Breaking Down the NFL Head Injury Litigation Situation
By Jason Lisk
These cases all arise from former players suing the NFL for negligence, fraud, conspiracy to defraud, fraudulent concealment, and negligent misrepresentation.
The current tally is more than 1,200 plaintiffs and over 50 cases. The website nflconcussionlitigation.com has updates and summaries of the various lawsuits, as well as links to many of the pleadings if you are interested.
The most recent suit was filed last week, with Alex Karras (known for playing with the Detroit Lions as well as working as an actor after his career ended) as the lead plaintiff. Like many of the cases, that one was filed in federal court in the Eastern District of Pennsylvania. Cases have been filed all over the country, though, and the vast majority of them are now part of what is called “Multi-District Litigation” in Federal Court in Philadelphia. These cases have been filed by multiple law firms. Some involve single plaintiffs, but most are either class action lawsuits or mass tort suits with several plaintiffs identified as parties to the case.
Multi-District Litigation (MDL) applies in this case because there are common factual questions that will arise in these cases. Namely, those questions center around the NFL’s actions and knowledge as it pertained to brain injury treatment. Thus, it saves money and effort if Roger Goodell only appears for one deposition, or if the NFL’s brain research doctors from the 1990’s only appear for one deposition. So, these cases are basically combined for pre-trial and discovery purposes in Philadelphia. However, when they get to a certain point–and the guess is multiple years because of the size and amount of discovery involved here–they will individually be tried in the district where they were filed.
There are, I think three issues that most fans probably wonder about.
1. How can players sue the NFL for head injuries when they had to know there were risks to bashing their heads into other people?
Good question. It seems obvious now that getting a concussion can lead to problems. Assumption of risk will certainly be argued. However, you have a couple of different considerations. One is the state of knowledge at various points, and what players should have known. The other is whether the NFL had superior knowledge to the general public and a duty (under the negligence causes of action) to warn or institute safeguards. Players talk about being sent back into games as injuries were minimized. We’ll also discuss, below, the effect of the NFL’s formation of the MTBI committee in 1994 and the role it will play in this litigation.
It’s also possible, by the way, that plaintiffs from different eras end up in different legal positions based on what the NFL knew and when.
But the ultimate answer to that question is that they can successfully sue if there is a legal determination that they owed a duty to the players as a result of having a superior knowledge and responsibility to inform and warn the players of the risks.
2. So, what effect did the NFL’s MTBI committee have on this litigation?
For those that don’t know, the MTBI committee was formed in 1994 to study the long term effects of brain injuries. However, plaintiffs allege that the committee was fraught with conflicts of interest, and spent its efforts minimizing and challenging independent research on the effects of brain injuries and how long the risks extended after the injury occurred. Elliott Pellman, who chaired that committee, said that returning to play after a concussion “does not involve significant risk of a second injury either during the same game or the same season.”
You might recall that back in 2007 Congress got involved with hearings on brain injuries with the NFL. In 2010, Pellman was removed and the committee renamed. You may notice that significant changes have occurred since then in how the league has treated concussions and the risk of head injuries, from rule changes to suspensions to policies on returning to games and diagnosing concussion.
So, yes, that MTBI committee and evidence surrounding it will be a big part of the Duty portion of the negligence claims as well as the fraud and misrepresentation actions.
3. How can players prove that their symptoms now were caused by injuries in the NFL, rather than, say, high school and college?
Another key question in a negligence claim is causation. Even if the NFL failed in a duty to the players to warn, the plaintiffs still must show that failure was the cause of injuries. This is going to be a difficult challenge for the plaintiffs, to show that their symptoms now are due to what happened in the NFL rather than as a result of injuries pre-NFL. Different jurisdictions may have different standards as well. Players who played one year in the league may be in a different position than those that had careers that listed 10+ years.
Of course, you can see that the plaintiffs are trying to circumvent these causation issues by arguing the NFL was an industry leader and owed a duty beyond just the NFL by its influence over colleges and high schools and how they view brain injuries.
"“In part because of its financial power and monopoly status in American football, the NFL has enormous influence over physicians, trainers, coaches, professional players, and amateur players at all levels of the game regarding many issues. . Those issues include research and education regarding diagnosis, treatment, and effects of injuries that arise in both professional and amateur football practices, scrimmages, and games.” (p. 32, Alex Karras et al. v. NFL)"
I expect this to be a key legal battle in this case–just how far the NFL’s duty extends. It has broad implications.
4. Do different players have different likelihoods of recovery?
Yes. Even though there are common questions of fact related to the NFL’s actions and knowledge, there are also a diverse array of ages and eras for the players, as well as lengths of career, symptoms, and injuries. In the Karras case, for example, he was chosen as the lead plaintiff for name recognition, but the plaintiffs range from playing in the 1960’s to this decade. Karras has dementia. Kevin Everett, who is also part of the same suit as a plaintiff, has a whole different set of facts as it relates to what the league knew when he was playing.
Those players in the post-MTBI world would appear to be better off in terms of evidence of a cover-up or misrepresentation by the league, compared with say, those that played in the sixties. If there are more smoking guns out there relating to league knowledge, then that could change.
It’s very possible that some of these cases will have to be severed before they are tried.
5. How long until these cases are resolved, and how many more lawsuits will we hear about?
A long time, probably three to five years before we start getting into actual trials. Other suits will start trickling in, though at some point they will have to dry up as statute of limitations arguments creep in (defense can claim the retired player plaintiffs should have been on notice of their injuries and causes of action if they wait too long). There have been between 200 or so players entering the league each year for the last fifty years. 1,200 still represents less than 20% of those that have played since 1960.
[photo via US Presswire]