As the science of concussions and their long-term effects advance, so too does the many ways in which a criminal defendant may seek to be set free.
Criminal defendants and their lawyers are looking to prior sport-related brain injuries as a causative factor for the illegal behavior.
According to the Observer-Reporter, former high school football player, Jordan Clemons, is facing the threat of the death penalty after being charged with brutally murdering his girlfriend.
Clemons’ lawyer recently filed a motion with the court citing his client’s extensive history of brain injuries, including multiple concussive and sub-concussive blows from football. His lawyer requested that a neurologist and psychologist evaluate his client.
The court, correctly, granted his request.
Clemons’ lawyer explained the purpose of his motion, “Diminished capacity is often the phrase used when a defendant’s state of mind does not meet the legal requirements for first-degree murder, which requires a premeditated, willful and deliberate killing with specific intent to kill. If capacity is diminished but a defendant is found to have committed the act, it falls to a lesser degree of murder.”
While not a complete defense, Clemons’ lawyer is seeking medical evidence to establish that his client lacked the necessary mental state to be found guilty for first-degree murder, which could potentially allow the jury to find Clemons guilty of a lesser charge such as second-degree murder. It also sets the stage for the introduction of mitigating factors if Clemons is found guilty of first-degree murder.
This could mean the difference between life in prison and death.
Lawyers have an ethical obligation to provide competent representation. This is an ever-evolving ethic, which is especially true in the rapidly advancing area of “neurolaw.”
A recent decision by the Alaska Court of Appeals highlights the necessity of investigating a client’s brain-injury history.
In Starr v. State, A-11250, 2014 WL 2834502 (Alaska Ct. App. June 18, 2014), a woman was convicted of second-degree murder after stabbing her boyfriend. She subsequently sought post-conviction relief, contending that her lawyer provided ineffective counsel by failing to investigate her concussion history. In her motion, the defendant included an affidavit from a neuropsychologist who opined that Starr’s “behavior surrounding the stabbing was consistent with her having suffered a concussion.” Id.
In reversing the trial court’s decision to deny the defendant’s application for post-conviction relief, the Court of Appeals admonished the trial court for violating the defendant’s due process rights when it “skipped Starr’s failure-to-investigate claim…[and] deprived Starr of the opportunity to establish that she has actually suffered a concussion and that the concussion had impacted her culpability….” Id.
This case breathes new life into the word “competency.” A lawyer clearly has an ethical obligation to investigate his or her client’s brain-injury history and pursue all possible defenses.
As evidenced by the recent cases like Clemons and others, lawyers are taking this ethic seriously.
Expect Titus Young’s lawyers to assert this defense as well.
(h/t @concernedmom9)
Last season a 16-year-old New York prep football player died following a helmet-to-helmet collision. Damon Janes walked to the sidelines, collapsed, and was taken to a local hospital. After 3 hours a CT scan showed bleeding in his brain and was then transported to a trauma hospital, 2 hours away. Janes succumbed to the injuries 3 days later.
After a 10-round fight, 32 year old heavy weight champion Magomed Abdusalamov allegedly told New York State Athletic Commission physicians that he did not feel right. After a neurological test that required him to read a series of numbers, they sutured a cut above his left eye and allegedly told him he had a broken nose. They allegedly advised him to have his injuries looked at by a doctor within a day or two when he returned home to Florida. What they did not realize was that Abdusalamov’s brain had already started bleeding.
The State Athletic Commission Inspector assigned to monitor Abdusalamov that night noticed blood in Abdusalamov’s urine sample after commission doctors cleared the fighter – a possible sign of internal bleeding. According to reports, he suggested Abdusalamov’s trainers hail a cab to take him to the hospital emergency department. Abdusalamov was in a coma for weeks following emergency brain surgery to remove a large blood clot hours after the fight. Abdusalamov may never walk or talk again.
Prompt medical care after a traumatic injury can be the difference between life and death — also known as the “golden hour”. The InfraScanner offers a solution to two secondary impacts of concussion: brain bleeding and excess radiation exposure from a head CT scan. These are two very real concerns that are often overlooked in discussions about concussion management.
The InfraScanner is a non-invasive portable screening device that uses near-infrared (NIR) technology to assist medical professionals with a more accurate, expedited clinical assessment of the presence or absence of an intracranial hematoma in a matter of minutes. This cutting edge device is a groundbreaking tool for TBI and concussion management. It helps determine if a patient needs to be sent to a Trauma center for a CT scan and neurosurgical intervention or kept for close observation.
