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A Layman’s review of a Pending Concussion-related Lawsuit against the NFL – Part II – An Actual Case

FULL DISCLOSURE: I AM NOT AN ATTORNEY, NOR DO I PURPORT TO OFFER ANY LEGAL OPINION ON ANY MATTER CONTAINED HEREIN.

In Part I the potential damages were calculated based on parameters set forth in the case to be examined in this Part II.

Because the Plaintiffs in the suit below are demanding a jury trial, I’m writing Part II and Part III as if I’m a member of the jury. In Part II I will summarize the court filed Complaint I’ve read and re-read relating treating this information as if it is from the opening or closing remarks from each side; in other words, from what direction is each side approaching their position, and what questions would I want answers to from each side to either support their positions, or to defend against what I understand as a charge from the other side.

I have selected this case to write about based on the abundance of material available to the public, and my assessment of the charges being brought forth as they pertain to recent and past events involving the NFL and the Steelers.

Vernon Maxwell et al (Plaintiffs)

V

National Football League ("NFL"); NFL Properties, LLC; Riddell, Inc.; Easton-Bell Sports, Inc. (Defendants)

Filed: July 19, 2011, Superior Court of California, County of Los Angeles

Case Number: BC465842

The list of Plaintiffs in this case includes over 50 former NFL players from just about every team in the league, from the 1960’s through the early 2000’s with careers ranging from as little as 2 years to over 10 years, in positions ranging from WR, RB, NT, LB and OG, and includes such players as Fred McNeill, Vernon Dean, O.J. Anderson, and Chris Calloway.

The plaintiffs characterize themselves as all retirees and not covered by the CBA, nor were (are) they a subject of or parties to bargaining between the NFL and the NFLPA. Thus, they assert, their claims are not preempted by federal labor law since the CBA (not having been negotiated at the time this suit was filed) does not apply to their present claims and, additionally does not currently exist.

The 9 charges being filed in this case are:

4 counts of Negligence (3 against the NFL and/or NFL Properties, LLC, 1 against Riddell Defendants);

1 count of Fraud (against the NFL);

2 counts of Strict Liability (1 count Design Defect, 1 count Manufacturing Defect against Riddell Defendants);

1 count of Failure to Warn (against Riddell Defendants);

1 count of Loss of Consortium (against all Defendants).

Each Plaintiff is charging the Defendants did not warn them of the risk of long-term injury due to football-related concussions or that the league-mandated equipment did not protect them from such injury.

Each Plaintiff claims to be suffering from one or more of the following symptoms: depression, memory loss, poor judgment, substance abuse, sleeplessness, headaches, blurry vision, early stages of dementia loss of hearing, and sleep-deprived anxiety.

The Plaintiffs are asking for: compensatory and general damages, specific and incidental damages, punitive damages, and for costs of the legal proceedings.

The Plaintiffs assert for each charge that, as a result of the personal injuries Plaintiffs are entitled to damages, as alleged or allowed by law from the Defendants in an amount reasonably anticipated exceeding the jurisdictional minimum of $25,000.

Basis of Claims:

The crux of the Plaintiffs’ action against the NFL in this case is that the NFL knew, or should have known, that:

“…multiple blows to the head can lead to long-term injury, including memory loss, dementia, depression and CTE and its related symptoms.”

“…This action arises because the NFL Defendants committed negligence by failing to exercise its duty to enact league-wide guidelines and mandatory rules regulating post-concussion medical treatment and return-to-play standards for players who suffer a concussion and/or multiple concussions.”

“…by failing to exercise its duty to enact reasonable and prudent rules to protect players against the risks associated with repeated brain trauma, the NFL’s failure to exercise its independent duty has led to the deaths of some, and brain injuries of many other former players, including Plaintiffs.”

The Complaint goes on to list 3 ½ pages of citations of various articles, medical studies, and quotes dating from the 1890’s through the late 2000’s from which it claims the NFL should have known the risks involved with concussions and other head trauma. The Complaint includes references to the findings of Dr. Bennet Omalu, the forensic pathologist who in 2002 found the presence of CTEs (Chronic Traumatic Encephalopathy) in our own Hall of Famer, Mike Webster’s brain, and by 2007 had found three other cases linking the death of a former NFL player to CTE brain damage from his football career.

Probably the most damning section of the Complaint is its charge of Fraud against the NFL. The Complaint denounces the NFL’s creation in 1994 of the “Mild Traumatic Brain Injury Committee” which it claims the NFL created to “…purportedly study the effects of concussions on NFL players.”

The Complaint charges that the Chairman of the Committee, Dr. Elliot Pellman, a rheumatologist (a rheumatologist is an internist or pediatrician who is qualified by additional training and experience in the diagnosis and treatment of arthritis and other diseases of the joints, muscles, and bones) as being “…not certified as to brain injuries and/or concussions.”

The Complaint goes on to charge:

“…After 14 years of purported studies, and after numerous medical journal articles were written by the NFL’s Mild Traumatic Brain Injury committee (the “NFL’s Brain Injury Committee”), concluded that “[b]ecause a significant percentage of players returned to play in the same game [as they suffered a mild traumatic brain injury] and the overwhelming majority of players with concussions were kept out of football-related activities for less than 1 week, it can be concluded that mild TBI’s in professional football are no serious injuries [See “Concussion in professional football: Summary of the research conducted by the National Football League’s Committee on Mild Traumatic Brain Injury,” Neuorsurg Focus 21 (4):E12, 2006, E.J. Pellman and D.C. Viano” NOTE: I WAS UNABLE TO FIND AN ACTIVE LINK TO THIS DOCUMENT

“…In response to these studies, the NFL, to further a scheme of fraud and deceit, had members of the NFL’s Brain Injury Committee deny knowledge of a link between concussion and cognitive decline and claim that more time was needed to reach a definitive conclusion.”

