By Jarett L. Warner
The number of former players joining the litigation against the NFL for neurological and wrongful death claims relating to concussions incurred during their playing days is mounting as fast as the instances of discord in the New York Jets’ locker room. The number is now more than 4,000 former players.
Most recently, former Pro-Bowler and two time Super Bowl champion, defensive end Neil Smith, filed a lawsuit claiming that he suffers from cognitive impairment and the early onset of dementia caused by concussions sustained during his playing career. He even claims that he sustained three concussions during one game during his 1988 rookie season that were undiagnosed and untreated.
Recent developments have led some to believe that the NFL has taken a huge blow of its own to its defenses in the litigation. Last month, ESPN published a 1999 letter from the Director of the NFL Disability Board to the attorney of former Hall of Famer Pittsburgh Steeler Mike Webster denying additional disability benefits based on the determination of the NFL Disability Board that it had “determined that Mr. Webster’s disability arose while he was an active player” and that medical reports reflects that “his disability [was] the result of head injuries he suffered as a football player with the Pittsburgh Steelers and Kansas City Chiefs.”
The plaintiffs in the NFL Concussion litigation will undoubtedly argue that the Disability Board’s determination that Mike Webster’s injuries were caused while playing in the NFL establishes that the NFL had prior evidence that concussions lead to permanent neurological and other health problems. The Disability Board is also likely to have similar records relating to other former players.
Based on this evidence, the plaintiffs will likely request that the Court preclude the NFL from arguing that concussions cause long term neurological and other health issues. The plaintiffs will base this argument on the legal principle of collateral estoppel.
Collateral estoppel (also known as issue preclusion) precludes litigants from challenging the determination of an issue in a subsequent action if it was already fully and fairly litigated in a prior litigation. In order to give the previous determination preclusive effect, “the issue must have been actually litigated in the prior proceeding, the parties must have been given a full and fair opportunity to do so, and the issue must provide the basis for the final judgment entered therein.” Hartley v. Mentor Corp., 869 F.2d 1469, 1471 (U.S. Court of Appeals for Fed. Cir. 1989). The factual issues between the prior and current litigation would need to be identical.
However, it is unlikely that the NFL will be collaterally estopped from arguing causation between the concussions and the long-term health problems of former players.
First, the NFL has a strong argument that the determination made by the NFL Disability Board is independent of the opinions and determinations made by the NFL and thus the NFL did not have a full and fair opportunity to litigate the issue. The NFL Disability Board is comprised of three representatives from both the owners and players, along with a representative chosen by the NFL commissioner. This is quite different than if the NFL Disability Board was made based on a vote of the owners of the 32 NFL teams.
Most importantly, the NFL can argue that because there are a multitude of variables between the thousands of former players who are suing that collateral estoppel cannot be applied. For example, the thousands of players have a vast array of differences as to their history of playing football, concussions and health issues. Some players may have sustained concussions while playing football in high school while others may have suffered concussions while playing college football. Some players may have previously returned to a game after a concussion while others did not.
Certainly, even to the extent the NFL is not precluded from an argument as to its lack of knowledge as to the long-term effect of concussions, the determination made by the NFL Disability Board could be presented during the course of the litigation and at the time of trial of evidence. This circumstantial evidence will help the players demonstrate that the NFL had knowledge of the long-term effects of concussions and in turned failed to warn. However, this will require the players’ attorneys to present evidence from the Mike Webster case (or similar cases/determinations made by the NFL Disability Board) to establish the prior knowledge that the NFL had relating to the known effects of concussions.
Ultimately, the Court could determine that, in part, since the decision concerning Mike Webster was made by the NFL Disability Board, which was created by the collective bargaining agreement, all of the cases should be sent to an arbitrator to hear. This is the subject of a pending motion to dismiss by the NFL. Such a result would take the monetary awards out of the hands of potentially sympathetic juries and put them in the hands of an arbitrator. This would be a touchdown for the NFL in the litigation.
Jarett L. Warner is of Counsel at Havkins Rosenfeld Ritzert & Varriale. He concentrates his practice in defending sports and recreational venues and operators, construction companies and premises owners and managers in personal injury actions. He can be reached at jarett.warner@hrrvlaw.com
