Hernandez Concussion Case’s Big Impact May Be on Future Jurors

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By Steven M. Sellers

A negligence suit filed by the daughter of late NFL star Aaron Hernandez may go a long way toward furthering the public’s perception of professional football as a concussion-laden, brain-injury-inducing sport, sports lawyers tell Bloomberg BNA ( Hernandez v. Nat’l Football League , D. Mass., No. 17-cv-11812, filed 9/21/17 ).

And that, in turn, may make it easier for others filing concussion cases on behalf of former NFL players to convince future jurors of the merits of their claims.

But the Hernandez case itself, like many filed before it, still faces substantial legal obstacles in court, especially because it doesn’t specifically claim fraud by the league.

Autopsy findings for the former New England Patriots tight end—the basis for the suit filed by Avielle Hernandez—reveal he had a severe form of chronic traumatic encephalopathy (CTE). That fact buttresses recent scientific studies and public perceptions of the brain injury risks posed to football players.

“It’s another sad story that will likely shock the conscience of most, but will be little surprise to football players and lawyers familiar with brain injuries and athletes,” Shawn Stuckey, of All Sports Law firm in Santa Ana, Calif., said Sept. 26 in an email.

Whether evidence of Hernandez’s severe CTE will translate into a court win for his daughter is another matter.

Stuckey, who represents athletes in workers’ compensation litigation and was a linebacker for the Patriots in 1998, said “this will likely be another case that gets caught up in the hurdles” posed by collective bargaining agreements that could bar the court action.

Even if the suit gets past that initial challenge, other tough legal battles over causation and other matters await, the attorneys said, despite new potential breakthroughs in CTE-related science including, most recently, the discovery of a biomarker that may allow the disease to be diagnosed in living people.

League, Club Negligence Claimed

CTE is a degenerative brain disorder associated with repetitive head traumas, such as those that occur in football, ice hockey, and other sports. The disease currently can be diagnosed only after death.

Hernandez’s autopsy findings are at the foundation of his daughter’s complaint, filed Sept. 21 in the U.S. District Court for the District of Massachusetts.

She claims she was denied her right to the love and support of her father—known as parental consortium—because of the NFL’s and the Patriots’ negligence in allowing him to play despite symptoms of CTE.

Aaron Hernandez played in the NFL for three seasons beginning in 2010 before he was convicted and imprisoned for the murder of a semi-professional football player in 2013. He committed suicide in his cell in April, and his family donated his brain to the Boston University School of Medicine CTE Center in Boston.

BU researchers said Sept. 21 that he had a severe form of the disease, one step below the highest diagnostic level.

Brad Sohn, of the Brad Sohn Law Firm in Coral Gables, Fla., who represents former athletes in concussion litigation, said Sept. 25 the severity of CTE in Hernandez’s brain is a key allegation in the complaint.

“Let’s divorce the question of whether CTE made Aaron Hernandez do what he did and why he committed suicide,” said Sohn. “He had CTE you typically see in a 65-year-old patient, and I think the weight of medical evidence is going to say it had some role in his life.”

But it isn’t likely that the severity of Hernandez’s CTE or his youth—he died at 27— will ease his daughter’s burden of proof in the negligence case, the lawyers said.

The critical question is, “Can they show that NFL football was a substantial factor—which is the test in most states—in the development of his CTE?” according to Matthew Mitten, executive director of the National Sports Law Institute at Marquette University Law School in Milwaukee.

Preemption Obstacles

Avielle Hernandez claims that prior to the 2010 NFL draft and before the beginning of her father’s brief pro career, his medical examinations “would have revealed cognitive impairment as Mr. Hernandez’s CTE worsened.”

The Patriots were negligent in clearing Hernandez to play during his three-year tenure with them, and the NFL “concealed and misrepresented the risks of repeated traumatic head impacts to NFL players,” Hernandez says.

NFL spokesman Joe Lockhart said in a Sept. 21 conference call that “we believe the claim will face significant legal issues from the start, and we intend to contest the claim vigorously.”

