A Whack to the Side of the Head: Concussion Litigation

1. A Whack to the Side of the Head:Concussion Litigation Linda Sharp Jodi Baker Peg Ciccolella

2. Main Aspects of the Presentation The Science Regarding Concussions What do we know now? When did we know the extent of the dangers? The Lawsuits Against the NFL The major allegations The likelihood of success The Lawsuits Against the NCAA The major allegations The likelihood of success

3. Brief Anatomy of the Brain The brain is part of the central nervous system and is contained within the bony cavity of the cranium; it is divided into four lobes:

4. Definition of Concussion • Shaking of the brain within the skull • Contusion of the brain • 1.7 million people annually http://www.cdc.gov/traumaticbraininjury/

5. Signs and Symptoms • Headache • Ringing in the ears • Nausea • Irritability • Confusion • Disorientation • Dizziness • Others based on location of trauma • Loss of consciousness • Usually indicates a more severe concussion • Difficulty concentrating • Blurred vision • Sensitivity to light • Sleep disturbance • Post-traumatic amnesia

6. Long Term Effects • Post-Concussion Syndrome • Second Impact Syndrome • Chronic Traumatic Encephalopathy (CTE)

7. Quote Regarding Concussions “During the past 7 years the practice has been too prevalent of allowing players to continue playing after a concussion. Again, this year this is true. Sports demanding personal contact should be eliminated after an individual has suffered a concussion.” 17th Annual Meeting of American Football Coaches Association (1937)

8. Evolution of Knowledge of Concussions • 1860s • Head injuries in the Civil War • Early 1900s • Medical research on concussions • Research on concussions related to war but not sport • 1930s • Coaches and concern regarding concussions • 1940s • Medical research continues • 1945 – Quigley – Three concussions and you’re out • 1950 – 1970s • Continue to see medical research regarding head injuries • Limited research regarding concussion in sport • More focus on sport towards the end of this timeframe • 1980s • Significant increase in discussion of concussions in sport • Prevalence of head injury in sport increases • Return to play guidelines and severity are analyzed in the research • 1990s • NFL and NCAA begin to address head injury in sport • Medical research continues and becomes more specific to sport • 2000s • Concussion research becomes much more substantial • NCAA and NFL studies are completed on concussions • 2010 – 2012 • Changes are implemented in management of concussions • Research continues at a very high level

9. Former Players v. NFL • Beginning in July, 2011, 21 player lawsuits have been filed in six states. • Plaintiffs are 300-plus former NFL players/spouses/family. • Plaintiffs suffer from a variety of degenerative brain diseases and other neurological disorders. • In January 2012, the U.S. Judicial Panel on Multidistrict Litigation heard arguments on whether to consolidate the lawsuits. • If consolidated, the case will likely be heard by U.S. District Judge Anita Brody in Philadelphia (1st suits filed there).

10. Allegations in the NFL Lawsuits • Negligence by NFL in failing to act reasonably and exercise the duty to enact league-wide guidelines and rules regulating post-concussion medical treatment and return-to-play standards • Wilful and Wanton Misconduct by NFL in deliberately disregarding the safety of players despite evidence of substantial risk • Fraudulent Concealment by NFL of the long-term effects of concussions • Strict Liability and Failure to Warn by Riddell, helmet manufacturer

11. Fraudulent Concealment • In 1994, the NFL created the “Mild Traumatic Brain Injury Committee” to “study” effects of concussions on NFL players. • MTBI Committee was chaired by Dr. Elliott Pellman, a rheumatologist. • After 14 years of study, Committee concluded that “because a significant percentage of players returned to play in the same game…it can be concluded that mild TBI’s are not serious injuries.” • In response to studies showing links between concussions and cognitive decline, Committee attacked the research.

12. Fraudulent Concealment, cont’d. • Committee discounted research and misrepresented the science as “isolated incidents” and “no magic number for how many concussions is too many.” • As of June 2010, Committee had not amended its statement that “Current research with professional athletes has not shown that having more than one or two concussions leads to permanent problems. …It is important to understand that there is no magic number for how many concussions is too many.”

13. Is the NFL the New “Big Tobacco”? • At the October 2009 Congressional hearings of the House Judiciary Committee, Linda Sanchez (D-CA) analogized the NFL’s denial of a causal link between NFL concussions and cognitive decline to the Tobacco Industry’s denial of the link between cigarette consumption and ill health effects. • The MTBI Committee “seems eerily similar to the Tobacco Industry Research Committee of yesteryear.” (McGlamry, plaintiffs’ counsel)

14. Defenses • Exclusivity of CBA—Defense argues that CBA covers disability and W/C issues. • Plaintiffs argue that NFL misled NFLPA; NFL is not the direct employer of players. • Lack of Causation—Defenseargues that thousands of collisions occurred before NFL • Plaintiffs argue trend data show neurological problems at higher rates for NFL players. • Assumption of Risk—Defenseargues that NFL players assumed the risk of head injuries • Plaintiffs argue that many of the dangers were concealed by the NFL

15. Defenses, cont’d. • Lack of reasonable reliance (fraudulent concealment)—Defense argues that NFL players and the NFLPA were or could have been aware of the medical literature that existed, so there was no reliance on information provided by NFL. • Plaintiffs argue that the NFL had its own Committee doing research and promulgating information on risks related to concussions, and players had every right to rely on this information, which should have been provided in their best interests. • The culture nurtures an environment in which players rely on the NFL and teams to act in the players’ interests—the benevolent despot. • Players need to stay on the playing field to continue their employment.

16. Plaintiffs v. NCAA Consolidated Suit Proposed Joint Status Report: January 2012 Class certification? Plaintiffs’ Claims: Negligence Fraudulent Concealment Unjust Enrichment Medical Monitoring

17. Negligence: Duty? Scope? Duty: To regulate, educate, disclose, monitor, and warn, to minimize medical risks of concussions. Assumption of Duty: NCAA Regulations: 1970s to present NCAA Sports Medicine Handbook NCAA Funded Studies: Early 2000s Linked concussions to long term risks. Recommended return-to-play policy. Concussion Management Plan (CMP): 2010

18. Negligence: Duty? Scope?, cont’d. NCAA Denies Duty: Each member institution is responsible for protecting the health of its student-athletes. NCAAAdmits: Funding studies; tracking incidence; knowledge of medical risks but not practices by schools. NCAA Affirmative Defense: Assumption of risk Implied: voluntary participation Express: signed forms re risks of concussions Q: What did the NCAA know ?When did it know it?

19. Fraudulent Concealment Plaintiffs: • NCAA had explicit knowledge of risks and actively concealed. Induced false belief in student-athletes that they should continue to play. • Prior to CMP in 2010, athletes were unaware of risks due to NCAA misconduct. NCAA: • Denies. • “Justifiable” reliance?

20. Unjust Enrichment and Medical Monitoring Unjust Enrichment: Plaintiffs: NCAA profits from student-athletes and then neglects them. NCAA: 96% of revenue returned to members. Medical Monitoring: Plaintiffs: Class includes past, present, and future. NCAA: Challenges class. Q: Outcome of case?

21. CONCLUSION QUESTIONS