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Concussions lawsuits proliferate

As high school football season gets underway, there’s a new consciousness about head injuries. That consciousness is altering procedures for detecting concussions and for requiring rest after injury.

It’s also leading to litigation.

Michael Rouchleau was a junior on the Three Forks High School varsity football team in Bozeman, Mont. when he collided with a teammate during practice.

Although he was shaken up, Rouchleau was instructed by his coaches to return to the field, according to his lawyer, Michael Sand, a sole practitioner in Bozeman.

On the very next play, Rouchleau participated in a linebacker drill and was tackled with head-to-head contact. Both Rouchleau and the player who tackled him were left vomiting on the field.

Rouchleau was diagnosed with a concussion and received doctors’ instructions to refrain from contact play for 11 days.

But six days later, on the instruction of his coaches, he suited up for practice. During a drill, he was knocked unconscious, experiencing yet another concussion.

Rouchleau now suffers from a traumatic brain injury, Sand said, with symptoms including confusion, severe headaches, vision impairment, seizures and emotional and behavioral difficulties.

In January, his family filed a negligence suit against his former high school, in part to raise awareness of the dangers of head trauma, Sand said.

“Part of the motivation of [Rouchleau’s parents in] bringing this litigation is [hoping] that it doesn’t happen to someone else’s child,” he said.

From high schools to the National Football League, wrestling to soccer, more and more lawsuits are being filed over head-impact injuries sustained during athletic events.

The suits are proliferating in the wake of a growing body of scientific literature and more advanced scientific testing that can confirm by autopsy the presence of severe degenerative brain disease. That science has established the long-term effects of these injuries at the same time that many sports – particularly football – have become increasingly physical.

NFL suits lead the way

Rouchleau’s suit is representative of the broad array of athletic head-impact injury cases being litigated across the country.

While a concussion is defined as a trauma to the brain resulting in neurological injury, athletes may exhibit a range of symptoms as a result.

A concussion does not always result in a total loss of consciousness. Other symptoms may include dizziness, headache, general confusion, vomiting, poor coordination or balance, unusual or inappropriate emotions or loss of vision.

Last fall, a class action was filed by former college athletes alleging that the National Collegiate Athletic Association, the body in charge of college sports, was negligent in setting standards for dealing with concussions and the treatment of brain trauma to athletes despite awareness of the dangers of such injuries.

The suit seeks medical monitoring and the cost of care for student athletes suffering from brain trauma.

But the most well-known concussion suits involve the multi-district litigation against the National Football League.

The MDL contains two classes of plaintiffs: a group of former players seeking medical monitoring and future care related to brain trauma, and plaintiffs bringing injury and death claims on behalf of players who are already suffering, or suffered, from neurological symptoms following head-impact injuries.

Not only did the NFL conceal from players and the public its knowledge of the causal relationship between concussions and permanent neurological disease, but it also ramped up its efforts as the science began to substantiate the link, according to the master MDL complaint. The League knew as early as 1928 of the devastating effects of repeated head trauma not just on football players but on players of other sports as well, the suit alleges.

“Instead of protecting the health of its players, the NFL’s response to this epidemic of brain injuries was to engage in a campaign of deceit and deception, actively concealing the risks players faced from repetitive impacts,” co-lead counsel Christopher Seeger, a partner at Seeger Weiss in New York, and Sol Weiss, a shareholder at Anapol Schwartz in Philadelphia, said in a statement. “This case is about providing security and care to former NFL players who have suffered these devastating neurologic injuries, and making the game safer for generations to come.”

Roughly 3,000 individual suits are part of the MDL; the number of possible retired players in the medical monitoring class could reach 21,000, according to NFL Commissioner Roger Goodell’s congressional testimony regarding the number of former players.

The common thread in all of the plaintiffs’ arguments: as long as the brain is given time to recover, it can handle a concussive trauma.

But the plaintiffs allege that the defendants – schools, coaches, trainers, governing athletic bodies and helmet manufacturers – failed to warn them of the permanent dangers of repeated brain injury, and often allowed them to return to situations involving head contact without letting the brain heal.

“We know that one [concussion] can be dealt with,” said Chicago lawyer William Gibbs, who represents the family of Dave Duerson, a former NFL star who killed himself after exhibiting symptoms of neurological injuries. “The real damage occurs with multiple events and further trauma.”

Even more troubling is that the effects of the trauma may not be revealed for some time.

In Duerson’s case, he had a successful NFL career and ran his own business for years before he began to show symptoms of chronic traumatic encephalopathy, a degenerative brain disease, at about the age of 40, Gibbs said.

Beyond football

While the NFL litigation involves professional athletes who may have suffered decades of trauma, suits over concussions also include high school and college-level plaintiffs like Rouchleau and Samuel Zylstra.

Zylstra wrestled for Boise State University’s nationally ranked team until he was injured during the first round of the Pac-10 Championships in February 2010.

In his first match, an opponent threw him and he “got his bell rung,” suffering a loss of consciousness, said his attorney, Spokane lawyer Geoffrey Swindler.

Zylstra’s trainer and coaches instructed him to continue to wrestle in the tournament, according to the complaint. He suffered multiple concussions.

The next day, Zylstra began exhibiting symptoms of traumatic brain injury, Swindler said, from memory loss to emotional problems. His school performance began to suffer and his behavior became erratic.

Prior to the injury, Zylstra was in good health, Swindler said.

Zylstra filed suit against Boise State University and the state of Idaho in February and is currently engaging in discovery.

The school’s doctors and trainers should not have allowed – let alone encouraged – Zylstra to return to the mat, Swindler argued.

“In 2010, there was enough evidence out there for [the trainers and doctors] not to have someone go back in,” Swindler said. “This isn’t the athlete’s fault.”

At the end of the day, a game “isn’t worth some kid’s long-term disability,” he added.

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