Sports-Related Concussion Lawsuits: Litigating in the Tidal Wave of - - PowerPoint PPT Presentation

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Presenting a live 90-minute webinar with interactive Q&A

Sports-Related Concussion Lawsuits: Litigating in the Tidal Wave of Individual and Class Claims

Navigating Claims Against Professional Teams, Colleges, Sports Leagues and Conferences, High Schools, and Youth Organizations

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific THURSDAY, OCTOBER 20, 2016

Mark S. Granger, Founder, Granger Legal Consulting, Schroon Lake, N.Y . Gary Wolensky, Shareholder, Buchalter Nemer, Irvine, Calif.

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Navigating Claims Against Professional Teams, Colleges, Sports Leagues and Conferences, High Schools, and Youth Organizations

 Toddler stage  Not much law but number of lawsuits are

growing rapidly

 For example, NCAA alone there are currently

22 class actions

 Most recently, youth leagues  Proliferation of individual actions

6

Individual lawsuits

7

 Explanation of linear and rotational

accelerations

 Industry does not consider rotational

accelerations in design of the helmet

 Failure leads to selling a helmet that would

not protect brain during foreseeable uses

8

 Linear accelerations are best described as a

blunt impact of the head by running into a concrete wall

 These type of accelerations cause skull fractures

 Linear accelerations historically have been

measured in standard helmet testing

 Helmets do a very good job in managing

linear accelerations

 As a result there are very few fractured skulls

reported in snow sports

9

 Rotational accelerations to the brain is best

described as when whiplash of the head and neck occur, the brain moves in different directions and bangs against the skull.

 Rotational accelerations are what cause

rupture of veins that connect the brain to the skull and causes subdural hematomas and

• ther brain injuries

 Until very recently the industry did not and

measure for rotational accelerations in any of its testing.

10

 Dr. John Lloyd is an expert in Biomechanics  Discuss credentials  Article in the Journal of Neurosurgery Tested

hundreds of helmets, including the K2 Rant and measured rotational accelerations

 Lloyd’s testing demonstrates that the

rotational accelerations far exceed Lloyd’s thresholds to cause a concussion or subdural hematoma

11

12

 Testing of the Helmet both by Dr. Lloyd, and

industry experts clearly shows that the Helmet is unreasonably dangerous

 The testing shows a heightened risk of

concussions and subdural hematomas in foreseeable impacts

 The Helmet was dangerous and was the cause

• f the TBI

13

 The liner material has been used for decades.  The purpose of the liner is to absorb and

spread out the forces generated in an impact

 New materials were available to the industry

that dramatically reduces the rotational forces to the brain.

 Reduction of rotational forces to the brain

results in a decreased risk of brain injury, especially concussions and subdural hematoma

14

 The industry has known about Poron XRD

for decades

 Poron XRD dramatically reduces rotational

accelerations according to Lloyd’s testing

 Failure to use this material was the direct

cause of the player’s TBI.

15

 The liner material is a critical part of the helmet

in managing forces to the brain

 The industry knew that its liner material was

inferior

 The industry knew that there were alternatives,

such as Poron XRD, that provided superior protection to the brain

 The industry disregarded this information  The industry’s blatant disregard of its own

testing caused it to sell an unreasonably dangerous helmet

16

17

 These are voluntary standards  Created by the Industry, not by the

Government

 In fact the majority of the helmet committee

is made up of manufacturers!

 They are very weak minimal standards  Every helmet passes unless there is a

manufacturing defect

 Does not preclude additional testing

18

 Designed to measure linear accelerations  Designed to protect against skull fractures  Not designed to measure rotational

accelerations

 Not designed to protect against brain injuries

19

Q: Opinion Three “ASTM standards are completely inadequate.” In your opinion, they're not effective. A: They measure the risk of focal head injury, but they don't take into account any protection against the brain from rotational injury.

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21

1.

The Helmet was well-designed and well-tested

2.

The Helmet did not cause Plaintiff’s brain injury

3.

The Plaintiffs cannot demonstrate that any

• ther helmet would have prevented the injury

4.

In fact, no other helmet would have prevented the injury

5.

