Jason Luckasevic on Concussions NFL Research and Litigation
WHO STARTED THE RETIRED NFL CONCUSSION LITIGATION?Jason E.Luckasevic
Jason E. Luckasevic Education Received a bachelor‟s degree in 1997 from Washington & Jefferson College Received a J.D. from Duquesne University School of Law, in 2000 Bar Admissions (state/federal): Pennsylvania, 2000 Arizona, 2010 Michigan, 2010 Supreme Court of the United States, 2010 Admitted in Federal Court in Pennsylvania and Nevada.
Jason E. Luckasevic Legal Practice Areas Toxic Torts involving asbestos exposures Personal Injury Super Lawyer Medical Malpractice In 2011 and 2012, Jason Discrimination Cases Luckasevic was named a Pennsylvania Super Lawyer Rising Star. Awarded to less Membership in Legal Associations than 5% of lawyers in the State American Association for Justice under the age of 40. American Bar Association Jason also was named to The Pennsylvania Association for Justice National Trial Lawyers Western Pennsylvania Association for Association Top 40 Under 40. Justice Membership is "by invitation State and County Bar Associations only and is extended exclusively to those individuals ACLU who exemplify superior Trial Lawyers for Public Justice qualifications, trial results, and leadership as a young lawyer under the age of 40."
Football Concussion Litigation On July 19, 2011, seventy-five plaintiffs filed a mass action lawsuit in the Superior Court of California in Los Angeles for cognitive Injury from multiple concussions received during play in the NFL.
Chronic Traumatic Encephalopathy (CTE) In 2002, Dr. Bennett Omalu, found CTE in By 2011, neuroanatomists had conducted thirteen the brain of Mike autopsies on thirteen Webster. former NFL players who showed signs of degenerative brain By 2007, Dr. Omalu disease. found four cases Twelve of those thirteen linking CTE to the deceased players suffered death of former NFL from CTE. players.
Chronic Traumatic Encephalopathy (CTE) Also known as Punch-Drunk Syndrome, Dr. Harrison CTE is a type of Stanford Martland stated in the October 13, 1928 issue of the neurodegenerative Journal of the American disease or dementia Medical Association: caused by repeated “[S]ome time fight fans and concussive of sub- promoters have recognized a peculiar condition occurring among concussive blows (hits prize fighters which, in ring just below the force parlance, they speak of as "punch drunk." Fighters in whom the early required to cause symptoms are well recognized are concussion). said by the fans to be "cuckoo," "goofy," "cutting paper dolls," or "slug nutty." Frequently it takes a fighter from one to two hours to recover from a severe blow to the head or jaw.”
Law firm information Made Famous from the PG&E toxic tort personal injury cases made famous in the movie ERIN BROKOVICH
Law firm information Leaders in Asbestos Litigation for more than 30 years.
Law firm information 11.5 million dollar verdict for OJ McDuffie in a medical malpractice suit against the Miami Dolphins and their team physicians.
Lawsuits and the NFL From 1976 to 2012 the NFL has been sued many times, but thirty-five of those cases have judicial decisions. Of those Thirty-five times, there are three lawsuits which were helpful to this case. The great majority of lawsuits against the NFL are Anti-trust actions.
Stringer v. NFL On August 1, 2001 Korey Stringer died of heatstroke during a Minnesota Vikings‟ training camp. His widow, Kelci Stringer, filed a wrongful death action on July 28, 2003 against the NFL, NFLP, Riddell and the Minnesota Vikings. The Court refused to grant summary judgment to the NFL regarding their “duty to ensure that the equipment and materials it required players such as Korey Stringer to wear was of the highest possible quality and sufficient to protect players from the risk of injury.” Moreover, the Court refused to grant Riddell summary judgment on the failure to warn claim, because Riddell failed to adequately warn players of the risk of heat- related illnesses.
Stringer v. NFL In Plaintiff‟s complaint she argued that “the NFL had and has the duty to use ordinary care in overseeing, controlling, and regulating the member clubs‟ practices, policies, procedures, equipment, working conditions, and culture, insofar as they pertain to and subject players to heat-related illness, including, but not limited to, the duty to institute acclimatization requirements and to regulate training camp practices, other practices, games, equipment, and medical care so as to minimize the risk of heat-related illness.” (Complaint, pp. 14.) The NFL denied these claims and filed a motion to dismiss on the basis that Plaintiff‟s claims were preempted by Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 because in order to resolve this claim the CBA would need to be interpreted.
