The Washington Post recently published an article about how science has been “distorted” in the area of sports concussions, and how this distortion has been exploited by “opinion shopping,” or seeking experts who support a position regardless of the circumstances.
“Everyone vets experts” said Tony Corleto, the Wilson Elser partner leading Pop Warner’s defense in the Archie, et al. v. Pop Warner Little Scholars, Inc. “Qualifications are important. Experience is important. The expert’s history on a particular subject is important. How the expert relates to a jury is important. There’s nothing inherently wrong with ‘shopping’ for an expert. But there’s a difference between shopping for an expert and shopping for an opinion.”
The recent decision granting defendant’s summary judgment motion in Archie llustrates the point, notes Corleto. The United States District Court for the Central District of California took issue with the opinion of the plaintiffs’ consulting forensic pathologist, Dr. Bennet Omalu.
For those who may not remember, Omalu was the catalyst for the movie Concussion, and was played by Will Smith. His LinkedIn profile claims that he “discovered and named Chronic Traumatic Encephalopathy [CTE] in football players, wrestlers and military veterans.” He also claims to have “performed thousands of autopsies and examined thousands of brains” and “testified in hundreds of cases in federal and state courts across the United States.”
The Archie court was unpersuaded by Omalu’s qualifications or presentation. “Dr. Omalu has not offered any specific factual basis or explanation as to whether participation in Pop Warner caused, specifically, the death (of one of the former Pop Warner participants), as opposed to independent causes,” wrote the judge. The court added that it “cannot conclude that the plaintiffs have presented evidence to create a triable issue as to factual causation, which is not speculative.” Further, it added that “Dr. Omalu has not provided an explanation as to why Pop Warner, as opposed to other factors, caused decedents’ CTE.” In sum, the court found Dr. Omalu’s testimony “unreliable.”
This particular criticism of Omalu was echoed in the aforementioned Washington Post article and other media. Mike Florio of Pro Football Talk dedicated an entire piece to this finding. In “Bennet Omalu’s testimony found ‘unreliable’ in CTE lawsuit against Pop Warner football”, Florio focused on the federal court’s finding in Archie “that a reasonable jury could not determine that playing youth football led to CTE that caused or contributed to the deaths of two former players years after the fact.”
Omalu, no shrinking violet, did not sit quietly when the journalists took him to task, taking to Twitter to blast the Washington Post and to claim that the National Football League was behind that article.
The recent Omalu dustup may cause concussion plaintiffs to look outside the typical candidates for experts. Or not.
Paul D. Anderson, of Humphrey, Farrington & McClain, P.C. and the founder of NFL Concussion Litigation, defended Omalu.
“The personal attacks on Dr. Omalu are largely unfounded,” Anderson said. “Much of the news appears to be a hit piece, orchestrated by the sports industry. This purported controversy feeds directly into the CTE deniers’ playbook of ‘creating controversy where none exist.’ The negativity should not distract from the substantial contributions Dr. Omalu and other leaders in the field, including Dr. McKee, have made to sports science and brain injury research. The fact is, Drs. Omalu and McKee have saved innumerable brains and lives through their dedicated research. My hope is that the leaders in the field will continue to advance the science of CTE and not allow politics and bickering to distract from our mission to save lives.”
Corleto turned the discussion back to the practice of “opinion shopping.”
“No one is saying that plaintiffs are the only ones who shop,” said Corleto. “Defense attorneys also look for experts that support their case. However, any seasoned attorney knows that your expert has to be objective — they need to consider other factors and contrary opinions and explain where the gaps are. This is where Omalu fell short.”