The Plaintiffs were well aware that the Helmet could not prevent all injuries

22

23

 Important to determine how injured person

moved

 Along with knowledge of human movements

and anatomy can figure out what parts of the body made contact with the ground

 And based on this analysis real experts can

figure out the forces that were imposed on the head and brain, PRE-IMPACT and at IMPACT

 And why the brain injury happened

24

 Figure out the nature and extent of the

damage of the helmet

 This will tell us how the helmet performed

25

26

 The helmet performed very well and managed

energy appropriately

 Very little damage to EPS liner  Very little crushing  Had plenty of crushable material left to protect the

head if the impact had been harder

 This is why the back of the skull did not fracture  The primary purpose of every sports helmet is to

manage the direct impacts and prevent skull fractures

27

When you look at the -- human injury times curve, which is the basis for all this helmet testing, it says 300Gs is fundamentally the onset of skull fracture and/or subdural

• hematoma. · When you say, okay, if that's true, we're not

at 300 so we're not going to have the skull fracture and we're not going to have subdural hematoma. So then what about rotational accelerations?· Typically, it takes 6,000 radians to cause a concussion and 10- to 12,000 is the onset of subdural hematoma, you're clearly well below subdural hematoma risks, but you're in the concussion range or slightly above it.

29

• Q. Is impact duration an important factor in determining

the magnitude of rotational accelerations necessary to cause injury?

A.

Yes, helmet impacts are very short duration events.· That's why ASTM doesn't even measure it because they go out 15-20 milliseconds, not the end of the world.· Fighter pilots pulling these kind of things for five seconds, dead. You know, clearly a different event, because the time duration is longer. It's like tractor- trailers can run over your foot, you want them to drive by or park for awhile. I'd just as soon have them keep going.

30

The longer the peak impact duration (the event) the lower amount of rotational accelerations are needed to cause a brain injury The shorter the peak impact duration (the event) the higher amount of rotational accelerations are needed to cause brain injury

31

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 Attempt to closely replicate impact conditions  Determine the amount of energy that the

helmet managed in Plaintiff’s impact

 In other words get similar damage to the test

helmet as is on Plaintiff’s helmet

 So drop helmeted head forms from 3 different

heights to create 3 different speeds

 Initial point of contact at the same location

where Plaintiff hit his head

 On same type of surface

33

 Helmets examined to determine which one

exhibited a similar amount of crush

 Determined that when the impact experienced

was between 100-120g’s

 The forces generated were exceedingly low and

that is confirmed by the lack of damage to the helmet and liner

34

35

 Advanced set-up that simulates the

biomechanics of a fall in which some part of the torso impacts the ground first, followed by the head

 To replicate the movements of Jake Smith’s fall

as described by witness accounts

 Allows researchers to determine rotational

accelerations pre-impact and at impact.

36

 Data demonstrates that what seems to have

been a typical fall was actually a very severe insult to the brain

 No helmet would have changed this outcome

37

38

39

40

 Lloyd invented his modified drop test that

nobody else in the world uses Lloyd has tested hundreds of helmets thousands of times to assess their safety

 Lloyd tested Helmets and claimed them

unreasonably dangerous as the rotational accelerations were supposedly in the injurious range

41

42

 It turns out that Lloyd manipulated the data

and used incorrect methods.

 Here is Lloyd’s deposition testimony:

43

• Q. And even if you used file 883, the test 883, which again was the

first test, 2.0 meter drop test, the max acceleration was 4,079.7, and I assume that the pulse duration would be about the same. That's under the non-injurious lines for bridging vein rupture of Depreitere as well as your standard error of mean line; correct?

• A. Yes.
• Q. And so then does your own testing establish that the Helmet is not

defective and unreasonably dangerous based upon the standards that you created?

• A. Could you clarify based upon the standards I created?
• Q. Well, you are the one that is creating these thresholds, and it's clear

from your own testing that the testing of the Helmet in your 2.0 modified drop test, the two first drops, clearly those data points are in the non-injurious range. You just agreed with me on that.

44

• A. I did.
• Q. And so as a result, would you agree with me that the Helmet

is not unreasonably dangerous?

