A federal judge from the Central District of California has dismissed the claim of two moms, who alleged that the deaths of their respective sons were influenced by the fact that they had played youth football more than a decade ago in leagues organized by the defendant, Pop Warner Little Scholars, Inc. (PWLS).
Specifically, plaintiffs Kimberly Archie and Jo Cornell claimed that the defendant “failed to provide for the safety and health of child participants in its program,” resulting in their sons suffering traumatic brain injuries.
The defendant moved for summary judgment, which the court granted on December 27, citing weaknesses in the plaintiffs’ expert testimony and the plaintiffs’ inability to prove general and specific causation.
Paul Bright, Jr. played Pop Warner football in Sparks, Nevada, from 1997 through 2004. Bright did not sustain any concussions or documented head injuries while playing PWLS football. Archie, who is Bright’s mom, also stated in a deposition that she did not recall Bright ever sustaining a concussion. The father agreed, adding that he “sustained no injuries the entire time that he played” Pop Warner football. Bright also wrestled, played basketball and high school football.
On September 1, 2014, he died in a motorcycle collision. After his death, Archie sent his brain for study, and she received a report from Boston University diagnosing Bright with Stage I Chronic Traumatic Encephalopathy (CTE) on April 9, 2015.
Tyler Cornell played PWLS football in San Diego, California, from 1997 through 2002. Plaintiff Jo Cornell testified that her son did not suffer a concussion. While the father, Craig Cornell, agreed, he did testify that he witnessed his son get hit hard at practice. In 2006, Tyler broke his nose during a high school preseason football practice. He also broke teeth from riding a skateboard in college, according to his testimony.
On April 3, 2014 he died from a self-inflicted gun shot wound to the head. After his death, Jo Cornell sent his brain for study, and on January 16, 2015, Boston University conducted a study of Tyler’s brain which revealed that he suffered from Stage I CTE.
Turning to the plaintiffs’ negligence claim as well as the defendant’s motion to dismiss, the court focused much of its analysis on whether the plaintiffs could establish causation, both general and factual/specific.
“In the In re National Football League Players Concussion Injury Litigation, the Third Circuit explained that: ‘retired players would need to show both general causation (that repetitive head trauma is capable of causing ALS, Alzheimer’s, and the like), and specific causation (that the brain trauma suffered by a particular player in fact caused his specific impairments).’ In re Nat’l Football League Players Concussion Injury Litig., 821 F.3d at 439—40; see also Hilao v. Estate of Marcos, 103 F.3d 767, 788 (9th Cir. 1996),” according to the court.
“Here, the plaintiffs argue that the defendant breached a duty of care by failing to warn children and parents about the risks of repetitive head injuries and of playing without proper equipment and techniques, including playing with helmets that were not certified as safe for children, and that it allowed children to play with such helmets. The plaintiffs argue that the defendant’s negligent conduct caused Bright, Jr.’s and Cornell’s deaths. The defendant counters that the plaintiffs cannot show either general or factual causation.”
The court next turned to expert testimony, which plays a critical role in determining causation.
The defendant moved to exclude or limit the expert report of James Merikangas, M.D., the plaintiffs’ expert. Before considering the motion, the court noted that Federal Rule of Evidence 702 governs the admissibility of expert opinion. The seminal case on this point is Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993). In determining reliability, a court may consider a number of factors, including: (1) whether the theory can be and has been tested; (2) whether it has been subjected to peer review; (3) the known or potential rate of error; (4) whether the theory or methodology employed is generally accepted in the relevant scientific community. Daubert, 509 U.S. 579, 592—94 (1993).
Regarding Dr. Merikangas, who offers “opinions on CTE and its causative relationship to the deaths of Bright, Jr. and Cornell,” the defendant pointed out that he has never personally authored any publications on CTE or sports-related concussions and has never participated in any research on the topic of CTE. Further, “he is not familiar with the staging characteristics used to describe CTE and has no understanding about the significance of the diagnosis of Stage I CTE,” it adds, citing multiple passages of his testimony.
The court agreed.
“In a personal injury action, ‘causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case.’ Jones v. Ortho Pharm. Corp., 163 Cal. App. 3d 396, 209 (1985); see also Morgenroth v. Pacific Med. Ctr., Inc., 54 Cal. App. 3d 521, 533 (1976). Although Dr. Merikangas opines that playing Pop Warner football substantially caused the death of both decedents, he does not provide any methodology or analysis to assess other factors that may have caused their deaths, and he did not base his opinions on any medical records or evidence of hits sustained by either decedent. The plaintiffs point to no explanation as to how he concludes that participation in Pop Warner was a substantial factor in their deaths, given the evidence of significant other possible factors independent of Pop Warner football, rendering his causation opinion unreliable. See Cloud v. Pfizer Inc., 198 F. Supp. 2d 1118, 1136 (D. Ariz. 2001). … The court concludes that Dr. Merikangas’s testimony should be excluded under Daubert.”
