Concussion Litigation: The Next Frontier

March 13, 2015

Author: Anthony B. Corleto

By now everyone has heard about the widely reported concussion lawsuits – former professional players suing because they claim to suffer from a form of brain injury, chronic traumatic encephalopathy (CTE), linked to repetitive head trauma. The condition has afflicted athletes across the spectrum of popular sports in the United States, and is not limited to the professional ranks.  

CTE symptoms and signs include impaired cognition, mood, behavior and motor skills. Although postmortem brain examinations reveal findings similar to those in Alzheimer's patients, CTE is believed to be marked by a pattern of tau protein. CTE patients generally have a history of concussive and/or sub-concussive blows and a lag period before symptoms appear. Because the condition cannot be diagnosed until an autopsy is done, medical research and sports medicine have focused on early detection and prevention by reducing repeated blows to the head.

Despite the extensive publicity surrounding conditions such as CTE, it is difficult to know the true incidence and long-term consequences of CTE due to the lack of large, high-quality, longitudinal studies examining the condition. Indeed, the symptoms and signs associated with CTE, listed above, have multiple potential causes and causation by CTE has not been fully established. As just one example, while some studies suggest an increased prevalence of suicide among patients later determined to have had CTE, these studies do not establish causation, in part because of potential selection biases that may have impacted some of these studies. Without high-quality, multivariate analyses examining causation, it is difficult to know whether CTE causes these symptoms or signs or simply represents a syndrome that “marks” these conditions.

It is now common practice to remove athletes from participation after they suffer a blow to the head and to keep them out of play until medical clearance. Medical practitioners have also learned that, as rest is needed to recover from other injuries, a period of rest is critical to recovery from brain injury. Over-stimulation can impair recovery. Many recommend limiting exposure to electronic media, computer or online activity to allow damaged connections time to repair. “Return to learning” protocols are now advocated for youth and collegiate athletes. Various on-field testing protocols have also been developed with an eye toward early detection of symptoms.

Claims and Litigation
Among the challenges presented by sports-related brain injury claims and litigation, causation is the most critical. A significant component to an effective defense of such claims is to refute causation and identify other contributing factors. Every sporting association or organization is a potential target to such claims irrespective of whether the athletes are professionals, semi-professionals, collegiate or youth players. The challenges faced by these organizations are shared by insurers looking to effectively defend these claims and contain the potential exposures.

When addressing CTE claims and litigation, it is wise to consider:

  • Standard of Care: Similar to tobacco and asbestos product liability claims, plaintiffs will argue that the organization knew the danger of head injury and failed to warn or failed to take protective measures. The standard of care is generally that of the particular sport at the level of play (pro, collegiate, youth) at the time the athlete was active.
  • Statute of Limitations: Local law will determine whether the time to sue is measured from the concussive event or from manifestation, and with respect to youth athletes, whether the statute is tolled for infancy.
  • Experts: It is important to vet and know who to retain for a particular engagement as early as possible. Medical and scientific experts may align with either claimants or the sports industry. One expert may be needed to show the state of knowledge and acceptable practice at a particular time; another may be needed to show whether or not a diagnosis could have been made earlier. Yet another may be needed to challenge the diagnosis or its basis.
  • Media: The proliferation of media reports on this subject presents additional complications. Pleadings may need to be challenged because they cite media reports as authority. The plaintiff’s counsel may publicly champion a case in a way that implicates ethical constraints. Many experts in this field speak publicly, so their statements may become yours. How an organization has managed concussion risk over time will be publicly known. Statements of management and others, out of context at remote times, will be used in cross-examination.
  • Causation Rules: A successful claim requires proof that whatever a defendant did or did not do has a direct link to the diagnosed condition. A successful defense attacks that link and offers other plausible causes, such as intervening events, other sports activity, or a vascular disease or other organic cause. The gap in time between the concussive event and diagnosis presents the greatest challenge to plaintiffs and the greatest opportunity for defendants.

Sport concussion claims present a unique challenge: they call into question national pastimes and healthy athletic activities, and, with increasing frequency, youth participation. Spectators with access to online social networks and the 24-hour news cycle invite instant trial by media. A good outcome requires the ability to manage these challenges in the context of complex high-exposure litigation.

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