Stringer v. NFL Plaintiff answered the NFL‟s motion by explaining that the CBA would not have to be interpreted, and the duty breached was a duty that arose from state tort law. The Sixth Circuit explained that “if the plaintiff can prove all of the elements of his claim without the necessity of contract interpretation, then his claim is independent of the labor agreement.” Decoe v. General Motors Corp., 32 F.3 212, 216 (6th Cir. 1994) citing Dougherty v. Parsec, Inc., 872 F. 2d 766, 770 (6th Cir. 1989). Plaintiff contended that she would not use the CBA because the duty that the NFL breached was a “common-law duty of care [and] is that degree of care which an ordinarily reasonable and prudent person exercises, or is accustomed to exercising, under the same or similar circumstances.” (Plaintiff‟s Memorandum, pp. 23).
Stringer v. NFL Plaintiff also argued in the complaint that “Riddell had a duty to exercise ordinary and reasonable care in the design, manufacture, testing, sale, quality assurance, conveyance and/or distribution of its helmet and shoulder pads into the stream of commerce, including a duty to assure that the products did not pose a significantly increased risk of personal injury and death.” (Complaint, pp. 18). Plaintiff continued arguing that “Riddell also failed to exercise ordinary and reasonable care in that it failed to issue adequate warnings of the risk of serious bodily injury or death due to the use of its helmets and shoulder pads.” (Complaint, pp.18).
Stringer v. NFL Riddell denied these allegations and requested a judgment on the pleadings based on the argument that in order to prove Plaintiff‟s allegations that Riddell‟s equipment was league mandated, the CBA would have to be interpreted. (Judgment on the Pleadings, pp. 2). Plaintiff answered this by stating that none of the claims against Riddell would need to be resolved by interpretation of the CBA. Plaintiff relied on the 1988 Supreme Court decision, which held that, “[E]ven if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is „independent‟ of the agreement for § 301 pre-emption purposes.” See Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 409-410 (1988).
Stringer v. NFL On February 1, 2007 the Court issued it‟s opinion. Regarding Plaintiff‟s fourth claim, the negligence claim against NFL and NFL Properties, the Court held that: “Plaintiff‟s claim does not arise out of the CBA. Neither the NFL nor NFL Properties is a party to the CBA. While both Defendants are mentioned in the CBA, the CBA imposes no duty on either of them to ensure that the equipment used by NFL players adequately protects from risk of injury or illness. And such duty, if it exists, clearly has its course in the common law.” (Opinion, pp. 28).
Stringer v. NFL On July 1, 2009, the Court denied summary judgment to Riddell for Plaintiff‟s failure to warn claim. The Court explained that: “There is no evidence in the record that Stringer had any knowledge of the heightened risk of developing heat stroke, as opposed to the general risk of becoming hotter, associated with wearing Defendants‟ helmet and shoulder pads in the extremely hot and humid conditions of the Vikings‟ training camp. Additionally, the question of whether a user‟s knowledge of the risks posed by a product will excuse the manufacturer‟s duty to warn is generally a question of fact that is not properly resolved on summary judgment. The Court concludes that the risk was not obvious.” (Opinion 2, pp. 12). The parties reached an undisclosed settlement in August 2011.
Brown v. NFL On December 19, 1999, Orlando Brown was playing “In this case, however, the duty asserted by Brown is based on for the Cleveland Browns state tort law, and would protect against the Jacksonville any member of the public. The Jaguars when a referee threw NFL owes no greater duty to Brown than to any bystander a flag that struck Brown in the (and Brown does not claim that it eye, temporarily blinding him. does) to train its employees in the safe use of their equipment In 2001, Brown filed suit or to respond in damages if one against the NFL seeking of its employees in the course of his work carelessly throws damages for the NFL‟s something into someones eye.” negligence. The NFL claimed Brown v. NFL, 219 F. Supp. 2d 372, 382 (SDNY 2002). that Brown‟s claim was governed by the CBA and The case was settled and the NFL paid Brown between $15- should be sent to arbitration. 25 million. The Court disagreed.
