For those keeping score …
The media closely follows and reports new chronic traumatic encephalopathy (CTE) developments from the medical community.1 Trends and waves of CTE litigation also are well reported.2 Wikipedia now hosts a “List of NFL players with chronic traumatic encephalopathy.”3 Even though suicide mortality among NFL players is less than half that of the general population, there is an assumption in medical literature and the media that CTE causes depression and suicide.4 If this is all we see, the picture for sports organizations and insurers defending CTE cases is bleak.
Or is it? Let’s look at some real outcomes.
Scores of suits have been filed against sports organizations by living plaintiffs for fear that they might fall prey to CTE, and by the estates of players who committed suicide. As of this writing, no jury has awarded damages and no court has granted summary judgment in favor of a CTE wrongful death plaintiff. Not Ray Easterling. Not Dave Duerson. Not Junior Seau. Not Aaron Hernandez. None. In fact, the reported judicial outcomes have overwhelmingly favored the defense:
In one class action, the Central District of California issued three significant defense victories: (1) dismissing four individual claims brought by living plaintiffs for “fear of CTE,”5 (2) denying class certification6 and (3) granting summary judgment to the defendant organization on specific causation.7
The Eastern District of Pennsylvania certified an NFL concussion settlement class because “compensation would be uncertain.”8
After a criminal trial and conviction for first-degree murder, the Central District of California rejected a petition for continuance to assert a CTE defense, finding that the mere claim that petitioner suffered concussions playing football, without more, was insufficient to grant the continuance.9
In one of the NCAA sub-class cases, the District of Columbia dismissed a collegiate field hockey player’s negligence and medical malpractice claims for post-concussion syndrome against university defendants, based on the participant waiver.10
In a verdict on May 23, 2019, a Pennsylvania jury returned a defense verdict in favor of the NCAA in Onyshko v. NCAA.11 Onyshko claimed to suffer amyotrophic lateral sclerosis, a neuro-degenerative condition associated with hyperphosphorylated tau protein, by reason of concussions suffered in college football.
So, for those keeping score on outcomes, the defense is winning.
This article was prepared with the assistance of Andrea Strain (Associate-Stamford, CT) and H. Matson Coxe (Associate-McLean, VA).
1 A sample of recent CTE news articles from Google includes: “What is CTE and how does football increase the risk?" "Head injuries and sport: confusion, anger and lots of difficult questions," "Q&A: Why are so many former footballers suffering from dementia? " "Former Vikings great Matt Blair dies at age 70, likely linked to CTE," "The NFL’s biggest headache," "Decades of Sometimes Bizarre Research Makes ‘MIPS’-Equipped Helmets a Safer Place for Your Head."
2 Recent sports CTE litigation articles include: "The Lawyer Who Took on the NFL Over Concussions Has a New Strategy That Could Devastate the NCAA," "Lawsuit claims concussions turned ASU linebacker Jason Franklin’s dreams to despair," "Prominent civil rights attorney files wrongful death lawsuit on behalf of Nahje Flowers’ estate."
4 “Suicide and Chronic Traumatic Encephalopathy,” Grant l. Iverson, Ph.D., J Neuropsychiatry Clin Neurosci 2016; 28:9–16; doi: 10.1176/appi.neuropsych.15070172.
5 Archie, et al. v. Pop Warner, USDC CDCA, No. 2:16-cv-06603. Plaintiff McCrae’s claim with respect to her son Richard Caldwell was dismissed for failing to satisfy the discovery rule. (“…that McCrae ‘did not become aware that Richard’s participation in youth tackle football caused him to develop chronic traumatic brain injuries until the issue was widely publicized in December 2015’ … falls short of meeting the discovery rule…” Archie v. Pop Warner, 20, 2017, Docket No. 107, at 8, 9). The Barnes plaintiffs’ claims were dismissed for lack of standing (“… the increased risk of a future potential injury is insufficient to meet the injury in fact requirement of Article III standing.” Archie v. Pop Warner, Oct 20, 2017, Docket No. 107, at 11, 12).
6 Archie v. Pop Warner. “…the Court finds that the class cannot satisfy the predominance requirement of Rule 23(b)(3).” …”Archie v. Pop Warner, 11, 2019, Docket No. 194, at 4.
7 Archie v. Pop Warner. “Plaintiffs essentially argue that any child that plays Pop Warner football, simply by virtue of participating, without any documentation of head trauma, if found with CTE post-mortem has a viable cause of action based on any occurrence as a result of recklessness or mood behaviors in that person’s life. The Court does not agree that this satisfies the factual causation standard. Archie v. Pop Warner, 27, 2019, Docket No. 267, at 20.
8 In Re: Nat’l Football League, 307 F.R.D. 351, at 382. Parsing the scientific evidence, Judge Brody … observed “More importantly, researchers have not determined what symptoms individuals with CTE typically suffer from while they are alive.” 307 F.R.D. 351, at 398.
9 Humphries v. Sherman. The trial court questioned Petitioner's proposed counsel about the factual basis for pursuing a CTE defense and found it wanting. (6 RT 3607-13.) Counsel was relying on Petitioner's statements that he had suffered concussions during his football-playing years and on his own impressions of Petitioner. (6 RT 3609, 3612-13.) Counsel could not point to any medical evidence substantiating Petitioner's head injuries and concussions. The trial court stated that Petitioner had received extensive mental health evaluations during pretrial proceedings; he had not shown any problematic behavior or indications of mental illness at trial; he had been responsive and articulate on the stand; and he had not mentioned head injuries or concussions when he testified.” (6 RT 3606-12.) Humphries v. Sherman, CV 18-5748, 2019 U.S. Dist. LEXIS 88116, April 11, 2019.
10 Bradley v. NCAA. “Therefore, the Court agrees with the University defendants that "[b]ecause the Acknowledgement of Risk form signed by [the] [p]laintiff applies to injuries arising from inherent risks of the sport, such as concussions, as well as the subsequent treatment of such injuries, the] [University] [d]efendants are entitled to summary judgment as a matter of law," Univ. Defs.' Mem. at 20, and "concludes that the  District of Columbia would apply its normal rule enforcing waivers that are clear and unambiguous” Bradley v. NCAA, 16-346, 2020 US Dist Lexis 94091, May 29, 2020.
11 No. C-63-CV-201403620 (Wash. Cty. Ct. Comm. Pleas, PA).