• A. Considering only the 2 meter drop test, that would be

correct.

• Q. Right. And ought we not be comparing apples to apples

because all of your other helmets are drop tests; you didn't test any of the other helmets, at least that I know of, in any of the

• ther sports, whether it's bicycle or football or motorcycle,

Army helmets, I don't care, in the inverted pendulum drop test?

• A. I have not.

45

• Q. Okay. And so if we are just to compare apples to apples, 2.0

meter drop test, that you've written on, over and over again, won't you agree with me that the data points for the Helmet tests all fall into the non-injurious range, the benign range?

• A. For the 2 meter drop test, they do.
• Q. For the 2 meter drop test. And then with respect to the 2

meter drop test, you would have to agree with me that while there may be other helmets that you've determined are defective and unreasonably dangerous, at least the our Helmet in the 2.0 drop test is not defective and unreasonably dangerous?

• A. In the 2.0 drop test, correct.

46

 The 2.0 meter modified drop test is Lloyd’s

Gold Standard Test. He invented it.

 Nobody uses it, but he invented it.  Tested hundreds of helmets thousands of

times

 And, our Helmet passes Lloyd’s Gold Test  So Lloyd then goes on to another test, a

pendulum test

47

• Q. Is there any human being on the face of this earth, other than

yourself, that has either presented or written or in any way communicated that for a snowboard helmet, forget about drop testing, period, but you need to be testing snowboard helmets in an inverted pendulum test?

• A. Not that I'm aware of.
• Q. And in your first report, you didn't say anything about an

inverted pendulum test, did you?

• A. No.
• Q. In your second report, you didn't say anything about an

inverted pendulum test, did you?

• A. No.

48

• Q. Only this third report when you came up with the inverted

pendulum test?

• A. Yes.
• Q. And in your peer-reviewed paper on your modified

NOCSAE test method that was published in the experimental publication, nowhere did you say that for sports or any sport that this test method is not good, you should be using the inverted pendulum test method, did you?

• A. No.
• Q. Why not?
• A. It didn't occur to me back when I wrote that paper.

49

• Q. Are you just sitting here making this up, that you think in

your opinion that the inverted pendulum test is the gold test standard for snowboard helmets?

• A. I'm not making it up.
• Q. Is there anyplace that you have written or you have

presented before this case that the inverted pendulum test should be used specifically for ski and snowboard helmets?

• A. No.
• Q. Why not?
• A. Because I hadn't addressed this previously.

50

 The Helmet is well-designed  Reliable, repeatable ASTM tests are performed and the

helmet meets and exceeds pass-fail criteria

 Instruction manual and warnings are clear,

conspicuous, and clearly advise the user that not all injuries are preventable

 Field data establishes that thousands of Helmet’s have

been sold and there has not been even one reported head or brain injury except for Plaintiff’s

 Even Lloyd’s unreliable testing demonstrates that the

Helmet is not unreasonably dangerous.

51

KNOWING OUR LIMITATIONS IS THE KEY TO SUCCESS IN PROSECUTING OR DEFENDING CASES INVOLVING SPORTS RELATED BRAIN INJURY

52

 Better idea on what causes concussion than

how to prevent one!

 Most likely caused by a combination of linear

and rotational forces

 Involves a twisting of the brain within the skull  Because of major cross connections within the

brain, twisting stresses the brain.

 Brain floating in liquid can bounce around and

twist

53

 Results are often idiosyncratic; people are like

snowflakes, everyone is different

 Can hit 6 different people in the same spot with

the same amount of force and get completely different result

 Autopsies show CTE in people with limited

contact yet a “hockey enforcer” has no evidence of it

 Currently, only reliable way to confirm CTE is

by autopsy.

54

 Should be obvious when you think of claims

for

 Class Certification  Causation of CTE and other permanent injury  Punitive damages  Misrepresentation/fraud

55

 Designed to prevent catastrophic brain injury such

as:

 Skull fractures  Blunt force subdural hematomas  Sudden death

 Have done an excellent job on that for many years  Designed to reduce transmission of LINEAR

FORCES

 Reduction of linear force clearly reduces the risk of

catastrophic injury

 Probably also reduces risk of concussion

56

 Can measure linear force accurately  However, rotational forces are largely responsible

for TBI other than skull fractures

 Big argument on how to reliably and consistently

measure rotational force:



Where to measure it from?



