NFL Concussion Settlement Closer To Reality

July 11, 2014 by Mark Siesel

Over the last three years, 4,500 former NFL players filed lawsuits against the league alleging that for many year, the NFL deceived them as to the risks of repeated concussions and traumatic brain injury (tbi), resulting in numerous long term neurological conditions and the long term effects of these conditions, including dementia, Alzheimer’s Disease, chronic traumatic encephalopathy (CTE), Parkinson’s Disease and ALS (amyotrophic lateral sclerosis), also known as “Lou Gehrig’s Disease.” The lawsuits were consolidated into once class action and filed in the U. S. District Court in Philadelphia before Justice Anita Brody.

Several months ago, attorneys for the NFL and attorney's for the players worked out a tentative settlement of the lawsuits, which included the following: A cap of $675 million for financial awards to ex-players for pain and suffering arising out of their medical conditions, (without the requirement to prove that the conditions were caused by the repeated concussions); $75 million for baseline neurologic and neuropsychological testing for any legible retired players; and $10 million from the league for programs to promote safety and the prevention of head injuries. However, Justice Brody balked at approving the settlement last fall, contending that the $675 million cap on payments to former players was inadequate and needed to be bolstered. Certainly, the NFL’s annual estimated revenue of $10 billion reflects the fact that the $675 million over the 65 year life of the agreement would not even make a dent in the league’s finances. Further, it is expected that the number of players who will make claims for brain injuries incurred during their playing careers will continue to escalate as awareness of the damage from repeated concussions increases.

The revised agreement presented to Justice Brody removes the cap of $675 million for claims by ex-players. Former players will be notified of the terms of the settlement and provided with an opportunity to accept the terms or “opt out”, allowing the individual players to file their own lawsuits. Justice Brody will conduct a hearing this fall to determine whether the settlement is now in the best interests of the former players and is fair and adequate. The settlement as presently constituted provides awards of $3.5 million for Parkinson’s disease; $4 million for a diagnosis after a player’s death of CTE; and $5 million for ALS. Additionally, the settlement would encompass payouts for early dementia and “severe decline in cognitive function”, although it is unclear how those terms are defined or what the amount awarded for those diagnoses would be.

We will follow the evolution of the settlement between the NFL and the players' attorneys and report further after the notification period to the ex-NFL players.

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K.C. Chiefs Sued By Former Players--Tip Of The Iceberg

January 20, 2014 by Mark Siesel

Last month, five former players for the NFL’s Kansas City Chiefs sued the team, claiming that they are now suffering from brain injuries resulting from repeated concussions they suffered during their playing careers, which the team knew about but failed to warn them about. Alexander Cooper, Christopher Martin, Joseph Phillips, Leonard Griffin and Kevin Porter played all or parts of their careers between August of 1987 and March of 1993, when there was no collective bargaining agreement between the league and the players union.

This past August, the NFL purportedly worked out a settlement of a class action lawsuit brought by 4,500 former players and their families who alleged that the league failed to disclose the long term effects of head trauma to players, including memory loss, dementia, vision disturbance, headaches, behavioral problems, depression and difficulty with activities of daily living. Clearly the NFL was anxious to settle the case, as it has been reported that the league has earnings of approximately 10 billion annually, and by settling the cases now, the NFL could buy peace with its former players, avoid some damaging disclosures as to its knowledge of the dangers players faced from repeated head blows, and show the fans that this multibillion dollar enterprise is concerned about the welfare of its’ employees.

I noted that the settlement is “purported” (as opposed to finalized) because in the last week, a federal judge in the 3rd District of Pennsylvania, the Hon. Anita Brody, determined that the settlement amount was inadequate, particularly in light of the fact that there are a total of 18,000 current or former players that could have potential claims effected by the settlement in the future. Thus, Judge Brody instructed league officials, the players union and attorneys representing both sides to provide hard evidence as to how the settlement amount of $765 million ($675 million allocated to compensation, $75 million for testing and ongoing treatment, and $15 million for research) would sufficiently cover all of the costs involved.

