By Gary Chester, Senior Writer
In concussion cases, the plaintiffs can often raise issues of fact as to three of the four negligence requirements. But proving causation is often a steep hurdle, as the plaintiff discovered in Willbourn v. BRG Sports, Inc., No. 4:19cv00263 (N.D. Tex. 2019).
DuQuan Myers was a high school football player who allegedly sustained at least 14 concussions while wearing a Riddell football helmet. In 2017, Myers committed suicide. Myers’ mother, Letitia Wilbourn, sued BRG, the parent company of Riddell, for wrongful death, negligence, design defect, and failure to warn. BRG brought a motion for summary judgment that raised several issues that are common in concussion cases.
The Facts
Following Myers’ death, Wilbourn submitted his brain to the Boston University School of Medicine’s Chronic Traumatic Encephalopathy (CTE) Center. The Center examined Myers’ brain and diagnosed him with depression and post-concussive syndrome. The Center noted that Myers’ depressive symptoms were amplified after the death of his cousin and the ending of a romantic relationship.
The plaintiff alleged that Myers’ concussions caused his CTE and that the CTE caused or contributed to his suicide. It was alleged that the Riddell football helmet was inadequately designed to protect against brain injuries and that Riddell intentionally misled football players by misrepresenting how effective their helmets are at preventing concussions. Wilbourn further alleged that Riddell inadequately warned of the dangers associated with concussions.
The plaintiff designated Dr. Randall Benson, a neurologist, as an expert on causation. Dr. Benson linked concussions to CTE, which is a “progressive neurodegenerative disease caused by repetitive trauma to the brain” with “symptoms similar to Alzheimer’s disease.” Dr. Benson further connected head impacts in football to permanent brain injury and explained how helmets can reduce the potential for harm by “compressing to absorb force.”
The plaintiff also relied on a report by two medical doctors at Boston University who found that depression was the primary diagnosis for Myers’ death, and that “post-concussive syndrome” was a contributing diagnosis.
The Procedural History
After discovery, BRG moved to exclude the experts’ testimony as unreliable pursuant to Federal Rule of Evidence 702. The court denied the motion as to Dr. Benson and the Boston University experts, but it excluded the testimony of an additional expert. BRG also moved for summary judgment on all claims.
BRG argued that: (1) the statute of limitations barred Wilbourn’s wrongful death claim; (2) Wilbourn did not properly represent Myers’ estate; and (3) there was no evidence that its Riddell helmets caused Myers to commit suicide.
Summary Judgment Granted on all Claims
The court granted summary judgment because the plaintiff missed Texas’ two-year statute of limitations for wrongful death claims by filing the complaint on March 31, 2019 – two years and 42 days after the plaintiff died.
The court rejected the plaintiff’s argument that the statute was tolled by the filing of a class action with nearly identical claims in Illinois, Adams v. BRG Sports, 2021 WL 1517881 (N.D. Ill. Apr. 17, 2021). (See Sports Litigation Alert for August 13, 2021, p. 7.) Wilbourn argued that Myers’ claims were nearly identical to the claims in the class action, so the statute of limitations should be tolled under the doctrine established in American Pipe & Construction v. Utah, 414 U.S. 538, 554 (1974).
There, the Supreme Court held that “commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties” to the suit if the case continued as a class action (the American Pipe doctrine). But the trial judge found that the American Pipe doctrine did not apply to Wilbourn because the Illinois case was a federal case and Texas does not extend the doctrine to cases brought under state law (Wilbourn’s wrongful death and survival claims were based on state law).
The court also granted summary judgment because the administration of Myers’ estate was still pending, so Wilbourn lacked the legal capacity to act on behalf of the estate.
Finally, the court found that Wilbourn could not, as a matter of law, establish proximate cause on any of the four claims. The court stated that Dr. Benson’s report “falls short of providing sufficient evidence to raise a genuine issue of whether Riddell helmets cause long-term brain injuries…[the] report never evaluates the effectiveness of Riddell helmets at preventing brain injuries…The closest Dr. Benson comes to making any claim about helmet efficacy is that [a] poorly-designed helmet ‘can lead to increased brain injuries, including CTE.’”
The court further reasoned: “[Dr. Benson] does not address the key question: whether Myers’s CTE still would have occurred without the use of Riddell helmets. Benson’s report presents no evidence to show that the helmets were a ‘substantial factor’ in Myers’s death.”
The court noted that BRG was granted (partial) summary judgment in Adams because the plaintiffs failed to adduce sufficient evidence to create an issue of fact as to whether Riddell helmets were a substantial cause of death.
The Court Empathized, but Adhered to the Law
In emphasizing that judges are people too, some law school professors will impart the caveat that in some David vs. Goliath cases, such as a grieving widow suing a multinational corporation, courts may stretch their reasoning to find for the underdog. While the trial judge here did not engage in this practice, the court tried to place the tragedy in context and express empathy for Ms. Wilbourn.
The court noted that more than more than a million high school students play competitive football and “serious questions have been raised about tackle football’s safety.” The court discussed Congressional hearings on the connection between football and CTE.
The court stated that while it has “grave concerns about the long-term effects of CTE and desires to protect players, especially youth who may not fully understand the risks of the game, the Court is bound to follow the law and the evidence that is brought before it.”
In an unusual footnote, the court wrote: “The Court is reminded of the words of the celebrated Virginia jurist Brockenbrough Lamb who observed in a similar tragic case several decades ago that although he regret[ed] that the conclusion reached will prevent a recovery and may thereby defeat the ends of justice in the particular case before [the court], but however that may be, we must declare the law as we find it written and comfort ourselves with the confident belief that in its results it will promote the ends of justice to all.”
[Judge Brockenbrough Lamb, The Duty of Judges: A Government of Laws and Not of Men, in HANDBOOK FOR JUDGES 93 (Donald K. Carroll ed., 1961).]
