{"id":1965,"date":"2017-09-22T16:07:14","date_gmt":"2017-09-22T21:07:14","guid":{"rendered":"http:\/\/nflconcussionlitigation.com\/?p=1965"},"modified":"2017-09-23T07:44:23","modified_gmt":"2017-09-23T12:44:23","slug":"the-significance-of-hernandezs-cte-diagnosis","status":"publish","type":"post","link":"https:\/\/nflconcussionlitigation.com\/?p=1965","title":{"rendered":"The Significance of Hernandez&#8217;s CTE Diagnosis"},"content":{"rendered":"<p>On Thursday, <a href=\"https:\/\/concussionfoundation.org\/media\/press-releases\/bu-cte-center-statement-aaron-hernandez\">news broke<\/a> that Aaron Hernandez had CTE. While the fact that he had CTE is not surprising, the extent of his damage is. Hernandez had Stage III CTE, <a href=\"https:\/\/concussionfoundation.org\/media\/press-releases\/bu-cte-center-statement-aaron-hernandez\">according to Dr. Ann McKee and Boston University<\/a>. Providing more punch to the news, Boston University released the slides of Hernandez\u2019s brain that shows the extreme deposition of tau protein in his frontal lobes. The frontal lobes control decision making, judgment, impulse control and many other important everyday functions.<\/p>\n<p><iframe loading=\"lazy\" width=\"500\" height=\"281\" src=\"https:\/\/www.youtube.com\/embed\/yNdgnp16DbY?feature=oembed\" frameborder=\"0\" allowfullscreen><\/iframe><\/p>\n<p>In addition to the classic pathology found in CTE, Hernandez also had \u201cearly brain atrophy and large perforation in the septum pellucidum.\u201d In other words, shrinking of the brain and a hole\u00a0in an important relay station of the brain.<\/p>\n<p>For only being 27-years old at the time of his death, the extent of Hernandez\u2019s brain damage is truly alarming.<\/p>\n<p>Post-mortem results like Hernandez and Jovan Belcher (25), both of whom were still playing in the NFL, or at least had the capability to do so, raise a very unsettling question of how many <em>active players<\/em> currently have brain damage this extensive? Should they continue to be exposed to brain trauma? Are their employers and the NFL turning a blind eye to the damage that is being done? Should the players be compensated more for the risks they are being exposed to? Should the NFL and owners provide lifetime medical monitoring for all players in order to detect CTE in the future? Should all NFL players who sign a contract automatically be entitled to a form of CTE insurance?<\/p>\n<p>These and so many other questions demand answers. That is why the work of Boston University and the <a href=\"https:\/\/concussionfoundation.org\/\">Concussion Legacy Foundation<\/a> is so vitally important. Litigation is also a powerful tool to effect change.<\/p>\n<p>Following the release of information that Hernandez had CTE, his legal team announced that they filed a federal lawsuit on behalf of Hernandez\u2019s family against the NFL and the New England Patriots. (A copy of the lawsuit can be found <a href=\"http:\/\/nflconcussionlitigation.com\/wp-content\/uploads\/2017\/09\/Hernandez-complaint.pdf\">here<\/a>.)<\/p>\n<p>The lawsuit is a long shot at best. It will have to survive numerous legal hurdles before the merits are even reached. Let alone a jury. But to be sure, Jose Baez and his team are known for beating the odds.<\/p>\n<p>Here are a few early hurdles they must overcome.<\/p>\n<p>The NFL and Patriots will first seek to have the lawsuit transferred to Philadelphia\u2014the main battleground for the federal NFL Concussion Injury Litigation. On January 31, 2012, Judge Anita Brody was appointed by the <a href=\"http:\/\/nflconcussionlitigation.com\/?p=200\">Judicial Panel on Multidistrict Litigation<\/a> (JMPL) to preside over all cases relating to \u201callegations against the NFL stemming from injuries sustained while playing professional football, including damages resulting from the permanent long-term effects of concussions while playing professional football in the NFL.\u201d This formed MDL 2323.<\/p>\n<p>In other words, this Order compels that any lawsuit against the NFL relating to concussions will be transferred to Judge Brody.<\/p>\n<p>Although Hernandez\u2019s team may oppose the transfer to the MDL, the odds are unlikely since this case falls squarely within the JPML\u2019s Order.<\/p>\n<p>Next, once Hernandez\u2019s lawsuit becomes part of the MDL, the NFL and Patriots will seek to dismiss his case on two threshold issues: waiver and preemption.<\/p>\n<p>Right out of the box, the NFL and Patriots will argue that Hernandez is a Class Member under the NFL Concussion Settlement. As a result, they will contend that his claim\u2014including his daughter\u2019s\u2014was released by the <a href=\"https:\/\/nflconcussionsettlement.com\/ViewPDFDoc.aspx\">class-wide waiver in the Settlement Agreement<\/a>. They will assert that Hernandez was a \u201cRetired NFL Football Player\u201d on July 7, 2014 \u2013 the critical date under the Settlement that defines whether a former player is a Class Member.