Cooper, Griffin, Martin, Phillips and Porter hope to establish a right to have their cases heard by an arbitrator under the collective bargaining, not in existence when they played. The case was filed in Circuit Court in Jackson County, Mississippi, and is the first case by former players against a specific team.

Last month, things became even more complicated both for the Kansas City Chiefs, and more importantly, the NFL. Cheryl Shepherd, the mother of Jovan Belcher, the late Kansas City Chiefs linebacker who killed his baby’s mother Kasandra Perkins and then 2 days later, on December 3, 2012, shot and killed himself in front of then head coach Romeo Crennel and GM Scott Pioli, brought suit against the team for her son’s wrongful death. Ms. Shepherd was given permission by a local Court to exhume Mr. Belcher’s body so that his brain could be examined for signs of CTE, chronic traumatic encephalopathy, which she alleges could have been due to repeated concussions, and possibly the reason for his depression, mood swings and ultimately the horrific events of December 1 and 3, 2012.

This a truly a crossroads for many ex-players and the NFL. First, the players who have signed on to the settlement agreement must convince a federal judge that the settlement amount is sufficient, not just for the present players seeking treatment, testing and compensation, but for the future claimants that will be seeking the same. From the players point of view, one of the benefits of the settlement, even if possibly inadequate, is not having to prove causation, i.e., that all of the physical, mental and emotional problems they are experiencing are caused by having played professional football and suffering repeated head trauma.
For example, in the case of Jovan Belcher, it is now being reported that he also had some behavioral and violence issues while at the University of Maine, which caused him to put his hand through a window after a dispute with a girlfriend. This is only a small example of a much larger issue, that If players decide to opt out of the settlement, their medical histories, playing careers in high school and college, and other information will also be taken into account by juries, and in some cases, this may lead to a unsolved question as to whether and when the brain injuries were suffered. If the evidence is equivocal, players who have rejected the settlement might go to Court and lose their cases.

Without doubt, the NFL wants no part of a public disclosure of how much the league knew of the dangers of repeated blows to the head, the protocol for concussions, and the causation of CTE. Thus, working out a deal, albeit for an amount greater than the present 760 million, seems to be the better approach for both sides.

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The NCAA Is Confronted With Numerous Concussion Lawsuits

November 19, 2013 by Mark Siesel

Earlier this year, the NFL paid $765 million to settle a multitude a lawsuits by former players and their families alleging that the league failed to disclose its knowledge that multiple blows to the head led to what is known as “CTE”, chronic traumatic encephalopathy, a degenerative brain disease that causes loss of memory, disturbance of mental functioning, depression, headaches, vision difficulties, and a host of other permanent injuries. The National Collegiate Athletic Association (NCAA) has been hit with a slew of lawsuits in federal courts around the U.S. this year, and in my opinion, the Association faces a much bigger problem than the NFL—here’s why.

When the NCAA was formed in 1906, it was in response to the deaths of 19 young men who had died a year previously, whose deaths were attributed to playing collegiate football. That year, 107 years ago, the mission statement of the Association was: “To protect young people from the dangerous and exploitative athletics practices of the time.” The NCAA’s handbook published in 1933 noted that concussions were dangerous, stating that: “the seriousness of these injuries is often overlooked.” The handbook actually contained references to treating concussions, directing that there should be “Infirmary or hospital treatment until symptom free 48 hours.” Further, there was the following directive: “If symptoms of headache, dizziness, blurred vision, vomiting continue over 48 hours, individuals should not be permitted to compete for 21 days or longer, if at all.”

Sounds very advanced in 1933, doesn’t it? Unfortunately, if we fast forward to the present, somehow the prescience of those Association officials and advisors 80 years ago got derailed by the massive popularity and profits of the sport. Consider these facts. According to the NCAA’s own injury surveillance system, there were more than 29,000 concussions reported in college athletics between 2004 and 2009, over 50% of these injuries in football. The investigation revealed that concussions are increasing by 7% annually. In the last 50 years, more than 500,000 young men have played college football, one of almost 25 varsity sports played in NCAA institutions.