One CT scan is equal to 300-400 chest x-rays to the head and has been clinically established by peer review journals to increase the likelihood of cancer. 18.7 million head CT scans are given annually. The likelihood of a positive scan in this patient group is less than 10% and may be as low as 1-3% 1. Because of a CT scan’s dangerously high levels of ionization radiation exposure known to cause cancer, the InfraScanner will lead to better patient care while at the same time reducing healthcare costs.
The InfraScanner was developed for use by the US Marine Corps and has been battlefield tested since 2008. There is currently no other FDA approved technology available which is similar. The InfraScanner is currently being used by Emergency Medical Services, hospitals, sports medicine and has been in use by the Pittsburgh Steelers team neurosurgeon, Dr. Joseph Maroon, for the past two years.
For more information go to med-logic.us
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1 Fox, W. Christopher, Min S. Park, Shawn Belverud, Arnett Klugh, Dennis Rivet, and Jeffrey M. Tomlin. Contemporary Imaging of Mild TBI: The Journey toward Diffusion Tensor Imaging to Assess Neuronal Damage. Neurological Research, n.d. Web.
Featured Study – Media Framing and Football Injuries: An Opportunity to Shift the Narrative
By Dr. Jimmy Sanderson
I am sure many of us remember when the now infamous 2011 NFC Championship game between the Chicago Bears and Green Bay Packers, when Bears quarterback Jay Cutler received significant criticism for not finishing the game after sustaining a knee injury.
Many of us also probably remember watching Washington Redskins quarterback Robert Griffin III during a 2013 playoff game against the Seattle Seahawks continuing to play after sustaining a knee injury before being removed from the game.
For me, my colleague Dr. Melinda Weathers, and a team of undergraduate students in the Department of Communication Studies at Clemson University, these two incidents provided a compelling opportunity to examine how the print media talked about players’ injury decisions.
On a surface level, it appeared that Cutler was widely criticized for not finishing the game, particularly by his peers, while Griffin was praised as a warrior.
In the study we conducted, we examined 177 news articles that reported on these two incidents to see how these two quarterbacks were framed by the media.
Not surprisingly, Cutler was portrayed as a sissy, the severity of his injury was questioned, and he was blamed for it. However, what was interesting is that many more articles shifted the blame away from Cutler to other people in the Bears organization, and – one of the key findings for us – was that there was significant support for Cutler for not returning to the game.
With Griffin III, only a small portion of the reports assigned any responsibility to him. Rather, the blame was shifted to Coach Mike Shanahan and other Redskins officials, including team doctors, and the severity of his injury was emphasized. Griffin was also positioned as hero for his resiliency in fighting through injury that – and another key finding here – was part of the game.
Our results are not exhaustive and much more work needs to be done. However, they do offer a starting point for conversations about the role the media can play in the way we talk about injuries in football and there were a couple of key takeaways for us in this research.
First, it was surprising to see significant support for Cutler, especially given how much criticism he received from his peers. The press can play a role in shifting attitudes about health issues – and when we consider how many kids participate in football – injuries in football are a public health issue – we wonder if the press begins to praise players who do not continue to play through injuries and put their health first, if that might have a trickle down effect?
Second, while there was evidence of shifting narratives about playing through pain, there was still the notion that playing through injuries, regardless of the long-term consequences, is privileged. For example, one report about Griffin noted that, “In the macho world of the NFL this earns much street cred.”
One of the issues with health and safety in sports, but particularly football, is that the culture is at present, incompatible with players advocating for their health. Speaking up for oneself is often seen as “unmanly” and this norm perpetuates through all levels of football to predispose players to not seek attention, even when their own well-being is at stake.
Equating manliness with playing through pain, no matter the cost, has too long gone unquestioned and the press may begin to sow the seeds for a culture change by doing so.
Can a player still be “tough” and put their health first? That is the big question facing the culture of football.
Dr. Jimmy Sanderson is an Assistant Professor in the Department of Communication Studies at Clemson University. His research centers on the influence of social media and sports with particular emphases on sports media, sports organizations, and communicate between athletes and fans and he is beginning research on concussion and health issues in sports. His work has appeared in multiple academic journals and he also is the author of It’s a Whole New Ballgame: How Social Media is Changing Sports published by Hampton Press. Connect with him on Twitter @Jimmy_Sanderson
A significant victory was won today on behalf of our clients and all employees of Missouri. We are one step closer to obtaining justice for players that are suffering from cognitive injuries due to the ongoing denial and cover up by the NFL and its members clubs. The Court, in effect, determined that professional-sport teams are not immune from liability.
