Concussion Litigation | Heitner Legal

Report: 110 Of 111 Deceased NFL Players Examined Display…

The NFL has been in a ongoing battle with the NFL Players Association (NFLPA) regarding concussions and chronic traumatic encephalopathy (CTE). In 2015, a movie called Concussion, which starred Will Smith appearing as Dr. Bennet Omalu, documented the nightmare effects CTE can have on former players.

Dr Ann McKee, a neuropathologist, examined the brains of 202 deceased football players, including 111 that played in the NFL. 110 out of those 111 players were found to have CTE. CTE is a degenerative disease believed to be caused by repeated blows to the head, something NFL players are quite familiar with. Memory loss, confusion, depression, and dementia are just a few of the many symptoms caused by CTE.

The symptoms differ among the cases and problems might not arise until years after the blows to the head have stopped. The players in this study range from players who died as young as 23 and who died as old as 89. The list includes 44 Offensive and Defensive Linemen, 20 Running backs, 17 Defensive backs, 13 Linebackers, 7 Quarterbacks, 5 Wide-Receivers, 2 Tight ends, 1 Kicker, and 1 Punter.

It is not surprising that linemen topped the list. Almost half of the players on the field make up either the Offensive or Defensive Line. Furthermore, linemen knocks heads on most of their plays, and brain trauma experts say “the accumulation of seemingly benign, non-violent blows – rather than head-jarring concussions alone – probably causes CTE.”

Dr. McKee and other researchers say that a correlation between suicide and CTE has not been firmly established. However, suicide unfortunately is not uncommon among players who suffer from CTE. A former Linebacker Junior Seau killed himself with a gunshot to his chest back in 2012.

The basis of the long-fought battle over concussions and CTE is that the belief that NFL knew of the risks and concealed them. In 2016, Jeff Miller, the NFL’s senior Vice President for health and safety policy said “the answer to that is certainly, yes,” regarding whether or not there is a link between football and CTE.

Furthermore, 87 percent of the total 202 brains that were studied were found to have CTE. Aside from the 111 NFL players, these other 91 players studied were from the Canadian Football League, semi-professional players, college players, and even high school players. “[E]ven those with mild cases of CTE, exhibited cognitive, mood and behavioral symptoms.”

According to Dr. McKee, “[i]t is no longer debatable whether or not there is a problem in football – there is a problem.” Parents are worried for their children, especially those fathers who formerly played in the NFL. USA Football, the national governing body for amateur football, is paving the way to make the game safer, teaching safer methods of tackling, and also promoting playing flag football instead of tackle.

Concussion Litigation

Former WWE Fighters Sue Over Concussions

World Wrestling Entertainment has been sued by dozens of retired wrestlers claiming that concussions suffered during their fighting days have led to damaging long term results. Similar to lawsuits filed against the NFL, NHL and other sports leagues, the wrestlers have alleged that WWE knew about and concealed the risks of brain diseases attributable to performing in the sport.

The twist is that the Complaint also claims that WWE wrongfully classified wrestlers as independent contractors instead of as employees in an effort to escape liability. Wrestlers may be looking to preempt WWE’s claim that they have no standing to sue based on a theory that such rights are diminished as independent contractors.

“I think it’s bad for the image of the company and I don’t think it’s good, personally, for the image of the individuals doing it,” said former wrestler Ric Flair. “I think it’s unrealistic. I feel bad. And I’m saying this out loud, I feel bad for the guys that are doing this because we’ve all put ourselves on the line. That’s what we did for a living. Nobody twisted our arm. Does that make sense? So it was something we did and it’s something that happens and I just think that sometimes hard times can cause you to make bad decisions.”

Another former wrestler, Lance Storm, thinks that the lawsuit is frivolous and unfounded.

“At the end of the day, pro wrestling is designed to be a non-contact sport in a way,” said Storm. “It’s not a true competitive sport, it’s a performance art and when you do the job properly, you don’t actually hit people very hard. There’s people on this list that are third generation, their grandfather did it, their father did it and they wrestled for upwards of a decade before they got to the WWE, I don’t know how you can dump that on the company.”