It wasn’t until 2010, a full 104 years after the NCAA came into existence, that a formal concussion policy came into being, despite the knowledge as far back as 1933 that concussions were a distinct possibility from playing football. And what is the NCAA’s present concussion policy? In August of 2010, the NCAA determined that each member school should adopt its own plan for responding to head injuries suffered on the field. The plans had the following four requirements: require that training be provided to the athletes on the signs and symptoms of concussions; require that athletes who demonstrate signs and symptoms of a concussion be evaluated by a member of the school’s medical staff; mandate that athletes who are diagnosed with concussions be kept out of play for the remainder of the day; and require that all players who are diagnosed with a concussion be cleared by a physician before returning to competition.

Without question, the NCAA policy leaves too much discretion and inconsistency in the treatment of these potentially life altering injuries to that of the schools themselves. For example, an athletic trainer is often the school official who determines whether the player has suffered a concussion, rather than a physician. NFL players have the collective bargaining agreement, and agents, looking out for their best interests. College athletes have no agreement, no agents and no one truly looking out for them. It is also harder for NCAA officials to argue, as the NFL attempted to do in fending off litigation by former players, that long term effects of concussions were caused by injuries suffered in high school and college.

The NCAA is now confronted with federal litigation commenced in at least five states, with more to come, no doubt. In a lawsuit filed in the Northern District of Illinois, the allegations by the plaintiffs are that the NCAA was negligent in failing to adopt any formal concussion policy until 2010, and did not include minimum standards in that dilatory policy. One of the Illinois plaintiffs, Adrian Arrington, who played for Eastern Illinois from 2006 through 2009, reports that he lost consciousness several times during his playing days and began suffering seizures while still in school. Presently, Arrington continues to be afflicted with seizures and is afraid to be alone with his three young kids. Former Kansas fullback Christopher Powell, who filed suit in U.S. District Court in Western Missouri last week, alleges that he suffered 4 documented concussions during his collegiate career, including one which resulted in 48 hours of memory loss. In a lawsuit filed in the Eastern District of Tennessee on September 3, 2013, by former Tennessee football players Chris Walker and Ben Martin, along with former N.C. State player Dan Ahern, they seek damages for concussions and medical monitoring.

Some of the recent cases filed are being submitted for mediation with retired Judge Layn Phillips, who brokered the NFL settlement involving 4,500 former players in September of this year.

I can guarantee one thing: NCAA president Mark Emmert and other leaders of the Association will never allow one of these lawsuits to be reach a jury—the NCAA makes too much money for too many people, and they will never allow that gravy train to be jeopardized by a substantial jury verdict, with a definitive potential for punitive damages.

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Family of Boogard Sues NHL For Wrongul Death

May 14, 2013 by Mark Siesel

The New York Times reported this week that the family of Derek Boogard, the ex-New York Rangers and Minnesota Wild defenseman, has filed a wrongful death lawsuit against the NHL. The suit alleges, among its many claims, that the league failed to protect Boogard by allowing him to return too quickly to play after suffering numerous concussions, despite the league’s knowledge that repeated blows to the head can lead to chronic traumatic encephalopathy (CTE). CTE, which causes dementia, depression, dizziness, loss of balance and coordination, has recently been determined as the cause of death in the autopsies of numerous NFL and NHL players, including former defensive stars Junior Seau and Dave Duerson, who were hard hitting players that endured numerous violent head collisions during their NFL careers. In the cases of both Seau and Duerson, they committed suicide by shooting themselves in the chest so that their brains could be examined for CTE.

The lawsuit by the family of David Duerson against the NFL, who committed suicide at age 50 in 2011, was consolidated with those of approximately 4,200 former National Football League players who have sued the league for brain injuries suffered during their careers. Mr. Boogard, who was known as an “enforcer” during his six year NHL career, which lasted 277 games, was found dead of an accidental overdose of prescription painkillers on May 13, 2011. His last game was on December 9, 2010, when he was diagnosed with what is believed to be one of many concussions he suffered during his short NHL career.

