In retrospect, it’s obvious: battering your brain and sustaining concussions on a regular basis as part of your job can have severe long-term consequences. I remember back when I played football in school that there was already a long-standing debate over the apparent safety of big, heavy helmets with wire face masks. At first blush, it seemed the answer to the broken noses, broken jaws, and facial and head laceration that had long plagued football was to use modern plastic injection-molding techniques and build bigger helmets with bigger face masks. More padding is safer than less padding, right?
The helmets, though, opened up an entirely new set of tactics in which players would use their own heads — shielded by the hard helmets and face masks — as weapons. If you’re a coach or an owner, why limit players to shoving opponents around when they can use their helmets as a battering ram? The NCAA and NHSFF both quickly picked up on the technique and banned initial contact of the head in blocking and tackling, but the NFL declined.
The effect, in terms of brain injury, was to convert football from a grappling sport like rugby or wrestling characterized by limb and torso fractures into a striking sport like boxing characterized by closed head injuries. Like when boxing started putting on bigger and bigger gloves, the sport is a lot less bloody but a lot more dangerous. As ugly as mixed martial arts fights get, truth is, they’re safer on the brain (PDF of “Incidence of Injury in Professional Mixed Martial Arts Competitions” in the Journal of Sports Science and Medicine) because there are only so many times that you can punch someone in the face with an ungloved hand without giving up because of the pain or because of a broken hand. (“I broke his hand with my face” is more than just a schoolyard excuse.) In contrast, there’s no limit on how many times someone wearing large, soft boxing gloves can batter their opponent’s brain, and a large number of fights today end with a knockout — and the concussion that causes a fighter to stay down for ten seconds.
But, no matter how obvious it may have even been at the time, the NFL continued to deny any connection between routine closed head injuries in football and long-term consequences like dementia or early-onset Alzheimer’s disease. Players believed them; the NFL is undoubtedly in the better position to know.
That all started to change two years ago. From the new Easterling et al. v. National Football League putative class action:
On September 30, 2009, as a part of its continuing active role in disputing and covering up the causative role of repeated concussions suffered by NFL players and long-term mental health disabilities and illnesses, the defendant disputed the results of a scientific study that it funded. On the aforementioned date, newspaper accounts were published detailing (an unreleased) a study commissioned by the NFL to assess the health and well-being of retired players, which found that the players had reported being diagnosed with dementia and other memory-related diseases at a rate significantly higher than that of the general population. Despite the findings of this study, showing that 6.1 percent of retired NFL players age 50 and above reported being diagnosed with dementia, Alzheimer’s disease and other memory related illnesses, compared to a 1.2 percent for all comparably aged U.S. men, the defendant’s agents disputed these findings and continued the mantra in the Press that there is no evidence connecting concussions, concussion like symptoms, NFL football and long-term brain illness or injury, including but not limited to Chronic Traumatic Encephalopathy (CTE), dementia, etc.
The issue was then dramatically brought back into headlines by the suicide of Dave Duerson, who, in an ironic mixture of mental illness and rational foresight, donated his brain to Boston University so they could test it for brain damage. They did, and found signs of chronic traumatic encephalopathy.
The Plaintiffs in the new action — seven former NFL players, including Jim McMahon — allege that the NFL knowingly kept the sport violent and dangerous (which, some commentators argue, is what NFL fans want) and want to establish a class action for:
All former NFL players who sustained a concussion(s) or suffered concussion like symptoms while in the NFL league, and who have, since leaving the NFL, developed chronic headaches, chronic dizziness or dementia or Alzheimer’s disease and/or other physical and mental problems as a result of the concussion(s) suffered while a player.
The lawsuit seeks money damages, declaratory relief, and “the establishment of a medical monitoring class.”
And that’s where they’ll have a problem.
I don’t think they should have a problem. They allege the very sort of facts class actions were meant for, a situation in which the conduct of one defendant affected the lives of thousands through the same conduct.