Brown v. NFL Plaintiffs, Orlando and Mira Brown also brought Mira Brown, filed a two claims against the complaint against the NFL “for loss of services, NFL alleging that the society, companionship “NFL was liable for his and consortium resulting injuries, both in its own from her husbands right for negligent hiring injuries.” Brown v. NFL, and training of Triplette, 219 F. Supp. 2d 372, and vicariously, as 376 (SDNY 2002). Triplettes employer, for his negligence in throwing the flag.” Brown v. NFL, 219 F. Supp. 2d 372, 376 (SDNY 2002).
Brown v. NFL “Plaintiffs theory of the case is that this is a garden-variety tort action invoking a general duty to avoid negligently causing harm, owed by the NFL not only to its players but also to any other person in society who could possibly have been threatened by Triplettes weighted projectile. They contend that a fan, member of the press, or other bystander could equally bring such a claim had he or she been injured in the same manner. On this view, whether Triplette or the NFL was negligent, or whether the NFL has a valid defense that Brown assumed the risk of such an injury by playing professional football (or any other defense to the action), are simply ordinary issues of state tort law that, in the absence of diversity of citizenship, should be adjudicated in state court.” Brown v. NFL, 219 F. Supp. 2d 372, 376-377 (SDNY 2002).
Brown v. NFL The NFL responded to the claim by asserting that Brown‟s claims are preempted by § 301 of the LMRA, 29 U.S.C. § 185(a) because the CBA would have to be interpreted. The Court
Brown v. NFL The Court explained that: “It does not follow, however, that any state tort suit brought by an employee covered by a CBA is preempted by the LMRA. Federal preemption is driven by the need to ensure "that the meaning given a contract phrase or term be subject to uniform federal interpretation. Thus, questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, must be resolved by reference to uniform federal law, whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort." Brown v. NFL, 219 F. Supp. 2d 372, 376- 377 (SDNY 2002) quoting, Allis-Chalmers, 471 U.S. at 211.
Brown v. NFLFurthermore, the Court explained that: “Tort claims that do not implicate these federal interests are not preempted. The test is whether the tort claim is "inextricably intertwined with consideration of the terms of the labor contract." Brown v. NFL, 219 F. Supp. 2d 372, 376-377 (SDNY 2002) quoting Allis-Chalmers 213, 220. The LMRA does not preempt a claim that merely "relates in some way to a provision in a collective-bargaining agreement." Brown v. NFL, 219 F. Supp. 2d 372, 376-377 (SDNY 2002) quoting Allis-Chalmers 213, 220.
Brown v. NFL The Court found that the NFL rules are not part of the CBA, and in fact are not even mentioned within the agreement. Brown v. NFL, 219 F. Supp. 2d 372, 386 (SDNY 2002). Moreover the Court explained that: “Accordingly, even if the references in Plaintiffs complaint to the content of specific NFL Rules, or to the various instruction manuals for referees, are seen not merely as evidence of professional standards, but as sources that define the ordinary nature and risks of football and thus define the duties of care owed to Plaintiffs, these documents are not part of the CBA.” Brown v. NFL, 219 F. Supp. 2d 372, 387 (SDNY 2002). Therefore, the Court denied Defendants‟ motion to dismiss and compel arbitration. The Court granted Plaintiff‟s cross-motion to remand to state court.
Williams v. NFLThe NFL does not point to a specificprovision of either the CBA or the Policywhich must be interpreted. The CBAsNFL players are "employed by a member club of the National Football League[.]"Preamble provides thatCBA, Preamble. Appendix C to the CBA contains the "NFL Player Contract,"which provides that the contract "is between ... [the] `Player, and ... `Club, ... asa member of the National Football League." Id. App. C at 248. The contractfurther states: "Club employs Player as a skilled football player. Player acceptssuch employment."Id. None of these references require interpretation, only mereconsultation, which is insufficient to warrant preemption of an otherwiseindependent state law claim. See Livadas, 512 U.S. at 124-25, 114 S.Ct. 2068;Trustees, 450 F.3d at 330. Furthermore, the Players contracts, likely dispositivein determining who their employer is, are actually separate documents from theCBA such that there is no need to reference the form contract contained inAppendix C of the CBA to examine them.