Collective Bargaining Issues

NHL Concussion Litigation: What’s Next After Judge Nelson Rejects…

On March 25, 2015, Judge Susan Nelson denied the NHL’s first motion to dismiss, potentially strengthening the former players’ case. Prior to that decision, on January 8, 2015, Judge Nelson heard arguments from both the NHL and former players in regards to two motions to dismiss: (1) motion to dismiss the Master Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b); and motion to dismiss the Master Complaint based on labor law preemption.

It is very important to note that Judge Nelson’s order only addresses the first motion to dismiss – under Federal Rules of Civil Procedure 12(b)(6) and 9(b) – it does not address the labor preemption argument.

In her order, Judge Nelson broke down the NHL’s arguments very eloquently. In sum, the NHL’s arguments were: (1) the Master Complaint must be dismissed as time-barred; (2) the Plaintiffs’ fraud-based claims must be dismissed because they were not pled with particularity; and (3) the Plaintiffs’ medical monitoring claim must be dismissed because none of the relevant jurisdictions, as determined by choice-of law rules, recognize medical monitoring as a stand-alone cause of action.

In response to these arguments, Judge Nelson specifically held: (1) it is not clear from the face of the Master Complaint that the Plaintiffs’ claims are untimely; (2) the Plaintiffs’ claims are adequately pled; and (3) it is not possible on the present record to determine which jurisdictions’ laws apply to Plaintiffs’ medical monitoring claim. As a result, the NHL’s first two arguments were dismissed and the third was dismissed without prejudice.

When a claim is dismissed without prejudice, it signifies that none of the rights or privileges of the individual involved are lost or waived. As a result, a decision on the merits has not been made and the parties are free to litigate the matter in a subsequent action.

While this dismissal should be considered a win for the former players, I wouldn’t expect the NHL to come to the bargaining table and write a check to settle this case anytime and I wouldn’t expect the NHL to comply with the plaintiffs’ likely forthcoming discovery requests. Judge Nelson still needs to rule on the NHL’s second motion to dismiss on the labor law preemption issue, which in my opinion is the far stronger argument.

The crux of the NHL’s second motion to dismiss is that the former players’ claims are preempted by section 301 of the Labor Management Relations Act because their claims either arise out of a collectively bargained agreement or are substantially dependent on an analysis of such an agreement.

When parties collectively bargain rights and duties, it allows them to avoid various types of scrutiny (i.e. antitrust and various labor laws) others are susceptible to. As a result, the NHL makes the argument that the former players collectively bargained away their causes of action.

I will not opine on the outcome of this pending motion, but it is worth noting the NFL filed the same motion to dismiss against their former players, which was ultimately denied and led to settlement talks.

What is worth analyzing is why the NHL wants to dismiss the former players’ claims and to avoid discovery.

After reading the Master Complaint, it appears the NHL wants to mainly avoid the discovery of information such as: (1) why the NHL did not have a concussion protocol until 1997 when there was a vast amount of scientific data and research indicating repeated concussive and sub-concussive impacts, which occur in hockey, could have dangerous long-term effects; and (2) why it took 14 years to issue an inconclusive report analyzing their concussion program.

The Master Complaint and the original complaints establish lengthy timelines about knowledge of concussions in sports back to 1928. Some of the strong findings are:

In 1928, pathologist Harrison Martland described the clinical spectrum of abnormalities found in almost 50 percent of boxers if they kept at the game long enough
In or about 1965, the Journal of the American Medical Association published a study of encephalopathic changes in professional boxers
A 1963 study by Dr. Mawdsley and Dr. Ferguson found that some boxers sustain chronic neurological damages as a result of repeated head injuries. This damage manifested in the form of dementia and impairment of motor function
A 1975 study by Dr. Gronwall and Dr. Wrightson looked at the cumulative effects of concussive injuries in non-athletes and found that those who suffered two concussions took longer to recover than those who suffered a single concussion. Those authors noted that these results could be extrapolated to athletes given the common occurrence of concussions in sports
In 1982, the University of Virginia and other institutions conducted studies on college football teams that showed that football players who suffered MTBI [Mild Traumatic Brain Injury] also suffered pathological short-term and long-term damage
By 1991 the NCAA and individual collegiate teams’ medical staffs, along with many pre-college groups, had disseminated information and adopted criteria to protect hockey players even remotely suspected of having sustained concussions
Four “International Symposia on Concussion in Sport” have convened: Vienna (2001), Prague (2004) and two times in Zurich (2008 and 2012). The NHL had representatives at all four symposia
Following from the 2001 conference were two reports focused specifically on hockey:
- Procedures after Minor Traumatic Brain Injury MTBI in Ice Hockey to Prevent Neurological Sequelae
- Concussion Experience: Swedish Elite Ice Hockey League

