Sports Concussion Claims May Get Boost From New Science

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By Steven M. Sellers

Sept. 21 — Sports-related concussion litigation is hot on the heels of medical science, and a new test may be only a few years away that will be able to diagnose much sooner a degenerative brain disease linked to repetitive head impacts.

Chronic traumatic encephalopathy (CTE) currently may be diagnosed in athletes only after death. Earlier detection of the disease in living patients would transform both concussion science and litigation over brain injuries associated with sports, lawyers and academics tell Bloomberg BNA.

“What we’re looking for in all types of traumatic brain injury litigation” is “what the medical profession is looking for,” attorney Michael Kaplen, of DeCaro & Kaplen in Pleasantville, N.Y., said.

The search is for “the silver bullet that will tell us whether or not somebody was concussed or has CTE, rather than relying on the results of neuropsychological testing,” said Kaplen, who represents plaintiffs in traumatic brain injury cases.

The new tools “would change the field of medicine for purpose of treatment and obviously for law,” he said.

Paul Haagen, director of Duke University’s Center for Sports Law and Policy in Durham, N.C., concurred.

“I don’t think we’re very far off from devices that will be able to tell whether somebody’s had their head shaken,” Haagen said.

“When you’ve got that kind of capability, that should change the standard of care,” he said.

Biomarker Detectives

CTE is a progressive neurodegenerative disorder found post-mortem in the brains of some athletes. Known as “punch-drunk syndrome” as early as the 1920s, and initially believed to just be confined to boxers, the disease has since been found in athletes participating in a wide range of sports, including football and ice hockey, according to the National Institutes of Health.

Its symptoms include memory and mood disturbances, suicidal behavior and eventual progression to dementia, according to the U.S. Centers for Disease Control and Prevention.

But not all athletes develop CTE, so medical researchers are focused on finding “biomarkers” of brain injury sooner and with greater clarity.

Researchers at the University of California, Los Angeles, for example, reported in August that magnetic resonance imaging (MRI) scans of a middle-aged former high school football player showed shrinkage of brain areas consistent with CTE.

Other recent articles include a study of cognitive changes after mild traumatic brain injury, a report on concussion differences between helmeted and unhelmeted athletes and an inquiry into concussions in adolescent athletes.

And, in August, the Food and Drug Administration approved a first-of-its-kind computerized test to assess cognitive skills after a head injury.

Scientists are “looking for markers, blood markers, imaging markers, that could be used to detect CTE in living individuals,” Dr. Robert Cantu, co-director of the Center for the Study of Traumatic Encephalopathy at Boston University School of Medicine, Boston, recently told Bloomberg BNA.

Boston University, funded by an NIH grant, is at the forefront of new research in this area, led by Cantu and Dr. Robert Stern.

Answers Closer, But Still Elusive

The research is promising, but hasn’t yet produced tools to definitively identify the biomarkers of concussions or CTE.

“So far, there’s not such an entity that exists to a degree of validity that it’s ready for clinical trials yet,” Cantu said. That may be because brain injury clues can be left in more than one place. They can be “genetic, possibly nutritional, possibly environmental, we just don’t know,” Cantu said.

Brain scans that reveal collections of certain proteins in the brain, known as tau, show the most promise, according to Cantu.

One such scan uses injected contrast dye that “lights up” tau in the brain, but resolution of the images still is “a little smudgy,” Cantu said.

But as the resolution of those images increase, such scans will become “very promising,” he said.

“It may well be that in a year or two,” or maybe “three or four,” the tests could be adequate to support a CTE diagnosis, Cantu said.

Brain tissue
Rumbles Over Research

But the science has gained notoriety for reasons beyond just the search for concussion clues.

Its additional high profile is fueled in part by concussion litigation brought by former athletes against the National Football League, the National Hockey League and the National Collegiate Athletic Association. CTE has been a common theme in those cases, where athletes claim the leagues didn’t do enough to warn or protect them from the long-term dangers of concussions.

Questions about the science also have had a political edge at times.

A Democratic staff report for Rep. Frank Pallone Jr. (D-N.J.), ranking member of the House Committee on Energy and Commerce, concluded in May that the NFL improperly attempted to influence the grant selection process for brain injury research at the National Institutes of Health.

