Expert Witness Featured in Movie Concussion

Written on Monday, January 4th, 2016 by T.C. Kelly
Filed under: ExpertWitness, General, In the News

The movie Concussion opened on Christmas Day. Concussion tells the story of Dr. Bennett Omalu’s impact on professional football. Dr. Omalu (played in the movie by Will Smith) is a forensic pathologist who is credited with discovering chronic traumatic encephalopathy (CTE), a degenerative brain disease that afflicts people who have experienced multiple concussions and other forms of repeated brain trauma. Known colloquially as “gridiron dementia,” CTE causes memory loss, aggression, depression, and other personality changes. It may also lead to premature death.

Notably, one of the movie’s first scenes depicts Dr. Omalu testifying as an expert witness in a murder trial. Board certified in neuropathology and forensic pathology, Dr. Omalu has testified in hundreds of civil and criminal cases since 2009. Much of that testimony has resulted from Dr. Omalu’s position as the Chief Medical Examiner of San Joaquin County, California.

Concussion spotlights Dr. Omalu’s successful quest to force the NFL to take concussions seriously. Due in part to his pioneering work, other expert witnesses are playing vital roles in civil cases that involve brain injuries caused by repetitive concussions.

CTE Lawsuits

Concussions occur in a variety of contexts, including falls and car accidents. The plaintiffs in all of those cases may require a neurologist or other medical expert to prove the extent of the injury.

Multiple concussions in sporting events, however, are the only known cause of CTE. In addition to football, athletes who participate in boxing, wrestling, and hockey are at risk of developing CTE. Soccer, a game played without protective headgear, is not a contact sport, but collisions frequently lead to concussions.

Experts are playing a critical role in developing the link between sports and CTE. In addition to conducting research, experts have testified or assisted in court cases that have revolutionized injury management in athletic competitions.

Five thousand former NFL players joined a lawsuit accusing the league of hiding the risks of concussion from them. A federal judge approved a settlement of that lawsuit that authorizes multimillion dollar payments to former players who are suffering from severe neurological disorders, including CTE. The total outlay by the NFL may exceed one billion dollars. The settlement will not become final, however, until appeals are resolved.

The lawsuit motivated the NFL to implement new safety measures to protect players from CTE. Starting with the 2013-14 season, the NFL agreed to have an independent neurologist on the sidelines of every game to evaluate players who may have suffered a concussion.

The family of hockey player Steve Matador recently sued the NHL on similar grounds. Matador, a former defenseman for the Chicago Blackhawks, died at the age of 35. An autopsy revealed that he suffered from an extensive case of CTE. His family alleges that “the league did not do enough to warn them of the long-term effects of repeated blows to the head or protect them from the hits.”

Matador’s lawsuit is only the latest to accuse the NHL of concealing the risk of concussions from players. A potential class action involving 60 former NHL players is pending. Depositions of expert witnesses in that case are expected to begin soon.

Expert testimony will likely be the key to Matador’s lawsuit and to the class action. The NHL’s commissioner maintains that “from a medical and science standpoint, there is no evidence yet” that playing in the NHL leads to CTE. While neurosurgeon and CTE researcher Julian Bailes agrees that much about CTE remains to be discovered, he points out that the “only known risk factor for CTE is having had multiple concussions and cranial impacts in contact sports.”

Student Athletes

While concussions sustained by professional athletes have fueled research by experts like Dr. Omalu, student athletes who have sustained repeated concussions have also been found to suffer from CTE. A recent study suggests that CTE may afflict a significant percentage of amateur athletes who play contact sports.

Medical and statistical experts who assisted in crafting the settlement of a class action concussion lawsuit against the NCAA concluded that college athletes who play contact sports have about the same risk level as NFL players to have symptoms related to CTE. The settlement includes $70 million for medical monitoring while permitting injured athletes to bring individual claims for compensation for concussion-related injuries.

Lawsuits by students often focus on coaches and training staff who clear a player to return to the field after violent contact without adequately screening the player to determine whether a concussion occurred. Players who sustain a second concussion after returning to play are at substantially greater risk of developing permanent brain damage.

Lawsuits have also claimed that schools fail to provide needed treatment that would prevent brain injuries. A school district in Iowa paid a million-dollar settlement to a permanently disabled football player whose complained of headaches to a school nurse after being tackled. The student continued to practice and play despite his complaints. He eventually fell into a coma.

In all of these lawsuits, expert witnesses play a vital role. In addition to providing testimony about the likely cause of an athlete’s brain injury, experts testify about the adequacy of a school’s protocol for evaluating athletes and returning them to play after they may have experienced a concussion. The failure to develop or to follow protocols is often the kind of negligence that leads to concussion-related lawsuits against educational institutions.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.