By Daniel Werly
Former NFL Defensive Lineman Tracy Scroggins has filed a class action lawsuit against the NFL alleging that the league concealed the risks of head trauma arising from football. Scroggins played for the Detroit Lions from 1992 to 2001 after being selected in the second round of the 1992 NFL Draft out of Tulsa. The lawsuit seeks to include current and former players who have been preliminarily diagnosed with Chronic Traumatic Encephalopathy (CTE).
However, the lawsuit may hit a fatal roadblock before it really gets started. NFL V.P. of communications Brian McCarthy released a statement identifying Scroggins’ potential impediment: “The complaint is barred by the concussion litigation settlement and we expect it to be dismissed,” McCarthy is referring to In re Nat’l Football League Players Concussion Injury Litigation, the settlement of which is currently being challenged in the U.S. Court of Appeals for the Third Circuit (Case No. 15-2290). He continued, “Mr. Scroggins is a member of the settlement class and did not choose to opt out. He is eligible to pursue the benefits provided under the settlement agreement, but may not pursue any action in court, either on his own behalf or on behalf of other former players, more than 99 percent of whom have accepted the settlement.”
Scroggins may try to rebut his failure to opt out of the concussion litigation by arguing that he is seeking damages for “preliminary diagnosed CTE.” The concussion settlement only pays for CTE diagnosed post mortem and pays nothing to players for CTE discovered during their lifetime. The trouble is that while doctors can identify symptoms of CTE while a player is living, CTE can only be definitely diagnosed after death. The lawsuit cites to UCLA researchers who tested former Minnesota Vikings linebacker Fred McNeil’s brain while he was alive with a “patented brain-imaging tool.” The tests revealed buildup of a certain protein in the brain linked to CTE and was the “first time researchers have identified signs of [CTE] in living players.”
In arguing that the NFL concealed the risks of playing football, Scroggins’ allegations closely track and cite to the recent New York Times article, NFL’s Flawed Concussion Research and Ties to Tobacco Industry. He first notes the NFL’s link to the tobacco industry, “[t]he NFL’s handling of its health crisis concerning repeated head trauma causing CTE is strikingly similar to that of the tobacco industry, which was notorious for using questionable science to play down the dangers of cigarettes.” Scroggins also hits on the other major theme from the Times article, that the NFL’s concussions studies relied upon incomplete and faulty data, which the NFL hid.
The lawsuit also highlights the recent admission by NFL vice president of health and safety Jeff Miller, before the U.S. House of Representatives’ Committee on Energy and Commerce, that a link between playing football and CTE “certainly” exists. This was the first time an NFL executive publicly acknowledged a link between football and CTE, although the NFL has since tried to minimize the import of the admission.
Scroggins alleges six causes of action: (1) concealment; (2) civil conspiracy; (3) negligence; (4) loss of consortium; (5) RICO violations; and, (6) medical monitoring. The case is pending in the U.S. District Court for the Southern District of Florida, Case No. 16-cv-60644.
Werly is an attorney and managing editor of TheWhiteBronco.com