But just a week after their case was filed, the Third Circuit Court of Appeals decided Gates v. Rohm & Haas, part of the vinyl chloride contamination lawsuits I’ve discussed before. As The Legal Intelligencer summarizes the new Gates opinion:
In a ruling that may sound the death knell for bringing a medical monitoring suit as a class action, the 3rd U.S. Circuit Court of Appeals has refused to certify claims brought by residents of a small northern Illinois town who say they live in fear of contracting cancer due to chemical dumping from a Rohm & Haas plant.
“Because causation and medical necessity often require individual proof, medical monitoring classes may founder for lack of cohesion,” U.S. Circuit Judge Anthony J. Scirica wrote in Gates v. Rohm & Haas.
…”Each person’s work, travel, and recreational habits may have affected their level of exposure,” Scirica wrote in an opinion joined by Judges Marjorie O. Rendell and Jane R. Roth.
“Averages or community-wide estimations would not be probative of any individual’s claim because any one class member may have an exposure level well above or below the average,” Scirica wrote.
Plaintiffs attorney Aaron J. Freiwald of Layser & Freiwald said he was disappointed by the ruling and worries that the court has made it impossible to pursue medical monitoring claims.
“This means that, in effect, there is no class action vehicle for medical monitoring,” Freiwald said.
And without the class action mechanism, Freiwald said, nearly all medical monitoring claims will be impossible to pursue because the value of individual claims is too small to justify bringing individual cases.
I don’t think the Gates opinion makes it impossible to pursue any medical monitoring claims on a class basis, but it sure is a step in the wrong direction. Applying the Supreme Court’s political attack on class actions in Dukes v. Wal-Mart, the Third Circuit held:
Instead of showing the exposure of the class member with the least amount of exposure, plaintiffs’ proof would show only the amount that hypothetical residents of the village would have been exposed to under a uniform set of assumptions without accounting for differences in exposure year-by-year or based upon an individual’s characteristics. At most, the isopleths show the exposure only of persons who lived in the village for the entire period the isopleth represents and who behaved according to all assumptions that Zannetti made in creating the isopleth.
Plaintiffs cannot substitute evidence of exposure of actual class members with evidence of hypothetical, composite persons in order to gain class certification. Cf. Principles of the Law of Aggregate Litigation § 2.02 cmt. d, at 89 (2010) (“Aggregate treatment is thus possible when a trial would allow for the presentation of evidence sufficient to demonstrate the validity or invalidity of all claims with respect to a common issue under applicable substantive law, without altering the substantive standard that would be applied were each claim to be tried independently and without compromising the ability of the defendant to dispute allegations made by claimants or to raise pertinent substantive defenses.”). The evidence here is not “common” because it is not shared by all (possibly even most) individuals in the class. Averages or community-wide estimations would not be probative of any individual’s claim because any one class member may have an exposure level well above or below the average.
Presumably, the NFL players’ lawyers at Anapol Schwartz intend to show the players “developed chronic headaches, chronic dizziness or dementia or Alzheimer’s disease and/or other physical and mental problems as a result of the concussion(s) suffered while a player” by using medical testimony based upon “averages or community-wide estimations” about the types of traumatic brain injury the players incurred while playing in the NFL and the tendency of those injuries to cause problems down the road.
Under Gates, that may not work anymore, leaving each player to try to file their own individual lawsuit against the NFL — a proposition that might be viable for the individuals with the most amount of damage, but certainly doesn’t work for anyone seeking simply medical monitoring. The damages aren’t enough to justify the hundreds of thousands of dollars in expenses, plus thousand of hours of attorney time, the case would take.
There might be a glimmer of hope in the narrow way in which the players have drawn their class: i.e., unlike Gates, which sought to cover everyone in a community who may or may not have been exposed to vinyl chloride contamination, the players here limit their class to players “sustained a concussion(s) or suffered concussion like symptoms while in the NFL league” and then also experienced post-retirement symptoms of traumatic brain injury.
Will that fly? I don’t know. I fear the worst. The ability of class actions to hold corporations accountable for causing widespread damaging is rapidly dwindling.