Will The New York Times Article Impact The NFL Concussion Litigation?

Traumatic Brain Injury On March 24, 2016, Alan Schwarz of the New York Times wrote a revealing article outlining the actions the NFL took to manipulate the opinions of neurologists they retained to study the effect of concussions and the health risks related thereto. The article also suggests that the NFL has relied upon lobbyists and lawyers also retained by the Tobacco industry, who used them to deny health risks associated with smoking cigarettes.  Schwarz’s article has revealed information not previously made public, including the fact that the NFL omitted at least 100 reported concussions (many suffered by star players such as Steve Young and Troy Aikman).  At least one doctor retained by the NFL to study the effects of concussions on the brain admitted that if the data supplied to him was incomplete then his opinions would not be valid.

The significance of this article is that Alan Schwarz has revealed just the type of damning information regarding the NFL’s handling of the concussion issue that would likely be revealed in discovery if the NFL Concussion Litigation had not settled and continued through written discovery and depositions. Schwarz’s article leaves one to speculate what other compelling evidence and testimony would be uncovered if the NFL Concussion settlement is undone and continues through discovery.  Is it possible that Schwarz’s article may lead the panel of three Federal Appeal Court judges presiding over the case to reconsider the fairness of the terms of the settlement and possibly remand it back to Federal District Court?  The Schwarz article, coming on the heels of the NFL Director of Health and Safety Jeff Miller’s admission of the link between concussions and CTE, has certainly increased the pressure on the NFL in recent weeks.  If the (already pending) case were sent back to Federal District Court, the class of former NFL players and the NFL could work out a revised settlement agreement or decide to continue litigation.

The major criticism of the fairness of the settlement as it stand now is the compensation provided for former players who may have CTE. At the present time, CTE can only be diagnosed upon autopsy of the brain after death. (It should be noted that there are tests presently in clinical trial being developed to diagnose CTE in living persons).  The present settlement does not provide any compensation for those diagnosed with CTE after the date the settlement was approved on July 7, 2014, nor does it consider the future likelihood of a CTE test for those still living becoming widely accepted. Critics say that the NFL has avoided the bulk of the exposure that the settlement presented because they won’t pay a nickel in compensation to the hundreds (if not thousands) of former NFL players who will be diagnosed with CTE after July 7, 2014.  Although those living with CTE may have neurological symptoms that would otherwise qualify them for compensation under other categories of compensation that the settlement provides, most living persons with CTE will not present neurological symptoms that rise to the level of qualifying for compensation under the present terms of the settlement.

After many months of the NFL Concussion Lawsuit staying out of the spotlight, Alan Schwarz’s article has once again put the focus on this lawsuit and the NFL back on the hot seat.  In fact, just this week a concussion lawsuit was filed by former NFL player Tracy Scroggins against the NFL regarding the NFL’s handling of concussions.  The next few months will determine whether the fate of the NFL Concussion Lawsuit settlement and likely see more lawsuits filed.