What path does it follow?

 Head, skull cerebral spinal fluid, and brain have

different densities, weight and shapes

 Every person’s head is different from skin on the

surface to strength of brain stem connection

57

 Difficult to predict how rotational force will

affect individual brain tissue

 Statistical analysis  Epidemiology  Case specific biomechanical testing  Cross exam and Daubert nightmare

58

NFL “ADMISSION”-Does it bind the NFL or anyone else? Autopsy results?

• Only tells us that contact sports athletes are

prone to CTE

• There is no cohort for the general non-

concussed population

• Nor does anyone have any idea what the

residual injuries are for someone who has CTE

59

 BEST APPROACH IS TO LOOK OUTSIDE

THE EQUIPMENT:

 TRAINING  RULES AND ENFORCEMENT  INJURY SURVEILLANCE  RETURN TO PLAY  EXPLANATION OF RISK

60

 Strong evidence that strengthening the neck

muscles reduces risk of concussion

 Proper hydration and increased hydration may

reduce risk

 “Heads Up” program  Head injury awareness- don’t use your head as a

weapon

 Proper play techniques  Contact free practices  Careful controlled practices for such sports as

cheerleading

61

 Prohibit spearing, high tackles, heading, kick

• ff runbacks

 Checking from behind, elbow hits to head  Enforce with penalties and game ejections  Age restrictions on certain behavior

 Checking  Heading the ball  Weight restrictions and groups

62

 Preseason baseline testing  Watching play on field  On head devices

 Limited effectiveness  Cannot be the only test

 Follow upon every big hit, fall down with head

hitting

 Urging players/parents to report injuries and

symptoms

63

 After head injury no return to play without

medical clearance

 It’s the law in almost every state  It is good practice  Physicians and Trainers and Coaches must take

this seriously

64

 After head injury no return to play without

medical clearance

 It’s the law in almost every state and it is good

practice

 Physicians and Trainers and Coaches must take

this seriously

 EDUCATE PARENTS AND PLAYERS

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

The NFL and several of the scientists it employed actively tried to conceal the severity and extent of concussion-related brain injuries until 2009.



In 1994, the NFL created the Mild Traumatic Brain Injury Committee (MTBI Committee) to conduct a study on the long- term effects of concussions on players. Thirteen years later, in 2007, the NFL claimed that the study was still in its initial data collection phase.



In October 2006, the MTBI Committee released an interim report stating that “mild TBIs in professional football are not serious injuries.” Plaintiffs allege that the MTBI committee stated this conclusion knowing it went against scientific evidence, and that MTBI scientists were biased in data collection techniques.



Scientists not funded by the NFL have long understood and studied for decades the negative effects of repetitive head trauma in sports.



In 1928, clinical abnormalities in boxers “who stayed in the game long enough” were described, and a follow-up study was published in 1952.

67

 Second Impact Syndrome (SIS), identified in

1973, occurs when someone who has not fully recovered from an initial concussion receives another blow to the head. Even a minor impact in this state can cause the fragile, unhealed brain traumatic and permanent damage. When concussions occur frequently, a progressive neurodegenerative disease called Chronic Traumatic Encephalopathy (CTE) can develop, leading to dementia. Football players who return to the field before allowing initial concussions to heal are at risk of developing SIS and CTE.

68



• Dr. Barry Jordan, Director of the Brain Injury Program at Burke

Rehabilitation Hospital in White Plains, New York, presented a study in 2000 examining player concussions and long term

• health. Dr. Jordan surveyed 1,094 football players and found

that (a) more than 61% had suffered at least one concussion in their careers with 30% of the players having three or more and 15% having five or more; (b) 51% had been knocked unconscious more than once; (c) 73% of those injured said they were not required to sit on the sidelines after their head trauma; (d) 49% of the former players had numbness or tingling; 28% had neck or cervical spine arthritis; 31% had difficulty with memory; 16% were unable to dress themselves; and 11% were unable to feed themselves; and (e) eight suffered from Alzheimer’s disease.



