Where Is Sports Concussion Litigation Headed?

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By Steven M. Sellers

Feb. 18 — Concussion litigation—and the brain injury science that underlies it—is trickling from the ranks of professional athletes to amateur and youth players, and that may create an expanding pool of future plaintiffs and new legal challenges for defendants, lawyers and academics tell Bloomberg BNA.

Repetitive head trauma often begins in youth sports, and the impact on young brains may be the key to future sports concussion litigation, the lawyers say. Developments in chronic brain injury diagnosis may also raise the odds of suits by youth and adult amateur players against equipment manufacturers, schools and non-profit sports leagues.

Predicted diagnostic tools that will detect chronic traumatic encephalopathy in living athletes—a chronic degenerative disease found in the brains of some deceased NFL and NHL players—may change the litigation calculus significantly, the lawyers add.

But how will recent class action concussion settlements with the National Football League and the National Collegiate Athletics Association frame future sports concussion litigation?

Paul Anderson, a plaintiff's lawyer with The Klamann Law Firm in Kansas City, Mo., who also blogs on concussion litigation, told Bloomberg BNA Feb. 12 he sees a “tidal wave” of litigation ahead as a result of the settlements.

“It’s had an impact at all levels, starting with the NFL and then shortly thereafter the NCAA, and now you’re seeing it in high school and peewee,” said Anderson. “And it’s not just limited to football—it’s all sports.”

Others interviewed for this report agreed.

“Whenever one corporate entity pays money to a claimant, more claims follow,” Mark Granger, of Granger Legal Consulting, Inc., in Schroon Lake, N.Y., who chairs the Sports and Fitness Industry Association's Legal Task Force, told Bloomberg BNA Feb. 14 in an e-mail.

“We expect concussion litigation to become a significant new field of law, potentially involving regular class action suits and mirroring what once existed with asbestos, cigarettes, and lead paint,” according to Granger, formerly with Morrison Mahoney's Boston office, whose clients have included Easton Sports, Franklin Sports and Reebok.

Granger said he wasn't speaking on behalf of those or other sports industry clients.

NFL, NCAA Settlements Set Stage

Lawyers for former players who sued the NFL say the $675 million uncapped class settlement already has risen to $1 billion, and may increase “exponentially” if currently asymptomatic players develop symptoms at a higher rate than predicted (In re Nat'l Football League Players' Concussion Injury Litig., 2015 BL 114599, E.D. Pa., MDL No. 2323, final settlement approved 4/22/15

Another, tentatively approved, $75 million class settlement with the NCAA for a class comprised of all current and former student-athletes may invite further litigation because athletes retain the ability to bring tort claims against the NCAA or its member institutions for a future brain injury diagnosis (In re Nat'l. Collegiate Athletic Ass'n Student-Athlete Concussion Litig., N.D. Ill., MDL No. 2492, preliminary class settlement approved 1/26/16).

Yet another federal multidistrict litigation is pending over the concussion injury claims of former National Hockey League players (In re Nat'l Hockey League Players' Concussion Injury Litig., D. Minn., No. 14-md-02251, filed, 8/19/14).

But medical science may be the strongest barometer for future concussions-related cases—a conclusion evident in the NFL litigation itself.

Focus on Youth Concussions?

“The science could determine really that all that matters for developing CTE is how many hits you take before your eighteenth birthday,” Paul Clement, a lawyer for the NFL, told the U.S. Court of Appeals for the Third Circuit last November in oral argument of an appeal by objectors who are challenging the class settlement as insufficient (In re Nat'l Football League Players' Concussion Injury Litig., 3d Cir., No. 15-2304, oral argument, 11/19/15)

Clement is with the Bancroft law firm in Washington.

CTE, found in the brains of some deceased NFL players, currently may only be diagnosed post-mortem. That may soon change, however, according to Dr. Robert Stern, a professor of neurology, neurosurgery, anatomy and neurobiology at Boston University School of Medicine, Boston, Mass.

“Based on the scientific and medical literature, my own first-hand knowledge of the current state of the scientific field, and on my own research, I am confident that within the next five to ten years there will be highly accurate, clinically accepted, and FDA-approved methods to diagnose CTE during life,” Stern said in a declaration filed in the NFL litigation.

Anderson said the tentative NCAA settlement alone will affect as many as 4.4 million student-athletes, some of whom may learn they have CTE in a future test.

“I think the NCAA settlement is going to trigger a tidal wave of litigation,” said Anderson. “I can’t believe the NCAA agreed to it. It’s going to allow [players] to sue in the future on a diagnosis of CTE in the living.”

“Fighting the science is going to be very difficult on the part of the NCAA because it was their settlement that allowed the diagnosis of CTE,” said Anderson. “That settlement’s going to go on for the next 50 years, so we’re looking at a half-century of CTE litigation to come.”

