NHL Cases Put Concussion Science on Trial

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By Steven M. Sellers

The medical science behind the concussion claims of thousands of professional and amateur athletes—including those who participated in football, hockey, boxing, soccer, lacrosse and cheerleading—could be tested in court later this year.

Retired National Hockey League players are expected to get a trial date in late 2017. Unlike players who sued the National Football League and the NCAA, this litigation may not be settling.

The players allege that a latent degenerative disease found in the brains of some deceased athletes can be directly tied to head impacts in pro hockey. They contend the NHL has long known about an established link between repetitive head impacts and latent brain injuries, and didn’t do enough to protect the players ( In re Nat’l Hockey League Players’ Concussion Litig. , D. Minn., No. 14-md-02551, amended complaint filed 10/17/16 ).

But the NHL is actively disputing the claims, insisting the link between repeated head impacts and chronic traumatic encephalopathy and related brain diseases remains scientifically unproven.

A definitive ruling by a judge, or a related verdict by a jury, on the new and evolving science would be unprecedented, sports lawyers and academics tell Bloomberg BNA. And, if the NHL is successful, it could have vast consequences for the ever-expanding universe of concussion litigation generally.

Whether the league’s aggressive litigation strategy is savvy or wrong-headed depends on who you ask.

But the professional hockey league may not have much of a choice in the matter.

Though the National Collegiate Athletic Association reached a tentative $75 million deal with current and former student-athletes in 2016, the NFL resolved its own, similar professional football player concussion claims for $1 billion.

Such a potentially high price tag to settle may tip the balance in favor of the much-less-profitable NHL taking on the risks of a trial.

“The NHL may be looking at the NFL’s billion-dollar settlement, and the plaintiffs’ lawyers may see that as the starting point,” said Matthew Mitten, executive director of the National Sports Law Institute at Marquette University Law School in Milwaukee.

Professional hockey, by one estimate, brought in nearly two-thirds less in annual revenue in 2015 than the $11.1 billion earned by the NFL.

With a settlement floor based on the $1 billion NFL deal, the league may not be able to afford to engage in anything short of a full-on legal defense in court.

Sound Strategy or Artful Dodge?

“The scientific literature shows the very strong association between hits in sports and hockey and long term neurocognitive problems and disease later in life,” Charles Zimmerman, of Zimmerman Reed, Minneapolis, told Bloomberg BNA.

Zimmerman is co-lead class counsel for the plaintiffs.

“Denying this reality while attempting to await scientific certainty of cause and effect is not proper, prudent, [or] in the best interest of the retired players or the current players,” he said.

A request for comment sent to counsel for the NHL didn’t receive a response.

The league’s litigation stance against the science makes sense to defense lawyer Gary Wolensky, of the Buchalter law firm in Irvine, Calif.

“Quite frankly, I am surprised this strategy has not been employed before,” Wolensky said.

“The fact remains that there is no peer-reviewed study establishing causation between CTE and repetitive head impacts,” said Wolensky, who represents USA Football for concussion-related claims brought by parents of youth football league players.

U.S. District Judge Anita B. Brody, who presided over the NFL concussion litigation, alluded to scientific uncertainties in 2015 in saying that “the association between repeated concussive trauma and long-term neurocognitive impairment remains unclear.”

That observation by the Eastern District of Pennsylvania judge, however, was made as part of her assessment of the fairness of a proposed class settlement and not as a matter of law that can be used as precedent in other cases, the lawyers said.

But plaintiffs’ lawyer Brad Sohn, of the Brad Sohn Law Firm in Coral Gables, Fla., said the NHL’s approach defies scientific reality.

“It’s pretty hard to dispute the existence of CTE,” Sohn said. “It’s the Big Tobacco model—develop your own body of science when real science is inconvenient.”

Sohn represents the wife of Paul Oliver, a deceased NFL player, in a would-be class action against football helmet maker Riddell Inc. and related companies.

Battles Over Science.

The cases, brought by 150 former players, are percolating in the U.S. District Court for the District of Minnesota.

Discovery disputes escalated when a neuropathologist for the NHL recently questioned a landmark study on CTE in football players.

Dr. Rudy Castellani, director of Western Michigan University’s Center for Neuropathology in Kalamazoo, Mich., said his review of a seminal study by Dr. Bennet Omalu showed “no evidence whatsoever that the decedent described in this paper had a progressive neurodegenerative disease,” according to a January court filing.