A 2003 study partially authored by Dr. Kevin Guskiewicz of the University of North Carolina, who had conducted previous studies of football injuries, found a link between repetitive head trauma and depression in football players. Dr. Guskiewicz data from 2,500 retired NFL players and found that having three

• r four concussions meant twice the risk of depression as never-

concussed players, and five or more concussions meant nearly a three-fold risk.

69

 When non-NFL-affiliated scientists published studies

showing the negative long-term effects of repetitive head trauma, MTBI Committee members routinely attacked the validity of these studies, and claimed that there was no conclusive evidence that showed such a link.

 MTBI Committee collected biased data for their

research, actively excluding test results from non- concussed players when determining a baseline normal range of scores for uninjured NFL players.

 Even after acknowledging the dangers involved in

repetitive head trauma, the NFL did not take adequate steps to educate players and to keep players

• ff the field after suffering concussions during

games.

70



Currently there are about 22 NCAA class actions including virtually all contact sports



Expectations that more than 40 will eventually get filed



These actions are typically against the NCAA, a conference, and a university or college within the conference



Allegations are similar as the NFL Class Actions, but also include:

 Negligence  Fraud  Breach of contract  Unjust enrichment

71

 Remember: The NCAA settlement recently

preliminarily approved was only for medical monitoring

 Did not reimburse for personal injuries and medical

bills and left open suits against the NCAA, colleges and universities, an conferences

 Also, all lawsuits must precede 2010 when NCAA

started a medical monitoring program

 Lawsuits are seeking compensatory and punitive

damages

72

 July 2016 preliminarily approved; final

approval set for May, 2017

 $75 million

 50 year $70 million medical monitoring program  $5.0 million for researching the prevention,

treatment and/or effects of concussion

 Medical monitoring is for all current and

former NCAA student-athletes

 Regardless of when or where they played, what

sport they played, or how long they played

73

 Includes return-to-play guidelines

 Any athlete diagnosed with a concussion by medical

personnel must be cleared by a physician

 Academic accommodations for affected

student-athletes

 Concussion education training for athletes,

coaches, and trainers

 Mandatory pre-season baseline training for

every athlete, at every NCAA school, for each sport the athlete participates in

74

 All 3 of the NCAA’s competitive divisions

must assure that “medical personnel with training in the diagnosis, treatment and management of concussion” must be present at games involving contact sports.

 Does not end litigation against NCAA,

conferences, and universities/colleges for personal injuries

 These new cases are clones of the NFL Concussion

Litigation

75

 Now the youth leagues are under the microscope  Archie vs. Pop Warner, USA Football, and

NOCSAE

 False and fraudulent and misleading advertising

regarding the safety of Pop Warner football

 NOCSAE certification on youth helmets is misleading

because there is no certification tests for youth helmets

 The benefits of “heads-up” football is false and

misleading

 Real Problem: Pop Warner does not have the

money to defend these class actions

76

 Try to knock some or all counts of the

complaint by way of a 12(b) motion

 Timing  Fraud counts and consumer fraud statutes

 Poorly plead lack of specificity  No reliance  No intent

 Punitive damages

77

 Motion for Summary Judgment for class

actions and individual suits

 Timing of motions for class action

 Pre-certification motion?

 Negligence?  Definitely causation

78

 Federal Rule of Civil Procedure 23 governs

class actions in federal court.

 The Prerequisites (Rule 23(a)):

 Adequate class definition  Ascertainable class  Numerosity (of class members)  Commonality (of questions of law or fact)  Typicality (of the claims or defenses of the class

representatives)

 Adequacy (of the class representatives)

79

 An adequate class definition (see Young v.

Nationwide Mut. Ins. Co., 693 F.3d 532, 537-38 (6th

• Cir. 2012). :

 Must be precise and unambiguous.  Must be sufficiently definite so that a court can feasibly

determine if an individual is a class member

 May not be so broad as to include many members who

could not have been harmed by the underlying tortious act

 An Ascertainable Class: (see Marcus v. BMW of N.