On May 14, 2014, Chief Judge Catherine Perry issued an Order remanding Green, et al v. Arizona Cardinals Football Club, LLC, 4:14-cv-00461-CDP (E.D. Mo.) (“Green”), to the Circuit Court for the St. Louis, Missouri, from which it was removed. Doc. #33, 4:14-cv-00461-CDP. The District Court denied defendant’s motion to stay proceedings and remanded Green over the defendant’s objections.
In Green, the Court held that the players’ claims were neither created by nor require the interpretation of a CBA. Id, at p. 13. As for the negligence claim, the Court held as follows:
“Unlike the negligence claim in Gore [v. Trans World Airlines, 210 F.3d 944 (8th Cir. 2000)], here the duties arise out of the common law based upon the employer-employee relationship and not out of any particular terms in the CBAs. The reasonableness of the Team’s actions towards [Plaintiff] Scott cannot depend upon an interpretation of a CBA, as Scott was never bound by the contract. It stands to reason, then, that the other plaintiffs’ negligence claims do not necessarily depend upon an interpretation of the CBAs, so far as the duties owed them and the standards applied to their claims derive from the same source as for Scott.” Id. at p.
As for the negligent misrepresentation and fraudulent concealment claims, the District Court held that, “[a]s with their negligence claims, the plaintiffs’ negligent misrepresentation and fraudulent concealment actions arise independent of the CBAs as a function of the common law and thus are not preempted.” Id. at pp. 16-17.
“Because the plaintiffs’ claims can be determined without interpreting the CBAS,” the Court stated, “I do not have subject-matter jurisdiction over this case.” Id.
Mike Florio, of ProFootballTalk.com, breaks down the ruling further,
The primary concussion litigation, with more than 4,000 plaintiffs, resulted in a proposed nationwide settlement before the question could be resolved as to whether the cases should be kicked out of court. Now, via NFLConcussionLitigation.com, one of the other concussion cases has survived the NFL’s effort to deliver an early knockout punch.
The U.S. District Court for the Eastern District of Missouri, in a case brought by receiver Roy Green (pictured) and other former members of the St. Louis (now Arizona) Cardinals, concluded that the lawsuit may proceed in Missouri state court. Which means that the discovery process will proceed.
One result of this ruling – the public will no longer be denied the right to learn what the football industry has concealed from, and misrepresented to, society.
Which means that the NFL has moved closer to the day on which it will have to disclose what it knew and when it knew it about the long-term risks of concussions.
And the impact it could have on the pending NFL concussion litigation.
The outcome also could result in the plaintiffs in the settled case to quit trying to persuade Judge Anita Brody to approve the settlement, opting instead to proceed with the litigation. If the players in that case secure the same victory Roy Green and others have realized in Missouri, the value of the claims would potentially skyrocket.
SPORTS CONCUSSION LITIGATION- LATEST NCAA AND HIGH SCHOOL
RESEARCH, DEVELOPMENTS AND FINDINGS
Wednesday, May 14, 2014
1:30pm – 3:00pm ET
Faculty:
Paul D. Anderson, Esq., Founder of NFLConcussionLitigation.com, Editor of Concussion Litigation Reporter
Andrew M. Blecher, MD, Director, Center for Rehabilitation Medicine, Southern California Orthopedic Institute, SCORE
Concussion Program, Van Nuys, CA
Robert W. DiUbaldo, Esq., Edwards Wildman, New York, NY
Chandler R. Givens, Esq., Edelson PC, Chicago, IL
Joseph J. Siprut, Esq., Siprut PC, Chicago, IL
Discussion Topics:
- Update on current NCAA litigation
- Ramifications of NCAA litigation on the legal industry over next 5 years
- Impact of NCAA litigation on high school sports
- Plaintiff bar perspectives and trends
- Insurance issues and developments arising from sports concussions
- Latest medical observations and discoveries
- Insight/recommendations on rule changes
Registration
Cost: $129, unlimited listeners from one line. Additional phone lines are $29 each. Includes 1 CLE state per listener (Additional CLE credits $25 each).
CLE Credit: 1.5-2.0 CLE credits, depending on state requirements.
Applications are being made to all CLE states as requested by attendees.
For more information about registration, contact Bethany Corio (bcorio@perrinconferences.com)
On Saturday, May 10th I’ll be presenting on the Legal Issues Challenging Athletic Trainers. The registration information is below:
The 2014 MAATA Annual Symposium is scheduled
May 9-11, 2014, at The Founders Inn & Spa in Virginia Beach, VA.
And Don’t forget to sign up for our Scholarship Golf Outing!
Information regarding room rates and reservations can be found by
clicking on the registration tab.
The meeting is worth up to 12 CEUs.
