Former NFL Players Suing League And Equipment Maker Over Concealed Concussion Risks

Posted on September 12, 2011 by Stuart A. Carpey

Former NFL players are suing the NFL and Ridell Inc., the official helmet brand of the NFL, for concealing the harmful effects of concussions from players, coaches and trainers. The suit claims that the league knew of the risks that concussions posed to players as early as the 1920’s but did nothing to warn players until 2010.

 

The first question that comes to mind about this case is whether it possible that current NFL players didn’t know they were at risk of getting concussions, and the long-term effects that those concussions may have given the violent nature of the sport. It seems apparent that current NFL players should have been aware of about the risks concussions present because of media coverage on the issue. What’s less apparent is what former players knew about these risks.

According to the suit the NFL studied concussion research in 1994 and published findings as late as 2004 that attempted to show that there was no link between multiple concussions and worsening cumulative effects. These findings have been so completely debunked that in 2010 the NFL did a complete 180 and issued a warning to every team that concussions can lead to memory loss, chronic traumatic encephalopathy (CTE), and dementia. Yet, even then the NFL did nothing to warn former players.

If former players did not know about and were not informed of the risk of concussions and their long-term effects by the NFL and Ridell Inc., the players may have a successfulproducts liability case. This is because the Restatement (3d) of Torts states that “oneengaged in the business of selling or otherwise distributing products who sells or distributes a ‘defective product’ is subject to liability for harm to persons or property caused by the defect.”

The Restatement (3d) of Torts creates three categories of defective product:

  • A product is defective when, at the time of sale or distribution, it contains a manufacturing defect,
  • Is defective in design,
  • Or is defective because of inadequate instructions or warnings. 

The third category is key in this case. Did these former players have inadequate instructions or warnings about the risk of concussions and their long-term effects? It appears that the former players may have a strong case for several reasons.

First, as the suit alleges, information about this subject has been available to the NFL since 1928 with the first cases of “punch drunk” boxers. Second, CTE which is a degenerative brain disease linked to repetitive trauma and concussions has been found in the brains of 93 percent of former NFL players studied at Boston University School of Medicine. CTE results in symptoms similar to Alzheimer’s but is caused by repeated brain trauma rather than genetics. Finally, the NFL’s 2004 study that claimed there was no causal link between repetitive concussions and worsening cumulative effects.

As hard as it may be to believe at first blush, it appears that former players have a legitimate beef with the NFL and Ridell Inc. Many former players were taking the field far too soon after getting a concussion and were not aware of the chronic and degenerative problems the injury could have later in life.

This case is like many products liability cases with the exception being that the plaintiffs are professional athletes. In the end though, the plaintiff’s attorneys must prove that that there were inadequate warnings on the package or product alerting users to the safety risks in order to be successful. 

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Chrysler And GM Reversal On Liability Claims

Posted on September 11, 2009 by Stuart A. Carpey

Chrysler has now agreed to cover defective product liability claims that occur after the company came out of bankruptcy protection as of June 10, 2009. Still, approximately 300 claims ending before the company emerged from bankruptcy protection will not be covered. 

In a press release dated August 28, 2009, the New Chrysler's senior Vice President,  John Bozzella, stated "while Chrysler still faces challenges, we are confident that the future viability of the company will not be threatened if we accept these claims. We want our customers to feel comfortable and confident buying, driving, and enjoying one of our vehicles."

In testimony involving the bankruptcy hearing for Chrysler in May 2009, CEO Bob Nardelli confirmed injured consumers with liability claims against Chrysler would have to proceed against a bankrupt Old Chrysler, meaning those injured individuals  would have no recourse for their personal injury claims against Chrysler.

The testimony of Nardelli in front of the bankruptcy court last May is astounding. Here's what Mr. Nardelli said at page 422 of the actual transcript.

 

The Court: Sir, you have millions of customers who own vehicles right now made by Chrysler. And when these customers find out their vehicles may be worth less because if there is a problem with the vehicle, or an injury, something that is not covered by the warranty which is being assumed, is that going to make those people less likely to buy cars when they want to buy a new car from NewCo?

Nardelli: ...customers might be willing to take the risk if it had a very attracive price on it.

The Court: Okay. So if Chrysler isn't willing to stand behind-and by that I mean NewCo-injured customers and people who have things that are not covered by the warranty on the old cars, doesn't that send a signal to the market that the cars from NewCo you should also avoid?

 

Nardelli and the boys at New Chrysler finally got it. Consumer groups had been pushing the FTC to put a skull and crossbones sticker on any used Chrysler car to warn consumers about problematic Chrysler vehicles . That couldn't have helped new car sales for the New Chrysler. In other words, any connection between "Chrysler"and "safety" would have been destroyed. Chrysler's team's first instinct was to cut out all prior liability claims. When the bankruptcy court and public opinion made it clear that the New Chrysler's name would be irreparably damaged if the company did not pick up prior liability claims in effect before the bankruptcy, the New Chrysler people changed their tune. But let's be clear; it wasn't because they felt any moral responsibility to do so.

Chrysler's decision follows that of GM's, who, under pressure from state attorneys general, agreed to assume responsibility for product liability claims caused by  vehicle defects after the auto maker emerges from bankruptcy protection. GM's decision was made in late June 2009.

 

 

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400,000 Cribs Recalled

Posted on July 3, 2009 by Stuart A. Carpey

Bottom line: if you have a Simplicity drop side crib, it has been recalled.  Replace the crib. The risk to the infant is suffocation.

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GM And Chrysler Bankruptcies Leave Defective Product Liability Victims In The Lurch?

Posted on June 5, 2009 by Stuart A. Carpey

Chrysler has filed for bankruptcy, and the Obama Administration is pressuring Chrysler into a merger with European automaker Fiat. The proposed Chrysler purchase by  Fiat would leave victims of defective Chrysler products sold before the Fiat purchase is completed without recourse to pursue defective products liability claims against the new automaker.

Existing liability lawsuits would be dismissed. "It would wipe out all liability claims currently filed as well as those arising in the future, so long as a vehicle was sold before the merger," says Clarence Ditlow, director of the nonprofit Center for Automotive Safety in Washington, D.C.

The General Motors bankruptcy puts plaintiffs in liability suits against GM in the same boat as Chrysler victims.

As presently framed, the Chrysler and GM bankruptcies, and the Chrysler-Fiat merger, are unusual in that they would prevent anyone from bringing a future liability claim against Chrysler or GM if a vehicle already purchased from either company is defective and results in an accident causing death or injury.

Usually money is set aside for liability claims. For instance, asbestos manufacturers who went into bankruptcy were required by the bankruptcy courts to set aside funds for liability claims.

Victims of defective GM vehicles must make their claims against the old GM company which emerges from bankruptcy. They will need to stand in line with other unsecured creditors to seek compensation.  The new GM that emerges from bankruptcy  and joins with Fiat will not be liable for existing claims.

Typically in product liability claims against car manufacturers, component part manufacturers are also sued. So if those companies survive, plaintiffs in cases against Chrysler and GM may have some ability to seek compensation for their injuries. But survival is a big "if" in today's economic climate. If I own a company that sells brake pads to GM, if GM goes under, who am I selling to now?

The irony is that taxpayers may be on the hook again. If a catastrophically injured victim of a defective Chrysler or GM vehicle can't be compensated by Chrysler or GM for his or her injuries, who eventually pays for the care, treatment and medical expenses of that victim? Ultimately the taxpayer does, because tax revenues pay for Medicare and Medicaid, to which victims will have to turn.

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