In the instance case, the complaints cite a number of other studies and their findings. But these timelines show repeated concussive and sub concussive blows to the head can have detrimental long-term effects, and the damage can likely be exacerbated in the realm of sports. If this case goes to discovery, the NHL will need to explain how it incorporated these findings; but if they did not use this information, they will need to explain why they did not.

Conversely, the NHL only created a concussion program in 1997. Starting in the 1997-1998 season, the NHL mandated all NHL team physicians to document all concussions sustained during the regular season games; this study continued through the 2003-2004 season. The concussion program did not release a report until 2011 – 14 years after it was commissioned. After analyzing all the data, the report merely concluded: “more study is needed.” If this case goes to discovery, the NHL will not only need to defend the outcome of the report, but it will need to explain why no study was commissioned until 1997, when there are studies dating back to 1928 that indicate concussions can create long-term health concerns.

If Judge Nelson denies the NHL’s last motion to dismiss, these are in my opinion the two main hurdles the NHL faces in discovery.

Lastly, and maybe most importantly, in the NHL’s two motions to dismiss, they never moved to dismiss the former players’ claim of declaratory relief. It will be interesting to see if Judge Nelson addresses this claim. If the NHL’s last motion is granted, this case may move on to discovery regardless.

Concussion Litigation

NHL Concussion Litigation – The Backstory and Potentially the…

The past twelve to eighteen months have without a doubt been the busiest and most interesting for both sports lawyers and fans alike. In the past calendar year alone: Aaron Hernandez was charged with and is being tried in his first of two murder trials; the NBA forced Donald Sterling to sell the Los Angeles Clippers; a number of players, Greg Hardy, Ray Rice, and Ray McDonald were punished by the NFL for domestic violence; Adrian Peterson was charged with child abuse; and the NFL is close to settling its concussion lawsuit with a class of former players. But there is one legal battle that has essentially avoided major headlines – the ongoing concussion litigation against the National Hockey League (NHL).

This legal battle first began in November of 2013 when a class of former players filed the first concussion lawsuit against the NHL. This same issue made headlines again in April of 2014 when a second concussion lawsuit was filed against the NHL. However, since then it has essentially gone unnoticed, until last month when former New York Islanders great Butch Goring joined a class action concussion lawsuit filed against the NHL.

Originally I thought Goring’s lawsuit was only the third class action concussion lawsuit filed against the NHL. Much to my surprise, I found this most recent case was not the third concussion lawsuit filed against the NHL, it was the ninth. Since November of 2013, nine different classes of former players have sued the NHL over concussion related injuries:

Leeman v. NHL, filed 11/25/2013 in the United States District Court for the District of Columbia
LaCouture v. NHL, filed 4/09/2014 in the United States District Court for the Southern District of New York
Christian v. NHL, filed 4/15/2014 in the United States District Court for the District of Minnesota
Fritsche v. NHL, filed 7/252014 in the United States District Court for the Southern District of New York
Rohloff v. NHL, filed 7/29/2014 in the United States District Court for the District of Minnesota
Larose v. NHL, filed 9/08/2014 in the United States District Court for the District of Minnesota
Populok v. NHL, filed 9/17/204 in the United States District Court for the District of Minnesota
Murphy v. NHL, filed 10/02/2014 in the United States District Court for the District of Minnesota
Adams v. NHL, filed 2/19/2015 in the United States District Court for the District of Minnesota

Each of these cases has their own individual nuances due to their respective laws. But, when you boil it down, all off these cases essentially allege the same cause of action: due to the vast amount of scientific research and studies the NHL knew, or should have known, that hockey players who sustain repetitive concussive, sub-concussive events and/or brain injuries are a significantly greater risk for chronic neuro-cognitive illness and disabilities both during their hockey careers and later in life.

