Rules of the Game

Concussion lawsuits face court hurdles

Robert T. Shannon

Hinshaw & Culbertson

November 2012

In excess of 140 concussion-related lawsuits directed at the NFL have been consolidated in the U.S. District Court in Philadelphia. These suits have been brought by about 5,200 former football players and their families. Challenges over the multi-district consolidation recently had a local connection.

There is a legal difference between multi-district litigation and class-action litigation. Once a class is certified in a class-action case, all parties are bound to the judgment or settlement reached. However, in multi-district litigation, separate settlements, trials and verdicts can be reached. The focus of multi-district litigation is to more efficiently resolve significant and time-consuming discovery and pre-trial motions.

Generally, the consolidated suits allege that the NFL failed to provide information regarding the long-term impact of player concussions. Former Oakland Raiders quarterback Ken Stabler is a plaintiff in what is being called the "master complaint" that sought consolidation of the lawsuits. Stabler and the other players allege that repeated blows to the head resulted in long-term health problems.

In charge of sorting through the various lawsuits, the legal claims of the former players and the league's defenses is U.S. District Judge Anita Brody. Recently, the NFL moved to dismiss the suits based on the collective bargaining agreement (CBA) entered into between the league and the players. The league argues that the CBA requires disputes relating to player safety be decided at arbitration. Observers also are watching whether the NFL will make contributory negligence arguments based on failures on the part of players to report concussions and based on players returning to action prior to concussion symptoms fully subsiding.

The NFL has taken a hard line over the last few years, suspending and heavily fining players for dangerous and violent hits on the field. NFL Commissioner Roger Goodell imposed significant sanctions against the New Orleans Saints, whose players and coaches were fined and suspended. More recently, the NFL initiated a comprehensive wellness program for current and former players. One of the aspects of the program is a confidential mental health hotline that is available to players and their families. A consulting service, known as NFL Life Line, also will be available to players and families members to inform and educate them about potential signs or symptoms of mental health problems and to assist them in locating trained professionals to help in dealing with these mental health problems. The NFL also is exercising more oversight of the individual teams as it relates to player safety issues. The league recently issued a new policy requiring neutral third-party athletic trainers to assist in monitoring players that suffer concussions and evaluating their return to play.

Former Chicago Bears great Dave Duerson committed suicide on Feb. 17, 2011. Duerson shot himself in the chest and had requested that his brain be studied by the NFL's brain bank. The post-death examination concluded that Duerson suffered progressive, advanced brain damage, a condition known as chronic traumatic encephalopathy (CTE). The autopsy reportedly revealed brain damage to the area of the brain in which judgment, impulse control, mood and behavior are controlled.

Duerson, a Notre Dame graduate, became a successful businessman after his retirement from the NFL, owning a string of McDonald's franchises. In the last few years of his life, Duerson experienced business and personal problems, now claimed to have stemmed from long-term health implications associated to his football career.

Earlier this year, Duerson's family sued the NFL. It is alleged that Duerson suffered from at least three documented concussions during his playing career with an unknown number of undocumented concussions. Duerson's attorneys fought efforts to consolidate his lawsuit with the rest of the concussion lawsuits in Pennsylvania. They argued that Duerson's lawsuit should be heard separately given the unique nature of the allegations. They argued the case would proceed too slowly as the NFL intends to depose and perform a medical examination of every plaintiff. With thousands of plaintiffs, this process could take years. Duerson already had a medical exam and it has been established that he suffered from CTE. The fact that he is deceased is another contrast with the other plaintiffs. Besides the technical legal implications, Illinois would represent a potentially favorable forum for a Notre Dame graduate and former Chicago Bear.

In rejecting these arguments and deciding to consolidate Duerson's claims with the other concussion-related suits, the Judicial Panel on Multi-District Litigation wrote that all the suits involve the alleged knowledge of the NFL regarding the effect of concussive injuries on players, the NFL's monitoring of those injuries, policies toward returning players to action post-concussion and the design and manufacture of players' helmets.

Duerson's attorneys have indicated that, after the pre-trial procedures for the consolidated suits are complete, they intend to bring the case back to Chicago, but this may take years. These consolidated lawsuits could very well affect the way football is played in the future.