Posts Tagged ‘NFL concussion litigation’

The NFL Concussion Settlement: A Very Problematic, Mixed Bag – posted on 8/16/2015

August 16, 2015 Leave a comment

With football returning, it is a good time to revisit developments in how the NFL is handling its achilles heel – the matter of concussions and repetitive head trauma. Deflategate is a sideshow. The deeper and darker side of the NFL is its handling of the players who have suffered repeated head injuries.

When I heard that Junior Seau’s daughter, Sydney Seau, was going to talk about her father at the Pro Football Hall of Fame ceremony earlier this month, I wondered if she would talk about her father’s brain injury. The NFL just posthumously entered Junior Seau into the Hall of Fame.

Apparently, the NFL also worried about what Sydney Seau might say because she was not allowed to give a speech at the ceremony. The NFL sidelined Sydney, allowing her only a few minutes on the NFL Network. How thin-skinned can you get!

It turned out that Sydney did not plan to use her speech to discuss her father’s brain injuries. Her remarks were a very moving tribute to her father. Considering that the Pro Football Hall of Fame ceremony went on for three and a half hours, it is sad the NFL could not allow the daughter of one of its greatest players her few minutes.

Concern about image trumped all other concerns. If Sydney Seau had gone off script and inveighed against football-related brain injuries, would the sky have fallen? The NFL money machine was taking no chances. They still balk at the simple and direct message: football produces brain injuries. Money always comes first with the NFL. Troubling images must be banished.

Probably the biggest pro football news of this year’s offseason was the settlement of the federal court class action lawsuit between the NFL and thousands of former players. On April 22, 2015, Federal Judge Anita Brody granted final approval to the NFL’s concussion settlement.

However, the lawsuit is certainly not over. Judge Brody must weigh final objections to the settlement and retired players must decide whether to opt out of the class. If individual players opt out, they could pursue individual lawsuits against the NFL. The class action case will definitely go to the Third Circuit Court of Appeals.

It is hard to feel too good about the settlement. While it does provide important, much-needed relief for players who suffer from Alzheimer’s, ALS, Parkinson’s and dementia, there is a big hole in the settlement agreement. The overwhelming majority of class members will receive nothing.

That is because chronic traumatic encephalopathy or CTE, the most prominent disease affecting retired players, is not compensable under the terms of the settlement. CTE claims have an extremely narrow window. Only players who have died and were diagnosed with CTE at anytime between January 1, 2006 and the date of final approval of the settlement, April 22, 2015, can be compensated.

I suppose this is not unlike many settlement agreements. A number will get very fair compensation but the terms of the agreement for those who have or will have CTE are nothing short of disastrous. Tons of players are absolutely left out.

Attorney Paul Anderson, an expert on the NFL and concussions, described the lawsuit settlement this way:

“The NFL Concussion Litigation was initially framed as a CTE lawsuit, but as negotiations progressed it was transformed into a cognitive-disorder settlement, all-but eviscerating future awards of CTE. CTE has been described as “the industrial disease of football”. Some objectors analogized the failure to compensate CTE in this case to an asbestos settlement excluding compensation for mesothelioma.”

Without getting too technical, CTE is a neurodegenerative disease that can lead to dramatic changes in mood, behavior, and cognition. A critical indicator of CTE is the build-up in the brain of an abnormal protein called tau. Making things tricky, these changes in the brain can sometimes start years or decades after an athlete’s career is over. We know that repetitive brain trauma can trigger a flood of events leading to progressive destruction of brain tissue.

Symptoms of CTE can include irritability, depression, memory loss, mood swings and emotional lability. CTE is also connected to violence, explosivity, social isolation, drug overdoses, suicides and loss of behavioral control. The medical world has delineated four stages of CTE with dementia classified as the final stage. At present, CTE can only be diagnosed after death.

CTE causes tremendous pain and suffering for family members who watch their former world class athlete/relatives deteriorate before their eyes. Some CTE sufferers become unable to do the most basic activities of daily living like dressing, feeding, and toileting themselves.

The settlement agreement forecloses any future awards for CTE. So if a retired player dies and he is then subsequently diagnosed with CTE after he dies, he will receive zero compensation unless he can prove he was cognitively impaired. Many classic symptoms of CTE, mood and behavior difficulties, are not compensable under the agreement. The agreement remains in effect for the next 65 years.

