A group of 75 plaintiffs, led by Vernon Maxwell, recently filed suit against the National Football League and its helmet manufacturer(s), alleging that the NFL knew the risks of exposing its players to repeated concussions and hid those risks from players.
The complaint, which can be read in its entirety here, claims that multiple concussions caused Chronic Traumatic Encephalopathy (CTE), and led to the early deaths of several former players. The lawsuit states that in 2002, Dr. Bennet Omalu found CTE in the brain of former Pittsburgh Steelers center Mike Webster. Then, in 2004, the NFL Committee on Mild Traumatic Brain Injury (MTBI) published their findings showing “no evidence of worsening injury or chronic cumulative effects” from multiple concussions. Finally, in June, 2010, the NFL acknowledged that concussions can lead to dementia, memory loss, CTE, and related symptoms.
The lawsuit at Paragraph 111 claims the NFL knew as early as the 1920s of the harmful effects of concussions on players’ brains, and that these effects were concealed until 2010. The suit goes on to allege in the next paragraph that the 75 plaintiffs did not know the long-term effects of concussions and relied on the NFL and the helmet makers (referred to in the complaint as the “Riddell Defendants”) to protect them.
The suit states that it arises for two reasons: (1) the failure to warn and protect players against the long-term brain injury risks, and (2) because the NFL negligently failed to enact league-wide guidelines and mandatory rules regulating post-concussion medical treatment and the “return-to-play standards” for players who suffer one or more concussions. These statements are interesting because the league has recently enacted such guidelines and rules and the scuttlebutt is that the players are already devising ways to beat the tests to get back on the field. If this case makes it to trial, it is not a stretch to say that the entire culture of the NFL will be on trial.
The suit contends that the NFL’s failures have resulted in the deaths of some players and brain injuries to others, including these plaintiffs.
The crux of the suit centers on the creation in 1994 of the NFL’s Mild Traumatic Brain Injury Committee, which is more or less alleged to be a farce and a sham, complicit in duping the NFL’s players into believing that concussions were, singularly or cumulatively, harmless. The NFL’s MTBI Committee is alleged to have studied the short-term effects of concussions on NFL players and concluded that “because a significant percentage of players returned to play in the same game [as they suffered a mild traumatic brain injury] and the overwhelming majority of players with concussions were kept out of football-related activities for less than one week, it can be concluded that mild TBI’s in professional football are not serious injuries.” In tenth grade I did a science fair project on the effects of a rock concert on hearing loss. Based on my own personal experience, I concluded that ringing in the ears for 24-48 hours is expected but thereafter hearing returned to normal. It appears as though I should have set my course on becoming a doctor for the NFL in spite of the “D” that I received for my efforts.
The suit goes on to claim that the NFL, through its MTBI Committee, intended to deceive its players until the body of evidence regarding the long-term effects of concussions was simply too great and, in 2010, the NFL capitulated under the weight of the evidence.
Initial reaction from fans, by way of message boards and blogs, indicates an overwhelming reluctance to buy into the former players’ cause. Implicitly or explicitly, the “court of public opinion” believes that players assumed the risks of injuries, including multiple concussions. “Primary assumption of risk arises where a plaintiff voluntarily participates in an activity or sport involving certain inherent risks; primary assumption of risk … bar[s] recovery because no duty of care is owed as to such risks.” (Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 11.) The NFL has a duty not to increase risks to its players, which it arguably violated by and through the (allegedly) sham NFL MTBI Committee. (Note: The NFL MTBI Committee was established in 1994; only 20 of the plaintiffs in the lawsuit played in 1994 or later.) The NFL will argue that its only duty was to decrease the risk of violent collisions, which are certainly inherent in the sport, and therefore it breached no duty.
Finally, the suit lists 36 sources of information “available and easily accessible to the Defendants” regarding the long-term effects of concussions”; if that information was available and easily accessible to the Defendants, doesn’t that also mean that it was available and easily accessible to the players and their union? The plaintiffs’ argument in this regard certainly cuts both ways.
What we know for sure is that concussions (aka mild traumatic brain injuries, or MTBIs) are cumulative, and that the long-term effects are both dangerous and debilitating. The Maxwell plaintiffs are going to have to overcome several prominent legal hurdles, including (1) issues with the applicable statute(s) of limitations, as many of these players’ careers ended 10, 20, 30, or even 40 years ago, (2) that the players did not assume the risk of the head injuries when they chose football as their respective careers, and (3) showing that the NFL had access to knowledge that the players did not have regarding the long-term effects of concussions, and that the NFL actively concealed that knowledge from the players. Stay tuned…
To view a PDF of the operative complaint, click here.
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Most retail stores have closed circuit cameras to record surveillance video of activities that occur within the store. In the days of VHS tapes, retailers would often have a Monday tape, and a Tuesday tape, and so on, so that every seven days they would put the tape back into the machine and erase the previous week’s footage.
Surprisingly, in the digital era many companies still erase footage that is more than a week old. The statute of limitations in California for a claim based upon negligence is two years. This means if you were injured inside of a California retail location, or outside on its premises, you have two years to file suit. But you only have one week to notify the store of the incident, and to request that the store save its video from the incident.
While it may seem obvious that you should immediately report an incident to store personnel if you are injured in a store due to a slip-and-fall or trip-and-fall accident, many people at the time of the accident insist they are fine, only to later realize that their sore knee has torn ligaments, or their aching ankle has a torn tendon. At the same time, you should request that any and all store video be retained (generally it can simply be burned onto a CD) pending the outcome of any insurance claim that you make. Similarly, businesses in which an injury claim is made should prepare an incident report for every reported incident, and should have a policy in place to ensure that video is saved that corresponds to every reported incident.
