Two high-profile brain injury lawyers have submitted an amicus brief on behalf of the Brain Injury Association of America (BIAA) to the 3rd U.S. Circuit Court of Appeals in the NFL concussion litigation.
The purpose of the brief, according to Shana De Caro and Michael V. Kaplen of De Caro & Kaplen, is to “explain the science of Traumatic Brain Injury (TBI) and the misconceptions inherent and relied upon by the District Court in the settlement agreement.” Their objective: have the court “set the agreement aside in the interest of all retired NFL football players who have sustained brain injury.”
The attorneys wrote in the brief that “the settlement neither recognizes nor compensates the majority of players suffering long-term consequences of brain trauma, but merely rewards certain, small, discrete groups. The vast majority of retired football players experiencing physical, emotional, and behavioral impairments following repetitive concussions remain excluded and uncompensated under settlement terms. In the interest of expediency, the District Court relied on self-serving submissions of counsel, which unjustifiably categorized the vast majority of brain injuries as not being ‘serious’ or unrelated to repetitive head trauma, ignoring the overwhelming scientific consensus regarding the causes and ramifications of traumatic brain injury.”
They added that the proposed settlement “is faulty in many respects,” including:
“failure to consider subtle differences and distinctions of developing brain damage not immediately apparent;
omission of mild brain injury;
failure to compensate recognized physical, behavioral, emotional, and cognitive sequelae of concussion;
exclusion of well-recognized categories of presumptive brain injury;
failure to provide meaningful benefits for cognitive impairment;
arbitrary compensation distinctions based upon years of play and age;
implicit disregard of overwhelming medical evidence that one concussion can precipitate life-long consequences;
an illusory benefit failing to account for required Medicare and Medicaid lien offsets;
insurmountable neuropsychological testing criteria;
ignoring physical, emotional, and behavioral impairment undetectable by the settlement’s testing protocol;
overemphasis on malingering tests; and
failure to consider alternate testing modalities, such as diagnostic imaging.”
De Caro and Kaplen were active in concussion litigation long before the sports concussion issue entered the mainstream. De Caro is a member of the Board of Directors of the Brain Injury Association of America and immediate past chair of the American Association for Justice, Traumatic Brain Injury Litigation Group. Kaplen, meanwhile, teaches the only course on traumatic brain injury law in the nation, at the George Washington University Law School, and is three term past president of the Brain Injury Association of New York State.