Junior Seau is a perfect example of the type of player who would not be compensated under the agreement. The symptoms he exhibited do not fit the terms of the settlement and his family opted out. So far 200 ex-NFL players have indicated they will opt out of the settlement.

Seven retired players including Sean Morey and Alan Faneca have already filed an objection to the settlement arguing the agreement is a lousy deal for the players but a great deal for the NFL and class counsel. The players criticize class counsel for failing to do any discovery. Many wonder whether taking testimony from NFL officials and gathering documents from the league would show whether the NFL concealed the dangers of concussions from the players.

A leading Boston University researcher and neuropsychologist, Dr. Robert Stern, has criticized the agreement because of the way it handles CTE. After the agreement, Dr. Stern told the Associated Press:

“Repetitive hits to the head do not lead to Alzheimer’s disease. They lead to CTE, if anything.”

Dr. Stern has written that many former NFL players have significant changes in mood and behavior, resulting, in part, from repetitive head impacts, that have led to inability to maintain employment, homelessness, domestic abuse, divorce, substance abuse, excessive gambling, poor financial decision-making and death from accidental drug overdoses or suicide.

Dr. Stern believes that in the next five to ten years there will be an accurate, clinically accepted and FDA-approved method to diagnose CTE during life.

As probably is obvious, the science around CTE is in its infancy. With the current state of science it is difficult to prove causation of former players’ behavior and mood problems with CTE even though it is seemingly apparent. There is a provision in the settlement agreement that the parties confer at least once every ten years to determine whether adjustments to the qualifying diagnoses need to be made due to advances in science.

You do not have to be a cynic to know it is highly unlikely the NFL will voluntarily reopen the resolution of CTE cases relative to the settlement agreement. Probably the only way that will happen is if a court forces that.

I remain a football fan but I would acknowledge the nasty underside of the NFL. There is a litany of sins but I think its treatment of retired, injured players is probably the worst. Someone should write a book looking into the health issues of all the journeymen ex-players who were chewed up and spit out. Most players were not stars leading enchanted lives. It would be good to know how they are faring years after leaving the game. I think we have a very limited picture of that. I expect there is a wealth of material there.

It remains to be seen whether Judge Brody or the Third Circuit will allow the exclusion of CTE from the settlement agreement which lasts 65 years.

Exposing All The Harm: Football Players and Head Damage – posted 1/1/2015 and published in the Concord Monitor on 1/9/2015

January 1, 2015 6 comments

This article appeared in the Concord Monitor on January 9, 2015 under the title “The Offseason”.

I think there is plenty of room to disagree about the most compelling football or football-related story of 2014. Locally some might pick the New England Patriots’ surprising run which may lead to a Super Bowl appearance. As I recall, part of the fan base was ready to unload the quarterback and the coach early in the season.

Then there was the Washington Redskins’ name controversy which threatened to reach critical mass. In November, thousands of Native Americans in Minnesota protested the racist name saying, “We don’t want to be your mascot.”

I also would mention the Ray Rice and Adrian Peterson stories. They unintentionally shed light on some typically hidden realities.

The saddest story was the suicide of Ohio State football player, Kosta Karageorge.The police found Karageorge’s body, along with a handgun, in a dumpster. They ruled Karageorge died of a self-inflicted gunshot wound.

Karageorge’s mother told police her son had sustained several concussions and he suffered from “confusion spells”. Shortly before he died Karageorge sent his mother the following text message: “I am sorry if I am an embarrassment but these concussions have my head all fucked up.”

The concussion/brain injury story must remain at the top of the football story list. The NFL itself announced this fall that it expects a third of retired players to develop long-term cognitive problems. That could be Alzheimer’s, Parkinson’s, Lou Gehrig’s Disease, or dementia.

Just to spell it out a bit more, the NFL’s own actuarials show that players who live to age 50-59 develop Alzheimer’s and dementia at a rate 14 to 23 times higher than the general population of the same age group. For the age group 60-64, the rate is 35 times higher.

NFL players can expect to die 20 years earlier than the average American male. Research from Harvard initiated by the NFL Players’ Association concluded that the average life expectancy for NFL players is in the mid to late 50’s.

The health consequences of football is a still unravelling mystery although pieces of the puzzle have become clear. The American people need the whole picture, unvarnished. It is a matter of public health. The issues touch players and their families from Pop Warner to high school to college to the pros.

