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Concussion Litigation: The NFL and Beyond

How We Got Here and What’s Ahead

Paul D. Anderson, Esq.Summa Cum Laude, University of Missouri-Kansas City

School of Law

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• Most common head injury in sports

• Mild trauma-induced alteration of mental status

• May or may not be associated with LOC

• Functional injury

• Acceleration-deceleration, shearing or impact forces

Concussion

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Anatomy of a Concussion

Rosenberg

Terry

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Second-Impact Syndrome (SIS)Multiple concussive events before first concussion is resolved:

• After sustaining a concussion:

“brain cells that are not irreversibly destroyed remain alive, but exist in a vulnerable state”

- The Second Impact in Catastrophic Contact Sports Head Trama

Are significantly vulnerable for recurrent, cumulative, and even catastrophic consequences of a second concussive injury

- Validity of ImPACT for Measuring Attention & Precessing Speed Following Sports-Related Concussion

Until recently, most athletes have been unaware of the long-term consequences of concussions and lacked an adequate understanding of concussion symptoms.

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Chronic Traumatic Encephalopathy (CTE)

• CTE is a type of neurodegenerative disease or dementia caused by repeated concussive or sub-concussive blows (hits just below the force required to cause concussion).

Also known as Punch-Drunk Syndrome, Dr. Harrison Stanford Martland stated in the October 13, 1928 issue of the Journal of the American Medical Association: “[S]ome time fight fans and promoters

have recognized a peculiar condition occurring among prize fighters which, in ring parlance, they speak of as "punch drunk." Fighters in whom the early symptoms are well recognized are said by the fans to be "cuckoo," "goofy," "cutting paper dolls," or "slug nutty." Frequently it takes a fighter from one to two hours to recover from a severe blow to the head or jaw.”

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Pathophysiology of CTE• Repetitive trauma triggers degeneration of

brain tissue

• Accumulation of protein, tau

Neruofibillary/astrocytic tangles

Spindle shaped threadlike neurites

• Different from Alzheimer’s Dementia

Superficial cortical layers of frontal & temporal lobes w/o beta amyloid

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Stages of CTEFOUR Stages of Deterioration

1. Affective changes & psych problems

2. Social issues & erratic behavior with memory loss• Early Parkinson’s like symptoms

3. Gross cognitive dysfunction• Dementia• Late Parkinson’s like symptoms• Speech & gait abnormalities

4. Full-blown encephalopathy

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Traumatic Encephalopathy Related to Sports InjuryChin, Toshkezi and Cantu

Sports-related Chronic Traumatic Encephalopathy Tau-immunoreactive Neurofibrillary Tangles

The ‘League of Denial’

•Football Didn’t Cause Your Problems•You can be safely returned to play after suffering a concussion•Take some smelling salts – this will allow you to return to play•There is no causal effect between football and neurodegenerative diseases •The evidence of CTE is so flawed, it is unlikely CTE exists•Dr. No – Ira Casson – HBO Real Sports Video: http://www.youtube.com/watch?v=R4NbU_HaB3Y

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First NFL Concussion Lawsuit

On July 19, 2011, seventy-five plaintiffs filed a mass action lawsuit in the Superior Court of California in Los Angeles for cognitive Injury from multiple concussions

received during play in the NFL.

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Pandora’s Box Busted Wide Open

• First Federal Class Action filed August 19, 2011: Ray Easterling et al v. NFL

• Lawsuits started to be filed throughout the United States

• To date, 225+ concussion-related lawsuits v. NFL

• More than 4,400 former players

• 30+ wrongful death complaints

MDL IS FORMED

• On January 31, 2012, the United States Judicial Panel on Multidistrict Litigation (MDL) issued a Transfer Order, finding that the various concussion suits filed, “involved common questions of fact, and that centralization under Section 1407 in the Eastern District of Pennsylvania [would] serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.”

• MDL Transfer Order (Docket No. 31), MDL No. 2323

• Currently close to 200 lawsuits are pending in Philadelphia

• Master Complaint filed June 2012

• NFL filed Motion to Dismiss Aug. 30th

• Preemption issue has been fully briefed

• Arguments took place on April 9th

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Master Complaint

• Defendants: NFL• NFL Properties, Riddell Helmets, and subsidiaries

• Claims asserted:• Negligence• Negligent Misrepresentation• Negligent Hiring and Retention• Fraud• Fraudulent Concealment• Wrongful Death and Survival Actions• Civil Conspiracy (member clubs, indp. contractors, etc.)• Loss of Consortium• Medical Monitoring

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Primary Claims Asserted

• Elements of Negligence:• Duty – to protect health and safety of players• Breach – failing to implement concussion standards• Causation (but for and proximate cause)• Damages

• Elements of Fraud: • Misrepresentations made• Knew they were false• Made with the intent to defraud• Players justifiably relied on said misrepresentations• Players were damaged

The NFL Steals Big Tobacco’s Playbook: Manufacture Doubt

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American Football Coaches Assoc.1937

“During the past 7 years the practice has been too prevalent of allowing players to continue playing after a concussion. Again this year is true. Sports demanding personal contact should be eliminated after an individual has suffered a concussion.”