Williams v. NFLFinally, the NFL argues that denying preemption and subjecting the Policy to divergentstate regulations would render the uniform enforcement of its drug testing policy, onwhich it relies as a national organization for the integrity of its business, nearlyimpossible. The Ninth Circuit, sitting en banc, has rejected a similar argument. SeeCramer v. Consolidated Freightways, Inc., 255 F.3d 683, 695 n. 9 (9th Cir.2001) (enbanc). In Cramer, the employer, a large trucking company, "argue[d] that the terms ofCBAs affecting employees in multiple states should supersede inconsistent statelaws." Id. at 688, 695 n. 9. The Ninth Circuit observed, "This contention overreaches,however, because *878 the LMRA certainly did not give employers and unions thepower to displace any state regulatory law they found inconvenient." Id. at 695 n. 9.We think this is the proper result in light of the Supreme Court‘s observation that: [T]here [is not] any suggestion that Congress, in adopting § 301, wished to give the substantive provisions of private agreements the force of federal law, ousting any inconsistent state regulation. Such a rule of law would delegate to unions and unionized employers the power to exempt themselves from whatever state labor standards they disfavored. Clearly, § 301 does not grant the parties to a [CBA] the ability to contract for what is illegal under state law. In extending the pre-emptive effect of § 301 beyond suits for breach of contract, it would be inconsistent with congressional intent under that section to preempt state rules that proscribe conduct, or establish rights and obligations, independent of a
Williams v. NFLLueck, 471 U.S. at 211-12, 105 S.Ct. 1904 (footnote omitted) (emphasisadded); see Livadas,512 U.S. at 123, 114 S.Ct. 2068 (cautioning that section301 "cannot be read broadly to pre-empt nonnegotiable rights conferred onindividual employees as a matter of state law"); see also Karnes, 335 F.3d at1194 (noting that "the fact that the CBA incorporated Boeings anti-drug policy isirrelevant because `§ 301does not grant the parties to a [CBA] the ability tocontract for what is illegal under state law" (quoting Lueck, 471 U.S. at 212,105 S.Ct. 1904)). Therefore, the NFLs national uniformity argument fails.In sum, the Players DATWA claim ispredicated on Minnesota law, not the CBA orthe Policy, and the claim is not dependentupon an interpretation of the CBA or thePolicy. Thus, the Players DATWA claim isnot preempted by section 301.
The NFL Collective BargainingAgreement The Collective Bargaining Agreement (CBA) governs disputes concerning working conditions. If a player‟s claim falls under the CBA, then the claim is preempted by Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. However, if the claim arises from a state-law claim, and the CBA does not have to be interpreted, then federal law does not preempt the claim.
The NFL‟s Negligence: Publications that the NFL failed to acknowledge. To name afew… 1890 Admiral Joseph Mason “Bull” Reeves, played football for the Naval Academy. He suffered so many blows to the head that the Navy doctor warned him if he suffered another hit he was at risk for death or insanity 1913 Glenn “Pop” Warner stated that he had “many times seen cases when hard bumps on the head so dazed the player receiving them that he lost his memory for a time and had to be removed from the game.” 1928 The first case of “Punch Drunk” syndrome in boxers was published in the American Association Journal by Dr. Harrison Stanford Martland. 1937 The U.S. Navy published an article on “Dementia puglisistica” in the U.S. Navy Medical Bulletin. 1952 The American Medical Association Journal published an article on “Electroencephalographic changes in professional boxers.”
The NFL‟s Negligence: Publications that the NFL failed to acknowledge. To name afew… 1952 The New England Journal of Medicine Article Vol. 246, pp. 554-556 suggested a three strike rule for concussions in 1945. They suggested that after three concussions you should retire from football. 1959 An article was published in the Journal of Mental Science on the “Observations of the pathology of insidious dementia following head injury.” 1973 A disabling condition occurring when someone suffers a concussion shortly after the first concussion would termed the Second Impact Syndrome. 1974 And article about delayed recovery after mild head injury was published in the Lancet. 1975 An article on the cumulative effect on concussions was published in the Lancet.