The ongoing federal court lawsuit filed by thousands of retired players against the NFL is a treasure trove of revealing information. Many of the affidavits and declarations filed in this case show the terrible physical and psychological harm experienced by former players. The suffering and tragedies recounted are overwhelming.

Robert Stern Ph.D., a foremost expert and very experienced clinical neuropsychologist with a specialty in the evaluation and diagnosis of neurodegenerative diseases, has studied the mid-to-late life changes in the cognitive, mood, and behavior of former pro football players. In his lawsuit Declaration, Dr. Stern writes that the head impacts do not simply reduce to cognitive impairment like dementia. He stated:

“…it is my scientific opinion that many former NFL players have significant changes in mood and behavior (e.g. depression, hopelessness, impulsivity, explosiveness, rage, aggression), resulting, in part, from their repetitive head impacts in the NFL, that have, in turn, led to significant financial, personal, and medical changes, including but not limited to: the inability to maintain employment, homelessness, social isolation, domestic abuse, divorce, substance abuse, excessive gambling, poor financial decision-making and death from accidental drug overdose or suicide.”

While there are many very sad stories to choose from, I will mention two. Kevin Turner played in the NFL for 8 years as a fullback with the Patriots and the Eagles. He is now 45. In 2010, he received the diagnosis of ALS or Lou Gehrig’s Disease. This was 11 years after he stopped playing football. Turner is a named plaintiff in the players’ lawsuit against the NFL.

Turner now gets oxygen through a port in his neck and he obtains nutrition through a tube to his stomach. He spends most days in bed. He has gone from his playing weight of 250 pounds down to 150. His mind remains sound but he has lost control of everything above his waist. After a bout with severe dehydration and pneumonia, which led to respiratory failure, he went on a ventilator.

He earned about $8 million during his playing career but he had to file bankruptcy in 2009. He has 3 kids and he is still fighting hard for his family.

Dale Meinhart was a former Pro Bowler who played middle linebacker for the St. Louis Cardinals from 1958 to 1968. He was known as a ferocious tackler. At age 48, he started experiencing symptoms of chronic traumatic encephalopathy. He could no longer fulfill job duties. He became nonverbal, aggressive, and he suffered memory lapses. He refused to see a doctor. He was angry and he spent days in a chair at home or driving aimlessly.

When Dale finally visited a family physician, he was prescribed tranquillizers. In 1986, his family initiated court proceedings to have him committed in order to seek adequate medical care. Doctors diagnosed Alzheimer’s Disease.

Meinhart had 2 children, ages 10 and 15, at the time. The family was surviving on his wife’s $20,000 a year teacher’s salary. Meinhart’s wife contacted the NFL and explained Dale’s situation. She asked if any other retired NFL players were experiencing similar dementia and personality issues. The NFL staff gave her a firm “No” for an answer.

Also, the NFL advised Mrs. Meinhart that Dale could not receive disability benefits because she could not prove his dementia was caused by playing football. One can only wonder how many former players’ families made similar calls and received the same response.

After Meinhart spent time at an Oklahoma State Mental Hospital, the family found a nursing home with a locked Alzheimer’s wing. Meinhart spent the next 17 years there until he died in 2004. There was no good place to put a cognitively impaired 6’2″ 250 pound physically active male who was unable to care for himself and who would unwittingly walk off if not restrained.

Stories like Turner and Meinhart are all too common but awareness about the number of players affected and the scope of the harm is dim. The NFL has tried for a generation to obscure, mislead and deny the truth about concussions and brain injury. Contrary to appearances and the league’s public relations efforts, the NFL is still fighting as hard as possible in the lawsuit to deny the scope of relief to many players who have been devastated by their injuries or who have died.

I do think we need to ask: is this acceptable? Should we as a society accept the harm as an unfortunate but inescapable part of the game? I will offer a tentative answer. No.

When a person is 20, it is a rare person who will dwell on how they expect to function at age 50 or 60. As you age, the question takes on more substance.

I do want to say I love football as much as anyone. I remember going to my first Philadelphia Eagles’ game when I was 6 years old. My dad and I had Eagles’ season’s tickets at Franklin Field for a number of years and we saw the Eagles beat the Packers for the NFL Championship in 1960. I played 105 pound and 120 pound football as well as playing in countless pickup touch football games. I have been a lifelong fan.

However, I still think the whole truth should come out. We are far from that happening. There are no shortage of good questions still outstanding about the effects of hits to the head.