{"id":1285,"date":"2012-11-30T08:15:52","date_gmt":"2012-11-30T14:15:52","guid":{"rendered":"http:\/\/nflconcussionlitigation.com\/?p=1285"},"modified":"2012-11-30T08:15:52","modified_gmt":"2012-11-30T14:15:52","slug":"this-seasons-concussion-lessons","status":"publish","type":"post","link":"http:\/\/nflconcussionlitigation.com\/?p=1285","title":{"rendered":"This Season\u2019s Concussion Lessons"},"content":{"rendered":"

By Contributor Stuart Dean<\/strong><\/p>\n

Although the football season is not yet over there are already three important lessons to be learned from it regarding concussion litigation:<\/p>\n

First, quite apart from how it ultimately affects plaintiffs and defendants, litigation has consequences even before there is any settlement or judgment.\u00a0 There should not be any doubt that the changes in the threshold for drawing a flag for a potentially concussion inducing hit as well as the protocol the NFL has adopted for when a concussion is suspected are a direct consequence of the growing number of claims against the NFL for MTBI related injuries by former players.\u00a0 That is startling when you consider none of the lawsuits have been settled or adjudicated and the resolution of most of the litigation is years away.\u00a0 The benefit of these changes for the NFL is to minimize, if not eliminate, the accrual of additional liability.\u00a0 The downside, though, is that the changes make practically every game an advertisement for the effectiveness of litigation.\u00a0 To be sure, such changes provide no benefit to existing plaintiffs and could not even be used as the basis for an argument about the validity of past claims. \u00a0But in litigation, perception is often as important as reality.\u00a0 And the perception now has to be that the plaintiffs are winning and winning big.<\/p>\n

Second, both the number and severity of concussions should be considered shocking.\u00a0 It appears that in every game at least one player on each team suffers a concussion.\u00a0 Because of the realities of playing times and position assignments it is difficult to avoid concluding that with a 16 game season for many players the question is not whether they will suffer a concussion but when.\u00a0 But as troubling as the number of concussions should be, the severity should be even more so.\u00a0 This season\u2019s concussed players often miss several games and in some cases questions have been raised about careers being in jeopardy.\u00a0 Yet, many of these concussions do not appear to relate to rule violating hits, but rather from ordinary play.\u00a0 What this shows is that the NFL\u2019s attempt to limit concussion liability by tweaking the rules simply does not work.\u00a0 Having first denied concussions were an issue at all, the NFL is attempting to define away the problem rather than confront fundamental facts.\u00a0 Consider, for example, the weight of players.\u00a0 In many respects nothing is more fundamental than weight.\u00a0 For example, the very reason weight classes exist in boxing is predicated on the well recognized fact that weight is not just a factor in fighting, but all other factors being equal, the decisive one.\u00a0 No one would think of organizing fights between boxers with the sorts weight differentials you see on every play of every game in football.\u00a0 Furthermore, no boxing match lasts 2 or 3 hours and boxers generally do not run at each other at full speed.\u00a0 The tale of the tape–in this case the videotape–is that as currently played football is frighteningly more dangerous than boxing.<\/p>\n

The third lesson comes from thinking through the implications of the first two.\u00a0 For with the combination of (1) an increasing awareness not just of the existence of concussion litigation but the perception of its effectiveness and (2) a still growing awareness of the extent and nature of football induced concussions you have the ingredients for what could be a substantial increase, indeed an explosion, in litigation.\u00a0 Put simply, not only are more and more people becoming aware that they or someone they know may have suffered concussions from what at the time seemed to be ordinary football plays, but at the same time they are learning that legal liability for such injuries may attach to those who promote football: a growing pool of plaintiffs on the prowl for defendants.\u00a0 The pleadings of the plaintiffs in the current cases suggest the direction this could go.\u00a0 Some contain claims for the spouses of veteran players–loss of consortium.\u00a0 Dementia from MTBI is not, after all, something that affects only the player.\u00a0 Many claims characterize the NFL not just with respect to professional football, but more generally, as being in a unique position of having been able to glorify and mythologize American football.\u00a0 To the extent that constitutes the basis for a claim of liability it is hard to see why it should be confined to professional players; practically anyone who plays football could claim to have been affected by NFL hype.\u00a0 Some claims are based on the doctrine of civil conspiracy.\u00a0 I will not belabor the point here other than to say that depending on the state law implicated, such a doctrine can be flexible for plaintiffs but mischievous for defendants.\u00a0 It might only be something to scribble in a blue book answering a law exam question, but it is the sort of doctrine that could draw the NFL, the broadcasters of all its games and their respective sponsors into litigation as defendants to a concussion claim by a high school student.<\/p>\n

The basic takeaway is that there is much more litigation to come with many more people involved.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Contributor Stuart Dean Although the football season is not yet over there are already three important lessons to be learned from it regarding concussion litigation: First, quite apart from how it ultimately affects plaintiffs and defendants, litigation has consequences even before there is any settlement or judgment.\u00a0 There should not be any doubt that […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"ngg_post_thumbnail":0},"categories":[1],"tags":[29,23,126,13,4],"jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/1285"}],"collection":[{"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1285"}],"version-history":[{"count":1,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/1285\/revisions"}],"predecessor-version":[{"id":1286,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/1285\/revisions\/1286"}],"wp:attachment":[{"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1285"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1285"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1285"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}