Challenge around Causation Trips Up Plaintiff in Concussion Action Against BRG and Riddell

Nov 9, 2018

A federal judge from the Northern District of Illinois temporarily dismissed the complaint of three former high school football players, who sued two companies that design, manufacture, and sell football helmets, alleging that their defective designs, inadequate warnings, and negligence caused the players to suffer concussions and other injuries.
 
The court — adopting some of the blame because it asked the plaintiffs to create a “master complaint” instead of individual complaints to avoid unnecessary effort and expense — allowed the plaintiffs to refile their complaint. “In retrospect, the Court should have been somewhat more specific about what topics should be in each,” it wrote.
 
“The way plaintiffs did it, the individual short-form complaints include the following: identification of the parts of the master complaint the plaintiff is adopting; the state of residence of the plaintiff; identification of when and where the plaintiff played football; allegations about the nature of the injuries the plaintiff suffered playing football and symptoms the plaintiff has experienced from those injuries; a statement that the plaintiff wore a helmet designed or manufactured by defendants; and a listing of the causes of action set forth in the master complaint that the plaintiff is adopting. Somewhat conspicuously missing are allegations relating to causation, a point to which the court will return later in this opinion.”
 
Not surprisingly, defendants BRG Sports, Inc. and Riddell moved to dismiss the complaint, claiming it lacked sufficient facts.
 
The court, however, found that the defendants’ arguments “lack merit,” based on the following:
 
“Defendants say that plaintiffs don’t describe whether they have undergone medical treatment or that they have received a specific diagnosis. As a result, defendants contend they cannot tell whether plaintiffs are suing for past, present, or future injuries. The court disagrees; the individual complaints adequately describe the injuries and symptoms that each plaintiff claims. (The fact that these are stated in the same or similar ways by different plaintiffs is not in the least bit problematic; one would expect that different people who experienced strikes to the head from which they were not adequately protected would suffer the same or similar types of injuries.) Defendants cite no case requiring a medical diagnosis or specific treatment to be alleged in a complaint in order for a case to proceed. That is an issue of the sufficiency or weight of the evidence, not the adequacy of the plaintiff’s complaint. The same is true of defendants’ criticism that plaintiffs have described only ‘subjective complaints.’”
 
The court then turned to the defendants’ objection that “although the master complaint alleges negligent marketing, none of the plaintiffs identify any particular marketing to which they were exposed. The negligence claim, however, is not confined to marketing; plaintiffs allege that ‘[d]efendants were negligent in the design, testing, marketing, and engineering of the helmets [worn] by plaintiffs.’ This along with the other detailed allegations of what plaintiffs contend was negligent about each of these activities — design, testing, marketing, and engineering — is more than sufficient to meet plaintiffs’ obligations … . The specific marketing to which particular plaintiffs were exposed is a matter of evidence appropriately explored during discovery; the complaint need not include this level of detail in a case like this one.”
 
Third, the defendants argued that the complaints “are deficient because, for the most part, they do not identify the particular helmet model that the particular plaintiff used. This is not fatal or even close to it. As an initial matter, one would not expect a high school football player to recall the particular model of helmet that he used. That aside, the particular model is not the type of detail that is required for a complaint to satisfy Rule 8(a). It is sufficient to allege that the plaintiff used a helmet manufactured by the defendant; the rest is appropriately addressed during discovery.”
 
The court continued that while some of the defendants’ arguments had merit, the plaintiffs’ complaint could be cured by repleading.
 
“The primary meritorious point that defendants make concerns causation,” wrote the court. “In the current format, plaintiffs have included causation allegations only in the master complaints and have left them out of the individual short-form complaints. Defendants correctly protest that these allegations are worded in a way that obfuscates whether each and every plaintiff is alleging that his injury is caused by the defendants’ negligence, defective design, and/or inadequate warnings.
 
There are, as defendants correctly point out, two aspects to causation. The first is general causation, that is, whether the product or exposure has the capacity to cause the injury the plaintiff alleges. The second is specific causation, that is, whether the product or exposure in fact caused the plaintiff’s injury. Both must be alleged. See, e.g., Wells v. Smithkline Beecham Corp., 601 F.3d 375, 376-77 (5th Cir. 2010) (Texas law).
 
“General causation, in the Court’s view, can appropriately be included in the master complaint in the present case. That is what plaintiffs have done, and their allegations on this point in the master complaint are sufficient.
 