“…When the NFL’s Brain Injury Committee anticipated studies that would implicate casual links between concussion and cognitive degeneration it promptly published articles producing contrary findings, although false, distorted, and deceiving as part of the NFL’s scheme to deceive Congress, the players and the public at large.”

“…Between 2002 and 2007, Dr. Bennet Omalu examined the brain tissue of deceased NFL players including Mike Webster, Terry Long, Andrew Waters and Justin Strzelczyk. Dr. Omalu in an article in Neurosurgery concluded that chronic traumatic encephalopathy (“CTE”) triggered by multiple NFL concussions represented a partial cause of their deaths.”

“…In response to Dr. Omalu’s article, the NFL acting through the NFL’s Brain Injury Committee, Drs. Ira Casson, Elliot Pellman and David Viano wrote a letter to the editor of Neurosurgery that Dr. Omalu’s article be retracted.”

“…Because of Congressional scrutiny and media pressure, the NFL scheduled a league-wide Concussion Summit for June 2007. Unfortunately, the NFL in keeping with its scheme of fraud and deceit issued a pamphlet to players in August 2007, which stated: “there is no magic number for how many concussions is too many”

“…As of June 2010, the NFL had yet to amend these inaccurate and misrepresentative statements to any Plaintiff or retiree.”

Another charge the Plaintiffs levy against the NFL is Negligence; the Complaint cites a long history rule changes the NFL undertook “…the NFL’s duty to protect the health and safety of its players is further underscored by the irrefutable evidence that the NFL has previously enacted the following non-exhaustive list of rules pertaining to players’ health and safety:…” with specific examples dating from the 1950’s through the mid-2000s.

It cites the August 14, 2007 action by the NFL as “…the NFL acknowledged its duty to players by enacting rules to protect them against the risks associated with repeated brain trauma.”

And goes on to charge that “…For the past many decades until August 14, 2007, the NFL’s duty to protect its players has never changed and has ever waned. The only change that occurred is that on August 14, 2007, the NFL finally and unequivocally acted upon its longstanding duty to protect its member players by implementing league-wide concussion guidelines.”

“…Importantly, the NFL themselves acknowledged that the 2007 guidelines were inadequate and insufficient. As a result, the NFL enacted more strict regulations to handle concussions starting in the 2009 season. Specifically, the NFL announced new rules on managing concussions requiring layers who exhibit any significant concussion signs to be removed from a game or practice and be barred from returning the same day.”

“…Nevertheless it was not until June of 2010 that the NFL warned any player of the long-term risks associated with multiple concussions, including dementia, memory loss, CTE and its related symptoms. The Riddell Defendants also failed to so warn active players until approximately the same time frame.”

“…As of today [the date of filing], the NFL Defendants and the Riddell Defendants have never warned any Plaintiff or retired player of the long-term health effects of concussions.”

In addition, the Complaint brings Negligence charges against NFL Properties for:

“…NFL Properties breached its duty to ensure that the equipment it licensed and approved were of the highest possible quality and sufficient to protect the NFL players, including Plaintiffs, from the risk of concussive brain injuries.”

“…NFL Properties breached its duty by licensing the Riddell Defendants’ helmets, and approving and/or requiring the use of the helmets for the NFL players, knowing or having reason to know that the helmets were negligently and defectively designed and/or manufactured.”

The Riddell Defendants are charged with two counts of Strict Liability (in addition to sharing a Negligence charge with the NFL):

Strict Liability for Design Defect:

“…At the time the helmets were designed, manufactured, sold, and distributed by the Riddell Defendants, the helmets were defective in design, unreasonably dangerous, and unsafe for their intended purpose because they did not provide adequate protection against the foreseeable risk of concussive brain injury. The design defect includes, but is not limited to the following: (a) Negligently failing to design the subject helmet with a safe means of attenuating and absorbing the foreseeable forces of impact in order to minimize and/or reduce the forces and energy directed to the players’ head; (b) Negligently designing the subject helmet with a shock attenuating system which was not safely configured; (c) Negligently failing to properly and adequately test the helmet model”

“…The Riddell Defendants are strictly liable for designing a defective and unreasonably dangerous product and by failing to warn which are proximate and producing causes of the personal injuries…A safer alternative design was economically and technologically feasible at the time the product left the control of the Riddell Defendants.”

The charges under Strict Liability for Manufacturing Defect are the same as the Design Defect charges, with only the word “manufactured” replacing the word “design”.

We here at BTSC have all weighed in to one degree or another on the recent actions by NFL Commissioner Roger Goodell as it relates to the League’s recent sanctions against players like Steelers James Harrison and Ryan Clark for hits deemed to have broken rules set forth in 2009 in regards to defenseless players. As you may recall, there was a huge outcry against Goodell, and complaints of him “…ruining the game of football…” in 2010 when Harrison received three increasingly large fines for hits on various players, in particular Josh Cribbs and Mohamed Massaquoi of the Cleveland Browns, and again in 2011 when Harrison was fined and suspended for his hit on Cleveland’s Colt McCoy.

Each of these hits resulted in concussion like symptoms for the Browns’ players involved. Steeler Nation recognized the need for Harrison to modify the way he tackles, we decried the League’s actions as yet another example of the “ruining” of the game of football as we know it. And yet, the NFL’s imposition of the rules we so decried is one of the basis for this Complaint, in part because the NFL is charged with waiting too long to impose such rules.

In Part III, I’ ll look at the content of this Complaint against the NFL as if I was a juror, and share the observations and questions it engenders.

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