“Effective CTE diagnoses on living persons will change the landscape of litigation dramatically,” Paul Haagen, a professor at Duke University Law School, Durham, N.C., and director of its Center for Sports Law and Policy, told Bloomberg BNA Feb. 11.

“As the risks involved in playing these sports become better understood, the arguments for assumption of risk by the athletes—and their parents/guardians—will be stronger,” Haagen said in an e-mail. “Because of the progressive nature of CTE, the arguments related to the onset of the disease are more powerful.”

Potential streams of new CTE litigation will also multiply because of the notoriety of the NFL and NCAA settlements, Douglas Abrams, a professor at the University of Missouri School of Law, Columbia, Mo., told Bloomberg BNA Feb. 12.

“When the NFL does something, or the NCAA does something, the media notices and people notice,” said Abrams, who writes extensively on legal and regulatory issues in youth sports concussions. “The fact that the litigation is happening in these high-profile organizations is going to filter down to the youth league and high school levels and produce concussion litigation there, as well.”

Those leagues include an estimated 30 to 45 million children and adolescents who participate in non-scholastic sports, and more than seven million athletes in the U.S. who compete in high school sports each year, according to a recent study of the incidence of youth sports concussions.

Cases to Watch

One indication of the trend may be found in tort suits filed against sports leagues by the parents of youths who suffered brain or spinal injuries in sports.

One California case cited by Abrams involves claims by the parents of a quadriplegic youth football player that Pop Warner league coaches trained their son to tackle with his helmet, increasing the likelihood of severe injury (Dixon v. Pop Warner Little Scholars, Inc., Cal. Super. Ct., No. BC526842, filed, 11/5/13).

The case was recently resolved in a confidential settlement for an undisclosed amount.

Abrams added that similar scenarios may play out in other cases because of some distinct differences between high-level leagues and non-profit youth leagues and schools.

“Most youth leagues and high schools do not have certified trainers on the sidelines; they’re too expensive,” Abrams said. “So a lot of the burden falls on coaches.”

Another pending case, Anderson said, is Pyka v. Pop Warner Little Scholars, Inc., W.D. Wis., No. 15-cv-00057, filed 1/5/15, in which the parents of Joseph Chernach allege in part that their son's suicide was the result of repeated concussions and the league's failure to warn of the dangers of youth football.

Abrams said individual cases like these are sure to be on the rise in the future. But Granger, of the Sports and Fitness Industry Association, said, however, that it is “dubious” that class claims like those in the professional league MDLs will spread—as long as medical causation remains an issue.

“The NFL, NHL, and NCAA cases are based on alleged withholding [of] information from athletes and their families,” said Granger. “These claims really don’t exist for individual schools and not-for-profit leagues. Class claims against such defendants are not likely to be successful.”

Helmet Manufacturers On Guard?

Helmet manufacturers—also in the path of future concussion litigation—have taken steps to enhance the protective qualities of helmets and to detect on-field head impacts, but it's not clear helmets can prevent concussions, as opposed to skull fractures.

“The reality is that the helmet isn’t going to be the answer because you can’t stop the brain from rattling around in the skull,” said Anderson. “It’s just a matter of physics and science.”

Riddell, Inc., a major manufacturer of football helmets, won a jury verdict in 2014 over allegations that a defectively designed helmet caused a high school player to suffer brain damage (Acuna v. Riddell Sports, Inc., Cal. Super. Ct., No. LC090924, verdict entered, 3/20/14).

Observers suggested the verdict was based, in part, on the notion that jurors are receptive to arguments that athletes in contact sports assume the risk of injury.

“The liability of helmet and other equipment manufacturers is based both on faulty design and failure to warn,” Haagen said. “In the future, it will depend a lot on how equipment manufacturers market their products and how effective they are at warning of risks.”

William Staar, of Morrison Mahoney's Manchester, N.H. office, told Bloomberg BNA Feb. 14 in an e-mail that helmets are a part of player safety, but aren't designed to prevent concussions.

“Helmets were created and designed to prevent severe head trauma, e.g., skull fractures, subdural hematomas, and cerebral hemorrhage,” said Staar, who advises the sporting goods industry and is also, like Granger, a member of the Sports and Fitness Industry Association's Legal Task Force. “They have done this very effectively for decades. They were not designed and, to date, have not been successful in preventing concussions,” said Staar.

“Helmets are, at best, only part of the solution to head trauma,” Staar said. “Coaching, education of athletes, training, rulemaking, and better rule enforcement can and does reduce brain injury.”

To contact the reporter on this story: Steven M. Sellers in Washington at ssellers@bna.com.

To contact the editor responsible for this story: Steven V. Patrick at spatrick@bna.com.