A Whack to the Side of the Head: Concussion Litigation

Linda Sharp
Jodi Baker
Peg Ciccolella
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
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:
Definition of Concussion
• Shaking of the brain
within the skull
• Contusion of the brain
• 1.7 million people
Signs and Symptoms
• Headache
• Loss of consciousness
• Usually indicates a more
• Ringing in the ears
• Nausea
• Irritability
• Confusion
• Disorientation
• Dizziness
• Others based on
location of trauma
severe concussion
Difficulty concentrating
Blurred vision
Sensitivity to light
Sleep disturbance
Post-traumatic amnesia
Long Term Effects
• Post-Concussion Syndrome
• Second Impact Syndrome
• Chronic Traumatic Encephalopathy (CTE)
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)
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
• 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
• 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
Former Players v. NFL
• Beginning in July, 2011, 21 player lawsuits have been filed in six
• 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).
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 returnto-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
Fraudulent Concealment
• In 1994, the NFL created the “Mild Traumatic Brain Injury
Committee” to “study” effects of concussions on NFL
• MTBI Committee was chaired by Dr. Elliott Pellman, a
• 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.
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.”
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)
• 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—Defense argues that thousands of
collisions occurred before NFL
• Plaintiffs argue trend data show neurological problems at
higher rates for NFL players.
• Assumption of Risk—Defense argues that NFL players
assumed the risk of head injuries
• Plaintiffs argue that many of the dangers were concealed by
the NFL
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
• The culture nurtures an environment in which players rely on the
NFL and teams to act in the players’ interests—the benevolent
• Players need to stay on the playing field to continue their
Plaintiffs v. NCAA Consolidated Suit
Proposed Joint Status Report: January 2012
Class certification?
Plaintiffs’ Claims:
Fraudulent Concealment
Unjust Enrichment
Medical Monitoring
Negligence: Duty? Scope?
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
Negligence: Duty? Scope?, cont’d.
NCAA Denies Duty:
Each member institution is responsible for protecting the
health of its student-athletes.
NCAA Admits:
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?
Fraudulent Concealment
• 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.
• Denies.
• “Justifiable” reliance?
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?

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