Check out our Educational Program
2014 MAATA Student Symposium Agenda
DEADLINES FOR MAATA ANNUAL SYMPOSIUM REGISTRATION HAVE CHANGED
PLEASE NOTE DATES FOR RATE CHANGES! REGISTER TODAY!
If we haven’t received payment by the rate deadline, your registration will be cancelled;
this will force you to re-register under the increased fees.
On April 30th, I’ll be a panelist at a CLE in Kansas City. Registration information is below.
Join us on April 30th as we kick-off AWL’s CLE programming with presentations by our local sports law professionals, followed by a happy hour. (2.0 MO CLE Credit including 1.0 Ethics)
Session 1 (2:30-3:30pm):
Local attorneys, including Paul Anderson and Scott Hofer, spearheading and/or defending sports litigation for the KC Royals and against the KC Chiefs will provide us with a sports litigation update concerning NFL concussion litigation, and the Royals “hot dog” litigation/appeal.
Session 2 (3:30-4:30pm):
A panel of general counsel, including Daniel Crabtree (Stinson Leonard attorney and GC for the KC Royals) and Greg Cotton (GC and Chief of Staff of Sporting KC Soccer) will speak regarding their professional development, experience and challenges as general counsel, as well as ethical issues and obligations encountered in representation of professional sports teams.
The CLE and happy hour will be held at KCMBA Headquarters. Price is $60 for members/$75 for non-members. Register at www.awl-kc.org .
Updated on Feb. 28, 2014
Riddell Helmets is facing at least three consumer class actions stemming from the false-advertising campaign for the Revolution helmets.
After a similar lawsuit was voluntarily dismissed in 2012, it was just a matter of time before various class actions would be revived.
In December 2013, the first of four class actions was filed in Florida. Shortly thereafter, two class actions (Aronson and Thiel) were filed in New Jersey. Just last week, a fourth class action was filed in California – with more likely on the horizon.
The Aronson complaint seeks to certify a nation-wide class of consumers that purchased the Riddell Revolution Helmet. The other three actions, taken together, seek to certify a state-wide class in California, Illinois, New Jersey and Florida.
With several overlapping putative class actions, which all share the same factual and legal issues, it is likely that Riddell will move to consolidate all the cases by requesting that the Judicial Panel on Multidistrict Litigation create an MDL.
The lawsuits target Riddell’s false-marketing claims that arose from a 2003 University of Pittsburgh Medical Center study that stated, “athletes who wore the Riddell Revolution helmet were 31 percent less likely to suffer a concussion compared to athletes who wore traditional football helmets.”
The 2003 study was scientifically flawed on multiple fronts.
First, the co-author of the study, Dr. Joseph Maroon, stated that the study should not have been used as a marketing tool. Second, Dr. Cantu said the study “suffers from a serious, if not fatal, methodological flaw….” Third, Dr. Jeffrey Kutcher testified to Congress that the study also had systematic flaws in data collection. Fourth, Dr. Cantu and Dr. Kutcher both agreed that the study was wrought with an “inherent conflict of interest.” Finally, a study from the Cleveland Clinic found that modern day helmets – including the Revolution – were no more effective at preventing concussions than leather helmets.
Since various companies continue to engage in false marketing, the only way to eliminate this will be through the civil-justice system.
Hopefully, this litigation and others like it will stop companies from profiting off of the so-called concussion crisis.
While many organizations—NCAA, NHL and the NFL—take reactive measures, the MLB has taken steps to ensure it is not caught with its pants down, facing a multi-million-dollar lawsuit.
The Players’ Association and MLB announced that they have agreed to enact a home-plate-collision rule for the 2014 season. The rule seeks to limit violent collisions at home plate that have caused season-ending injuries, concussions and the potential for long-term cognitive impairment.
Mike Matheny, whose career was cut-short due to multiple concussions, had this to say about the proposed rule:
I’m not on a mission here to try to do anything except do what’s right,” [ ] “First of all, make people aware that the concussion thing is real and not just in football and hockey. It’s real in baseball, and I did a real poor job of communicating that early on. And the other thing is, let’s take a risk-reward analysis of this thing. What is the risk of the good of the game, let alone the individual, and the long-term repercussions? And what’s the reward?”
“I don’t know how it’s all going to play how except for the fact that we think it’s the right thing. And the right thing is to try to keep our guys on the field.”
Although there is no firm scientific data that proves this rule will reduce concussions, common sense clearly dictates that it will.
Unlike the NCAA, which repeatedly makes empty promises about player safety and simultaneously manufactures doubt about enacting hit limits, MLB has chosen not to wait.
MLB recognizes the threat and has taken proactive measures to ensure their players are protected at all levels.