The NFL‟s Actions? In 2004 this Committee The NFL did not start published their findings their own Mild that showed “no Traumatic Brain evidence of worsening Injury Committee injury of chronic cumulative effects” from until 1994, and multiple concussions. appointed a In fact, the Committee rheumatologist as concluded that “many the committee chair NFL players can be with no certification safely allowed to return regarding brain to play” on the same injuries or day they sustain a concussions. concussion if a doctor clears them.
The NFL‟s Actions? In response to this article a doctor In the October 2004 edition wrote that “the article sends a of Neurosurgery, the message that it is acceptable to Multiple Traumatic Brain return players while still Injury published a paper symptomatic, which contradicts stating that the Committee literature published over the past found that there was not a twenty years suggesting that risk of repeated athletes be returned to play only concussions in players after they are asymptomatic and in with previous concussions. some cases for seven days.” They also concluded that Between 2002 and 2005 many there was not a “7-10 day studies performed by independent window of increased scientists found that multiple NFL susceptibility to sustaining induced concussions cause another concussion.” cognitive problems such as depression, early on-set dementia and CTE and its related symptoms.
The NFL‟s Actions? In 2006 this In 2007 Rodger committee concluded Goodell admitted that that the “mild TBIs in the Committee had professional football been studying the are not serious effects of traumatic injuries,” because brain injury for “close many players to 14 years.” returned to play within a week. Not until 2010 did the NFL acknowledge that concussions can The NFL told players lead to dementia, who suffered memory loss, Chronic concussions not to be Traumatic overly concerned. Encephalopathy (CTE), and other
NFL Fraud Dr. Julian Bailes a WVU In 2002 through 2007, Dr. neurosurgeon explained Dr. Omalu examined players Omalu‟s findings to the NFL including Mike Webster, Terry Committee. The Committee Long, Andrew Waters and refused the findings and Dr. Justin Strzelcyk. He Bailes explained “the concluded in Neurosurgery Committee got mad…we got that CTE was triggered by into it. And I‟m thinking, „This multiple NFL concussions and is a …disease in America‟s was partially responsible for most [popular sport and how their deaths are its leaders responding? The NFL responded to this by Alienate the scientist who writing a letter to found it? Refuse to accept the Neurosurgery asking that the science coming from him?” article be retracted.
NFL Fraud In 2006, ESPN The Furthermore, the article Magazine had an disclosed that a article which described neuropsychologist for how the MTBI the New York Jets, Dr. Committee failed to William Barr, was fired after bringing attention to include hundreds of the fact that the neuropsychological Committee‟s research tests done on NFL only included results that players when studying would downplay the the effects of effects of concussions. concussions.
NFL and CongressionalHearings At the October 2009 At the same hearing Rep. Congressional hearings of the Maxine Walters stated, “I believe House Judiciary Committee, you are an $8 billion organization Linda Sanchez, a committee that has failed in your member, said that the NFL responsibility to the players. We denying the connection between all know it‟s a dangerous sport. concussions and cognitive Players are always going to get decline is similar to the Tobacco injured. The only quesiton is, are industry‟s denial of the link you going to pay for it? I know between cigarette consumption that you dearly want to hold on to and ill health effects. your profits. I think it‟s the responsibility of Congress to look at your antitrust exemption and take it away.”
NFL and The House JudiciaryCommittee January 2010 The House Judiciary Committee also held hearings on football player head injuries. The chairman of the committee, Rep. John Conyers, Jr., said that “until recently, the NFL minimized and disputed evidence linking head injuries to mental impairment in the future.”