Conclusions in that report, however, were called into question in a Sept. 15 letter by committee chair Fred Upton (R-Mich.) and three other Republican committee members, who asked Daniel Levinson, Inspector General of the Department of Health and Human Services, to review NIH’s compliance with its own policies.

An objective review of NIH policies and procedures for public-private partnerships is necessary to determine whether the institute followed the rules, according to the Sept. 15 letter.

Equating CTE and Smoking

Professional sports leagues also have questioned the causative link between repetitive head impacts and CTE.

NHL commissioner Gary Bettman recently argued as much in a July letter to Sen. Richard Blumenthal (D-Conn.), who had queried Bettman about head trauma and CTE in NHL players.

Bettman replied that the “medical consensus is that no causal link between concussions and CTE has been scientifically established.” He cited medical literature on concussions in sports and their long-term effects.

The NHL is enmeshed in proposed class action litigation brought by former players who claim the league knew, or should have known, that the head impacts players endured increased their risk of developing CTE and other degenerative brain diseases.

Cantu, of Boston University, said concussion science establishes the link in the same way smoking is linked to certain cancers.

“Some people say, ‘It’s associated with head trauma, but that doesn’t mean it causes it,’ ” Cantu said. “The reason they make that statement is, and it’s true, is that not everybody with head trauma is going to get CTE, thank God. And not everybody with the same amount of head trauma gets CTE.”

“Smoking, everybody agrees today, causes lung cancer, but you don’t have to have smoking to get certain kinds of cancer,” Cantu said. “And not everybody that does is going to wind up” with cancer, he said.

“That’s kind of where we are with head trauma,” Cantu said. “If you accept it for smoking, you certainly should accept it for repetitive head trauma.”

The proof lies in the fact that “every single case of CTE has had documented head trauma,” Cantu said. “There’s never been a case in the world’s literature that has not had head trauma.”

Legal Hurdles Ahead

If the scientific predictions prove true, they may clear a litigation path for athletes who seek to prove their brain injuries were caused by sports collisions, but a host of legal hurdles await.

As the dangers of concussions become more widely known, some say, claims by athletes that leagues didn’t warn them of the risk of CTE may ring hollower in the courts.

“It’s harder and harder for athletes to make claims about not knowing,” Haagen, of Duke University, said.

Injured athletes will also have to establish causation—that a brain injury was caused by head impacts in a given league—and that could be tricky.

“We’re still faced with an interesting legal, evidentiary issue,” said Kaplen, who filed a friend-of-the-court brief last year in a Third Circuit appeal over the $1 billion concussion class settlement between former players and the National Football League.

“What if you’ve been playing football for the last 10 years, 15 years? When did you get this CTE? When did it develop?”

Defendants, including the NFL, have already had some success on the causation question in concussion litigation.

In multidistrict litigation of the NFL cases, for example, U.S. District Judge Anita Brody ruled in 2015 that “the association between repeated concussive trauma and long-term neurocognitive impairment remains unclear.”

She added that even “if general causation could be proven, an even more daunting question of specific causation would remain.”

Plantiffs also must establish the reliability of the science upon which an injury claim is based under a 1993 U.S. Supreme Court decision, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Daubert tightened up the restrictions for some types of expert evidence to get into court. But some say it actually has helped get other types of evidence admitted that might help plaintiffs in concussion litigation.

Daubert has led to the widespread admissibility of causation evidence related to issues such as” post-traumatic stress disorder, “rape trauma syndrome, battered woman syndrome, and the like,” Lee Green, a sports law professor at Baker University in Flint, Mich., told Bloomberg BNA.

Green also writes on sports law for a monthly magazine published by the National Federation of State High School Associations, which establishes standards and rules for high school sports nationwide.

That fact “would certainly increase the chances that CTE diagnostic test results would be admissible before juries to try and draw a causal link from the sports program” to the “traumatic brain injury or health struggles of the current or former high school athlete,” he said in an e-mail.

New Class Claims?

Green said he predicts an “enormous” volume of litigation against sports organizations at all levels once a reliable medical test to diagnose CTE is developed.

“Once diagnosis is possible in living athletes,” Green said, “it seems likely that some plaintiffs’ law firms will jump into the fray and assemble ‘classes’ of current and former high school student athletes to be used in mass litigation against school districts.”

State legislation that limits school liability or imposes damages caps may stem the tide of litigation, “but initially I believe there will be a tidal wave of attempted concussion class action suits,” Green said.

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