Looking at these nine cases, three stand out from the crowd: Leeman v. NHL; Fritsche v. NHL; and Adams v. NHL. These cases are different from the other six cases because they are the only ones in which the plaintiffs seek declaratory relief. This distinction is important in regards to the NHL’s likely motion to dismiss. Declaratory relief essentially means a party wants the court to answer a number of certified questions and no damages of any form are requested. In Leeman, Fritsche and Adams the plaintiffs seek declaration of a handful of specific questions. Some of these questions include:

the NHL knew or should have known, at all times material, that the repeated, traumatic and unnecessary head impacts the Plaintiffs endured while playing NHL hockey were likely to expose them to neuro-degenerative disorders and diseases, including but not limited to CTE, Alzheimer’s disease or similar cognitive-impairing conditions;
based on the NHL’s voluntary undertaking to study the issue of MBTI, it had a duty to advise Plaintiffs of that heightened risk;
the NHL willfully and intentionally concealed from and misled Plaintiffs concerning that risk; and
the NHL recklessly endangered Plaintiffs

In August of 2014, the NHL moved for consolidation and centralization of these cases to a single jurisdiction in response to the number of separate, but related, class action lawsuits filed. After considering arguments from both sides, a panel of judges for the District of Columbia agreed that centralization in the District of Minnesota will serve the convenience of both parties because there are already two pending cases in that district. The order was filed on August 25, 2015; as a result, any and all additional concussion lawsuits will be tried in the District of Minnesota. Henceforth, the litigation will proceed pursuant to multidistrict litigation, or MDL. As a result, Minnesota law will not be applied to all nine cases, each case will have the laws of their respective jurisdiction apply. Traditionally MDL favors the defendants because they are not forced to fight a number of different legal battles in a number of different jurisdictions; it allows them to streamline litigation. Conversely, it requires the NHL to educate themselves and the judge on the jurisprudence of each jurisdiction where a complaint was filed.

Although the NHL may be favored under the application of MDL, the consolidation of these cases in the District of Minnesota may actually be the first real victory for the players because any and all NHL concussion litigation was assigned to Judge Susan Nelson. Judge Nelson is no stranger to sports law litigation; she momentarily ended the NFL lockout in 2011 by ruling in favor of the players in Brady v. NFL. Ultimately, this is only the tip of the iceberg. A large legal battle is about to take place in the District of Minnesota. It will be interesting to follow along and see how things play out.

Concussion Litigation

Rugby Union Likely To Face Legal Action On Concussions,…

A well known sports doctor has put out a warning that rugby union can expect a major string of legal claims by former players who are suffering the effects of concussion injuries. The former Ireland international and now sports medicine expert Barry O’Driscoll told an audience at the Professional Rugby Concussion forum on Thursday that lawyers have started “licking their lips” and that the sport may soon be in a situation similar to American football. There, the National Football League recently settled for $765m in a lawsuit brought by over 4,500 former football players who claimed the league had concealed the risks inherent to long-term brain damage.

Speaking at the forum, O’Driscoll said that rugby authorities had become “cavalier in the extreme,” bordering on madness, in the way they approached concussion. He used these strong words the same day as Labour MP Chris Bryant — himself a rugby player — called for parliamentary debate on concussion in sport.

Bryant stated that there is hard evidence that players who are forced to return to play after concussion easily find themselves suffering.

The Professional Rugby Concussion forum saw players, doctors, and coaches come together in order to improve the general understanding of issues surrounding concussion. O’Driscoll’s views were at the extreme end of what was discussed. (O’Driscoll originally tendered his resignation from the medical advisory board of the International Rugby Board to protest the way it handled concussion.)

O’Driscoll believes that the new IRB Pitch-side Concussion Assessment, or PCSA, provides insufficent protection to players against the risks of a serious injury. The PCSA requires players who are suspected of suffering with concussion must leave the field and undergo a five minute batters of standardised tests.

