Football Helmet Makers Hit By Concussion Litigation

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By Steven M. Sellers

Football helmet manufacturers are playing defense in concussion and other head injury cases brought by professional and amateur athletes who say their gear didn’t deliver on injury protection promises.

Sporting goods companies have had success in defending football helmet design defect claims so far. But some claims lodged against major helmet maker Riddell Inc. may prove troublesome to the industry and potentially very costly to the company, sports lawyers tell Bloomberg BNA.

The litigation now includes misrepresentation claims, which some attorneys predict could spread to other manufacturers.

Riddell, based in Elyria, Ohio, describes itself as “the leading manufacturer of football helmets and shoulder pads, and a top provider of reconditioning services,” according to its website.

But Riddell was “making helmets for many years that did not protect players from concussive and sub-concussive hits,” Daniel Wallach, a sports law litigator with Becker & Poliakoff in Fort Lauderdale, Fla., told Bloomberg BNA.

Plaintiff lawyer Paul Anderson, of the Klamann Law Firm in Kansas City, Mo., agreed. “Companies got way ahead of themselves starting in the mid-90s when they were misrepresenting the ability of a helmet,” he said.

Anderson represents athletes with brain injuries and blogs about sports-related concussion cases.

Mark Granger, of Granger Legal Consulting Inc. in Schroon Lake, N.Y., said, however, that many claims against helmet companies haven’t stuck.

That’s because “helmets are doing their job,” which is “to prevent skull fractures, severe hematomas and death,” he said.

Granger is a product liability defense lawyer who also chairs the Legal Task Force of the Sport and Fitness Industry Association, a trade and fitness-oriented organization based in Silver Spring, Md.

Yet, Granger also said misrepresentation claims about the protective qualities of some football helmets may proliferate in the courts.

“That’s where things are going,” Granger said.

The continued and new litigation against Riddell, if ultimately successful, could prove damaging even when compared to the much higher-profile $1 billion concussion litigation against the National Football League.

“The liability Riddell faces is much graver than what the NFL was ever subjected to because the NFL is in a different position financially, and can weather just about any kind of judgment,” Wallach said. “They can’t stand behind a collective bargaining agreement like the National Football League can.”

Defeated Design Claims

Design and manufacturing defect claims, however, haven’t been successful for plaintiffs in most cases, according to Granger, who said he wasn’t speaking on behalf of his clients.

“The interesting thing so far is that, to my knowledge, no jury or court has found helmets to have been negligent in design or manufacture,” he said.

Those claims haven’t gained ground because plaintiffs typically can’t show that an alternative, and presumably safer, design was available to a helmet maker, Granger said.

That was true in 2016, when the U.S. District Court for the Southern District of Indiana dismissed claims against Riddell in a would-be concussion class action brought by former college football players. The complaint didn’t establish that the company’s helmets had a manufacturing defect, the court said.

Riddell Suits Setting Pace

But football helmet complaints using other product liability theories—in addition to design defect claims—are gathering steam, including cases against Riddell, a subsidiary of Easton-Bell Sports LCC.

More than 140 cases are pending in the U.S. District Court for the Eastern District of Pennsylvania, according to court records, and many are part of multidistrict concussion litigation filed by former NFL players.

When a $1 billion class settlement was finalized with the NFL in 2016, Riddell wasn’t part of the deal. The court separated its product liability cases from the league claims, in part because of differences in the types of helmets the players used over decades of professional competition.

Those suits, many of which challenge the protection-related assertions that Riddell made in marketing some of its helmets, are still pending, according to court records.

Civil Conspiracy?

Still other cases against Riddell are pending in Illinois Circuit Court in Cook County, and these are the suits that are expected to see the most action in the near term.

“The Cook County cases are really the only cases against a helmet maker proceeding toward trial anywhere,” Brad Sohn, of the Brad Sohn Law Firm in Coral Gables, Fla., said in an e-mail.

Sohn represents the wife of Paul Oliver, a deceased NFL player, in a would-be class action against Riddell and related companies ( Oliver v. Riddell, Inc. , Ill. Cir. Ct., No. 2016L002638, filed 3/11/16 ).

Oliver, a defensive back for the New Orleans Saints and San Diego Chargers from 2007 to 2012, committed suicide in 2013. He was later diagnosed with chronic traumatic encephalopathy (CTE), according to the complaint.

CTE is a degenerative brain disorder associated with repetitive head impacts, such as those that occur in football, ice hockey and other sports. Autopsies on a number of former NFL players confirmed they suffered from the condition.

“This case is a civil conspiracy case,” Sohn said in an e-mail. “It alleges Riddell and the NFL—and many others—acted in concert to develop ‘protective equipment’ under knowingly false premises.”

Oliver contends, in part, that Riddell misrepresented the concussion-fighting capacity of its Revolution helmets compared to other helmets on the market.

But Riddell questions the merit of Oliver’s complaint.

“While Riddell does not typically comment on pending litigation, it is worth noting that prior to the Oliver suit being filed, Riddell informed Plaintiff’s counsel that it believed his assertions were meritless,” company spokeswoman Erin Griffin said in an e-mail.

“Specifically, Riddell pointed out the fact that Mr. Oliver wore another manufacturer’s football helmets throughout both his college and NFL playing career.”

Sohn disputes the basis of that assertion.“You can see pictures of Oliver wearing Riddell helmets in the NFL,” Sohn said in an e-mail. He added that Oliver’s youth and high school football play was included in the complaint.

“The complaint makes clear that this is not about helmet use,” Sohn said. “It is about Riddell’s role in the concealment fraud regarding research and false science.”

Future Focus

Riddell is cited in many pending cases, but it isn’t the only helmet manufacturer that has had to face recent product liability claims. And helmets other than those used in football also are on the radar of plaintiffs’ attorneys.

Kranos Corp, doing business as Schutt Sports, as well as the National Collegiate Athletic Association and other defendants reached a $1.2 million settlement in 2016 in litigation over the death of Derek Sheely, a Frostburg State football player. Sheely died of a brain injury during a 2011 team practice, according to the complaint.

Another example is a suit filed in 2016 against Performance Sports Group Ltd. by a high school lacrosse goalie. Melina Avery claims the company’s helmet didn’t adequately protect her from a concussion in a game.

As the product liability claims in Oliver and the other cases are considered, Granger, the defense attorney, predicts misrepresentation claims may proliferate in state and federal courts.

“Smart plaintiffs’ lawyers will eventually make misrepresentation claims against all manufacturers,” said Granger, who added that the claims also bring the prospect of punitive damages and attorneys’ fees.

“They’re very hard to prove, but they carry a lot of punch with them,” Granger said.

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

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

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