CTE Finding Leads Hernandez Family to Sue NFL and Riddell; Attorney Talks ‘Regrets’

Nov 10, 2017

The family of Aaron Hernandez has re-filed a lawsuit against the NFL and Riddell, claiming the defendants knew about the relationship between CTE and football as far back as the 1960s, but intentionally kept that information from Hernandez and other players.
Specifically, they charged that Hernandez’ decisions “with respect to football would have been different had there been no intentional concealment for football-exposure risk. The defendants’ multi-decade-long efforts to justify ignoring these warnings created a time-bomb in Aaron. The defendants did so to perpetuate the industry of football.”
The plaintiffs removed the New England Patriots from the complaint, promising that a separate action involving the team will be filed at a later date.
Riddell, which has been more aggressive in defending itself in the media lately, took exception to the lawsuit with the following statement:
“More than 15 years ago, Riddell introduced its first helmets specifically designed to mitigate concussion risk and warnings written to raise concussion awareness and promote medical treatment of concussions. Riddell intends to vigorously and successfully defend its products, its warnings and its reputation from the claims now being made by a handful of plaintiff lawyers.”
The NFL also contested the allegation with NFL spokesman Joe Lockhart telling reporters on a conference call that “we intend to contest the claim vigorously. Any attempt here to paint Aaron Hernandez as a victim, we believe is misguided. His personal story is complex and doesn’t lend itself to simple answers.”
After Hernandez committed suicide, an examination of his brain revealed that he had Stage 3 CTE, one of the most severe forms of the disease. Jose Baez, one of the family’s attorneys, told the media that those who did the examination noted that “it was the most severe case they had ever seen for someone of Aaron’s age.”
Baez went on to say that he “deeply regret(ed)” not raising Hernandez’s history of brain trauma as a defense in his criminal trial at which he was convicted of murder and sentence to life in prison.
“Aaron experienced a chaotic and horrendous existence in many respects, due to his undiagnosed brain injury,” the plaintiffs claimed in the lawsuit.
They seek $20 million for “redress for the loss of parental consortium she has experienced based on the negligent conduct of [Hernandez’s daughter] that deprived her of the companionship and society of her father.”
Attorney’s Regret About Concussion Defense
Baez’ recognition of the potential of using brain injury history as a defense is not new. Almost four years ago, concussion attorney Paul D. Anderson wrote the following:
“As the science of concussions and their long-term effects advance, so too does the many ways in which a criminal defendant may seek to be set free.
“Criminal defendants and their lawyers are looking to prior sport-related brain injuries as a causative factor for the illegal behavior.
“According to the Observer-Reporter, former high school football player, Jordan Clemons, is facing the threat of the death penalty after being charged with brutally murdering his girlfriend.
“Clemons’ lawyer recently filed a motion with the court citing his client’s extensive history of brain injuries, including multiple concussive and sub-concussive blows from football. His lawyer requested that a neurologist and psychologist evaluate his client.
“The court, correctly, granted his request.
“Clemons’ lawyer explained the purpose of his motion, ‘Diminished capacity is often the phrase used when a defendant’s state of mind does not meet the legal requirements for first-degree murder, which requires a premeditated, willful and deliberate killing with specific intent to kill. If capacity is diminished but a defendant is found to have committed the act, it falls to a lesser degree of murder.’
“While not a complete defense, Clemons’ lawyer is seeking medical evidence to establish that his client lacked the necessary mental state to be found guilty for first-degree murder, which could potentially allow the jury to find Clemons guilty of a lesser charge such as second-degree murder. It also sets the stage for the introduction of mitigating factors if Clemons is found guilty of first-degree murder.
“This could mean the difference between life in prison and death.
“Lawyers have an ethical obligation to provide competent representation. This is an ever-evolving ethic, which is especially true in the rapidly advancing area of ‘neurolaw.’
“A recent decision by the Alaska Court of Appeals highlights the necessity of investigating a client’s brain-injury history.
“In Starr v. State, A-11250, 2014 WL 2834502 (Alaska Ct. App. June 18, 2014), a woman was convicted of second-degree murder after stabbing her boyfriend. She subsequently sought post-conviction relief, contending that her lawyer provided ineffective counsel by failing to investigate her concussion history. In her motion, the defendant included an affidavit from a neuropsychologist who opined that Starr’s “behavior surrounding the stabbing was consistent with her having suffered a concussion. Id.
“In reversing the trial court’s decision to deny the defendant’s application for post-conviction relief, the Court of Appeals admonished the trial court for violating the defendant’s due process rights when it “skipped Starr’s failure-to-investigate claim…[and] deprived Starr of the opportunity to establish that she has actually suffered a concussion and that the concussion had impacted her culpability…. Id.
“This case breathes new life into the word “competency.” A lawyer clearly has an ethical obligation to investigate his or her client’s brain-injury history and pursue all possible defenses. As evidenced by the recent cases like Clemons and others, lawyers are taking this ethic seriously.”


Articles in Current Issue