“Specific causation is a different matter. That must be determined and, in the Court’s view, alleged on a plaintiff-by-plaintiff basis. But plaintiffs have not done that. Rather, they have tried to allege specific causation on a group basis and only in the master complaint. And these allegations are worded in a way that leads one to believe that plaintiffs may be trying to bury individual causation problems by taking a ‘safety in numbers’ approach. For example, on the failure to warn claim, plaintiffs say this about causation:
 
‘[H]ad Riddell actually provided full, understandable, and effective warnings to Plaintiffs regarding the risks of long-term brain injuries while wearing supposedly protective head gear (Riddell helmets), certain Plaintiffs would have avoided certain head contact they thought was safe, certain Plaintiffs would not have chosen to continue playing football, and certain Plaintiffs may have chosen to wear a safer and better designed helmet. Case No. 17 C 8972, dkt. no. 90 ¶ 24 (emphasis added). Nothing in either the master complaint or the individual complaints identifies which plaintiffs fit into which of these categories; indeed, the individual complaints are silent on this point.’
 
“There are also problems with plaintiffs’ other specific causation allegations. As defendants point out, plaintiffs do not allege that they would not have suffered their injuries had the helmets been designed differently or used different materials. This is critical to the issue of causation on their design defect claim, count 2 in the master complaint. Their formulaic allegation in that count that the defective design was ‘a proximate and producing cause of the long-term brain injuries suffered by Plaintiffs and other damages’ is not enough by itself. Likewise, the short-form complaints say nothing about whether or how defendants’ negligence (count 1) caused plaintiffs’ injuries.
 
“The bottom line is that the individual short-form complaints are deficient in their current form because they do not include any causation allegations, let alone adequate causation allegations. This is a potentially curable defect, so the Court overrules defendants’ argument that the Court should dismiss all of the plaintiffs” claims with prejudice. But the short-form complaints will have to be amended to include allegations regarding causation that are sufficient to pass muster under Rules 8(a) and 12(b)(6).
 
“Other criticisms that defendants make regarding the causation allegations lack merit. Defendants describe, by way of example, a number of the specific incidents alleged by plaintiffs in which they suffered concussions or other head injuries while playing football, and they say that plaintiffs don’t describe what they could have done differently to avoid this. This misses the point; plaintiffs’ contention is that a better designed helmet would have prevented or lessened the severity of their injuries from these incidents and that adequate warnings would have led them to avoid playing football altogether, use a better helmet, or play the game differently. Defendants’ contention that the circumstances of certain injuries undermines these particular plaintiffs’ claims lacks merit.
 
“Defendants also argue that science has not demonstrated a cause-and-effect relationship between concussions, other football-related head trauma, and permanent brain injury. See id. at 29-30. But a plaintiff is not required to prove his case in his complaint, and a Rule 12(b)(6) motion is quite obviously not a proper vehicle to assess the scientific literature or the evidentiary support for plaintiffs’ theory of causation.
 
“Defendants also argue that plaintiffs’ complaints overlook state-specific legal requirements. The Court agrees with defendants, at least for purposes of the motion to dismiss, that the law of the state where a plaintiff’s alleged injury occurred governs because that is the most significant contact in a case of this type and no other state has a greater relationship with the claims. See Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 164, 879 N.E.2d 893, 903, 316 Ill. Dec. 505 (2007).
 
“Two of the plaintiffs played football in Louisiana. It appears that a statute in that state establishes the exclusive theories of liability in a products liability case, including defective construction or composition, defective design, inadequate warning, or failure to conform to the manufacturer’s express warranty. See La. Rev. Stat. § 9:2800.52-58. Defendants appear to contend that because the two plaintiffs who played football in Louisiana do not cite the Louisiana statute in their short-form complaints, their claims are defective. If that is what defendant are contending, they are taking an unduly formulaic approach to pleading in the Court’s view. At the appropriate time, these plaintiffs’ claims will be evaluated under the appropriate state’s law; their failure to cite the Louisiana statute in their complaints is not fatal. (The Court also notes that plaintiffs’ claims include allegations of defective design, inadequate warning, and, potentially, defective composition, all of which appear to be permitted under the Louisiana statute.) That said, any plaintiff whose claims arise under Louisiana law would be well-advised to take the statute into account in filing an amended short-form complaint.
 
“Many of the plaintiffs played football in Texas and Iowa which, according to defendants, impose a ‘feasible alternative design’ requirement for a claim based on design defect. Plaintiffs address this question in the master complaint, but defendants point out that some of plaintiffs’ allegations about this are relatively vague, and some of their more specific allegations may not apply to each and every individual given when plaintiffs allege that certain new materials were available. Without addressing at this time whether these claimed defects are material, plaintiffs would be well-advised to get more specific about this in their amended short-form complaints or any further amendments to the master complaint.”
 
In the wake of the aforementioned analysis, the court dismissed the lawsuit, and set a timetable for repleading and the defendants’ response.
 
Mark Adams, et al. v. BRG Sports, Inc., et al.; Freddie Adams, et al. v. BRG Sports, Inc. et al.; Quincy Baker, et al. v. BRG Sports, Inc., et al.; N.D. Ill.; Case No. 17 C 8544,Case No. 17 C 8972,Case No. 18 C 129, 2018 U.S. Dist. LEXIS 172385; 10/5/18


 

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