The court then turned to general causation, and the defendant’s contention that the plaintiffs cannot prove that “youth football generally causes CTE.” PWLS’ experts, Dr. Bailes, Dr. Barr, and Dr. Castellani, lended support to the idea that the science around CTE as it relates to football remains unsettled, especially the role of subconcussive hits and whether they contribute to CTE.
The court went on to write that even “assuming the admissibility of the plaintiffs’ experts (and that) there may be triable issues of fact as to general causation regarding whether playing youth tackle football causes CTE, … there is not a triable issue of fact as to factual causation, whether playing Pop Warner football caused decedents’ deaths.”
It continued” “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case.” Cooper v. Takeda Pharm. Am., Inc., 239 Cal. App. 4th 555, 577 (2015).
To this point, Dr. Merikangas stated “that he did not have a documented basis for concluding that either Tyler Cornell or Paul Bright, Jr. suffered head trauma playing Pop Warner football, and had not considered or eliminated other possible causes for the behaviors that led to their deaths,” according to the court.
Interestingly, the court then challenged Dr. Bennet Omalu, widely considered the forerunner in establishing a link between football and CTE, and an expert for the plaintiff.
“Dr. Omalu stated in his declaration that ‘a post-mortem neuropathological examination of Paul Bright, Jr.’s brain confirmed that Paul Bright was suffering’ from CTE, that his ‘family, social, education, criminal, and medical histories during his lifetime, prior to his death were consistent with the diagnosis of CTE,’ and that CTE ‘was a substantial and significant contributory factor to the violent death of Paul Bright.’
“Dr. Omalu also stated that in every game of football children suffer multiple blows to the head, that multiple blows together can cause cumulative brain damage, that concussive as well as subconcussive injuries of the brain can cause brain damage. He also stated that CTE may manifest with ‘mood disorders,’ such as ‘depression and anxiety disorders, bipolar disorders, parasuicides and suicides and other neuropsychiatric disorders.’.
“He stated that ‘the eventual outcome of brain damage is an accumulation of all exposures to trauma over time.’ The symptoms of CTE ‘may begin to manifest immediately during exposure,’ or may only emerge ‘after a latent period of weeks to months to years to decades.’ There is a ‘variability in symptomatology’: ‘CTE and brain trauma like other disease syndromes, do not manifest or affect each and every individual in the same way.’
“Dr. Omalu’s declaration thus discusses broadly CTE, but does not explain how he arrived at his conclusion that Pop Warner football was a ‘substantial factor’ in Bright, Jr.’s death, given the multitude of other possible factors, and does not explain the scientific or methodological basis for his conclusion as to this specific incident in his declaration. The court similarly finds that his testimony is unreliable. Thus, a separate basis to grant summary judgment on causation exists based on the plaintiffs’ lack of competent expert testimony to establish causation.”
Elaborating, the court wrote that it “cannot conclude that the plaintiffs have presented evidence to create a triable issue as to factual causation which is not speculative. First, there is no evidence as to concussions or head injuries suffered by either Bright, Jr. or Cornell, nor any evidence as to how frequently either of them actually suffered head impacts during Pop Warner, so the jury would be required to assume the generalized notion that the playing of Pop Warner football resulted in sufficient head impacts to cause CTE, which would have been avoided but-for the defendant’s negligent conduct.
“Second, the plaintiffs’ expert Dr. Merikangas did not analyze other potential factors that could have led to the diagnosis of CTE other than Pop Warner football, and Dr. Omalu has not provided an explanation as to why Pop Warner, as opposed to other factors, caused decedents’ CTE.
“Third, the plaintiffs’ expert Dr. Merikangas has not analyzed any other potential factors for the behavior of Bright, Jr., such that he could testify as to the fact that the behavioral issues resulted from CTE, as opposed to a host of other social, biological and environmental factors in causing certain behavior; and admits that risk-taking behavior can be attributed to a broad range of factors, including being ‘an adolescent, learning disabilities, and other mental or emotional problems.’”
The court reached a similar conclusion regarding Cornell.
In conclusion, the court wrote “that there is not a sufficient evidentiary basis that Pop Warner’s alleged negligence in connection with Pop Warner Football, to the exclusion of high school football, other experiences, social or biological factors, was a substantial factor in Paul Bright, Jr.’s motorcycle accident and Tyler Cornell’s suicide. Plaintiffs essentially argue that any child that plays Pop Warner football, simply by virtue of participating, without any documentation of head trauma, if found with CTE post-mortem, has a viable cause of action based on any occurrence as a result of recklessness or mood behaviors in that person’s life. The Court does not agree that this satisfies the factual causation standard.”
