By Gina McKlveen
Last month, after a three-week trial, a jury returned a verdict in favor of the National Collegiate Athletic Association (NCAA) in a case involving the tragic death of a former college football star, Cullen Finnerty.
As the former quarterback at Grand Valley State (GVS) in the early 2000s, Finnerty was a standout player. He was named the 2003 Rookie of the Year and later led GVS to win three NCAA Division II National Championships before he was signed by the Baltimore Ravens as an undrafted free agent.
In May 2013, the former football player returned to his home state of Michigan for a family vacation. While out fishing, Finnerty went missing. Two days later, his body was discovered face down in the woods with no sign of trauma. An autopsy revealed the cause of death to be pneumonia after he presumably inhaled his own vomit. Further investigation into Finnerty’s death determined that he likely become disoriented while out on the water perhaps due in part to chronic traumatic encephalopathy, also known as “CTE,” a degenerative brain disease caused by repeated blows to the head and concussions, which are common occurrences for almost any football player.
Prior to his disappearance, Finnerty made two short calls to family members indicating that he thought he was being followed. His widow, Jennifer Finnerty, admitted that her late-husband suffered from bouts of paranoia in the past. Specifically, Mrs. Finnerty disclosed the details of when Finnerty drove several hours away from home because he was afraid the FBI was tracing him and remained in a state of panic for nearly a week. Following his death, Mrs. Finnerty filed a lawsuit against the NCAA, arguing that the association failed to warn football players of the risks of head injuries and thus, did not properly protect the health and safety of these college athletes.
Tony Corleto, a partner of Gordon & Rees as well as general counsel and lead litigator for a nationwide sport governing body, who regularly lectures and leads cases involving CTE litigation shared his initial impressions of the Finnerty lawsuit and recent jury decision in the NCAA’s favor. “These are truly sad cases,” he stated, “a loved one dies under odd circumstances at a young age, the family is looking for closure.” In fact, Finnerty was just 30 years old at the time of his death, which is undoubtedly a heart-breaking loss. Yet, the NCAA firmly defended, and the jury agreed, that it is not responsible for the player’s early death, which is an outcome Corleto observed “is consistent with the circumstances of this case.”
Given his experience with these types of cases, Corleto emphasized the importance of scientific proof to connect a player’s cause of death to CTE. “We won an early CTE wrongful death victory in a suicide case, Archie, et al. v. Pop Warner. Going through the available science in that matter, including [the] autopsies from Boston University…and a report from Bennet Omalu, Judge Guittierez in US District Court for the Central District of California…there was no scientific basis to link CTE with suicidal behavior or with playing youth football,” Corleto recalled. “Judge Brody in US District court for the Eastern District of Pennsylvania, reached a similar conclusion regarding the lack of scientific proof for causation. So, early on, we knew there was no causal link between suicidal behavior and CTE or football.” For Finnerty’s case the scientific causal link was also missing.
Moreover, Corleto noted, “even the Boston University brain bank autopsy was equivocal about CTE as a contributing factor.” After Finnerty’s death, his brain was further studied at Boston University’s Center for the Study of Traumatic Encephalopathy and concluded that while the presence of CTE in Finnerty’s brain reached a “moderate” level, it was highly unlikely that CTE was the sole cause of his death. In a statement, the University asserted “CTE possibly affected [Finnerty’s] judgment, insight and behavior, but there are other factors, including the use of medications prescribed by his doctor, that most likely contributed to the circumstances surrounding his death.” Based on these findings, it was no surprise to Corleto and others familiar with CTE litigation that the Finnerty lawsuit turned out the way that it did. “This case was tried well, the jury got to see real evidence and was not left to speculate,” Corleto said.
The Finnerty lawsuit is also not an isolated claim against an association for its alleged failure to protect its athletes. Similar to the NCAA, the National Football League (“NFL”) faces countless lawsuits by former players related to their head injuries, concussions, and degenerative brain diseases like CTE. However, as Corleto pointed out, “[the] NCAA has invested heavily in defending these cases.” Now, he observed, “[t]hat investment is yielding results.”
Still, it is not entirely certain whether outcomes that consistently rule in favor of the association or league will deter other family members with deceased former athletes that suffered traumatic brain injuries from pursuing their legal claims. “After the defense verdicts in Onyshko, Gee, and [now] Finnerty,” Corleto suggested “one would think so” that families of former athletes would at least hesitate, if not refrain entirely, from pursuing their claims. “The family unfortunately has to deal with the added trauma of pursuing a case that had little chance of success,” said Corleto. Therefore, to be successful in this type of lawsuit Corleto advised that for either party the outcome “really comes down to science and factual proof. Better science and better proof yield greater success.”
Ultimately, the need for scientific evidence in CTE litigation is arguably just as important as the need for scientific studies on CTE outside the courtroom, so that former concussed athletes can have the proper diagnosis and medical treatment to avoid tragic deaths like Finnerty. In prior concussion lawsuits, the NCAA reached settlement agreements that included the association paying upwards of $5 million for medical research. Meanwhile, families like the Finnerty’s may continue to seek ways to hold the NCAA accountable for the deaths of their loved ones whether through litigation showing causation in court or by advocacy for further research and resources outside of court.
