The inspiration for this post was an article written by Ken Belson that appeared in The New York Times. Text under the heading “Article” is an excerpt of Belson’s article. I am not an attorney, law student, clerk, affiliate of the National Football League (NFL), NFL player, or employee of The New York Times. I do not receive financial compensation for sharing the article. I wrote this post to encourage readers to discuss issues associated with brain injury, adversity, and education.
Given the consequences of injuries, lawyers have taken note, including those representing the 5,000 retired players who sued the National Football League (NFL) over claims the league hid the dangers of concussions. The notoriety of that case also prompted George Washington’s law school to start what it said was the first course devoted to the legal implications of traumatic brain injuries.
Held for two hours on Monday afternoons, the course is taught by Michael Kaplen, a plaintiffs’ lawyer who has worked on cases involving traumatic brain injuries for more than two decades. He says he has found that many universities, companies, health care providers and courts are inadequately prepared to deal with people with brain injuries, putting the onus on lawyers to find solutions.
Cases involving brain injuries rely on technical information, so Kaplen spent the first few weeks of the semester describing the anatomy of the brain, the mechanism of a brain injury and the diagnosis of injuries. He brings several models of the brain and the skull to class, as well as Silly Putty, which he uses to demonstrate how nerves stretch and sometimes snap in accidents.
After weeks of reviewing the fundamentals, Kaplen spent an entire class last month on concussions in football and other sports. He rifled through an 86-slide PowerPoint presentation that noted that concussions sustained in sports were different from others because the players often hid them and felt pressure to continue playing. Athletes who do not properly heal are also susceptible to catastrophic brain swelling from a second concussion.
Kaplen addressed chronic traumatic encephalopathy, a progressive brain disease caused by numerous hits to the head that has been discovered in former athletes during autopsies. The students also discussed the Lystedt Law, which requires athletes suspected of concussions be removed from a game and not allowed to return until a doctor clears them.
The law raised questions about who was qualified to identify head injuries and about the Catch-22 that coaches and leagues face when it comes to players’ health, Kaplen said. “Sports associations take the easy way out: They claim to only schedule games and no more,” Kaplen said in a delivery that sounded as if he were peppering a witness. Kaplen also discussed how some people look for outward symptoms that may not exist, which might affect their ability to be effective jurors.
During the last half-hour of the class, Kaplen left no doubt about what he thought of the NFL on this issue: that the league became liable once it began studying concussions two decades ago. He flipped to slides with titles that read, “Football Is a Concussion Delivery System,” “The Big Lie” and “Refusal to Acknowledge Link.” He then played video clips of Commissioner Roger Goodell being questioned by members of Congress in 2009 about football’s connection to concussions and long-term brain damage.
Shadow of Doubt
Although one semester of familiarizing law students with the issue of brain-injury liability is better than no training, is one class sufficient to make a difference?
According to the article, “Kaplen spent an entire class . . . on concussions in football and other sports.” Does that mean that Kaplen spent only two hours discussing concussions from sports? If so, is a single two-hour class sufficient to make a difference?
There is little doubt in my mind players will have difficulty presenting credible cases against their leagues because the players will have difficulty proving:
- Current challenges are the direct result of previous concussions
- Concussions occurred only as a result of sport injuries and not collisions, falls, or anything else
- Players were completely unaware of the risks
- Players were unaware why leagues require them to wear helmets
- Leagues or teams knowingly purchased substandard helmets
- Leagues hid information the players did not already know
- Players were forced by leagues to play dangerous games
Of course, there is always a possibility that some jury members will vote based on their belief, no matter what they hear during trial.
Thanks to Ken Belson for writing the article that inspired this post; The New York Times for publishing the article; George Washington University School of Law for adding a course about sports related brain injury to its curriculum; Michael Kaplen for teaching the course; Google for helping me find the article and picture I used; and all the other people who, directly or indirectly, made it possible for me to include the picture and text I used in this post.
The article appears in print on April 14, 2014, page D4 of the New York edition with the headline: Concussion Cases Prompt Law School to Add New Course.