A Must Read for NFL Players In the summer of 2010 the NFL produced a poster that alerts its players to the long-term effects of concussions, using words like “depression” and “early onset of dementia”
Riddell The official helmet manufacturer of the NFL In 2002, Riddell introduced the “Revolution” helmet, which they claimed reduced concussions by 31%. However, the study Riddell conducted with UPMC to get the 31% figure was highly criticized because new Riddell Revolution helmets were compared to used helmets. Also, the study was co-written by Thad Ide, Riddell‟s Vice President of Research & Product Development. Furthermore, the neurosurgeon who co-wrote the study, Joe Maroon, stated that he disagreed with Riddell‟s marketing that the Revolution could reduce concussions by 31%. For these reasons, Senator Tom Udall of New Mexico formally requested that the FTC investigate these “misleading safety claims and deceptive practices” by helmet manufacturers, specifically Riddell.
RiddellThe official helmet manufacturer of the NFL In May 2011 Virginia Tech released the findings of their helmet study. Riddell‟s VSR-4 was given the second lowest rating of reducing the risk of concussions. However, nearly 40% of NFL players wore this helmet in the 2010-2011 season.
RiddellThe official helmet manufacturer of the NFL The warning on Riddell Prior to 2002 the warning helmets mentioned nothing said: about concussions “Do not use this helmet to throughout the 1980s and butt, ram or spear an 1990s. opposing player. This is in In fact, it was not until violation of the football Riddell introduced the rules and such use can Riddell Revolution in 2002 result in severe head or that inadequate neck injuries, paralysis or concussion warnings death to you and possible started to appear on injury to your opponent. helmets. No helmet can prevent all head or neck injuries a player might receive while participating in football.”
RiddellThe official helmet manufacturer of the NFL According to Thad Ide, Riddell‟s vice president of Research & Product Development, Riddell did not begin using their HITS system, which is used to study concussions, until around 2004. This system monitors the severity and incidence of impacts that the player endures. The system uses a small sensor which is placed inside the helmet.
RiddellThe official helmet manufacturer of the NFLLawsuits against Riddell Included in these lawsuits: When Richard Lester, “The head injuries range from mild concussions to subdural Vice President and hematomas that require General Counsel for surgery. There is also a head Riddell, was asked injury that‟s described as a second impact syndrome, how many lawsuits which, basically, is two Riddell has been separate head injuries, one involved in in the past concussion followed by a second impact later that 30 years, Lester causes swelling in the brain explained that he had and permanent injury.” dealt with over 100 -Stringer v. NFL, 749 F.Supp. 2d 680 (East. Dist. Ohio 2010) (Deposition of cases. Richard Lester, pp 17-19).
RiddellThe official helmet manufacturer of the NFL Richard Lester noted cases where Riddell failed to put warnings on helmets, resulting in serious injuries to the players, and lawsuits for Riddell. He recalled three cases in particular: “There was a Florida case, the Strange case. Eldredge was another one. Jaramillo. All three cases involved quadriplegic injuries. Players were paralyzed. In the Eldredge case, the young man subsequently died. And each of them contained the allegation that the helmet in question did not have a warning label warning the player that he could be seriously injured playing football even though he is wearing a helmet.” Stringer v. NFL, 749 F.Supp. 2d 680 (East. Dist. Ohio 2010) (Deposition of Richard Lester, pp 20-22).
Riddell A Product Liability claim against Riddell: Arnold v. Riddell, 882 F. Supp. 979 (Dist. Kansas 1995). In 1988, James R. Arnold was a junior at a high school in Texas. During a football game he collided head first with an opponent and fractured his spine at the C4-C5 level, rendering him quadriplegic. Arnold and his parents brought a product liability action against Riddell. In this case, the jury found that the Riddell PAC-3 helmet was defective and assessed Riddell‟s fault at 63%. The jury found Arnold 21% at fault and his parents 16% at fault. The Arnolds were awarded 12 million dollars in damages. A remittitur of Arnold‟s parents‟ damages was ordered subsequently for out-of-pocket loss to $437,000.
Riddell Sues Insurers For Failing To Pay Concussion Damages Published: Friday, 13 Apr 2012 | 12:23 PM ET By: Darren Rovell CNBC Sports Business Reporter The dollar figure on concussion-based lawsuits continues to mount by the day. On Thursday, the NFL‟s official helmet maker Riddell, filed suit in California against those that had insured its business with the league and are failing to indemnify the company against these claims. More than 1,000 former NFL players have been part of concussion-based lawsuits against the league. Riddell says it is included in seven of those suits.