Arizona CPCU Chapter Luncheon : Concussion Presentation Presenter : Christopher Fusco, Esq.

Christopher Fusco  Managing Partner of Callahan & Fusco, LLC  Began career in Brooklyn NY Prosecutors' Office (DA)  Callahan & Fusco, LLC is a regional insurance defense and litigation firm with offices in NY, NJ, PA and FL  Legal commenting for ABC, MSG, The New York Times, and MLB Network

Trending Issues in Concussion/Sports Litigation  Professional sports, sports associations and schools can not ignore the seriousness of concussion related litigation  Lawsuits against the NFL, NCAA and NHL  NFL Concussion Settlement  Defenses  Assumption of the Risk  Medical Release Forms  Statistics  Coverage Issues:, loss dates, number of occurrences, and venue

What is a concussion?  Some are akin to a traumatic brain injury  Caused by bump, blow, or jolt to the head  Stretching and damaging of brain cells creates chemical changes in the brain

What is Chronic Traumatic Encephalopathy (CTE)?  Progressive, degenerative brain disease  Repeated trauma to the head results in a buildup of tau proteins, which impacts the functioning of the brain  Advancements in diagnosis using improved imaging studies  Clinically associated with memory loss, confusion, impaired judgment, paranoid and aggressive behavior, depression, dementia and Parkinsonism  First post-mortem diagnosis: “Iron” Mike Webster of the Pittsburgh Steelers, in  Doctors estimated he had been in the equivalent of 25,000 automobile crashes in over 25 years of playing football at high school, collegiate, and professional levels

How do we test for concussions?  ImPACT Testing  25 minute computerized test  Tests symptoms, memory, processing speed and reaction time  Provides baseline to compare with player’s results after suspected concussion  Key concern: reliability  Researchers at the University of Illinois conducted a test of more than 100 students and reported a 40% false-positive rate  Response from ImPACT: it’s the best tool we have; not dissimilar from tests for blood pressure, heart rate, EEG  Hard for schools to test hundreds of students accurately

Alarming Concussion Settlements  2012, California - $4.37 million, for a high school student who suffered brain injury  2009, Washington - $14.6 million to settle a claim by student second concussion after being put back into a game  2009, Missouri - $3 million settle concussion suit after improper return to play

Return to Play Laws  Most state laws now mandate:  Education of Coaches, Parents & Players  Remove Athlete from Play  Obtain Medical Clearance to allow return to play  Implement guidelines to identify symptoms  Usually don’t create an express cause of action  Return to play laws do not address legal consequences for failure to comply  Largely recently passed laws – will be tested

Return to Play Pitfalls  Illinois has a Return to Play Law  City of Chicago could not afford athletic trainers in its public schools  Could not test for concussions  Chicago Bears helped pay for trainers at all CPS Varsity Football games  What if Bears didn’t pay?

How are we reacting to concussions?  USA Football – national governing body for amateur American football in the US:  , ages 6-14  13.3% decrease  3 million athletes  2.6 million athletes  Pop Warner – non-profit organization that provides youth football, cheerleading and dance programs in 43 states and internationally   10% decrease  249,000  225,000  National Federation of State High School Association – organization which writes the rules of competition for high school sports, nationally  Reported an increase of 6,607 boys and 184 girls in high school football participation in  Total participation in football as of : Boys - 1,093,234; Girls – 1,175  Participation declined in each of the previous 4 years

Qualifications of Coaches  Pop Warner provides the “Coaches Risk Management Handbook”, which must be signed by the coach  The handbook teaches coaches how to recognize concussion symptoms, and provides other concussion protocols (such as return-to-play procedures)  The National Federation of State High School Association (NFHS) offers two certification programs, each of which includes courses on how to recognize concussion symptoms

