Introduction

Athletes who claim sports caused brain trauma are increasingly suing teams, leagues, schools, and equipment manufacturers. The suits are often brought years after leaving the playing field. This article analyzes the recent trends of lawsuits that plaintiffs are filing related to concussions and Chronic Traumatic Encephalopathy (CTE). These concussion lawsuits have expanded well beyond professional sports leagues such as the National Football League (NFL) and National Hockey League (NHL).

Until now, courts frequently preclude individuals from bringing lawsuits against sports and equipment manufacturers because the participants typically assumed the risks of injury and/or they contractually waived liability of such injuries. However, more lawsuits are now cropping up related to brain trauma in sports and other physical activities. These lawsuits present novel issues of law and fact related to the identification of the injury, lack of treatment, questionable drills and training, and even the date on which the statute of limitations should begin to run.

Moreover, the courts are grappling with how to balance emerging science, established legal doctrine, and the unique legal approaches from the plaintiff’s bar to overcome traditional defenses. Foundationally, the science behind CTE and other diseases related to concussions are uncertain, making such a diagnosis is questionable at best. Regardless, between the media attention and creative legal filings, the courts have been allowing more concussion-related cases to get to juries, resulting in larger demands, settlements, and ultimately verdicts.

Additionally, more Americans are learning about concussions and CTE, whether they follow sports or not. Concussions in sports have gone from the headlines to the sidelines of youth sporting events. Concussion training is now mandatory for many coaches and volunteers in sports, scouting, and schools. Indeed, when a CTE case goes to trial, it is likely that many jurors will already have notions about concussions and associated injuries. Therefore, early retention of knowledgeable attorneys and experts is becoming a necessity to minimize potential liability.

The Expanding Concussion Lawsuit

Lawsuits regarding concussions and CTE and brain injuries against the NFL and NHL have made major headlines and even motion pictures.[1] These lawsuits have expanded from professional sports to claims against NCAA, high school athletics, youth sports, private coaches, ski operators, and even yoga studios.

The vast majority of these concussion lawsuits are football-related. Former football players are filing lawsuits alleging repeated head trauma caused anxiety, depression, and memory loss. One litigant recently claimed football caused his Parkinson’s disease.[2] In another matter, a lawsuit went to verdict based upon the plaintiff’s claim that his ALS was caused from over 20 concussions sustained while playing football.[3]

However, other sports are not immune to concussion-related claims. Plaintiffs have filed lawsuits against USA Water Polo because the organization had not established sufficient safeguards.[4] A yoga studio is defending a lawsuit after a patron was struck in the head by a chair.[5] A ski instructor and ski organization are defending a lawsuit after failing to diagnose and treat a possible concussion.[6] Collegiate wrestlers and field hockey players have successfully brought sports related concussion claims against universities.[7] Meanwhile, parents are bringing lawsuits alleging certain drills increase the possibility of a concussion in their children.[8]

The Plaintiffs’ Theory in Concussion Lawsuits

Participants in sporting activities typically assume the risk of their injuries, provided such risk is foreseeable. Likewise, participants may contractually waive liability related to claims and incidental injuries. The foreseeability of risk varies by sport – football is different from golf, which is different from cheerleading. Thus, what is considered “acceptable” varies depending on the nature of the sport, skill level, the conduct of the parties, knowledge and skill of the coaches or supervisor, protective gear, and rules and regulations designed to prevent foreseeable injuries.[9]

For a plaintiff to successfully sue regarding a sports injury, he must prove the injury was not anticipated in the activity, or it was suffered as a result of aggravated or intentional conduct. Plaintiffs are taking this very approach to support these trending CTE and concussion-related lawsuits. The plaintiffs’ bar argues that brain injuries do not fall within the scope of inherent risk in a sporting activity.

Moreover, the plaintiffs contend that the sports organizations, coaches, and training staffs failed to enact proper treatment after sustaining a concussion, which caused or aggravated the injury. The plaintiffs also claim that organizations such as the NCAA knew of brain-related injuries in the sports and ignored such information for monetary reasons.

