It Feels Good to be Back
First, thank you for your patience as I studied for the bar exam. Thank God it is finally over, and I can focus on more pressing matters, i.e. concussion litigation!
Fortunately, while I was “out of the office” Nathan Fenno of the Washington Times kept tabs on the concussion lawsuits. To date, there are 124 lawsuits and more than 3,000 former players involved.
Let’s take a look at what has progressed over the past three weeks.
Happy Anniversary
It has been over a year since the first NFL concussion lawsuit was filed in California on July 19, 2011. What started out as a “frivolous lawsuit,” according to some critics, has grown into a major threat to the NFL’s bottom-line.
Players and their families are filing lawsuits almost daily, and the NFL is starting to lose the PR battle as more and more tragic stories start to surface about the struggles of life after the game.
Despite the massive numbers, or opinions of others, federal Judge Anita Brody’s forthcoming decision is really the only one that matters, at least for now. In early 2013, Judge Brody will have to make the ultimate ruling on whether these claims belong in court, or if, as the NFL argues, this is “fundamentally a labor dispute.”
If she determines that the lawsuits belong in court, then discovery will likely begin and the plaintiffs will go on a fishing expedition hoping to find that proverbial smoking-gun memo.
Conversely, if she buys the NFL’s argument, it would effectively slam the court door shut on the plaintiffs’ claims, and it’s likely the players won’t find any recourse through the dispute provisions of the respective collective bargaining agreements.
Plaintiffs Amend Master Complaint
The plaintiffs’ lawyers are starting to review highlight films of past games in an attempt to bolster their case that the NFL glorified big hits at the expense of player safety. The amendments to the complaint point to four NFL Films, “Big Blocks and King Size Hits,” “NFL Rocks,” “Top Ten Most Feared Tacklers” and “Moment of Impact.”
In the 1993 film of “NFL Rocks,” Junior Seau says, “If I can feel some dizziness, I know that guy is feeling double….” In the same film, Ernest Givens says, “I get knocked out a lot, I get concussions, I get broken noses, that is part of being a receiver, that’s what separates you from being a typical receiver than a great receiver.” And, the now infamous line from Michael Irvin, “Before the game, I go to the [defensive backs] and tell them, ‘Hey, you know I’ll trade a concussion for a reception!’”
The plaintiffs’ amendment has pushed back the time in which the NFL has to file its motion to dismiss. The NFL’s motion was originally due August 9th. Now it has until August 30th, and the parties have until December 17th to each file a reply brief. This all-but guarantees that a decision by Judge Brody won’t be made until early 2013.
Seau’s Family Makes Decision
It’s been almost three months since the late Junior Seau took his life with a fatal gunshot wound to his chest. The family has decided it will donate Seau’s brain to “help other individual’s down the road,” San Diego Chargers’ chaplain told the Los Angeles Times.
Though the family has decided to donate his brain, the public may not learn if Seau actually suffered from chronic traumatic encephalopathy (CTE). A spokeswoman for the National Institute of Neurological Disorders and Strokes told the New York Times, “N.I.H. will not discuss the status of the tissue or any subsequent findings.”
Nonetheless, if it is the family’s intent to help others, a public disclosure seems to be the logical route. Based upon past diagnosis of other NFL players who had CTE, it would be an anomaly if Seau, who played in the NFL for 20 years, were not diagnosed with CTE.
In any event, whether CTE actually caused, or contributed to, Seau’s suicide is a question that medical experts are still trying to determine.
Kris Dielman potential lawsuit
According to the San Diego Tribune, Kris Dielman has “unretired” and was later released by the San Diego Chargers. Last season, Dielman stayed in the game after being clearly concussed and subsequently suffered a grand mal seizure on the plane.
As opposed to legal action, the un-retirement may be a step taken to increase his workers’ compensation claim. Dielman and his lawyer may also be considering filing a lawsuit against the Chargers and perhaps the NFL. If Dielman were to file a lawsuit, it would probably be more like Merril Hoge’s lawsuit against the Bears’ physician as opposed to joining the NFL concussion lawsuits. I’ll have more on this in a later post.