Qualification of Coaches  Cerny v. Cedar Bluffs Pub. Sch., Supreme Court of Nebraska, 2001  Student sued school for personal injuries alleging that he sustained a second head injury in practice just four days after sustaining a head injury in a game  Court held that the applicable standard of care for the coaching staff is that of a reasonably prudent person holding a Nebraska teaching certificate with a coaching endorsement  Important because coaches are held to a higher, specialized standard of care

Public Entity Insurance  Public Entity coverage can:  Extent to state actors or public officials in schools who are defendant in Sec actions  Public Schools are state actors by definition  A Constitutional law claim unlike most actions allows for the recovery of attorneys’ fees  Could be very substantial  $ per hour

Public Entity Insurers  Must be aware of the potential for a sports concussion injury a potential Constitutional claim  Consider policy exclusions for sports, if allowable  Consider this factor in underwriting due diligence  Make sure schools have state of art concussion testing that certifies (in writing) that a player is “ready to play” (baseline testing)  Schools should keep statistics of concussions in their sports programs

Tort Limits on Claims Against Public Entities  32 States have statutory cap on damages  Notable football-dominant states with cap:  Texas ($250K), Florida ($200K), Georgia ($1M), Louisiana ($500K), Illinois ($100K), North Carolina ($1M)  Notable local states with no cap:  New Jersey  New York  Pennsylvania – Sovereign Immunity pursuant to 42 Pa.C.S. § 8541

Coverage Issues  What is a trigger?  Single - injury in-fact  Multiple - manifestation of symptoms of time  CTE can take 15 years to diagnose  Hybrid Approach  Continuous trigger of a progressive injury  Usually used for toxic tort  Depends on jurisdiction

One or More Occurrences?  Depends on jurisdiction  Single occurrence:  Focal point will be when the defendant failed to protect the student in the first instance  Look of single proximate cause  Multiple occurrence:  Look at causes of loss  More than one failure (i.e. improper return to play and failure to follow policy)  Can cause more occurrence dates and threaten policy aggregate

Potential Coverage Defense  New area of law  Intentional Conduct  Violation of a Return to Play Law is intentional conduct that will cause an expected injury  Violation of a School Policy is intentional conduct  Could be excluded from coverage  Recreational activities  Are excluded by some policies  Exclusion not common in school coverage

NFL Settlement Issues  Court rejected initial $765M settlement because Judge Anita Brody was concerned with the $675M cap on the fund from which players could recover  New settlement finalized in April 2015:  No longer a “cap” on the fund  However, there is a cap on how much each player can recover:  Level 1.5 Neurocognitive Impairment: $1.5M  Level 2 Neurocognitive Impairment:$3M  Parkinson’s Disease:$3.5M  Alzheimer’s Disease:$3.5M  Death with CTE:$4M  ALS:$5M  Now that settlement is approved, it may be appealed…  10 players have already appealed  Main reason: only compensates for CTE if player died before the date of final approval  Former players currently experiencing CTE symptoms are excluded

Emerging Issues in Concussion Litigation  Why is the NFL concussion litigation important to our conversation?  Examine the issue of legal causation  Causation:  Factually connecting conduct with a plaintiff’s injury  “But For Test”  But for the conduct of the defendant would the plaintiff have been injured?

Trouble for the NFL’s Defense  Assumption of risk could fail based on these facts as alleged  Players don’t have an honest choice between playing and sitting out  In painkiller litigation, do players understand the medical dangers of taking the medication?  Potentially bad law for insurers who provide coverage for industries with dangerous jobs  Construction  Energy  Health care  If “employment culture” is used to defeat assumption of risk could be chilling for insurers and employers

Assumption of Risk?  NFL, in the media, stating the professional athletes are responsible for their bodies  Assumption of Risk  Requires plaintiff to know he is “taking his chances” with a known risk  Football is, by definition, a sport involving violent hits  Massive cultural pressure on players  Non-guaranteed contracts  3.2 years is average career  Making these decision quickly while injured

NY  NJ  PA  FL