By Jack K. Hagerty and Dylan F. Henry, of Montgomery McCracken Walker & Rhoads LLP
Head-To-Head—The Case
In December 2019, a Court for the Central District of California granted summary judgment in favor of Pop Warner Little Scholars, Inc., ending a three-year case brought against Pop Warner by two mothers who claimed their sons developed Chronic Traumatic Encephalopathy (“CTE”) from playing Pop Warner football.[21] Paul Bright Jr. (Kimberly Archie’s son) and Tyler Cornell (Jo Cornell’s son) both played Pop Warner football in their youth, both passed away in 2014, and both were alleged to have Stage I CTE, which was discovered in postmortem autopsies of their brains. Bright Jr. passed away at age 24 from a motorcycle accident; Cornell passed away at age 25 by suicide.
The mothers filed a class-action lawsuit in September 2016, alleging Pop Warner “failed to provide for the safety and health of child participants in its program,” and asserted claims for negligence, fraud, deceptive business practices, and wrongful death.
Pop Warner moved for summary judgment, claiming there was insufficient evidence to prove it knew of the risks associated with CTE at the time Archie’s and Cornell’s sons played youth football in its organization.
Pop Warner argued that the plaintiffs failed to make the necessary causation showing. First, Pop Warner claimed there was absolutely no evidence that Bright Jr. or Cornell ever suffered a concussion while playing youth football at Pop Warner. Second, Pop Warner argued there was insufficient proof to support the general allegation that youth football causes CTE.
In opposing Pop Warner’s motion for summary judgment, Archie and Cornell relied on the opinions of three experts—Dr. James Merikangas, Dr. Brent Harris, and Dr. Bennet Omalu. Plaintiffs’ experts argued all football games result in repetitive head trauma for the players, and all head trauma is capable of causing brain damage.
Proof of the (Dura) Matter Asserted—The Battle of the Experts on CTE Causation
The Court excluded the opinion of Dr. Merikangas at the outset, finding he failed to consider other potential causal factors and did not base his opinion on any medical records or other evidence.
The other two experts—Drs. Harris and Omalu—did offer opinions, though Dr. Harris stated he was unable to opine on causation, which was one of the key elements of the case. Dr. Omalu’s opinion was similarly unhelpful to the district court; though Dr. Omalu broadly discussed CTE in his expert report, he failed to explain how or why Pop Warner football was a substantial factor in the players’ deaths given the multitude of other factors that could have caused or contributed to the alleged development of CTE, or the potential causes (separate and apart from CTE) of the untimely deaths.
The court noted Dr. Omalu utterly failed to explain the scientific or methodological basis for his conclusions and highlighted Pop Warner’s competing expert opinions, which harshly criticized the unreliability of the science surrounding CTE.
Thinking it Through—The Court Decides
The Court agreed with Pop Warner, finding there was no triable issue of fact given the dearth of evidence relied on by Archie and Cornell. In arriving at this decision, the Court focused solely on the issue of causation. The Court invoked the “substantial factor” test, which recognizes that negligent conduct can combine with another factor to cause harm. Under this theory, if the same harm would have occurred without the allegedly negligent conduct, then the negligent conduct is not a “substantial factor” capable of establishing legal causation.
While the Court held that ruling out every possible cause of harm is not required, the Court recognized that expert testimony that only establishes a mere possibility, as compared to a probability, is insufficient to establish causation. With these considerations in mind, the Court concluded Archie and Cornell’s expert declarations and testimony were legally insufficient to establish causation and were insufficient to legally link the time Bright Jr. and Cornell played Pop Warner football with CTE, and CTE with their untimely deaths.
Meditating on The Future—Takeaways
This case is one of many in a continuing trend that attempts to link participation in high-contact sports with latent brain diseases and resulting complications (CTE, Alzheimer’s, Dementia, ALS). In addition, it demonstrates that cases in this context boil down to a battle of the experts on causation: can the plaintiff successfully bridge the causal gaps between participation in a sport (and the failure to warn about the long term risks associated with participation in the sport) and some latent brain disease, and then the gap between the brain disease and the ultimate harm, which, in most cases, is death. Because the science surrounding CTE is still in its infancy, the fate of litigation often hinges on which expert the judge or jury sides with.
In this case, all plaintiffs’ experts conceded there was no documented evidence that established either decedent suffered a concussion, or any form of head trauma, in the course of playing Pop Warner football. Instead, plaintiffs and their experts rested on the theory that brain damage may be assumed by virtue of the decedents’ participation in Pop Warner football.
Furthermore, the plaintiffs’ expert testimony and declarations were scant on explaining the underlying scientific or methodological bases. Ultimately, the Court found that the opinions were not reliable because, at the end of the day, they simply did not make sense.
So long as the science behind CTE and its links to football and other high-risk contact sports (or to repetitive head trauma that occurs outside the sports setting) remains unsettled, it will be up to the courts and the juries to make decisions on a case-by-case basis. The Court in the Pop Warner case could have easily punted on the issue and allowed this case to proceed to trial. There, it would be up to the finder of fact—either the judge or the jury—to assess the expert opinions and ultimately decide the liability issue based on how they understood the science. Until the scientific community can reach a clearer consensus on CTE and causation, we can expect these sport-related CTE (and other latent brain disease) cases to increase because it is not only easier for plaintiffs to bring a lawsuit, but, more importantly, maintain these types of suits.
Afterthought—CTE and Dr. Bennet Omalu
CTE and Dr. Bennet Omalu gained mainstream attention in 2015 when Columbia Pictures released “Concussion,” a feature-length film in which Will Smith portrayed Dr. Omalu. In the film, the NFL actively attempts to suppress Dr. Omalu, who is presented as having discovered CTE, in his efforts to spread awareness of the degenerative condition. In reality, Dr. Omalu published a paper in 2005 discussing his analysis of the brain of a deceased NFL player and the research linking repetitive head trauma to brain damage that dates back to the 1920s.
Recently, in addition to the Pop Warner Court’s opinion discrediting Dr. Omalu’s opinion, Dr. Omalu was the subject of a highly critical Washington Post article that outlines his apparent transition from medical researcher to plaintiffs’ evangelical expert for hire.[22] Dr. Omalu has earned a pretty penny testifying as plaintiffs’ expert in many sport-related TBI, CTE, and other latent brain disease cases. The article highlights Dr. Omalu’s efforts to “brand” CTE and himself, his transition from scientist to salesmen, and debunks the doctor’s claims that he discovered and named CTE. The article also reports that fears of CTE’s prevalence are overblown and provides a necessary and measured counter-point to the inundation of CTE articles of late.
[21] Archie v. Pop Warner Little Scholars, Inc., No. 16-6603 (D.N.J. Dec. 27, 2019) (order granting summary judgment to defendants).
[22] Will Hobson, From Scientist to Salesman, Washington Post (Jan. 22, 2020), https://www.washingtonpost.com/graphics/2020/sports/cte-bennet-omalu/.