The Boogard suit also alleges that the league was well aware of, and failed to monitor, his drug use and numerous prescriptions, and in fact facilitated the serious addiction that Mr. Boogard had to “prescription pain medications, sleeping pills, and painkiller injections”, which were prescribed by “physicians, dentists, trainers and staff.” Boogard apparently received approximately 13 injections of Toradol, which is a masking drug for pain, and the suit claims that in the 2008-2009 season, in a 16 day stretch, physicians prescribed Boogard 150 pills of Oxycodone, a controlled substance. There are also allegations that the NHL knew that Mr. Boogard had failed numerous drug tests in his last year, yet the league never took any disciplinary action against him, as its own substance abuse program mandates.

There are huge legal implications for both the NFL and NHL as a result of the lawsuits brought by the families of Mr. Seau, Duerson, and Boogard, in conjunction with the cases of the 4,200 players whose cases have been consolidated in federal Court. It is fairly clear that the NFL knew for many years that players were suffering serious side effects from repeated concussions, but it is only in recent seasons that rules have been placed in effect to prevent players from re-entering games in which they have “had their bell rung” (euphemism used for a concussion) and requiring additional medical clearance before players may return to action after suffering a diagnosed concussion. Clearly, if these cases proceed to trial and result in a liability finding against the NFL and or NHL, the damages awarded to the players and their families could be astronomical and would have a significant financial impact on professional sports as a whole. Without question, however, something must be done to curtail the excessive violence in football and hockey, with the protective head gear clearly inadequate in many cases to prevent long term brain damage to the players.

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The Family of Junior Seau Sues The NFL

January 24, 2013 by Mark Siesel

The family of the late former NFL player and star linebacker Junior Seau has sued the National Football League, along with helmet manufacturer Riddell and other defendants, joining a long line of plaintiffs who contend that the league misled them or covered up information about the serious dangers of repeated head trauma which led to cognitive issues and traumatic brain injuries. (tbi).

There are now approximately 4,000 cases involving former players and their families, who have argued that the NFL was aware for years that repeated head collisions caused short and long term neurological damage to the players, resulting in significant symptoms including loss of memory, depression, mood changes, fatigue, dizziness, and loss of judgment, among others effects. Essentially, when the players suffer these substantial head collisions, the brain is shaken against the walls of the skull, leading to rotational and linear stretching and tearing, bruising and bleeding. The long term effect of these repeated collisions is the development of a sticky substance in the brain tissue known as “tau”, which interferes with brain functions and is the primary factor in chronic traumatic encephalopathy, (CTE) the degenerative brain disease linked to repeated head trauma. CTE is frequently seen in autopsies of the brain tissue of people that suffered from Alzheimer’s Disease, dementia, and now in autopsies of ex-NFL players, boxers and hockey players.

Seau, who was a star linebacker for three NFL teams including the Chargers, Dolphins and Patriots, was known during his 20 year career as a hardnosed, tough player who was involved frequent hard collisions and undoubtedly suffered numerous concussions during his playing days. In May of 2012, Seau committed suicide by shooting himself in the chest, a similar means of suicide to that of former player Dave Duerson, who purposely shot himself in the chest with a note to his family imploring them to conduct a posthumous study of his brain. In the cases of Duerson and Seau, as well as over 30 NFL and NHL players who have taken their own lives, autopsies have confirmed the diagnosis of CTE.

In announcing the lawsuit filed in state Court in San Diego, the Seau family stated that “We were saddened to learn that Junior, a loving father and teammate, suffered from CTE. We know the lawsuit will not bring back Junior. But it will send a message that the NFL needs for its former players, acknowledge its deceptions on the issues of heady injuries and player safety, and make the game safer for future generations.”