Omalu, chief medical examiner of San Joaquin County, Calif., first identified CTE in a football player when he autopsied NFL Hall-of-Famer Mike Webster. His 2005 study is often cited in traumatic brain injury studies.

His work was also featured in Concussion, a major motion picture released in 2015.

Omalu, in his own court filing, replied that the NHL, through Castellani, is wrongly discrediting sound concussion research.

The league is also pushing for access to the brain bank of the Center for the Study of Traumatic Encephalopathy at Boston University School of Medicine.

The Boston-based center is a hub for sports-related CTE research.

“A major issue in this case is whether valid, scientific evidence has existed throughout the alleged class period showing that concussions or so-called subconcussive blows cause later-in-life neurodegenerative brain diseases or the pathology referred to as chronic traumatic encephalopathy,” the NHL argues in support of its subpoena of BU’s materials.

The university is strongly resisting the subpoena which, in its view, threatens the privacy of its research participants, as well as progress in concussion research generally.

Correlation vs. Causation

“There is no question CTE exists,” said Dr. Ramon Diaz-Arrastia, a professor of neurology at the University of Pennsylvania’s Perelman School of Medicine in Philadelphia.

“I have heard people say this doesn’t exist, but that’s not by any means the mainstream view in neurology and neuropathology,” he said.

But Diaz-Arrastia added that brain banks typically include donated athletes’ brains, not a cross-section of the general population at risk of a head injury.

That creates a research gap, he said.

“What no one knows, and I think the folks at BU would be the first to admit this, is how prevalent this is,” he said.

A recent study released in January, for example, found CTE in the brain of 45-year-old deceased man with no history of head trauma or contact sports.

There’s also the problem that, to date, tests have only been developed to diagnose the disease post mortem.

“We are going to have to wait a while before people can be examined in life in an epidemiologically sound study,” Diaz-Arrastia said.

Betsy Grey, a tort law professor at Arizona State University’s Sandra Day O’Connor College of Law, Tempe, Ariz., concurred.

“Most people think it’s extremely early in the research, and we’re still just relying on this post mortem pathology,” she said.

“We have correlation but not causation, as we think about it in law,” said Grey, identifying one of the fundamental prerequisites to a finding of liability in tort law. Grey writes extensively on neuroscience and the law.

The early and still developing state of concussion science gives the NHL some options in litigation, plaintiffs’ lawyer John Restaino, of the Restaino Law Firm in Denver, said.

“There is solid epidemiological evidence in support of traumatic brain injuries as a risk factor for many neurodegenerative diseases,” said Restaino, who is also an epidemiologist. “However, most of these studies are retrospective in nature.”

The league’s demands for access to the BU’s brain bank may be designed to short-circuit a trial, weakening the scientific basis for their findings through a legal challenge to the players’ expert evidence, Restaino said.

He referred to Daubert v. Merrell Dow Pharm., Inc., a 1993 U.S. Supreme Court decision that tightened up the restrictions for some types of expert evidence to get into court.

Time, Other Factors Against Settling

Time is another factor that may influence the calculus related to whether the cases settle early or are fully litigated.

The lawyers in the case will be setting trial dates, likely the end of this year, “consistent with the court instructions,” Zimmerman, the players co-lead counsel, said.

Mitten, of the Sports Law Institute, also said the NHL may prefer protracted litigation and the possibility of trial over a settlement because the players will have to prove their brain injuries were caused by impacts in pro hockey, as opposed to youth or collegiate play.

Plaintiffs’ lawyer Sohn said still another reason might nudge the players toward a trial.

A “lot of people are profoundly dissatisfied with the way the NFL settlement has turned out in terms of results for their client,” he said.

A number of football players challenged the adequacy of the NFL settlement saying it improperly released certain brain injury claims made by some players on “immature science” relating to a degenerative brain disease. Their challenges were rejected on appeal but many players opted out of the settlement and are still pursuing their individual cases in court.

Another factor could be that a verdict by a jury against the NHL wouldn’t be as significant for other concussion cases, both by hockey players and other athletes, as a judge’s legal ruling against the players, Wolensky, the defense lawyer, said.

A jury verdict for the NHL players “would have little or no bearing on future cases,” he said. That’s because a jury decision turns on the facts presented in a given case.

But a definitive ruling on the science by a judge, either before or during trial, in the form of a summary judgment decision would be much more persuasive to other judges weighing concussions cases being pursued by any type of athlete, Wolensky said.

Such a decision “would have vast consequences for future cases in the near term, at least until the medical issues are more settled through mainstream, peer-reviewed medical, scientific and epidemiological studies,” he said.

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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