Am., LLC, 687 F.3d 583, 591-92 (3rd Cir. 2012))

 Plaintiff must have a method to identify class members

base on objective criteria

80

 Numerosity: The class must be so numerous

that joinder of all members is impracticable. (FRCP 23(a)(1))

 Commonality: There must be questions of law

• r fact common to the class. (FRCP 23(a)(2))

 Typicality: The claims or defenses of the

plaintiffs must be typical of the class. (FRCP 23(a)(3))

 Adequacy: The plaintiffs must be able to fairly

and adequately protect the class’ interests. (FRCP 23(a)(4))

81

 Plaintiff must also show that the proposed

action satisfies one of the following criteria:

 Separate actions would create risk of inconsistent or

dispositive adjudications;

 Class action seeks declaratory or injunctive relief

applicable to entire class; or

 Questions of law and fact predominate and a class

action would be superior. Rule 23(b).

82

 Rule 23(b)(1)(A): Separate actions would create risk of

“inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party

• pposing the class”.

 Applies when defendant must treat all class members equally.  Rule 23(b)(1)(B): Separate actions would create risk of

“adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests”

 Applies when class action could impair absent class members

rights.

83

 Rule 23(b)(2): Defendant “has acted or refused to

act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole”.

 Applies when class members don’t seek individual

damages.

 Class members must have shared interests. (See Gates v.

Rohm & Haas Co., 655 F.3d 255, 264-69 (3rd Cir. 2011)).

 Incidental money damages might be recoverable. (See

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 366 (2011))

84

 Rule 23(b)(3): Court must find “questions of

law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”

 Predominance is a “demanding” prerequisite. (See

Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013)).

 Generally not met if Plaintiff cannot prove injury, causation,

• r an essential element of a claim on a classwide basis.

85

 Superiority

 Factors:

 (A) the class members’ interests in individually controlling

the prosecution or defense of separate actions;

 (B) the extent and nature of any litigation concerning the

controversy already begun by or against class members;

 (C) the desirability or undesirability of concentrating the

litigation of the claims in the particular forum; and

 (D) the likely difficulties in managing a class action.

 May not be met if there are widely varying state laws.

 But Court may permit certification of “sub-classes”

86

 Rule 23(c)(1): Court must order certification.

 “At an early practicable time after a person sues or is

sued as a class representative.”

 Certification order “must define the class and the

class claims, issues, or defenses, and must appoint class counsel.”

 Certification order “may be altered or amended

before final judgment.”

87

 For Rule 23(b)(1) or (b)(2) classes: the Court

“may direct appropriate notice to the class”. (Rule 23(c)(2)(A))

 For Rule 23(b)(3) classes: the Court “must

direct to class members the best notice that is practicable” (Rule 23(c)(2)(B)

 Includes individual notice to all members who can

be identified through reasonable effort.

 Notice must provide a clear statement regarding the

nature of the action, the class, the claims, the right to appear, the right to opt out, the method for opting

• ut, the binding effect of a judgment.

88

 The court may (and, sometime, must) take a

more active role in managing a class action.

 Court has extensive discretion regarding managing

discovery and other procedural matters. (Rule 23(d))

 Court must approve settlements. (Rule 23(e))

 Judgment must describe class members. (Rule

23(c)(3))

89



In re NCAA Student-Athlete Concussion Injury Litig., Case No. 13C9116, MDL No. 2492 (N.D. Ill. 2011)



Walker, et al. v. NCAA, No. 1:13-cv-00293 (E.D. Tenn., filed Sept. 3, 2013)



Durocher, et al. v. NCAA, No. 1:13-cv-01570 (S.D. Ind., filed Oct. 1, 2013)



Doughty v. NCAA, No. 3:13-cv-02894 (D.S.C., filed Oct. 22, 2013)



Caldwell, et al. v. NCAA, No. 1:13-cv-03820 (N.D. Ga., filed Oct. 18, 2013)



Powell, et al. v. NCAA, No. 4:13-cv-01106 (W.D. Mo., filed Nov. 11, 2013)



Morgan, et al. v. NCAA, No. 0:13-cv-03174 (D. Minn., filed Nov. 19, 2013)



Walton, et al. v. NCAA, No. 2:13-cv-02904 (W.D. Tenn., filed Nov. 20, 2013)

90

 Washington, et al. v. NCAA, No. 4:13-cv-02434 (E.D. Mo.,

filed Dec. 3, 2013)

 Hudson v. NCAA, No. 5:13-cv-00398 (N.D. Fla., filed

• Dec. 3, 2013)

 Nichols v. NCAA, No. 1:14-cv-00962 (N.D. Ill., filed Feb.

