 91:1103-1107, 1928
[9] See Mark Fainaru-Wada and Steve Fainaru, League of Denial (Crown Archetype, 2013)
[10] Pellman, Elliott, et al. Concussion in professional football. Neurosurg. Focus 21 (4):E12, 2006
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] 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
[16] The settlement provides a grace period of 270 days to receive a diagnosis if a player dies before the final approval date.
[17] See Ann McKee, et al., The Spectrum of Disease in Chronic Traumatic Encephalopathy, 136 Brain 43 (2013)
[18] 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)
[19] 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)
[20] 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
[21] 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
Major League Soccer and the Players Union barely missed a work stoppage—agreeing to a five-year CBA that will continue to restrict players’ rights.
The season is now in full swing. But certain issues remain unresolved.
As MLS and the Players Union hammer out the specifics of the new CBA, health and safety should be deemed an urgent priority. MLS has an obligation to maintain a safe work environment. This means that MLS must promulgate rules that are in the best interest of the players.
The Substitution Rule is the antithesis of this obligation. Under this Rule, a team is only allowed three substitutions per game. There is no exception for injured or concussed players. This has the obvious effect of putting “strategy” above the health and safety of the players. Moreover, it creates external pressure on the players, coaches and medical staff to ignore suspected concussions due to the threat of forcing a team to play shorthanded shortfooted.
Concussions are already difficult to diagnosis. It’s unrealistic to rely upon a concussed player to remove himself from play. Compounding the problem is the threat that if a player is forthright with the medical staff, he could be viewed as letting his team down, especially if it forces the team to play with only 10 players. Quite opposite to creating an environment that incentivizes players to report their injuries, the Substitution Rule impedes this, thus creating a dangerous work environment. This also impacts the medical team’s evaluation of the player.
In 2012, an MLS-affiliated doctor admitted the Rule hindered a practitioner’s ability to exercise his or her clinical judgment: “What’s different are the rules as in soccer, we have rules about substitution that make it difficult to do the kinds of evaluations that we would do in the NFL or even in the NFL,” Dr. Ruben Echemendia said.
While the dissenters have argued that allowing a concussion-substitution exception would create an incentive for cheaters, this position consistently rings hollow. Setting aside the fact that soccer (and basketball) players are notorious for their acting skills in order to draw penalties, the reality remains that new rules often create incentives to find grey areas. When balanced against the threat of a fatal brain injury, it is obvious which is more important.
It’s time for MLS and the Players to modify the Substitution Rule. The Rule’s failures have already been noted this season. Major League Baseball chose to buck the status quo when it outlawed collisions at home plate. While seen initially as a drastic change by the dissenters, MLB and the Players realized that safety trumps convenience.
MLS must provide more than mere lip service or face the threat of liability. If it wants to continue to flourish as a league, it must act with urgency to protect its most valuable assets.