According to O’Driscoll, the mere suspicion of concussion should be sufficient cause to take a player out of a game. He thinks lawyers are seeing a major opportunity in the sport’s handling of the injury. In his view players who are given a PCSA and then allowed to go back into the game might start experiencing severe depression or migraines in five to ten years.

The head of sports medicine for the Rugby Football Union, Dr. Simon Kemp, explained at the forum that since the introduction of the PCSA, the instance of players who return to the field while suffering a concussion has fallen to 13% from 56% of diagnosed cases.

If O’Driscoll’s claims are true than this would not be the first time rugby teams have taken a cavalier attitude towards player health in the interest of winning matches. Though fans with World Cup rugby tickets will likely not be seeing “loaded” players due to enhanced testing standards, this hasn’t always been true: according to French investigative journalist Pierre Ballester, the French national rugby team was “loaded” with performance enhancing drugs during the 1980s, including during the team’s ferocious Nantes defeat of the All Blacks in 1986.

The All Blacks had won the previous Test match 19-7 in Toulouse the week before, but then the French players inflicted a 16-3 defeat on the other team at La Beaujoire Stadium in Nantes. According to the French team doctor during that period, Jacques Mombet, the French had used amphetamines to come back from the defeat. Mombet says the players each had a “little pill” put in front of their plates at the meal before the match.

Concussion Litigation

More pain for the NFL: The seemingly forgotten Dent…

Back in May 2014, former NFL players filed a lawsuit in a San Francisco federal court on behalf of over 600 former NFL players from 1969 to 2008. The complaint alleges that the NFL illegally supplied the players with narcotics and painkillers to mask their injuries during games. This alleged medical malpractice has since led to medical complications later in the players’ lives.

According to a recent Washington Post survey (see complaint), close to 9 out of 10 former players said that they played while injured. Also, 68% said they did not feel like they had a choice but to play hurt. Consequently, the complaint alleges that the NFL gave these players no choice but to play injured and acted unethically and illegally by substituting “pain medications for proper healthcare to keep the NFL’s tsunami of dollars flowing.” The complaint concludes that, “[i]n contravention of Federal criminal laws, the NFL has intentionally, recklessly and negligently created and maintained a culture of drug misuse, substituting players’ health for profit.”

This lawsuit portrays the NFL and its member teams as an astonishingly unethical entity by suppressing players’ pain to keep them on the field. Team doctors and trainers are described as continually administering the players medications without prescriptions and without warning of the dangers of addiction and side effects. The primary motive was to speed up the return of hurt players in order to maximize profits. At times, players were not even told about broken bones and were instead given pills to numb their injuries. There are also allegations that physicians were ignoring players’ medical histories, which could have resulted in fatal injuries due to each player’s “unique body chemistry.” In effect, the lawsuit depicts the NFL as a greedy enterprise which will stop at nothing to make money, including treating its players as “disposable assets” and “thoroughbreds” rather than human beings. The NFL and its team physicians, if the allegations prove true, would be in violation of the Controlled Substances Act, state laws, and the American Medical Association Code of Medical Ethics.

The lead attorney for the former players, Steven Silverman, listed the painkillers to be Percodan, Percocet, and Vicodin, with other common drugs administered being Ambien and Toradol. To illustrate the pervasiveness of this practice by the teams’ physicians, Silverman was quoted as saying the drugs were “handed out like candy at Halloween” and further noted that some of the drugs were even given in combinations, which the complaint refers to as “cocktailing.” The long-term effects of these drugs, according to the former players, have been kidney failure, high blood pressure, violent headaches, chronic muscle and bone ailments, and permanent nerve and organ damage.

While the American Medical Association provides a code of ethics for its physicians, it is difficult for the NFL to ensure that the physicians are doing their job correctly and ethically. The NFL has failed over the years to stop this mistreatment and lack of informed consent as evidenced by this case, the concussion litigation, and other cases involving a range of issues. Without authoritative action to protect current and former players, these problems will persist, as the costs of these lawsuits do not outweigh the benefits that this mistreatment provides the NFL through profits.

