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NFL Settlement Of Concussion Class Action Lawsuit With Former Players–Is It Adequate?

There was an interesting editorial by Joe Nocera of the New York Times on August 11, 2015 as to the NFL’s settlement with thousands of its ex-players and their families of a class action lawsuit alleging that the NFL knew of, and failed to disclose, the serious long terms effects and cognitive impairment caused by repeated concussions. Essentially, Nocera concludes that despite the amount of the settlement, and the conditions it covers, it is woefully inadequate.

One of the well-known victims of the repeated concussions, which leads to a condition known as “CTE”, or chronic traumatic encephalopathy, was Junior Seau, a Hall of Fame linebacker who played for several NFL teams including the San Diego Chargers and New England Patriots. Seau, who committed suicide at the age of 43 three years ago, shot himself in the chest so that his brain could be studied by the National Institutes of Health, as well as the Boston University CTE Center. Dave Duerson, a tremendous defensive back for the Chicago Bears and New York Giants, was another ex-player who intentionally shot himself in the chest so that his brain could be studied, so convinced was he that the loss of memory and cognitive functioning he was suffering from were caused by the effects of repeated concussions and the devastating effects of CTE. This neurodegenerative disease leads to an accumulation of a sticky substance known as “tau”, which interferes with brain function, and results in a number of serious debilitating effects, including mood swings, depression, headaches, poor impulse control, loss of memory, dementia, and in some cases, Alzheimer’s Disease, ALS, or Parkinson’s Disease.

The lawsuit by the former players and their families, as well as approximately 200 players who “opted out” of the class action to bring their own claims, including the family of Junior Seau, notes that the NFL “held itself out as the guardian and authority on the issue of player safety”, but in fact knew of the risks of CTE and other neurological conditions from repeated concussions and kept this knowledge from the players, and did not change league regulations to minimize the risk of concussions.

In April of 2015, the settlement between the NFL and the players was approved by U.S. District Court Judge Anita Brody in the approximate amount of $1 billion, after she initially determined that the proposed $765 million was inadequate. Frankly, with the billions brought in by the league and its’ ever increasing popularity, even the one billion settlement seems paltry by comparison considering the serious risks the players are facing. The settlement, which also sets aside funds for continued research into traumatic brain injury and CTE, would provide compensation for players suffering from Alzheimer’s Disease, dementia, and other brain disease caused by repeated blows to the head, but would not provide compensation for many conditions suffered by Junior Seau and other former players, including depression and various examples of erratic behavior and mood disorders.

Thus, if players are suffering from CTE, which cannot be definitively determined until the player dies and an autopsy confirms the diagnosis, they would not be covered by the settlement. Judge Brody acknowledged this in her decision, indicating that former players could not be compensated for CTE in life as “no diagnostic or clinical profile of the [the disease] exists.” One of the leading scientists studying CTE at the Boston Center, Robert Stern, is of the opinion that within the next ten years, there will be a test that can determine whether someone is suffering from CTE while they are still alive. The real issue is that the settlement focuses only on compensation for cognitive issues such as loss of dementia and loss of memory, and does not provide anything for behavioral dysfunction and conditions such as depression, mood swings and erratic behavior. Further, according to Stern, the settlement fails to provide for evaluations of potential CTE, and treatment if this cognitive disease is discovered.

If you or a family member have suffered a traumatic brain injury or significant injuries in a motor vehicle crash, construction accident, or slip and fall or if you have suffered injuries due to a defective product, contact the Law Office of Mark A. Siesel online or toll free at 888-761-7633 for a free consultation with an experienced trial attorney to discuss the specifics of your case in detail.