Seeger Weiss Represents Former NFL Players in Concussion Lawsuit

December 6, 2011

NEW YORK/NEWARK, N.J. (December 6, 2011) – A new group of former pro football players has filed a lawsuit against the National Football League, alleging it failed to take necessary steps to protect players from long-term brain injuries in the face of overwhelming medical evidence that on-field concussions lead directly to such injuries. The suit also contends that NFL officials – including the League's own medical committee – repeatedly concealed from players risks associated with concussions and also dangerous side effects of medication administered by NFL personnel.


An important new element to the lawsuit is its focus on a potent anti-inflammatory medication called Toradol. Players allege that they were repeatedly administered the drug, often just prior to games, to reduce on-field pain, a practice that is reportedly still widely condoned by NFL teams today. Medical experts have found that Toradol – manufactured by Roche – can mask symptoms of head injury while inducing greater cerebral bleeding, greatly increasing the risk of long-term brain damage.


"The use of pain reducing, non-steroidal anti-inflammatory drugs such as Toradol in professional sports is a dangerous practice potentiating greater injury and long-term damage to players," said Christopher Seeger of law firm Seeger Weiss LLP, which is representing the players. "This is especially relevant in the case of concussions in the NFL due to the extreme high- impact forces incurred, the highly competitive nature of the players, the environment that fosters post-injury play and the importance of the brain to human function."

The suit was brought in New Jersey federal court by 11 former players: Joe Horn, Chris Walsh, Jim Finn, Scott Dragos, Jerome Pathon, Isaiah Kacyvenski, Brad Scioli, Matt Joyce, Sean Ryan, Paul Zukauskas and Sean Berton. They have over 70 years' combined experience playing for the NFL, for more than a dozen different teams. The ex-players all allege that they suffer from onset of brain impairment, and experience a host of maladies, such as short-term memory loss, frequent headaches, extreme lack of concentration and focus, sleep disturbances, vertigo, dizziness and depression.

In addition to Mr. Seeger of Seeger Weiss, the players are represented by Marc Albert of the Law Offices of Marc S. Albert, as well as James Cecchi of the New Jersey firm of Carella, Byrne, Cecchi, Olstein, Brody & Agnello, P.C.

The lawsuit maintains that the NFL's protocol was to return players who had suffered concussions back to play shortly after they sustained the injury – often during the same game. The suit contends that this "irresponsible and dangerous" practice was followed for years, despite overwhelming medical evidence that all concussions - including seemingly mild ones – permanently damage the brain and hasten mental decay, including early onset of senility and dementia, especially when they recur frequently.

Mr. Seeger stated, "At all costs during the years which our clients played out their careers, the NFL pushed them to 'get their heads into the game' – but the League's well-documented conduct over the past two decades has shown that the players are suffering irreversible consequences of negligence on the part of the NFL. In willfully ignoring the seriousness of cerebral concussion to keep their players 'game-ready' at all times, the NFL caused long-term suffering by our clients, whose heads were literally taken out of the game. It's deplorable that a multi-billion dollar business like the NFL could so recklessly disregard fundamental player safety."

The plaintiffs further allege that since the 1990s, the NFL has misrepresented the medical evidence on the issue of concussions through its "hand-picked" committee of unqualified physicians who were purportedly researching the problem. The NFL's Mild Traumatic Brain Injury Committee had been established by the League to study post-concussion syndrome in NFL players. The complaint asserts, however, that the NFL in 1994 appointed a "puppet" to chair the MTBI Committee – Dr.Elliot Pellman, a rheumatologist with training in joint and muscle treatment, not head injuries – and that the Committee would go on for the next 13 years minimizing the significance of concussions.

Concealing Risks to Players

The complaint details how the NFL's medical committee has regularly contradicted a substantial body of research of neurologists who treat sports concussions. Court papers detail how the committee published a paper in the October 2004edition of Neurosurgery, which asserted that its research found no risk of repeated concussions in players with previous concussions, and that there was no "7- to 10-day window of increased susceptibility to sustaining another concussion." The committee also wrote in January 2005 that returning to play after a concussion "does not involve significant risk of a second injury either in the same game or during the season."

The plaintiffs point to a 2003 NCAA study of 2,905 college football players that found just the opposite: Those who have suffered concussions are more susceptible to further head trauma for seven to 10 days after the injury." The complaint notes that, regarding the committee's 2004 study published in Neurosurgery, one doctor wrote that "{t}he article sends a message that it is acceptable to return players while still symptomatic, which contradicts literature published over the past twenty years suggesting that athletes be returned to play only after they are asymptomatic, and in some cases for seven days."