It will be interesting to see how this lawsuit plays out. There is little coverage of this lawsuit today. However, as it progresses and picks up steam, these allegations could prove to be just as threatening to the NFL as other recent controversies. More than likely, the NFL will try to settle early in attempt to avoid discovery and to avoid revealing potentially harmful information. After the Ray Rice scandal, concussion litigation, and a plethora of other blemishes on the NFL’s reputation lately, it is expected that the NFL will seek to avoid more litigation and negative exposure.

Concussion Litigation

Umpire Sues Wilson Sport Goods Following Concussion

The following article was written by Spencer Wingate.

Major League Umpire Edwin Hickox and his wife are suing Amer Sports Corporation and their subsidiary Wilson Sporting Goods due to a concussion he suffered three years ago. The New York Yankees were hosting the Cleveland Indians on April 18^th 2009 in a game Hickox was working as the ump behind home plate. In the sixth inning, Indians batter Ben Francisco foul tipped a ball that hit Hickox’s Wilson facemask. The ball cracked the mask and fractured it into pieces. As a result of the incident, he suffered a concussion, injuries to his ear, and a closed head injury. Hickox contends the mask malfunctioned, as it is designed to protect him. Due to the damage, Hickox, represented in Bronx County Supreme Court by Howard Richman with Grant Richman PLLC, missed work and racked up medical bills. He is seeking compensatory and punitive damages for personal injury, breach of contract warranty, defective design, false advertising, along with additional charges.

Concussion Litigation

When The Bell Has Rung, The ‘Sharks’ Will Come

The following is a guest post made by Paul D. Anderson. Anderson is a third-year law student at the University of Missouri-Kansas City. He is the creator/editor of NFLconcussionlitigation.com. You can follow him on twitter @PaulD_Anderson to stay up-to-date on the concussion litigation front.

We’ve all seen the annoying commercials, “BAD DRUG?!” call Pulaski & Middleman for a free consultation so you can learn about your rights. Anytime a potential mass tort or consumer class action arises, you will see law firms employing their PR campaigns in an attempt to entice clients. Ethically, it is permitted, to a certain extent. Historically, advertising by a lawyer was frowned upon, and many lawyers still share the sentiment that the best way to attract clients is through a solid reputation.

The Supreme Court in Bates v. State Bar of Arizona addressed the constitutionality of attorney advertising. The case made its way to the Supreme Court after two lawyers were suspended for advertising in a local newspaper. The suspended lawyers challenged the State Bar of Arizona’s ban on advertising, arguing, among other things, that it stifled an individual’s First Amendment right to free speech.

The Court ruled in favor of advertising and held that it provides a societal benefit by promoting informed and reliable decision-making when it comes to choosing an attorney. The Court, although finding this protected free speech, left it to the states to regulate attorney advertising. Thus, advertising is ok so long as it is not deceptive or misleading.

The following year, the Supreme Court addressed the issue of attorney solicitation in Ohralik v. Ohio State Bar Ass’n. The Ohio Code of Professional Responsibility included a provision that barred lawyers from in-person solicitation. The offending Ohio lawyer personally contacted two accident victims and offered to represent them on a contingency-fee basis. The Court upheld the provision and attempted to distinguish between overreaching attorneys soliciting for pecuniary gain versus lawyers doing it for other reasons.

Each state has adopted some form of the ABA Model Rules of Professional Responsibility that’s aimed at regulating attorney conduct. As Darren Heitner highlighted in his prior post at Sports Agent Blog, Rule 7.3 attempts to codify Ohralik’s holding: “A lawyer shall not…solicit…a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain….”

Due to the explosion of concussion-related lawsuits filed against the NFL, lawyers throughout the country are seeking former players to join the concussion lawsuits. The majority of advertising that has been used is, for the most part, within the ethical boundaries of the Model Rules. But let’s take a look at the advertising campaigns being employed.

The Locks Law Firm, in conjunction with the Mitnick Law Firm, has taken the lead in its representation of former players. Although the Firm didn’t file its first concussion-related lawsuit until mid-January, it has already contracted with over 250 former players. Much of this likely has to do with the creation of playerinjury.com and the hiring of the Star Group, a marketing and PR firm.

