NFL concussion lawsuit: How the NFL is like Big Tobacco.

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July 26 2011 1:19 PM

Concussions and Cigarettes

A new lawsuit claims the NFL is like Big Tobacco. Does the case have merit?

 Starting Quarterback Trent Edwards #5 of the Buffalo Bills suffers a concussion in 2008. Click image to expand.
Quarterback Trent Edwards of the Buffalo Bills suffers a concussion in 2008

One of football's legal dramas has just ended, as the NFL's owners and players have reached a deal to end the pro football lockout just in time for training camp. Another, perhaps more enduring battle has just begun. Last week, 75 former players brought suit against the NFL, alleging that the league covered up evidence that concussions could cause long-term damage. The plaintiffs have hired a very heavy hitter: Thomas Girardi, who's best known as the lawyer who successfully litigated what's come to be known as the Erin Brockovich case.

A few months ago, I speculated about what a concussion suit might allege. We needn't guess any longer. The complaint, filed in California state court last week, puts the NFL under a legal microscope for a host of claimed violations of tort law: negligence, fraud, and loss of consortium. Also sued are related legal entities responsible for the manufacture and design of football helmets, as well as NFL Properties, which enters into equipment contracts on the league's behalf.

The basic factual outline of the claim is that the NFL neither informed its players about the possible long-term effects from concussions, nor protected them from the risk of head injuries. The lawsuit includes some high-profile players—Mark Duper and Mike Richardson—and the injuries chronicled in the complaint are clear and dramatic. * They range from memory loss and cognitive impairment to intermittent rage, depression, inability to concentrate, substance abuse, post-traumatic stress disorder, seizures, dementia, and early-onset Alzheimer's. The complaint also repeats the conclusion of Dr. Bennet Omalu that the deaths of players including Mike Webster, Terry Long, and Andre Waters were at least in part caused by chronic traumatic encephalopathy, triggered by multiple football concussions. (This suit, though, is limited to living players.)

All of these plaintiffs face a long and winding road from injury to liability and recovery. The former players' position is tricky, because the science establishing the long-term risks of concussions isn't new. If the NFL knew about it, why didn't the players, or at least their union? The attorneys set forth dozens of scientific facts from reputable journals and statements by formal and informal "authorities" (including Pop Warner, from almost a century ago), all to the point that the effects of concussions have long been known. So, why didn't the union try to do something about this, if it was so clear? The players' response might be that the NFL tried to throw them off the scent.

A comparison to Big Tobacco could be helpful to the plaintiffs here. The turning point in the litigation by smokers against the tobacco companies came when the decades-long campaign to misdirect and misinform the public was revealed. The scientific connection between smoking and deadly diseases such as lung cancer and emphysema, and the evidence supporting nicotine's addictive nature had been well-accepted by the scientific community. Nevertheless, in 1953 the companies created their own front organization—the Tobacco Industry Research Committee—to lend a veneer of respectability to their unconvincing counterarguments.

Once the cover-up and misdirection were laid bare, a legal switch was flipped. No longer were smokers seen as putting themselves in harm's way. Rather, they were dupes of the industry's long suppression of evidence. When their fraud—including a series of executives claiming before a congressional committee in 1994 that nicotine is not addictive—was revealed, plaintiffs went from losers to winners, virtually overnight.

Girardi is mounting a similar strategy, accusing the NFL's oxymoronically named Committee on Mild Traumatic Brain Injury of warping and misrepresenting the best science in an effort to obscure the connection between concussions and long-term brain injuries. Indeed, the complaint makes the football-tobacco link explicit. The players cite a comment by California Rep. Linda Sanchez during an October 2009 hearing of the House judiciary committee that likened the NFL's denial of a link "between concussion and cognitive decline to the tobacco industry's denial of the link between cigarette consumption and ill health effects."

This is smart pleading, made even more compelling by the complaint's citation of one of the most astonishing statements, surely, that's ever been made by anyone associated with a professional sport. In a 2006 article published in the journal Neurosurgical Focus, David Viano and Elliot Pellman—two members of the league's concussion committee—summarized their "research" to date. The fact that most players returned to the game within a week after suffering a concussion, they explained, was proof that "mild [traumatic brain injuries] in professional football are not serious injuries." It hardly need to be said that teams—and their employees, including doctors—faced strong incentives to encourage players to go back on the field, fully recovered or not.

