Concussion Defense Lawyer David White Sounds Off on the Rising Tide of Concussions and Mounting Litigation

Jun 23, 2017

Concussion Litigation Reporter recently interview David White, of Davis White (] to get his perspective on sports concussions and the crisis that is enveloping youth, amateur, and the professional sports industries.
Question: Tell us about your legal practice and in what ways it intersects with the sports industry?
Answer: I am an AV-rated trial attorney. My practice is focused on the defense of product liability litigation. I also defend tort litigation on behalf of national retailers and self-insureds. In my practice, I have represented Schutt Sports, based in Litchfield, Illinois, for over 20 years in defense of litigation involving football helmets and other sporting goods, including trial of cases to verdict.
I am a member of the Massachusetts and Rhode Island bars, and the United States District Court for the District of Massachusetts. I have also been admitted pro hac vice in defense of football helmet litigation in Alabama, California, Idaho, Illinois, Missouri, New York, Tennessee, Texas and West Virginia. I am a member of the Sports Lawyers Association, Claims & Litigation Management Alliance, and National Retail and Restaurant Defense Association (NRRDA).
Q: What was your first big break in the sports law field?
A: My first big break enabling me to gain access into the sports law field was via my partner,
Phil Davis. Mr. Davis, a highly—respected and renowned trial attorney, was first involved in defense of products liability matters against sporting goods manufacturers in the early 1980’s. We formed our law firm in 1996. This presented me with the opportunity to become involved with the defense of Schutt Sports, JUGS, S/R Industries and others.
Q: Have you ever had a concussion playing sports, or seen one of the athletes you coach have a concussion?
A: I have not personally sustained a concussion playing sports. I was involved in coaching youth sports (basketball, baseball, soccer) for many years, and was player agent of our town’s Little League for six years. This encompassed coaching in-town, travel and AAU levels of competition. I did observe numerous players sustain a concussion, or an apparent concussion, the resulting symptoms and their attendant struggles for physical and emotional recovery.
My personal experience with concussed players, as both a long-time coach and league administrator, has made three things crystal clear to me. First, the safety and well-being of every player is our foremost responsibility. Second, concussions are a very real medical condition, a too frequent occurrence, and oftentimes trivialized. Third, education of players, parents, coaches, officials, and league administrators about the genesis, symptoms and potential risks of concussion is of paramount importance.
Q: How have those experiences, or lack of, shaped your work in the sports concussion field?
A: Proper training, teaching, communicating and awareness are the first best defense against concussions. The implementation of nationally recognized protocols (as they continue to develop and evolve) for evaluating, diagnosing and treating concussions is critical. The education process about concussions throughout the United States, at all levels of play, should be thoughtful, ongoing and a priority.
Q: What is it going to take to resolve the concussion crisis?
A: There has been a reported “concussion crisis.” It is important to recognize that the science of sports-related concussions (SRC) continues to evolve. Some foremost national and international minds are at the forefront of an ongoing and concerted effort to better understand sport-related concussions. This requires continued research, education, evaluation and caution. Everything about concussions is not presently known or even yet knowable.
The 2017 Concussion in Sport Group (CISG) consensus statement provides a thoughtful collaborative effort on present-day principles, conceptual understanding and strategical considerations in an effort to address sports-related concussions. Concussion Statement on Concussion in Sport-the 5th International Conference on Concussion in Sport Held in Berlin, October 2016. The brain is the central organ of the human nervous system. It is inarguably complex, intricate and also remains mysterious. CISG reports that over the past decade there has been, “major progress in clinical methods for evaluation of SRC and in determining the natural history of clinical recovery after injury.” Id. It is essential to understand, however, that “critical questions remain about the acute biological effects of SRC on brain structure and function, and the eventual time course of physiological recovery after injury.” Id.
CSIG cautions that although the terms traumatic brain injury (TBI) and concussion are often used interchangeably, these terms are “similarly vague and not based on validated criteria in this context.” Id. In fact, the terms caution and concussion should be intrinsically linked as further efforts continue to be made in advancing this science. Why? First, as the central organ of the human nervous system, the brain is irreplaceable. Second, sports-related concussions are “considered to be among the most complex injuries in sports medicine to diagnose, assess and manage. The majority of SRCs occur without loss of consciousness or frank neurological signs.” Id. What this means in practical terms is that a concussive event is not always self-evident. This increases the risk of misdiagnosis, especially by those not properly trained and charged with decisions on return-to-play status along the sideline.
The advent of the “concussion crisis” is fueled, in part, by the short-sighted goal of return to play. An athletic contest, no matter its perceived significance, is ephemeral. The brain is our life center. It must be protected and not allowed to be compromised regardless of the moment.
CSIG states that “recent neurobiological time of recovery literature suggests it may outlast the time for clinical recovery.” Id. Why is this significant? CSIG cautions that, “The consequence of this is as yet unknown, but one possibility is that athletes may be exposed to additional risk by returning to play while there is ongoing brain dysfunction.” Id. This alone should provide pause for restraint by those entrusted with deciding “return to play” status of athletes. At present, evaluation and assessment of physiological dysfunction as a result of sustaining a concussion has not been established with certitude. Consequently, CISG supports a “’buffer zone’ of gradually increasing activity before full contact risk.” Id.
Along with advancements in the science of concussion, there has been an outgrowth of helmet litigation. The proliferation of these lawsuits has made headlines and captured public attention. However, the public must be educated as to the fact that no helmet presently available in the marketplace is “concussion proof.” This is a primary reason warnings about concussion, head injury and second impact syndrome are affixed to products. It is going to take a continued and concerted effort to enhance public awareness as the science of concussion continues to evolve.


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