Playerinjury.com provides a seamless way to join the lawsuits. It includes a questionnaire for former NFL players to fill out and then requests if the prospective client wants to sign a retainer agreement. This impersonal method of contracting has led several former players to be named in multiple lawsuits. For example, on davepear.com, a post was created reminding players not to sign up with more than one law firm. In the comments section, former player, Council Rudolph, stated, “I signed with two law firms only because the first one never let me know if they had received my paper work after three calls to them and no returned calls 6 months later.”

In addition to playerinjury.com, the Star Group has engaged in a marketing campaign that delivers press releases to various media outlets each time the Locks/Mitnick Law Firm files a lawsuit. Likewise, Craig Mitnick, with the assistance of the Star Group, created a video discussing the allegations of the lawsuits. The Star Group has requested various blogs and media outlets to promote the video on their respective websites.

Next, by entering a simple Google search, “NFL concussions,” you will instantly see at least two advertisements directed at former players. The first, from playerinjury.com, which directs you to the website and asks you to fill out the questionnaire. The second advertisement is from NFLheadinjurylawsuits.com, and the Kyros Law Firm. The website claims that “We represent NFL players with health concerns.” However, according to my records, the Kyros Law Firm is not a named lawyer in any of the complaints filed. This assertion could qualify as being “deceptive” and in violation of Model Rule 7.1, which prohibits misleading communication.

Finally, as reported by Darren Heitner, Billy Conaty may have violated Model Rule 7.3 by emailing former players, requesting that they contact him to join the concussion lawsuits.

The ‘sharks’ have started to swarm, and one can only hope that if they continue to advertise, they do it within the ethical limits that they swore to at the time they became a lawyer. Advertising is indeed a helpful and informative service, but lawyers and the public should keep others accountable when they cross the line between advertising and unethical solicitation. Which side of the line the above advertising campaigns fall on is an open question.

Concussion Litigation

Death over Concussion Issues Brings Suit

The following article was written by Cyle Kiger.

Dave Duerson died a year ago due to a self-inflicted gunshot wound to the chest. There were times in his 11 year career where he lost consciousness during games, and had more than 10 concussions. Duerson, a member of the ’85 Bears and ’90 Giants Super Bowl teams, left a note to have his family donate his brain to Boston University’s School of Medicine.

The lawsuit was filed for a wrongful death claim against the NFL. Tregg, Duerson’s son, filed the claim on behalf of his family, stating that the NFL did not do enough to prevent or treat the concussions of his father. The family wants to know how the NFL handled concussions during Duerson’s career.

Concussion litigation is becoming more familiar to the NFL with each passing day. The league may be looking at an expensive 18 suits, not including Duerson’s case. There are currently 657 retired players suing the league, none of which have as strong a case as Duerson, says Dan Pompei of the Chicago Tribune. It should not go without saying that 11 former New Orleans Saints also filed suit against the NFL for concussion issues more than a week ago.

Tregg Duerson said at a press conference, “If they(NFL) knowingly failed to inform and implement proper safety concussion procedures, then their indifference was the epitome of injustice.” The Duerson family is accusing the NFL of negligently not warning Dave Duerson of the negative effects of concussions. The suit also involves Riddell Inc., claiming that the helmets did not adequately protect players.

This writer doesn’t like to see injuries happen in any sport, but watching the incredible hits that occur on a weekly basis is what the fans of the NFL thrive for. Player safety has hit No. 1 on the league’s priorities, and very well should be.

However, the rule changes lead to missed calls; protecting players on good football plays will ultimately be the downfall to the NFL. Dr. Hunt Batjer said to the Chicago Tribune that changing the kickoff rule reduced the number of concussions by 50% on kickoff, but it still isn’t enough to change the culture of the league.

The NFL is cracking down on players for malicious hits, with penalties and fines. Fines have reached $75,000 (the particular incident involving James Harrison of the Pittsburgh Steelers). What does the NFL do with fines that are for blows to the head? I know some fines goes to a fund for retired players. I think a good way the NFL could help with the issue is to donate the fines from illegal hits to the head to a leading brain trauma research center, and make some headway on the issue.

