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David Rosen, Rose Klein & Marias Law Firm, on Joel Steed Lawsuit Against NFL

March 13, 2012

David Rosen,

First, can you give readers a quick synopsis of the reason for Joel Steed’s and other players’ lawsuit with the NFL?

An issue is that the NFL had actual knowledge of the extent in which mild head trauma could lead to permanent dementia and Chronic Traumatic Encephalopathy (CTE). It’s important to make the distinction that we’re not suing the NFL because players got hurt from regular game injuries. We’re suing the NFL because they knew that repeated mild – not necessarily concussive – head trauma can lead to those issues.

And it’s not just hits to the head. It can come from hits t0 the body and shoulder-to-shoulder hits, like when an offensive lineman blocks a defensive lineman.

First, how do you know the NFL had awareness of these issues?

The NFL was aware that mild brain trauma occurs. We know that because of the doctors they had used to consult with them over the years. Those same doctors were writing articles about mild brain trauma causing dementia and CTE at the same time they were consulting with the NFL. So the NFL knew

Additional evidence also exists in the documents and testimonies of the people involved as well.

Not everyone suffers from dementia and CTEs though. Does that matter?

Take the analogy of the car company that looks at their cars every day then says they didn’t know that when a car crashes people get hurt. No, not everyone does get CTE from mild brain trauma. Most don;t get dementia or CTE. No one can predict who gets it, but we know some will end up that way.

We’re saying the NFL should have reacted quicker and earlier. We’re seeing the NFL reacting now.

Do you see that almost as an admission of guilt?

As an observer of the NFL, you can see it’s doing more now than it did even a year ago. But no, I can’t make a judgement as to why. It’s just a fact.

What should the NFL have done earlier, from your viewpoint?

The medical literature showed that repeated mild brain trauma/concussions  were much worse when they occurred while a player was still recovering from a brain trauma. It’s much more dangerous. They should not have allowed injured players to return so quickly.

We see the return to play rules have changed now too. While there’s not an exhaustive list in front of me on what the NFL should have done, the return to play rule is a good example. That alone would have changed a lot. As soon as they knew there was a problem they should have not allowed any strenuous activities until the symptoms were gone – that’s what the return to play rule is now starting to consider.

The NFL is being sued…but not the teams themselves, correct?

The team is not in the suit – just the NFL. Each team as an employer cannot be sued – it’s a principle of civil law. Take for example a worker injured in a machine shop. They get worker’s comp. The Exclusive Remedy Doctrine forbids them from suing their employer because they get workers comp.

But, you can have third parties at fault. For example, if there was a faulty machine that caused the injury. You can then claim workers comp and sue the manufacturer of the machinery,  That’s how we can sue the NFL – we sue them as a third party.

And you are suing Riddell, the helmet manufacturer, as well?

A few of us are suing Riddell for defective design, lack of warnings and possibly being in cahoots with the NFL.

How do you draw the line between “defective design” versus just not strong enough?

As the product designers and manufacturers, they are held to be experts about their products. Riddell had the responsibility based on their knowledge of the issues of head trauma to design a safer helmet

It’s important to note, by the way, that workers comp is no fault. No matter who’s fault it was, the law prevents double-recovery.

Did the NFL share their findings with players?

They didn’t share their information and did not act on it.

What do you say to those that say that “Players knew the risks”?

They didn’t know the risks of permanent dementia going in. They knew they could get headaches and broken bones. But they didn’t know they could permanently lose the ability to think.

A good example is with hazardous jobs like construction – they knew they could fall or get hit. But they didn’t know fifty years ago that if they breathed the ventilation dust it could kill you.

Can you speak on Joel Steed’s case in particular – does it differ in any way from the others? How is his health?

His case  was filed later that our firm’s first filings because he retained us after the original filings… I’m not going to address his personal health now.

Where do the cases stand now?

Some players filed workers comp versus their teams beginning over two years ago. Afterwards, a few lawsuits were filed against the NFL and Riddell. By the end of 2011 – probably about eight to ten different suits. Some against the NFL, some against both the NFL and Riddell.

The suits got filed – some in state courts, some in federal. All the state suits were legally removed to the federal courts by the NFL and Riddell – the legal term for them being moved to the federal courts. By December of 2011, all the cases were in different federal courts.

The NFL then petitioned for the creation of one Multi-District Litigation (MDL). The league wanted all of the cases in one place. A joint panel on the MDL decided on whether the MDL should be created, and where it should be held.

In Florida in January, no one opposed the league’s request for the MDL. The panel was told by the NFL that they wanted it in Philadelphia – I can’t speak as to why, but all parties agreed to that, with few exceptions. Now, since February, nearly all of the cases are in one MDL in Philadelphia.

What do you say about those who feel now all of your eggs are in one basket, so to speak?

For the purposes of trial, all the eggs aren’t in one basket. This isn’t a class-action lawsuit or consolidation. All the cases are in front of one judge for pre-trial purposes only – issues like discovery. That all goes in front of one judge.

But, the cases are still tried separately in court once the trials start. The MDL is for pre-trial stuff only. Player one’s brain trauma is different from player two’s, etc…

That’s an important distinction for those unfamiliar with the process.

It is I know and something not everyone realizes. Some cases by the way are not in the MDL. They were filed in state court after the MDL was created and ont taken to the MDL for one reason or another. The Duerson wrongful death case, for example.

Has the NFL been in touch with you yet about the MDL?

Nothing pro or con from the NFL -more procedural stuff. It’s early – that’s not unusual. The first hearing is on April 25th – and that’s entirely procedural. 

How would you ultimately like to see this all end- what’s a “win”?

We’re suing for damages for the injured players and, for those who passed away, their families. For those with no diagnosed injury,  they may still get dementia or CTE. They are entitled to medical monitoring to stave off dementia for as long as possible.

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