The complaint further points to a 2006 ESPN article that described how the committee failed to include hundreds of neuropsychological tests done on NFL players when studying the effects of concussions. The article also revealed that Dr. Pellman had fired a neuropsychologist for the New York Jets after he voiced concern that Dr. Pellman might be picking and choosing what data to include in the committee's research to get results that would downplay the effects of concussions. In 2007, the complaint details, following Dr. Pellman's stepping down as head of the committee, Dr. Kevin Guskiewicz, research director of UNC's Center for the Study of Retired Athletes, noted that Dr. Pellman was "the wrong person to chair the committee from a scientific perspective and the right person from the league's perspective." The suit further contends that the committee's subsequent co-chair, Dr. Ira Casson, was asked in 2007 whether concussions could lead to brain damage, dementia or depression, and he denied the linkage six separate times.

The complaint details additional evidence of the linkage between football and long-term brain injuries, as well as the NFL's denial of such a connection. Between 2005 and 2006, pathologist Dr. Bennet Omalu studied the brains of former NFL playersMike Webster and Andre Waters, who had both committed suicide. Dr. Omalu determined that the men suffered from chronic traumatic encephalopathy, a progressive degenerative brain disease found in individuals with a history of repetitive concussions. Dr. Omalu published his findings with respect to Webster in the June 2005 edition of Neurosurgery. The complaint contends that three members of the NFL's MTBI Committee—Drs. Pellman, Viano, and Casson— attacked the article and said they wanted it retracted. Over the years, autopsies of a dozen other former pro football players revealed that they suffered from CTE as well.

The complaint further notes that in 2007, the NFL issued a "concussion pamphlet" to the players which stated that current research with professional athletes has not shown that having more than one or two concussions leads to permanent problems if each injury is managed properly. The pamphlet reads: "We want to make sure all NFL players... are fully informedand take advantage of the most up to date information and resources as we continue to study the long-term impact on concussions." The plaintiffs contend that they relied on the concussion pamphlet, which deliberately left out the findings of Drs. Guskiewicz, Omalu and other professionals that indicated a causal link between multiple concussions and later life cognitive decline.

Cattle-Call Dosing of Toradol

All 11 plaintiffs contend that during their playing careers, they received intravenous injections or oral doses of the anti-inflammatory drug Toradol prior to playing in NFL games; the drug was frequently delivered en masse in cattle-car fashion, players allege. Toradol masks pain by reducing natural biologic compounds that cause inflammation and other effects. A 2002 study published regarding the drug's usage in the NFL noted that "there are risks associated with Toradol... that must be discussed with every athlete prior to use." The players' complaint notes that Toradol is not to be used if the recipient has closed head injury or bleeding in the brain.

The players claim that they received no warnings regarding the use of Toradol as it pertained to head injuries and that they were also at an increased risk of suffering even greater damages due to concussions because of the drug's blood thinning effect. They maintain that in some instances, players received the Toradol shots without reporting any injury beforehand, with large groups of other players who also received the shots.

"The administration of Toradol injections to NFL players in a pre-game setting is regarded as a dangerous practice that is contrary to accepted standards of medical practice," Mr. Seeger said. "A number of sports neurologists who have reviewed our complaint have confirmed that the directed use of Toradol as a prophylactic pain medicine is not a standard of care procedure. The real concern here is that Toradol administration puts the player at a significantly enhanced risk of injury. Not only does Toradol increase the risk of bleeding, an obvious concern for players who are going to be butting heads frequently during game action, but because of its analgesic effects, the drug has the effect of masking pain."

Mr. Seeger noted that a player who has been injected with Toradol may not detect symptoms of a concussion sustained during the game and play on. "Without a report of such symptoms from the player, the concussion becomes far more difficult for medical personnel to diagnose," he said. "Toradol administered in the fast-acting intramuscular form just before a game is a recipe for causing more injuries to the player and his opponents as well as increasing the risk of long term injury to both."

Players' counsel Moshe Horn of Seeger Weiss, added: "Toradol is the unspoken doping scandal within professional football. We believe that many teams continue numbing their athletes with the drug in order to get them through games when in fact considerable evidence exists that Toradol magnifies the severity of concussion. We hope our lawsuit can expose the egregious misuse of this drug, which appears to be widely used by many NFL teams as well as college and high school football programs around the country."

Congressional Reproval

The suit notes that the NFL's conduct has drawn the rebuke of the U.S. Congress. The U.S. House of Representatives Judiciary Committee called for hearings on the impact of head injuries sustained by NFL players, shortly after the 2009 release of aUniversity of Michigan study of over 1,000 former NFL players. The study reported that Alzheimer's or similar memory-related diseases appear to have been diagnosed in the League's former players "vastly more often" than in the national population – including a rate of 19 times the normal rate for men ages 30 through 49.