I have a case right now where my client was wrongfully accused of shoplifting. The retailer had at least five cameras in the store but kept the footage from only one camera. The retailer retained one video since it decided to press charges with the authorities with respect to the alleged shoplifting and the one camera had the most footage of my client’s visit to the store. However, there are several relevant activities that were presumably caught on video that we now have to piece together through testimony rather than being able to see them on tape:
- My client set off the theft sensor when she entered the store; there is no footage of this.
- My client set off the sensor as she exited the store; there is no footage to confirm whether she acknowledged a sales associate when leaving.
- My client, who was five months pregnant at the time of the incident, is alleged to have suspiciously run to her car. (As far as I know, the only thing a woman who is five months pregnant runs to is the bathroom.) Predictably, there is no video of this “suspicious” behavior.
Whether you are a business or an individual claiming to have been injured on a business property, it is very important that the best evidence of the incident be preserved. Businesses can only save what they are made aware of, so while the statute for filing a negligence lawsuit in California is two years, the earlier the claim is made directly with the business, the more likely that your best evidence will be preserved. If you think you may have been injured on a business premises, advise the business’s management as soon as possible, and you may want to contact an attorney to preserve both your rights and your evidence.
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On the third day of torts in law school, while the summer sun still blazes and classrooms are a sticky 94 degrees, the concept of assumption of risk in the context of sporting events is introduced. It’s prime fodder for the Socratic method; the professor can keep creating hypotheticals until the line between expected and unexpected is crossed. The theory, quite simply, is that there are risks inherent in engaging in sporting events – an elbow to the face in basketball, torn knee ligaments in football. And, apparently, shanked shots in golf:
http://sports.espn.go.com/golf/news/story?id=5942382
The New York court in the case above clarified its standard for assumption of the risk in the context of a sporting event: “a plaintiff will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks.” The law in California is similar; the conduct has to go well beyond what could reasonably be anticipated in the context of the sporting event in order for a lawsuit to proceed. If it’s in the gray area, you have probably assumed the risk of injury.
A colleague of mine had a case a couple of years ago in which a basketball player claimed to have torn his anterior cruciate ligament (ACL) when he was “tackled” from behind by an opponent. If true, this would be deemed and intentional or reckless act, and arguably would give rise to a lawsuit. Furthermore, the injured player claimed that the opponent was well-known within the league for reckless and dangerous play, and that the injury came about directly as a result of conduct well outside the bounds of what could reasonably be expected or anticipated; in other words, the conduct was not of the type of risk that one assumes when they go and play in their church recreation basketball league on Sunday morning.
As expected, the defendant argued that the foul was just a foul, exactly as you would anticipate in any basketball game. The plaintiff (the player who had been fouled) had to show that the conduct was intentional or reckless, and/or that the defendant had unreasonably increased the risks of injury. Initially, one of the league’s referees (who was not refereeing that particular game) supported the plaintiff’s theory that the foul had been intentional or reckless, directly leading to the injury. However, during the course of discovery the other players on the court and the game’s referee confirmed that neither a flagrant foul nor a technical foul was called on the play in question, and that the foul was, in fact, just a garden variety foul. The shooter came down wrong and was injured – exactly the type of injury contemplated when you step onto the basketball court. The shooter therefore had assumed the risk of injury (and misled his lawyer as to the manner in which the injury was caused).
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It was recently reported that a San Diego Police Department vehicle struck and killed a bicyclist in University City this morning. This is obviously a tragic accident and our condolences go out to the family of the deceased, whose name has not yet been released.
There were a couple of interesting points in the U-T’s coverage of the incident, which can be found here:
http://www.signonsandiego.com/news/2009/nov/09/bicyclist-struck-and-killed-san-diego-police-car/
First, if the bicyclist’s family were to pursue a lawsuit it would be for wrongful death on the premise that the officer driving the vehicle was negligent. But there was also a report that the bicyclist’s helmet came off in the accident. It is much too early to ascertain the cause of death, but this could also turn into a product defect case against the helmet manufacturer if it is found that the death was caused, in whole or in part, by an injury to the bicyclist’s head.
Second, the police have already apparently concluded that the incident was the fault of the bicyclist, who is alleged to have exited a driveway right into traffic. The patrol car is alleged to have been heading to the scene of another accident, but was doing so without its lights on and under the posted speed limit of 45 mph. Genesee Ave. runs north-south at Governor Dr. There are gasoline stations on all four corners of the intersection of Genesee Ave. and Governor Dr.
“Authorities said the bicyclist turned out of a gas station parking lot and headed south in the bike lane of Genesee Avenue at about 7:15 a.m. Then, police say, he crossed a lane and collided with the patrol car, about 40 feet north of the intersection at Governor Drive.”
I would like to see a copy of the police report, but this description of the scene on its face doesn’t make much sense. First, the posted speed limit on Genesee Ave. is 45 mph, so the officer was travelling north-south at the time of the accident. Second, the bicyclist is alleged to have exited one of the gas stations heading southbound on Genesee Ave., but the accident is alleged to have occurred 40’ north of the intersection with Governor Dr. Unless he was travelling opposite traffic (unlikely if this was part of a normal morning ride), the bicyclist had to be exiting one of the gas stations on the west side of Genesee, most likely the service station on the northwest corner. This means the bicyclist would be exiting the station and crossing Governor Dr., heading south on Genesee. Third, it is imperative to know what color the light was if the bicyclist was in fact crossing Governor Dr., and whether or not the officer in question may have been proceeding through a red light (albeit with lights/sirens off and under the posted speed limit of 45 mph).
In short, either the reporting of this event is off, or the police are mistaken in their reconstruction. As I said, maybe the police report will shed some light on this incident. In any event, there are plenty of details still to figure out, and my suspicion is that liability is not as clear as has been currently painted by the SDPD.
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