‘Doubt is Our Product’

The industry template of deceptionBig Tobacco, Asbestos, Big Pharma, etc. Internal Memo from Big Tobacco Executive

“Doubt is our product it is the best means of competing with the ‘body of fact’ that exists in the minds of the general public.

It also the means of establishing controversy.”

Debating the science is much easier than debating the logicE.g. Hit Counts

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The MTBI Committee is Formed to Perpetuate Doubt – Backed by

“Science”The NFL created the Mild Traumatic Brain Injury Committee in 1994, and appointed a rheumatologist

Pellman was Taglibue’s personal physician

In 2004 this Committee published their findings that showed “no evidence of worsening injury of chronic cumulative effects” from multiple concussions.

In fact, the Committee concluded that “many NFL players can be safely allowed to return to play” on the same day they sustain a concussion if a doctor clears them.

Pellman, Casson, Waeckerle, et al

From 1994 – 2007 published 14 studies that were fatally flawed. The summary was published in 2006: It can be concluded that mild TBIs in professional football are not

serious injuries No NFL player experienced second-impact syndrome, chronic

cumulative injury or chronic traumatic encephalopathy from repeated injuries

No signs of CTE in active, contemporary football players. Our studies support that arbitrary return to-play guidelines may

be too conservative for professional football The results of our studies indicate that many NFL players can be

safely allowed to return to play on the day of the injury after sustaining a mild TBI.

Far-reaching negative implications

Congressional Beat down

2007 Hearing on NFL Retirement System Brent Boyd – “This is fraud, corruption, collusion. It’s rampant in

the NFL. The late Dave Duerson (is fed lies from the NFL and NFLPA)

denies the link between football and chronic brain damage – my dad had Alzheimer's and he never played football

Gayle Sayers – “The NFL is a $7-plus billion industry, yet it struggles to do right by the retired players whose sacrifices built this game. I believe this failure is at the core of a general crisis in the game.”

2009 Concussion in Sports Goodell scolded - http://www.youtube.com/watch?v=

rcHZ_kUsjfQ Greg Aiello – “It’s quite obvious from the medical research that’s

been done that concussion can lead to long-term problems.”

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NFL’s Complete About Face

2009 memo to all teams re: concussions and RTP

Poster telling players about concussions

2011 Indp. Trainer to watch for concussions

Indp. Neurologist to clear players.

2011 Kick off moved back

Millions of $$$ donated

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NFL’s Complete About Face

NFLEvolution.com NFL Donates $30

million Independent

Neurologist on Sidelines

Concussion Assessment Tools

Madden Rule X2 Impact: Concussion

Software Ipad

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Oral Arguments

• Took place April 9 at 10:00am

• Paul Clement (NFL) v. David Frederick (Players)

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Two Years of Litigation

No DiscoveryNFL tries to slam courtroom door shut – Motion to Dismiss

April 9, 2013 – Oral Arguments on NFL’s Motion to Dismiss

July 8, 2013 – Judge Brody Orders parties to mediation

August 29, 2013 – Proposed Settlement Announced

Now, WE wait.

Settlement Denied

Judge Brody notes her concernsNot enough money to pay all claimants for 65+ years

Orders the production of dataConcerned about NCAA ReleaseReport from Special Master forthcoming

We, continue to, wait.

$765 Million - Breakdown

10%

88%

1% 1%

Baseline Medical Exams ($75 mm)Monetary Compensa-tion Fund ($675 mm)Research ($10 mm)Admin ($5 mm)

Qualifying Neurological Injury($675 million)

Diagnosed with any of the following diseases: Alzheimer's - $3 million Dementia - $3 million Parkinson’s - $3 million ALS - $5 million Post-mortem CTE - $4 million Severe Cognitive Impairment – to be determined

Sliding-scale determinations based on several factors: Age; number of years you played in the league

If the player died prior to 2006, his family will be excluded If the funds are deemed insufficient, a one-time payment of

$37.5 million will be paid.

NCAA Concussion Litigation

September 2011 – FirstClass Action filed v. NCAA

• Seeks to represent all former student athletes• 65 + college athletes & 13 lawsuits pending

• MDL is formed in Chicago

• Mediation talks ongoing

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MLS CONCUSSION LITIGATION

• Bryan Namoff v. DC United• Eddie Johnson files suit v. Portland Timbers• BU announces CTE found in soccer & rugby player

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NHL Concussion Litigation

• Boogaard wrongful death suit•NHL Class Action filed Nov. 2013 (Gary Leeman, Scott Parker & 11 others) •Fighting

• Is it an essential part of the game?•Enforcers (e.g. Boogaard, Rick Rypien, Wade Belak) all showed signs of CTE

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Major League Baseball

•MLB Implements Rule 7.13 – Eliminating egregious collisions at home plate •Ryan Freel (36) – suicide; history of multiple concussions

• CTE found•New helmets in place this year, per CBA

• Rawlings S100 Pro Comp•Lining inside hats to prevent skull fractures

• Brandon McCarthy

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The End!

Questions