College sports organization prevails in an early, difficult case on head injuries

NCAAlogo2-150x150Armchair quarterbacks of the legal kind have raced onto the field, arguing that a Los Angeles jury verdict will help shield the National Collegiate Athletic Association from a potential avalanche of claims asserting the group did too little to protect young players from debilitation and death due to head trauma.

Maybe, maybe not.

Jurors rejected the case seeking $55 million from the NCAA, accusing the body that oversees collegiate athletics of failing to safeguard Matthew Gee, a University of Southern California linebacker on the 1990 Rose Bowl-winning squad.

Gee, 49, died in his sleep at his Los Angeles-area home, and his wife, Alana, sued the NCAA. She said her husband’s death was the result of wrongful conduct by the NCAA, which she claimed had allowed him to suffer more than 6,000 hits to his head during his playing time at USC.

She asserted in her lawsuit that Gee, due to the repeated head trauma, suffered from chronic traumatic encephalopathy, a degenerative brain disease known by the acronym CTE. The condition, which can be definitively diagnosed now only after death, led her husband into a downward, ultimately lethal spiral of abusing cocaine and booze, Alana Gee claimed. As the Los Angeles Times reported:

“Testimony from Gee’s family and friends established that as his behavior deteriorated, he went from being a loving, stable husband, father, and provider to someone given to impaired judgment, aggression, confusion, and depression. The plaintiff’s experts testified that the symptoms were caused by CTE.”

The NCAA fired back, asserting that Gee died of substance abuse and untreated high blood pressure. The Los Angeles Times reported that the onetime elite athlete had let his health fall into precarious state:

“Testimony established that Gee had severe, untreated hypertension since 1991. He also had coronary artery disease that led to the cardiac arrest, including documented ventricular arrhythmias. His heart was enlarged. He had advanced liver disease, untreated sleep apnea and was obese. Gee suffered from Klippel-Trenaunay syndrome (KTS), a rare congenital malformation involving blood and lymph vessels and abnormal growth of soft and bone tissue. KTS is extremely painful and, according to testimony, Gee a few years before he died asked a doctor to cut off his left foot because he couldn’t stand the pain.”

The NCAA said it had protected athletes in programs it oversees as best as it could based on medical scientific knowledge available at the time. Gee and other athletes also participated voluntarily in contact sports and knew these carried risks.

Jurors took only a day to deliberate, finding in favor of the NCAA. That led experts like Dan Lust, a sports law attorney and professor at New York Law School, to opine that the governing body of college sports had gained a major edge against any other parties that sue it, asserting negligence in cases involving head harms. As he told the Associated Press:

“Any plaintiff’s attorney is going to think twice before putting all the chips on the table and pushing them to the middle and saying, ‘We’re going to take our case to trial and see what happens.’”

But Gabe Feldman, a sports law professor at Tulane University, took a more guarded view, noting that this case always would prove difficult to prevail in because Gee had so many complicating health issues and showing the direct link between his college career’s possible harms and his death decades later would be challenging.

The Los Angeles Times, delving deeper into the record of the NCAA and the health history of USC players during a time the university rose to national football prominence, raises unresolved questions:

“Gee is one of five linebackers from the 1989 USC team to die before age 50. The others are Junior Seau, Scott Ross, Alan Wilson and David Webb. Seau, a 12-time Pro Bowl selection with the San Diego Chargers, and Ross died by suicide. All displayed behavioral and mood symptoms associated with repetitive brain trauma and CTE. However, testimony about the death of Gee’s teammates was not allowed at the trial.”

The newspaper also reported this:

“Evidence was presented that the NCAA might have deliberately destroyed documents that established the governing body knew more about the dangers of repetitive head injury and concussions to football players much earlier than stated. Stephen Casper, a professor and expert on traumatic brain injuries and concussions, testified that NCAA-produced journals from 1933 through 1966 are missing from the NCAA publications library, and that many of the journals include articles on what the NCAA had learned about the topic and recommended to curtail the damage. Much of the testimony from Gee’s expert witnesses sought to establish that the NCAA had information about the adverse effects of concussions for decades that was not shared expediently with member schools or players.

“Even though the jury ruled that Gee’s death was not the responsibility of the NCAA, some experts believe the case established a foundation of alleged negligence that future cases can draw on. The NCAA likely would call the same expert witnesses it did in the Gee case, and future plaintiffs would have an idea of their game plan.”

In my practice, I see not only the harms that patients suffer while seeking medical services, but also the damage that can be inflicted on them by spinal cord and brain injuries, especially due to concussions and other head trauma. Brain injuries change forever the lives of patients and their families. These injuries cannot be taken lightly or ignored, especially as growing evidence shows that severe damage can occur not only with big shocks to the head and neck but also due to repetitive lesser blows.

Progress has been made in sports in increasing awareness, improving game rules, ensuring young athletes have more and better gear, and bolstering medical oversight to avert sustained, long-term damages to prep and collegiate players due to head harms.

But critics, including U.S. Sen. Chris Murphy (D.-Conn), say the NCAA is too powerful, too smug, and does too little to protect the vulnerable young from what he calls the “madness” of costly, destructive, and preventable injuries in what are supposed to be fun pastimes.

As the AP reported, the nation does not lack onetime collegians with claims of long-term, sustained harms linked to their youthful play:

“Hundreds of wrongful death and personal injury lawsuits have been brought by college football players against the NCAA in the past decade, but Gee’s was the first one to reach a jury.”

The NCAA may have escaped an adverse judgment in one instance. More cases loom ahead, including those with clearer cut and compelling claims, lawyers say. The real test for the college governing group is not only surviving legal cases concerned with earlier claims but also how robustly the wealthy NCAA will safeguard athletes now and in the future — especially as increasing evidence shows just how detrimental head harms can be.

We have much work to do to prevent the real health harms of repeated head blows, and the NCAA, as well as other sports groups and professional leagues, should know that the civil justice system provides a powerful way for those with claims of injury to seek remedies.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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