By alleging a pervasive, fraudulent cover-up, the plaintiffs' attorneys have made the case a candidate for punitive damages, which are available only when the defendant's actions are worse than "merely" negligent. And the suit alleges that the NFL has gotten away with suppressing evidence by virtue of its "monopoly power over American football." This isn't an antitrust suit, however, and the term "monopoly power" isn't being used in a standard way.

First, the plaintiffs are claiming the NFL is an "industry icon" that all lower football leagues model themselves after. Even if this statement doesn't directly benefit the plaintiffs in this suit, it might serve as a template for a wave of suits brought by players at the college, high school, and even youth football levels. The NFL might soon be facing a cluster headache.

The second part of the monopolist theory anticipates the argument that the union should have, or could have, known what the NFL is alleged to have known. Because it controls the research and education of football players, as well as their safety, the suit argues that the NFL has a responsibility to protect them by establishing a responsible concussion policy. Making explicit the point that the NFL had information that the players didn't, the complaint says that the "[p]laintiffs did not know of the long-term effects of concussions and relied on the NFL and the [helmet manufacturers] to protect them."

There's something to this. As Girardi put it to me, a football player would be ridiculed if he walked into the locker room and said, "Hey, I've got this new helmet that's safer. Can I wear it today?" It's usually the employer, not the employees, who are responsible for safety in the workplace—not just in the NFL, but as a basic principle of tort law. If the boss doesn't provide the equipment needed to keep workers from getting injured on the job, he can't later argue that they have only themselves to blame for not providing that equipment.

Yet even if the NFL was determined to cover up the increasingly troubling facts about the long-term effects of head injuries, the case remains tricky. Was the union reasonable in relying exclusively on the NFL, given the many other sources of information? To succeed on a fraud claim, one typically must prove that it was reasonable to rely on misrepresented facts. It's notable in this regard that a bunch of these sobering sources are detailed in the complaint itself.

Other obstacles to success loom, most of which I detailed back in February. The suit might be deemed barred by the workers' compensation law, which typically provides the exclusive remedy. (But if the suit does end up in a workers' compensation court, then California was the right place to file it—the state's workers' comp law is probably the most employee-friendly in the country.) The claim might also be deemed covered by the league's collective bargaining agreement, in which case an entirely different lawsuit would have to proceed in federal court. Even if these jurisdictional and general liability issues are ultimately resolved in favor of the plaintiffs, there will then be 75 separate suits to win. As Girardi acknowledges, this isn't a proper suit for a class action because the damages suffered vary so widely in their nature and extent. They've been brought as one complaint because the allegations against the defendants are the same for all, yet it's more accurate to think of them as individual suits containing many of the same facts.

Girardi likens this case to the one against Vioxx, where pre-trial discovery revealed varying levels of injury, ranging from mild strokes to severe heart attacks. Here, he says, the damages start subtly—with mild memory loss, for example—and often progress to the more severe symptoms that ground many of these claims.

That's his story. The NFL, even if forced to get to the merits, will try to tell a different one: about former players whose impairments are questionable and have unclear origins.

It's hard to guess how much of a hit the NFL could take if these lawsuits succeed. It depends on the extent of damages proved, and whether punitive damages are awarded. Still, it's easy to imagine liability in the range of the $333 million settlement against Pacific Gas and Electric in the Erin Brockovich case. It would take a lot more than that—perhaps a separate set of wrongful death suits—to dent the NFL's financial armor.

What's the next step? The defendants will likely move to dismiss the complaint, but if it survives that motion we'll likely be in for a long slog. The NFL's new collective bargaining agreement means the league will have labor peace until 2021. But if these claims have any traction, the NFL's legal battles will simply be fought in a different arena.

Correction, July 27, 2011: This piece originally misspelled the first name of former New York Giants running back Ottis Anderson. The piece also incorrectly named Anderson as a plaintiff in a concussion lawsuit. His name has been removed from the lawsuit. (Return to corrected sentence.)

John Culhane is professor of law and director of the Health Law Institute at Widener University School of Law and co-author of Same-Sex Legal Kit for Dummies.