By Gary J. Chester
A typical concussion lawsuit by a football player targets the NFL or the NCAA and the athlete’s former team. The basic allegations are that the defendants knew the risks inherent in the sport, hid them from the athletes, and failed to adopt appropriate safety protocols.
Plaintiffs rarely sue the manufacturer of football helmets because those cases present multiple challenges, including state statutes of limitations (e.g., Butler v. BRG Sports, LLC, 2019 Ill. App.(1st) 180362, Oct. 21, 2019).
But Adams v. BRG Sports, Inc., (N.D. Ill. 2021, Case No. 17 C 8544) is an exception.
THE FACTS
The plaintiffs are former high school football players who allegedly sustained brain injuries resulting from the negligence of the defendants, manufacturers of football helmets under the brand name of Riddell.
Each plaintiff wore a Riddell helmet when they played football and sustained head injuries in a time range of 1975 to at least 2002. The National Operating Committee on Standards for Athletic Equipment (NOCSAE), formed in 1969, implemented football helmet safety standards in 1973. The standards applied to Riddell helmets.
The plaintiffs alleged two forms of negligence: design defect and failure to warn. The defendants filed motions to exclude the testimony of the plaintiffs’ only expert, Dr. Randall Benson, and for summary judgment on all claims.
The Design Defect Claim
The plaintiffs alleged that Riddell’s football helmets caused them to suffer brain injuries because they did not adequately protect them from concussive and sub-concussive blows to the head. The helmets allegedly lacked: (1) sufficient energy-absorbing padding; (2) better energy absorbing systems such as air-filled chambers [used by Schutt Sports, a competitor of Riddell], and (3) adequate amounts of padding.
Dr. Benson opined that the plaintiffs’ head trauma sustained while playing football was caused by using defectively designed helmets and by Riddell’s failure to warn. His report stated that wearing a properly designed football helmet “can reduce the incidence and injuries complained of if the helmet is properly worn…” He concluded that Riddell’s negligence caused the plaintiffs to suffer from memory loss, headaches, depression, and other conditions.
The Failure to Warn Claim
Beginning in 1983 and until the late 1990s, Riddell affixed warning labels onto the back of their football helmets. The warning stated: “Do not use this helmet to strike an opponent. Such an action is against football rules and may cause severe brain or neck injury. Playing the game of football in itself can cause injury, and no helmet can prevent all such injuries.”
The plaintiffs contended that a better warning would have prompted them to either avoid playing football, choose a safer helmet, or play football differently.
INADEQUATE SCIENCE SINKS THE DESIGN DEFECT CLAIM
Since many of the plaintiffs played football in Texas and Iowa, the court applied the law of those jurisdictions in deciding the motions. Under the law of both states, a plaintiff alleging design defect – based on theories of negligence and strict liability – must provide evidence of causation. In Texas, a strict liability plaintiff must prove that: (1) the product was defectively designed and unreasonably dangerous; (2) a safer alternative design existed; and (3) the defect was a producing cause of the plaintiff’s injury.
Riddell argued that Dr. Benson’s conclusions were vague, that he provided no support for the contention that Riddell’s helmets were not properly designed or engineered, and that he did not consider alternate causes for the plaintiffs’ injuries.
The plaintiffs cited several scientific studies in support of their claims that participating in football and deficient helmet design are causally connected to brain injuries. The court dismissed the design defect claim, reasoning in part: “But none of these scientific studies concern Riddell helmets; many do not even address football helmets at all.”
The court further observed that Dr. Benson’s report failed to connect the plaintiffs’ injuries with Riddell’s designs. The court stated: “Indeed, the most that Dr. Benson has said regarding design is, in essence, that good helmet design can mitigate the risk of head injuries…That’s all well and good, but it does not advance the ball in establishing that Riddell’s designs were deficient, let alone how they were deficient. Without such evidence, the plaintiffs cannot meet their evidentiary burden on general causation regarding their design defect claims.”
CAN THE PLAINTIFFS PROVE A FAILURE TO WARN?
The court denied the motion to dismiss plaintiffs’ failure to warn claim, but it cautioned that neither side had adequately addressed the issue of proximate cause. It rejected Riddell’s assertion that because the plaintiffs could not prove causation between the alleged defect and their injuries, it eliminates the possibility of causation from Riddell’s warnings.
The court noted that under Iowa law, a plaintiff may prove a failure to warn claim by “showing a warning would have altered the plaintiff’s conduct so as to avoid injury.” Under Texas law, the plaintiff must prove the defendant knew or should have known of a potential risk, but it marketed the product without an adequate warning.
The court admonished: “Riddell makes no effort to explain what exactly it thinks is required to show causation in a failure to warn case…The plaintiffs have not done a particularly good job on this point either, but it is Riddell that has to tee up the issue by showing that there are no genuine factual disputes and that it is entitled to judgment.”
THE TAKEAWAY
- It is often easy to find an expert engineer to criticize product safety warnings and suggest more thorough warnings; establishing proximate cause between the warnings and the occurrence is the hard part. (If an expert fails to rely on objective studies or standards, the opinion may be excluded from trial as a “net opinion.”)
- Can the plaintiffs persuade a jury that more alarming warnings would have dissuaded them from playing football?
- Was there a safer helmet available from Riddell’s competitors, such as Schutt Sports? Did Schutt use more detailed warnings?
- When a judge criticizes both sides on a central issue in the case, it is often a coded message to the parties that they should settle.