Those legal issues likely will include whether the brain injury claims are governed by collective bargaining agreements that could shut down the civil case.

“One of the major questions pending in all of these cases is whether federal labor law preempts the state-law tort suits,” Mitten said.

Although Hernandez generally alleges that the NFL didn’t do enough to warn and protect her father from long-term brain injuries associated with pro football, the complaint doesn’t include the specific fraudulent concealment allegation typical in other concussion cases against the NFL.

“Here, they’re just alleging negligence, not fraudulent concealment” of concussion risks, Mitten said.

“If they argued some sort of fraud, there’s a pretty good argument that that claim would not be preempted,” he said.

Causation Questions

Other problems of proof await Hernandez, according to law professor Betsy Grey, of Arizona State University’s Center for Law, Science & Innovation in Phoenix.

“The problem with the CTE research is that the samples are small and exhibit selection bias—families donate the brains to research because of symptoms displayed while the individual was alive,” Grey said Sept. 26 in an email.

The causation questions also loom because the incidence of CTE in the general population is largely unknown and researchers don’t fully understand the genetic and biological factors that affect its development.

“Most athletes who have suffered concussions go on to live normal, apparently healthy lives,” said Grey. “So, it’s not clear why some individuals develop CTE and others do not. Repeated head trauma seems to be a key risk factor, but we’re not sure what the other factors are.”

Then there is the issue of which head traumas triggered the brain disease, such as those that occurred early in a player’s career.

That causation question was posed by the NFL in oral argument of an appeal by objectors who challenged a $1 billion class settlement with the league as insufficient in 2015.

“The science could determine really that all that matters for developing CTE is how many hits you take before your 18th birthday,” NFL lawyer Paul Clement, of Bancroft LLC, told the U.S. Court of Appeals for the Third Circuit.

Here, the fact that Hernandez played in the NFL for only three years could weaken his daughter’s claim that the NFL and the New England Patriots are responsible for his brain disease.“Could he have developed CTE in such a short period of time, and would he have gotten CTE anyway because of his youth and college football?” Mitten asked.

CTE Biomarker?

That question may be litigated in Hernandez’s case, but another recent study by BU’s School of Medicine and the VA Boston Healthcare System may lead to answers for other players and could change the course of both current and future concussion litigation.

The researchers said Sept. 26 that they’ve identified a new biomarker that may allow CTE to be diagnosed in living people for the first time.

The brains of 23 former college and professional football players were studied and then compared to the brains of 50 non-athletes with Alzheimer’s disease and 18 non-athlete control subjects.

“The findings of this study are the early steps toward identifying CTE during life,” lead author Ann McKee said in a statement.

The prospect of a biomarker to detect CTE, or a predisposition for it, could abruptly change the course of litigation brought by approximately 150 players who opted-out of the NFL settlement.

“If a biomarker for diagnosing CTE is discovered—as the recent journal article by researchers from BU suggests—that may be a game-changer for those opt-outs,” said Grey. “But we are a long way from using these early biomarkers for diagnostic purposes in clinical patients.”

Swaying Public Opinion

Despite all the litigation against football and players of other professional sports, no state or federal jury has yet been asked to fully consider the causal link between playing collison sports and CTE.

But the Hernandez autopsy, as well as the biomarker and other recent studies, keep CTE in the public eye and, therefore, in future jurors’ minds, the lawyers said.

“Is it easier to convince a jury now than five years years ago? Absolutely,” Mitten said. “I think more jurors are going to say there’s some sort of causal connection.”

For Stuckey, however, the turning point for full public awareness of CTE has yet to come. That’s in part because of the “mood and behavior destruction” associated with the progression of the disease.

“It would be great if there was a sympathetic, non–violent, non–self-destructive diseased player as the subject of this lawsuit who the public could all get behind, because that’s the only thing that will ever change this discussion,” Stuckey said.

The Baez Law Firm represents Avielle Hernandez.

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 Patrick at spatrick@bna.com

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