I applaud MLB for placing player safety over profit. Perhaps this will be a wake-up call to the NCAA and NHL. Players are being exposed to needless brain trauma. Stop the excuses and live up to your professed obligations.
As lawyers fight for a seat at the table to negotiate a global settlement in the NCAA concussion litigation, an overlooked affidavit illuminates the NCAA’s historical failures.
A group of plaintiffs’ lawyers (hereinafter, the “Latecomers”) recently filed pleadings with Judge Lee seeking to halt settlement negotiations so that they can “adequately” represent the interest of pre-2004 football players.
The filing comes on the heels of the formation of the NCAA concussion MDL and against the backdrop of settlement talks between the Arrington lawyers and the NCAA (hereinafter, the “Negotiating Group”).
The Latecomers claim that there is a fundamental “intra-class conflict” that impedes the current Negotiating Group from reaching a global settlement that adequately represents all potential class members. Essentially, the Latecomers want a seat at the table because they believe their clients and hundreds of thousands of other former NCAA athletes that played prior to 2004 will be left without a voice.
The Negotiating Group contends that these accusations are without merit; rather, this is merely an attempt by a group of “copy-cat lawyers” to obtain a slice of the attorneys’ fees that may be awarded if a settlement is finally approved.
Both side’s arguments have merit.
The Arrington lawyers have represented to the MDL Court that they are negotiating a settlement on behalf of all former student athletes in all 50 states. However, their class certification motion seeks to represent only a class of post-2004 student athletes that played in 18 jurisdictions (i.e. jurisdictions that allow for medical monitoring without the necessity of proving an actual injury). The NCAA similarly has expressed its desire to settle the litigation on a global basis. “The only basis on which the NCAA is going to settle is all sports for all times and all jurisdictions,” the NCAA’s attorney told Judge Lee.
On the other hand, there is a real concern that certain comments (e.g. that pre-2004 claims lack merit) by the Arrington lawyers could hinder them from negotiating a deal that zealously advances the interests of all student athletes.
While there arguably is a strong inference that the Latecomers are just being opportunistic and seeking a windfall from any potential settlement, Rule 23 jurisprudence does support their position, to an extent. That is, during settlement negotiations, as opposed to after a deal is struck, it is essential that the negotiating parties are free of any interest that may be antagonistic to the interests of all class members. By publicly discounting the claims of pre-2004 players, there is a threat that a settlement could be struck that is detrimental to this allegedly abandoned group.
The Negotiating Group disagrees, arguing that Rule 23 provides adequate safeguards—such as the ability to object—to ensure this does not occur. The Negotiating Group also argues that any additional negotiators could potentially derail the settlement talks.
As an aside, the Latecomers’ argument would also necessitate the inclusion of additional sub-class counsel for all pre-2004 student athletes that played in any contact sport. The Latecomers are only representing football players, so their altruistic solution only solves a fraction of the purported problem.
On balance, and taking the representations regarding settlement negotiations as true, the threat may be artificial as opposed to real. If a global settlement occurs, it will apparently include all former and current student athletes that ever played a contact sport at any NCAA school. The remedy will merely be medical monitoring (i.e. neurological and neuropsychological evaluations), as opposed to CASH.
Thus, whether a student athlete played in 2009 or in 1989 for one season or four seasons, the remedy will be the same: medical monitoring. Unlike the inadequate NFL proposed settlement, it does not appear that there will be a compensation fund that entitles the players to cash payouts.
Judge Lee has informed the parties that he intends to rule on the above dispute prior to or at the March 5, 2014 hearing.
Finally, the most intriguing part of the court filings is an affidavit submitted by Dr. Robert Stern. The affidavit was included by the Latecomers to substantiate their position that pre-2004 student athletes have real claims and they are entitled to relief.
As an indictment on the NCAA leadership, Dr. Stern opines:
The NCAA and its leadership has known for two or more decades of the long-term risks associated with concussions and other brain trauma experienced by collegiate and other football players, and that medical intervention, brain trauma prevention strategies, and concussion management, may reduce the risk of subsequent brain disease and injury and related cognitive, mood, and behavioral impairment.
Accordingly, it is clear that the NCAA and its leadership have failed to live up to its founding principles of protecting student athletes for far too long. As you may recall, the NCAA did not take any action on concussions until 2010, and even then, it only issued toothless guidelines that have left member institutions scratching their head. And when it comes to schools egregiously violating NCAA rules, the NCAA does NOTHING. Instead, it spends its resources chasing down sandwich violators and ensuring that its labor force goes unpaid and medically unprotected from the real dangers of concussions. After all, that is the real meaning of modern-day amateurism: grave injustices.