The NFL has requested that the courts move the 4,000 pending cases to federal Court in Philadelphia, where some cases have been consolidated into a class action. The league seeks a dismissal, contending that the league’s collective bargaining agreement with the players includes provisions for the players’ claims.

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Former NFL Players Sue League Over Use Of Toradol

December 30, 2011 by Mark Siesel

Earlier this month, 12 former NFL players who played in the late 1990’s and early 2000’s instituted a class action lawsuit in the U.S. District Court of New Jersey, contending that the league failed to inform players of the risks and side effects of the pain killer (and blood thinner) Toradol. Ex-players including Joe Horn, Matt Joyce and Scott Dragos would be given injections of Toradol to numb the pain from injuries suffered during games in order to get them back on the field quickly. The suit indicates that Toradol would mask traumatic brain injuries with long term effects, including concussions, which have led these ex-players to suffer from numerous health problems since their retirement from the league.

When a player suffers a “stinger”, (Concussion in NFL lingo), trainers often conduct a cursory examination including a quick memory test, check of reflexes and coordination, and examine pupil size. If this short examination appears normal, the player is cleared to return to action.
The side effects of a concussion, which is a traumatic brain injury caused by various types of collisions, include:

An altered state of consciousness, such as drowsiness;
Confusion and loss of concentration;
Severe headaches of long term or short term variety;
Mood changes;
Amnesia;
Nausea and vomiting;
Changes in alertness;
Muscle weakness on one or both sides of the body;
Difficulty walking and with balance and coordination.

Nate Jackson, one of the plaintiffs, described in an editorial in the New York Times that when he played for the Denver Broncos, Toradol was often administered to the players prior to a game. The evening before game day, a line of 10-20 players formed to receive their injections. They were told that other than a small risk of internal bleeding, Toradol was safe. It is easy to visualize Jackson’s description of the pressure that he felt from team personnel, including trainers and doctors, to get back on the field as soon as possible or risk being replaced by “spare parts”, as Jackson referred to them. Jackson’s description is compelling: "There was no hesitation, no trepidation, no point at which I felt that taking Toradol was a risk. I trusted our team doctors…they wouldn't suggest a drug if it was dangerous.”

In the lawsuit, the players accuse the NFL of negligence, fraud, fraudulent concealment, misrepresentation and conspiracy. The 2nd, 3rd and 4th of these charges care essentially the same: that the NFL knew of the specific risks of Toradol, yet chose to not divulge these risks to the players to benefit teams by doing whatever was necessary to keep players off of the disabled list.

The NFL denies that it deceived players and argues that they now make safety a priority, with severe penalties and suspensions for helmet to helmet collisions, for example. Presently, there are numerous lawsuits against the NFL after two dozen players have died from the effects of chronic traumatic encephalopathy (CTE), which is a condition caused by multiple blows to the brain (it used to be known as dementia pugilistica as many boxers suffered from the condition). With CTE, a substance known as “tau” forms on the brain and interferes with cognitive functioning. Former star safety Dave Duerson of the Super Bowl champion Bears and New York Giants was so convinced that he was suffering from CTE that in committing suicide, he purposely shot himself in the chest and requested that the coroner examine his unharmed brain, which examination confirmed the CTE diagnosis.

One of the main reasons that these former players have commenced the Toradol lawsuit, and the other lawsuits claiming undiagnosed CTE, is that the NFL’s health insurance does not cover collision related injuries, so that the ex-players are now left with serious medical problems compounded by major financial difficulties when they have significant medical expenses and can no longer work. Hopefully, this problem will be addressed by the NFL in the near future, as players are faster and bigger than ever and the collisions are likely to lead to an increase in the CTE diagnosis in the future.

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Fatal Brain Injury In H.S. Football Game

October 26, 2011 by Mark Siesel

Ridge Barden, a 16 year old Phoenix, New York high school football player, died on October 14, 2011 after suffering a concussion and traumatic brain injury (TBI) during a game for Homer High School. Barden was a defensive tackle for the team, and died a few hours after falling to the turf in the 3rd quarter of the game following a blow to the head. The coroner determined the cause of death to be subdural hematoma, and massive swelling of the brain.

