{"id":54,"date":"2012-01-05T16:05:45","date_gmt":"2012-01-05T16:05:45","guid":{"rendered":"http:\/\/nflconcussionlitigation.com\/?p=54"},"modified":"2012-01-05T16:05:45","modified_gmt":"2012-01-05T16:05:45","slug":"concussion-lawsuits-rattle-the-nfl","status":"publish","type":"post","link":"https:\/\/nflconcussionlitigation.com\/?p=54","title":{"rendered":"Concussion Lawsuits Rattle the NFL"},"content":{"rendered":"

This article was published on Yahoo! December 5, 2011<\/strong><\/p>\n

It should be a no-brainer that repeated blows to the head might lead to detrimental long-term effects, right? Not according to several former NFL players.<\/p>\n

Two class actions (Easterling<\/em> & Hardman<\/em>) and three separate multi-plaintiff lawsuits (Maxwell, Pear<\/em> & Barnes) <\/em>were filed against the NFL this fall.<\/p>\n

The leading class action, Charles Ray Easterling v. NFL, No. 11-5209, U.S. Dist. Ct. E.D. Pa.<\/em><\/a>, alleges that the NFL actively concealed the link between concussions and neurodegenerative diseases. The putative class seeks medical monitoring, and the complaint asserts four state-law claims: negligence, concealment, civil conspiracy and loss of consortium.<\/p>\n

The four other lawsuits filed in California include a substantial amount of explosive factual allegations. In addition, they name the NFL Properties, Riddell Sports, and Easton-Bell Sports as defendants. Furthermore, the California actions assert negligence-monopolists against the NFL and strict liability for design and manufacturing defects against Riddell.<\/p>\n

Since it is likely that all the lawsuits will be transferred to the judicial panel on multidistrict litigation<\/a>, this article will combine the five lawsuits and discuss the allegations facing the NFL individually and its likely defense in blocking the lawsuits.<\/p>\n

The Offensive Scheme<\/strong><\/p>\n

According to the complaints, for more than 35 years the NFL concealed the link between concussions and long-term-brain injuries. In 1994 the NFL undertook the duty of creating the Mild Traumatic Brain Injury Committee (MTBIC), its purpose was to study \u201cthe effects of concussions on the long-term health of retired NFL players.\u201d Drs. Elliot Pellman, Ira Casson and David Viano headed the committee.<\/p>\n

As early as 2000, peer-reviewed studies were published within the scientific and neurological community that unequivocally stated there is a link between concussions and long-term-brain injuries. One study led by the University of North Carolina and published in the September-October issue of the American Journal of Sports and Medicine<\/em> stated, \u201cconcussions can lead to permanent brain damage, vision impairment or even death if not managed properly.\u201d<\/p>\n

The NFL\u2019s MTBIC disputed these findings and concluded that it was junk science and lacked \u201cscientific rigor.\u201d In rebuttal, the MTBIC published its own studies in 2003 and 2004 in Neurosurgery<\/em>; the studies concluded \u201cthat NFL players did not show a decline in brain function after suffering concussions.\u201d Coincidentally, the editor of the scholarly journal was Mike Apuzzo, the New York Giants\u2019 neurosurgical consultant. Perhaps a conflict of interest!<\/p>\n

The most compelling research linking concussions with later cognitive decline came between 2005 and 2008 through the independent studies of Drs. Bennet Omalu, Robert Cantu and Ann McKee. Their combined research led to the finding of Chronic Traumatic Encephalopathy (CTE) in several former players (e.g. 14 of 15 player\u2019s brains studied showed signs of CTE).<\/p>\n

Despite these findings and numerous public reports discussing the severity of concussions, the MTBIC published another article in the Nerologoical Focus<\/em> concluding, \u201cthat mild TBIs [traumatic brain injuries] in professional football are not serious.\u201d The most damning of all evidence to date, was a press release the NFL circulated to all teams and players in April 2007 explicitly stating, \u201cCurrent research with professional athletes has not shown that having more than one or two concussions leads to permanent problems\u2026[t]here is no magic number for how many concussions is too many.\u201d<\/p>\n

In 2007 the national media started reporting<\/a> on the tragic stories of former players struck with neurodegenerative diseases; the findings of Drs. McKee, Cantu and Omalu; and the NFL\u2019s stiff-arm and blatant denial that concussions lead to long-term cognitive decline. \u00a0On October 28, 2009, Congress took note of the seriousness of concussions in the NFL after a University of Michigan study was released that found \u201cNFL alumni are diagnosed with Alzheimer\u2019s disease or similar memory-related diseases vastly more often than the national population\u2014including a rate of 19 times the normal rate for men ages 30 through 49.\u201d Appropriately, the judiciary committee summoned the NFL and others to report on the \u201cLegal Issues Relating to Football Head Injuries.\u201d<\/p>\n