The plaintiffs bring such claims against not just the organizations and schools, but also the coaches and trainers. The plaintiffs in these claims are likely seeking insurance coverage provided by such indemnity provisions like those found in the states’ various Labor Codes, requiring an employer to indemnify its employees. In fact, in May 2019, three student athletes filed a $15 million suit against the NCAA, UCLA, coaches Jim Mora, Adrian Klemm, and associate trainer Anthony Venute for injuries allegedly sustained from concussions.[10]

The Plaintiffs’ Typical Complaints

As mentioned above, it was difficult for plaintiffs to defeat dispositive motions in the past in cases involving injuries in sports due to the inherent risks of such activities or contractual waivers releasing such liability. However, plaintiffs are now circumventing these defenses by making various claims regarding concussions and CTE, such as: the insufficiency of the participant’s treatment, especially after a first alleged concussion; various degrees of scienter on the part of the organizations about concussions; failure to create training programs for coaches, teachers, or supervisors; adequate supervision of the participants; and, lack of treatment and communications between coaches, medical staff, teachers, and parents. The plaintiffs also raise triable issues that might make such matters difficult to defeat at the dispositive stage, such as alleging the “culture” that the coaches and leadership create, which punishes or ridicules those who report concussions and do not “push through pain.”[11] Finally, with varying degrees of success, plaintiffs have asserted unique causes of action against sports organizations to overcome the standard defense hurdles, as detailed below.

Plaintiffs’ Creative Pleadings

In Texas, plaintiffs filed a concussion lawsuit in federal court asserting civil rights violations. These civil rights pleadings were filed to work around various governmental immunity protections afforded to a public school. The plaintiffs alleged that numerous children were getting injured in sporting events and their injuries were due to a “systemic culture of winning at all costs.”[12] Most consider this legal theory a stretch, but it was sufficient to get past the first dispositive motion.

In Illinois, plaintiffs filed a lawsuit against the NCAA for unjust enrichment, based upon the players’ expectations that the NCAA would provide a safe playing environment that protected their health and safety. Nevertheless, the court ruled that unjust enrichment claims required an expectation of payment or similar pecuniary benefit, and no such relationship existed in the sport, and therefore dismissed that argument.[13]

A July 2019 class action lawsuit filed in federal court in Indiana seeks $15 billion in damages against the NCAA and its various conferences based upon breach of contract, fraudulent concealment, unjust enrichment, and negligence. The complaint cites contractual terms between the student athletes and NCAA. It further claims that the NCAA proceeded to ignore studies and warnings of concussion injuries and safety regulations.[14]

Varied Approaches by States in Deciding Concussion Lawsuits

Further complicating these lawsuits have been the courts’ varied and inconsistent approaches to their respective state’s statute of limitations arguments. Some venues, like California, continue to support an early dismissal of the case based on the expiration of the statute of limitations and requirements to comply with the Government Claims Act.[15] However, the Ohio Supreme Court recently held that the statute of limitations for a CTE lawsuit began upon the identification of a CTE injury (i.e. autopsy), not when the athlete played the sport or sustained the concussion.[16] This change allowed the widow of an NCAA football player, who last played in 1974, to continue with her lawsuit against the NCAA after an autopsy confirmed CTE related injuries.[17]

At an increasing rate, the plaintiffs’ CTE related lawsuits are making it past dispositive motions, which is resulting in the potential for large verdicts. Few cases have gone to verdict regarding CTE and concussion-related claims. Typically, when plaintiffs defeat a dispositive motion, large settlements have been reached. In January 2018, a Texas court began the first jury trial in the United States against the NCAA in which the plaintiffs demanded $1 million.[18] It settled three days later for an confidential amount.

In May 2019, a concussion case against the NCAA was tried to verdict with the plaintiffs seeking $9.6 million. The plaintiffs alleged that Matt Onyshko developed ALS from repeated football concussions.[19] However, the jury returned with a defense verdict for the NCAA.

An Oregon family recently survived dispositive motions and is continuing in their lawsuit seeking $39 million because their son was diagnosed with vision problems, memory loss, anxiety, and depression, which they blame on a concussion sustained in high school football.[20] The family is seeking nearly $13.2 million for medical expenses, $700,000 for parental emotional distress, and non-economic damages of $25 million.[21] The complaint alleges the coaches, trainers, and teachers were aware of the plaintiff’s concussion, but failed to inform the parents, and allowed the athlete to continue to practice and play in games.[22]

A California family received a $7.1 million settlement after defeating a summary judgment motion because the facts suggested that the high school football player continued to play in a football game after exhibiting signs of a concussion.[23]

In 2016, a collegiate wrestler sued the State of Virginia for over $4 million based upon concussions that he sustained in practice; Virginia eventually settled for $525,000.[24] These examples only include the public settlements and not the numerous and confidential settlements reached between individuals and private entities.