A subdural hematoma occurs when blood vessels rupture between the brain and the outermost of three membranes that cover the brain, (the dura) resulting in a collection of blood. Subdural hematomas can occur acutely, from a severe blow to the head, subacutely, in which the signs and symptoms can occur days or weeks later, or chronically, in which the precipitating cause might not even be known or remembered by the person suffering the condition. (Additionally, the elderly, people taking aspirin daily, or alcohol abusers can also suffer a subdural hematoma).

Coaches and school administrators watched a video of the game to determine if they noted a particularly violent collision which caused the fatal injury to Barden. Also under scrutiny was the helmet that Ridge was wearing, known as a Riddell “Revolution”. There are lawsuits pending by former NFL players against the league and Riddell Sports, Inc., the manufacturer of football helmets, alleging that former players now suffer from severe injuries from repeated collisions and concussions, including dementia, and CTE, meaning chronic traumatic encephalopathy. Chronic traumatic encephalopathy is a progressive debilitating disease suffered by people who have had multiple concussions or other head injuries. The brain tissue deteriorates from the blows and a protein called “tau” accumulates on the brain. CTE is also known as “dementia pugilistica”, since until recently the huge majority of these cases were diagnosed in boxers.

Teenagers are considered to be more at risk for concussions and traumatic brain injuries as the brain tissue is not completely developed. The National Center for Catastrophic Sports Injury Research notes that Ridge Barden was the 13th high school football player to die from a brain injury since 2005 and the third in 2011. An additional 5 college football players have suffered fatal brain injuries during a game in that same 6 year span. In Ridge Barden’s case, there was apparently no prior history of head trauma or concussion, and the autopsy did not reveal any previous brain injury.

During a recent Senate Commerce Committee Hearing, the topic being addressed was whether manufacturers of sports equipment made misleading statements and claims about their products. Several neurosurgeons and sports concussion experts testified who specialize in traumatic brain injury and sports concussions. Dr. Kevin Guskiewicz, the chairman of the department of Exercise and Sports Science at the University of North Carolina testified that Ridge Barden’s life could only have been saved if he had undergone an immediate operation to relieve the pressure on his brain as a result of the subdural hematoma. However, the problem is that in order to diagnose the issue, a CAT Scan must be ordered, and Barden’s condition deteriorated to quickly allow him to undergo a CAT Scan.

Dr. Robert Cantu, a neurosurgeon at Boston University and well known expert in the field of sports related head trauma and injuries, explained that when a person is conscious immediately after a trauma, and then deteriorates quickly as in Ridge Barden’s case, the cause of death is not the subdural hematoma, but massive brain swelling. Frequently, the fatal injury is due to a previous trauma to the brain compounded by a second impact in close proximity in time to the first. Dr. Cantu calls this “second impact syndrome” in association with subdural hematoma.

After a House Judiciary Committee hearing in October of 2009 in which NFL Commissioner Roger Goodell was pounded with questions about the NFL’s concussion policies, the NFL changed its rules to require that a player diagnosed with a concussion would not be permitted to return to that same game even if he was not experiencing any symptoms.

In the wake of the truly tragic death of Ridge Barden, numerous other high school and college football players like him, and the continuing litigation by former NFL players against the league and Riddell, changes must be contemplated and hopefully implemented. One possibility would be to terminate the three point stance for linemen, (with one hand on the ground as well as two feet), and go to a two point stance, in the expectation that this would limit helmet to helmet contact and result in more blocking with arms and hands. Another possibility would be to eliminate the purposeful helmet hit whereby running backs lower their heads into a defender to garner some additional yardage, and defenders respond by lowering their heads as well. Something else to consider would be fewer full contact drills, which undoubtedly contribute to the long term problem—after all, there are no referees blowing a whistle for helmet on helmet contact, and it is certainly unlikely that a head coach or assistant coach at any level would lecture a player for being too aggressive with an opposing teammate in practice.

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