In the first hearing in October 2009, Rep. Maxine Waters stated, "I believe you are an $8 billion organization that has failed in your responsibility to the players." In subsequent hearings, House Judiciary Committee chairman, Rep. John Conyers, Jr., noted that "until recently, the NFL had minimized and disputed evidence linking head injuries to mental impairment in the future." Rep. Linda Sanchez also criticized the NFL at the hearings, stating: "It seems to me that the NFL has literally been dragging its feet on this issue until the past few years. Why did it take 15 years?"

The NFL announced shortly after the October hearings that it would impose its most stringent rules to date on managing concussions, requiring players who exhibit any significant sign of concussion to be removed from a game for the day. The plaintiffs' suit contends that this change contradicted past recommendations by the Committee, which had recommended as safe the league's practice of returning players to the game after concussion, a practice experienced by each plaintiff.

Too Little, Too Late

The plaintiffs point out that after some 16 years of essentially ignoring the issue, it appears as though the NFL has only very recently begun to take the concussion issue seriously.

The players' complaint states that in October 2010, in the wake of a series of dangerous and flagrant hits resulting in concussions, the NFL levied fines totaling $175,000 on three players. In discussing one of these hits, NFL Executive Vice President of Football Operations Ray Anderson was quoted as saying that "in our view, the hit was flagrant and egregious.Effective immediately, that's going to be looked at a very aggressive level, which would include suspension without pay... What I would tell you is that if there are flagrant and egregious violations of our current rules, we will be enforcing, effectiveimmediately, discipline at a higher level." (Emphasis added in players' complaint). NFL Commissioner Roger Goodell soon after forwarded a video to all 32 NFL teams showing "what kinds of hits are against the rules." In November 2011, the league's injury and safety panel issued a directive telling its game officials to watch closely for concussion symptoms in players.

The players' complaint notes that the sudden change in policy took far too long.

"Why league policy changes, accurate information sharing, strict fines and warnings of this nature were not recommended by the NFL's so called 'expert' committee soon after its creation in 1994 is difficult to comprehend," the complaint reads. "That it took 16 years to admit that there was a problem and to take any real action to address same, is willful and wanton and exhibits a reckless disregard for the safety of their players."

The "Warrior Culture" and its Price

The players seek to recover compensatory damages for their injuries. They are also seeking punitive damages against the NFL "for its wrongful conduct and to deter similar wrongful conduct in the future."

Plaintiffs' counsel Marc Albert commented that the "warrior culture" that is predominant throughout the League enabled the NFL and the MTBI Committee to conceal the dangers the players faced and conspire to keep those dangers hidden, for the purpose of keeping their players suited up.

"Players may have known about risks of knee injuries, shoulder injuries, ankle injuries and all the rest, but were never warned of the brain injuries meted out underneath their helmets," said Mr. Albert. "Whether the mantra was, 'get me back in the game,' or 'put me in, coach' - the NFL in the pursuit of keeping players playing deliberately hid a serious medical malady from them."

Former wide receiver Joe Horn played in the League for 13 years, the longest of all the plaintiffs. He was a four-time Pro-Bowler during his tenure as a wide receiver with the New Orleans Saints.

"We put our heart and soul into professional football," stated Mr. Horn. "But the NFL wronged us by hiding the dangers of repeated blows to the head. They didn't tell us that our dedication to the game we loved meant sacrificing our brains. We hope our case will further reveal the how badly the League has fumbled its handling of player concussions, and also will lead to improving safety conditions for the current crop of players."

The case is styled: Finn v. National Football League, U.S. District Court, District of New Jersey.

Note: Seeger Weiss LLP is one of nation's leading trial law firms handling complex individual, mass and class action litigation on behalf of consumers, investors and injured persons. The firm, with offices in New York, Philadelphia, Newark and Los Angeles, represents plaintiffs in a variety of practice areas, including pharmaceutical injury, securities and investment fraud, consumer protection, environmental and asbestos exposures, personal injury and medical malpractice, product defect, antitrust, and commercial disputes. For more information, go to www.seegerweiss.com.

The Law Offices of Marc S. Albert is a New York leader in the handling of complex personal injury and medical malpractice cases resulting in catastrophic injury. The firm, with New York offices in Great Neck and Astoria represents seriously injured plaintiffs in a wide range of personal injury and medical malpractice matters. For more information, go to www.msainjurylaw.com.

CONTACT:
Allan Ripp 212-262-7477 arippnyc@aol.com
Ivan Alexander 212-262-7482 ivan.k.alexander@gmail.com
SOURCE Seeger Weiss LLP; Law Offices of Marc S. Albert

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