11, 2014)

 Wolf v. NCAA, No. 1:14-cv-01268 (N.D. Ill., filed Feb. 10,

2014)

 Jackson v. NCAA, No. 1:14-cv-02103 (E.D.N.Y., filed

• Apr. 2, 2014)

 Whittier v. NCAA, No. No. 1:14-cv-0978 (W.D. Tex.,

filed Oct. 27, 2014)

 Davison et al. v. Southeastern Conference et al., Case No.

1:16-cv-02333 (S.D. Ind., filed 2016)

91



Gallon et al. v. Atlantic Coast Conference et al., Case No. 1:16-cv- 02334 (S.D. Ind., filed 2016)



Ford et al. v. Southeastern Conference et al., Case No. 1:16-cv-02336 (S.D. Ind., filed 2016)



Harrison et al. v. Ohio Valley Conference et al., Case No. 1:16-cv-02337 (S.D. Ind., filed 2016)



Hill et al. v. University of Miami et al., Case No. 1:16-cv-02339 (S.D. Ind., filed 2016)



Johnson et al. v. Conference USA et al., Case No. 1:16-cv-02341 (S.D. Ind., filed 2016)



Richardson et al. v. Southeastern Conference et al., Case No. 1:16-cv- 02342 (S.D. Ind., filed 2016)



Cook v. PAC-122 Conference, the NCAA, Case No. 3:16-cv-02630 (N.D. Cal. 2016)

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 In re: NFL Players’ Concussion Injury Litigation, Case No.

2:12-md-02323 (E.D. Pa. 2012)

 Anderson et al. v. NFL et al. (E.D. La. 2016)  Baggs et al. v. NFL et al., Case No. 13-cv-05309 (S.D.N.Y.

2013)

 Hamilton v. NFL, Case No. 3:14-cv-01988 (M.D. Penn.

2013)

 Allen et al. v. NFL et al., Case No. 2:12-cv-03224 (E.D. Pa.

2012)

 Brooks v. Nat’l Football League, Case No. 2:12-CV-00941

(E.D. La. 2012)

 Gayle v. NFL et al., Case No. 2:12-cv-05212 (E.D. Pa.

2012)

93

 Glover v. Nat’l Football League, No. 2:12-CV-00287 (E.D.

• Pa. 19, 2012)

 Granger et al. v. NFL et al., Case No. 2:12-cv-03337 (E.D.

• Penn. 2012)

 Guyton et al. v. NFL, Case No. 2:12-cv-03336 (E.D. Pa.

2012) (filed in Georgia state court)

 Haddix et al. v. NFL et al., Case No. 1:12-cv-03140 (D.

N.J. 2012) (filed in New Jersey state court)

 Hughes v. Nat’l Football League, Case No. 2:12-CV-00459

(E.D. La. 2012)

 Jackson v. Nat’l Football League, Case No. 2:12-CV-01034

(E.D. La. 2012)

 Koch v. NFL, Case No. 2:12-cv-02104 (E.D. Pa. 2012)

94

 Kreig v. NFL, Case No. 2:12-cv-02103 (E.D. Pa. 2012)  LeMaster et al. v. NFL et al., Case No. 2:12-cv-02464 (E.D.

• Pa. 2012)

 McDonald et al. v. NFL et al., Case No. 2:12-cv-02728

(E.D. Pa. 2012) Rademacher et al v. NFL et al, Case No. 2:12-md-03776 (E.D. Penn. 2012)

 Simpson et al. v. NFL et al., Case No. 2:12-cv-01827 (E.D.