Concussion Litigation

NFL Faces Two Additional Law Suits Stemming from Head…

The following article was written by Spencer Wingate.

Wally Hilgenberg, a 16-year NFL veteran, died from Lou Gehrig’s disease in 2008. His family donated his organs to Boston University School of Medicine. Shockingly, in 2010, the school announced the doctor’s original diagnosis was mistaken. Hilgenberg had actually died from Chronic Traumatic Encephalopathy (CTE). CTE is a progressive degenerative disease found in individuals suffering from repeated head injuries. Symptoms sometimes do not appear for decades after the injuries first occur.

Following his retirement from football in 1979, Hilgenberg had started a successful real estate business. However, beginning in 2003, he began to suffer from memory loss and muscle weakness. Wally’s son Eric Hilgenberg is claiming the NFL’s negligence led to his father’s death. He is suing the NFL for wrongful death on his own behalf, father’s estate, and for his mother. The complaint states the NFL has repeatedly distorted its’ own data regarding neurological disorders. His suit claims that since the 1960s, the NFL has been aware of the dangers of concussions, but continuing into 2009, has kept refuting the data. The Hilgenberg family is represented by Larry Coben and Sol Weiss with Anapol, Schwartz. They are seeking reimbursement from the NFL for charges of concealment, civil conspiracy, and negligence.

More than forty former players and their wives filed a similar complaint against the NFL. NFL Network Analyst Brian Baldinger (amongst others) is claiming that the NFL refuses to acknowledge the greater risk of former players to suffer from post traumatic brain injuries. Gene Locks, led by Britt and Bridgette Hager, is representing the plaintiffs.

Both suits contend the NFL needs to develop appropriate means to identify at-risk players and guidelines for returning to play. After retirement, players are forced to deal with long-term injury and illness. They believe the NFL cannot continue to deny long term mental health disabilities that their scientific research confirms. Players commonly have dizziness, memory-loss, dementia, Alzheimer’s disease, and encephalopathy that can sometimes lead to a premature death. Courthouse News’ report of the story references the tragic death of Chicago Bears defensive back Dave Duerson in February 2011. Duerson shot himself, presumably to save his brain. He was suffering from chronic traumatic encephalopathy.

Earlier this month it was reported that the NFL was attempting to insert a waiver into players’ contracts forcing them to waive their right to sue over medical issues. The NFL denied the claim and the NFLPA stated they would not allow such a waiver. As lawsuits against the NFL continue to emerge, the same issues continue to surface. The league must be held accountable for the safety of current and former player. However, football is an incredibly physical game. Injuries are part of game that can never be fully eliminated; just hopefully reduced. The NFL’s attempts at rule changes in the name of safer play have been met with intense scrutiny. Players’ competitive nature and passion for the game causes them to play through injuries. The NFL and players must understand that safety is the utmost concern. Controversy is inevitable regarding rule changes and players’ safety. Anytime the status quo is altered reactions will be mixed. The NFL and NFLPA must make the tough decisions to implement a system that ensures the well being of players, not only now, but further down the line.

Kyle Elliott, MPA, CHES: Darren is the best there is. He is the ideal lawyer — smart, dependable, and wickedly fast at responding to email. I love my lawyer!

K.L. Randis, Author: Emailed my lawyer for breach of contract issues & he responded within the hour with several solutions. One of the many reasons I love the professionalism of Darren Heitner. He handles everything with authority and seriousness & has never let me down.

Shaun P. Herness, Ph.D.: Darren Heitner is the only attorney I’ve met that communicates effectively with the client and gets things done in a timely manner.

Rob Katz of Webonise: I have have solicited Darren’s advice and have hired him to help us with some intellectual property matters and would strongly recommend him to others.

Leon McKenzie of Sure Sports: There isn’t a sports attorney in the country that will protect your interests better for your current situation or your foreseeable future.

Tim Stephens of INFLCR: As a client of Heitner Legal, I cannot speak highly enough of Darren and his team. Darren is simply the best. Five stars!

Matthew J. Casto of The Sports Agency: Darren and his team are simply the best. My agency feels 10ft tall and bullet proof with him by our side. He has a special way of making you feel like you are his firms most important client.