The Congressional hearings exposed the NFL\u2019s insincere position and active concealment of the link between concussions and cognitive decline. Roger Goodell was peppered with questions as to why the NFL\u2019s MTBIC continued to deny and discredit the medical community\u2019s findings that multiple former players were suffering from dementia, depression, and severe neurodegenerative diseases. In reply, Goodell deferred the questions to his cohorts (Drs. Casson, Pellman and Viano) by asserting the \u201cempty-chair defense.\u201d Dr. Casson and his crew failed to appear at the Congressional hearing, so the Committee played Dr. Casson\u2019s comments on HBO Real Sports<\/em><\/a>. <\/em>Dr. Casson emphatically denied that multiple head injuries in the NFL could lead to dementia, depression, CTE, and early-onset Alzheimer\u2019s. This denial led Congresswoman Linda Sanchez to analogize the NFL\u2019s concealment to the tobacco industry\u2019s denial of the link between cigarette consumption and health hazards, effectively foreshadowing the pending lawsuits against the NFL.<\/p>\n

Following the Congressional hearings and the embarrassment the NFL received due to its failure to act, the NFL was obligated to do a complete about-face. The NFL forced Drs. Casson and Viano to resign and suspended the work of its misinformed MTBIC. The NFL partnered with the Center for the Study of Traumatic Encephalopathy and started pouring money into its so-called \u201cbrain-bank\u201d operation. To be fair, the NFL has increased certain retirement benefits, but the process is notorious for its quick denials and monotonous administrative procedures, leaving numerous qualified recipients without coverage.<\/p>\n

The NFL\u2019s Counter Attack<\/strong>\u00a0<\/strong><\/p>\n

On November 9, 2011, the NFL responded to the Easterling<\/em> lawsuit by filing a motion to dismiss<\/a>. The crux of the NFL\u2019s argument is federal preemption. In essence, the response argues that the plaintiffs\u2019 cause of action is barred by the Collective Bargaining Agreement (CBA) the players and the NFL entered into, and thus any dispute must be resolved through the grievance procedures set forth in the CBA. The CBA requires all disputes arising from the CBA to be interpreted by an arbitrator. The NFL\u2019s response is well grounded in precedents and may very well rule the day.<\/p>\n

The tragic irony of the case being dismissed on the pleadings is that the same agreement the players entered into to protect their rights, may be the biggest hurdle to providing the players with their day in court.<\/p>\n

Post-Game Analysis<\/strong>\u00a0<\/strong><\/p>\n

In order to overcome the NFL\u2019s preemption argument and to prevent dismissal, the plaintiffs must persuade the court that the state-law claims are not \u201cinextricably intertwined with consideration of the terms\u201d of the CBA. This indeed will be a tough argument to make; however with the ingenuity of a good plaintiff\u2019s lawyer there are arguments to be made.<\/p>\n

In short, the argument will likely be that the plaintiffs (i.e. retired players) are not a party to the CBA, and thus the CBA does not apply nor will it need to be interpreted to adjudicate the state-law claims. Next, the NFL owed a duty to the players by undertaking the creation of the MTBIC. And then, applying the pertinent facts above, the NFL breached this duty by failing to inform the players of the risks of concussion, it misrepresented and concealed the link between concussions and cognitive decline, and thus materially harmed and caused damage to the former players. I admit, full analysis is lacking but for the sake of simplicity this is likely the argument that will be raised.<\/p>\n

In any event, the litigation battle has begun, and the ball is now back in the plaintiffs\u2019 hands to respond to the NFL\u2019s motion to dismiss. The saga will continue throughout the following year<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

This article was published on Yahoo! December 5, 2011 It should be a no-brainer that repeated blows to the head might lead to detrimental long-term effects, right? Not according to several former NFL players. Two class actions (Easterling & Hardman) and three separate multi-plaintiff lawsuits (Maxwell, Pear & Barnes) were filed against the NFL this […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ngg_post_thumbnail":0},"categories":[1],"tags":[],"jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/54"}],"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=54"}],"version-history":[{"count":2,"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/54\/revisions"}],"predecessor-version":[{"id":56,"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/54\/revisions\/56"}],"wp:attachment":[{"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=54"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=54"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=54"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}