• La. 2012)

 Solt et al. v. NFL et al., Case No. 2:12-cv-00262 (E.D. Pa.

2012)

95

 Wooden et al. v. NFL, Case No. 1:12-cv-20269 (S.D. Fla.

2012)

 Hardman v, NFL, et al., Case No. BC471229 (LASC 2011)  Jacobs v. Nat’l Football League, No. 11-CIV-9345

(S.D.N.Y. 2011)

 Rucker v. Nat’l Football League, No. 11-CIV-9538

(S.D.N.Y. 2011)

96

 Archie v. Pop Warner et al., Case No. 2:16-cv-6603 (C.D.

• Cal. 2016)

 In re Riddell Concussion Reduction Litig., Case No. 13-

7585 (D. N.J. 2013)

 Ballard v. NFL Players Ass’n, Case No. 4:14-cv-1559

(E.D. Mo. 2015)

97

 Many of these cases were transferred to multi-

district litigation (“MDL”) actions.

 Cases against NCAA transferred to the Northern

District of Illinois, MDL No. 2492.

 Cases against NFL transferred to the Eastern District

• f Pennsylvania, MDL No. 2323.

 However, a few cases have been dismissed or

reached the class certification stage.

98

 Ballard v. NFL Players Ass’n, Case No. 4:14-cv-1559

(2015)

 Complaint dismissed because claims for fraud, civil

conspiracy, and negligence arising from concussion- related injuries against Players union were preempted by the National Labor Relations Act.

 Durocher et al. v. NCAA, et al., Case No. 1:13-cv-

01570 (2013)

 Motion to strike class actions granted with leave to

amend because complaint failed to adequately plead the Rule 23(a) factors and because of the risk of inconsistent product liability laws applying to a national class.

 Subsequently transferred to MDL action.

99

 In re: NFL Players’ Concussion Injury Litigation, Case No.

MDL-02323 (E.D. Pa. 2012)

 MDL addressing over 300 lawsuits by retired or active football

players against the NFL and Riddell, Inc.

 The district court certified settlement classes (players,

representatives, and relations) and subclasses (retired plaintiffs without concussion-related diagnosis and retired players with a concussion-related diagnosis).

 The court held the classes satisfied the requirements of Rule

23(a) (numerosity, commonality, typicality, and adequacy) as well as Rule 23(b)(3) (“questions of law or fact common to class members predominate over any questions affecting only individual members”).

 Numerous objectors appealed, but the Third Circuit affirmed.  Now the objectors are seeking certiorari before the U.S.

Supreme Court.

100

 In re NCAA Student-Athlete Concussion Injury Litig.,

Case No. MDL-2492 (N.D. Ill. 2013)

 MDL addressing lawsuits against the NCAA related to student-

athlete concussions and concussion risks.

 Parties reached settlement, but the district court initially

declined to approve. The parties negotiated a second settlement and, on January 26, 2016.

 The court preliminarily approved the settlement. Based on

findings that the settlement classes satisfied the requirements of Rule 23(a).

 However, the court held that the class action likely could not

meet the certification requirements of Rule 23(b)(3) or Rule 23(c)(4) (allowing certification of particular class issues).

 Nevertheless, the court held that the class settlement satisfies

Rule 23(b)(2) (where the parties seek primarily injunctive or declaratory relief that would apply equally to all class members rather than monetary relief).

101

 In re Riddell Concussion Reduction Litig., Case

• No. 13-7585 (N.J. 2013)

 On July 7, 2016, the district court ordered discovery

to determine if class certification is appropriate.

102

 Meaney and Smith, BIOMECHANICS OF

CONCUSSION, sportsmedtheclinics.com

 Barth, Freeman et.al. Acceleration-

Deceleration Sport-Related

 Concussion: The Gravity of It All, Journal of

Athletic Training 2001; 36(3):253–256

 McIntosh et.al. Sports helmets now and in the

future; bjsm.bmj.com, December 8, 2011

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Gary A. Wolensky Buchalter Nemer gwolensky@buchalter.com Mark S. Granger Granger Legal Consulting mgranger@mgrangerlaw.com

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