Defenses to Concussion and CTE Lawsuits

Some of the legal issues surrounding CTE and concussion-related lawsuits are unsettled, and the treatment of these lawsuits and proceedings vary by state, if not county. Therefore, the bread and butter standard defenses continue to be necessary and should be aggressively pursued in any concussion-related lawsuit. These defenses should sound of plaintiffs’ failure to state a claim against the sports entity because no legal duty was owed to the participant. Furthermore, defendants should raise the defenses that the plaintiffs voluntarily participated in the sport and assumed the risk or injury inherent therein. In May 2019, a California Appellate Court upheld a trial court’s decision that dismissed a concussion case brought by a cheerleader on the grounds that cheerleading is a voluntary and inherently dangerous sport; the plaintiff’s claims of “pressure” by the coach or the school’s failure to protect against these injuries did not overcome the primary assumption of risk defense.[25]

Additionally, defenses should focus on the time the lawsuits and the injures were first experienced based upon a statute of limitations. The defendants can focus on when the players suffered the alleged concussions, their continued participation in the sport, any release from their physicians, and the first identification of the symptoms they attributable to the alleged concussion. If a public entity is involved, then the Government Claims Act should be considered and invoked if applicable.

Finally, and perhaps most importantly, the states and various sporting associations have drafted a patch-work of regulations as to sports concussions, monitoring, and treatment. It is important that each organization, coach, teacher, and parent comply with the corresponding regulations and guidance. Defending compliance with the state’s laws is a valuable and necessary defense.

Questionable Science of Concussion Related Injuries

In the event these standard defenses fail, the defense bar can attack the psyeduoscience of cauation in CTE and other alleged concussion-related injuries. Importantly, CTE cannot be confirmed until an autopsy is completed. Moreover “no studies have established the prevalence of CTE.”[26] Despite the plaintiffs’ presumption, the proposed “link” between repetitive head injuries and CTE remains speculative.[27] Indeed, the medical community’s previous definition of CTE does not resonate with the “modern” syndrome regarding repeated head injuries.[28] Based upon this new theory of CTE, there is a shortage of research to understand and correlate clinical presentation with postmortem pathology and there is no consensus about the causes of CTE.

Whether the plaintiff is alive or dead, the opinions of the plaintiffs’ experts must be challenged, both at trial and supporting opinions offered in opposition to defendants’ dispositive motions. The diagnoses offered by plaintiffs may not be considered reliable and many doctors have not established a standard for making a diagnosis.[29]

The issue of a definitive diagnosis is particularly significant for living plaintiffs. The living plaintiffs support their lawsuits based upon unproven inferences. The current methodology involves a whole brain screening, which ultimately includes various imaging and extrapolates age, motor skills, and the visual perception related to the injury.[30] According to neurologists in the industry, this “diagnosis” is inherently subjective and is a preliminary diagnosis of post-concussion syndrome (PCS), which is caused by individual concussions.[31] The long-term effects of repeated concussions that have been associated with CTE have similar symptoms as PCS, but the relationship between PCS and CTE is still unknown.[32] In short, expert testimony alleging CTE in a living plaintiff is ripe for evidentiary challenges.

Finally, until comorbidities such as opioid and other drug use along with the presence of genetic risk factors that cause Alzheimer’s disease are considered, the notion that sports participation causes the behavioral and neurological problems attributed by some to CTE remains a theory.[33] The science has not made the leap that participation in a sport and a concussion in that sport places one at an unreasonable risk of long-term injury.

Conclusion

The defense of sports organizations, schools, equipment manufacturers, and organizers of other related activities must take an active and aggressive approach to concussion-related lawsuits. These concussion and CTE lawsuits are beginning to gain traction in the courts, and the plaintiffs’ bar has taken more novel approaches and arguments to get these lawsuits through the dispositive stages in the courtroom. Considering that the jury pool is more aware of CTE and concussions in sports, such claims are generating a higher value among the plaintiffs. Therefore, the defendants need to take a creative approach and strong defense to these claims, and they may not be able rely on the tried and true assumption of risk and waiver defenses used in the past.