<\/p>\n<p>In supporting this, the NFL and Patriots will have to argue that Hernandez \u201cinformally retired\u201d when he was indicted on <a href=\"http:\/\/www.sportingnews.com\/nfl\/news\/aaron-hernandez-news-suicide-dead-murder-trial-timeline-patriots-guilty-acquitted-odin-lloyd\/1886y82a8bgyx123qxcgg04lb5\">August 22, 2013 for the murder of Odin Lloyd<\/a>. But this argument should fail.<\/p>\n<p>As <a href=\"https:\/\/www.si.com\/nfl\/2017\/09\/21\/aaron-hernandezs-cte-diagnosis-affect-potential-lawsuit-nfl-patriots\">Michael McCann notes<\/a>, Hernandez was not convicted of Lloyd\u2019s murder until April 15, 2015\u2014well after the July 7, 2014 cutoff date. Presumably, it was always Hernandez\u2019s intent to beat the charges and return to the NFL. Thus, throughout this time, he was still \u201c<a href=\"https:\/\/nflconcussionsettlement.com\/Un-Secure\/FAQDetails.aspx?q=6#6\">seeking active employment<\/a>.\u201d As a result, Hernandez was <strong><u>not<\/u><\/strong> a \u201cRetired NFL Football Player\u201d who released his claim under the NFL Settlement.<\/p>\n<p>Once this issue is resolved, the next play will be for the NFL and the Patriots to move to dismiss the lawsuit under Section 301 of the Labor Management Relations Act\u2014also known as preemption. This is the <a href=\"http:\/\/nflconcussionlitigation.com\/?p=1080\">bedrock defense<\/a> the NFL has asserted throughout the NFL Concussion Litigation.<\/p>\n<p>This is where Hernandez\u2019s legal team will likely meet their match.<\/p>\n<p>While I personally believe the preemption defense is meritless, the NFL has had a significant amount of success convincing courts and creating case law supporting the argument that these types of claims are barred by the collective bargaining agreement because they require interpretation of the CBA. (Side note: <a href=\"http:\/\/nflconcussionlitigation.com\/?p=1635\">Our legal team is the only one to beat it thus far<\/a>.)<\/p>\n<p>That is especially true, such as here, when a claim makes allegation about the failure to adopt \u201crules and league policies related to player health and safety\u201d and\/or preseason health examinations. Most glaringly, in Paragraph 76 of the Hernandez Complaint, they allege, \u201cPrior to the 2010 NFL draft, and before the beginning of each football season, Aaron was examined by medical professionals associated with Defendants. Medical examinations of Mr. Hernandez during this period would have revealed cognitive impairment as Mr. Hernandez\u2019s CTE worsened.\u201d<\/p>\n<p>But this walks Hernandez\u2019s lawsuit right into the preemption trap. The NFL and Patriots will point directly to this allegation and argue\u2014<a href=\"http:\/\/nflconcussionlitigation.com\/wp-content\/uploads\/2012\/01\/download-123.pdf\">as they have <em>ad nauseam<\/em> in related cases<\/a>\u2014that this allegation is covered by Art. 39 \u00a7 1(c) of the 2011 CBA, and therefore triggers preemption. And with that, Hernandez\u2019s lawsuit could be dismissed.<\/p>\n<p>This is potentially a fatal mistake that his legal team should fix immediately. Indeed, the NFL has already released a statement highlighting the errors they see in the lawsuit. \u201c<a href=\"http:\/\/www.sportingnews.com\/nfl\/news\/aaron-hernandez-nfl-lawsuit-cte-study-league-response\/1e8fere8nwe6t1sw43swbdyxm7\">On first blush, we believe it contains significant legal issues<\/a>,\u201d NFL spokesman Joe Lockhart declared.<\/p>\n<p>In any event, whether or not Hernandez\u2019s lawsuit is successful, this much is clear: CTE is real and it is clearly impacting even some of the youngest players in the NFL. This issue demands attention\u2014not detraction or denial\u2014if we want to have any hope in detecting and someday preventing CTE before it&#8217;s too late.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>On Thursday, news broke that Aaron Hernandez had CTE. While the fact that he had CTE is not surprising, the extent of his damage is. Hernandez had Stage III CTE, according to Dr. Ann McKee and Boston University. Providing more punch to the news, Boston University released the slides of Hernandez\u2019s brain that shows the [&hellip;]<\/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":[614,29,16,615,23,4,71,113,291],"jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/1965"}],"collection":[{"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1965"}],"version-history":[{"count":3,"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/1965\/revisions"}],"predecessor-version":[{"id":1969,"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/1965\/revisions\/1969"}],"wp:attachment":[{"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1965"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1965"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1965"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}