Archive for the ‘Equipment’ Category

Disagreement on proposed NFL concussion settlement

Players aren’t the only ones with issues at stake

Not everyone involved in the NFL’s proposed $765 million player concussion settlement is ready to sign the agreement. The proposal states that players were never made aware of the concussions risks of which the NFL had knowledge.

Players and families filing lawsuit argue the settlement would not assign blame or offer punitive damages for pain and suffering.

It’s not just about the players

Critics of the proposal note that there are other people affected by the damages resulting from the concussions of the players.

The 2012 suicide of NJunior SeauFL linebacker Junior Seau points to the obvious fact that he can’t be compensated for pain and suffering. However, his three children are the ones who are dealing with the pain and suffering in the wake of his death. Seau’s family is objecting to the proposed settlement and plans to file aseparate suit.

Anita Brody, the U.S. district judge who will oversee the settlement, also questions whether $765 million is adequate compensation for all the parties involved. There are approximately 20,000 claims by people involved over a 65-year period.

The push to settle

The majority of retired players in the suit are are not contesting the terms of the proposed settlement, according to lead attorneys Christopher Seeger and Sol Weiss. They state that the retirees are ready to settle and take advantage of the awarded funds.

Younger players and former players suffering from Alzheimer’s disease could be awarded as much as $5 million. But most of the plaintiffs who are dealing with mild forms of dementia would likely be awarded less than $25,000. If the lawsuit is thrown out, they could all end up with nothing.

More information is needed

“This could be a great settlement, this could be a terrible settlement, but I don’t know,” said Thomas A. Demetrio, the attorney representing the late Dave Duerson’s family and nine other players or their families in the suit.

Demetrio also stated that two questions need answered: what portion of the payments will be paid out of insurance and why attorneys will be splitting another $112 million if the case never went to trial.

Please visit Sadler Sports & Recreation Insurance for more information on the NFL settlement,  concussion risks, and sports insurance or to request a quote.

Source:   Maryclaire Dale, “Seau Family Plans to Object,” Insurance Journal, 29 Jan. 2014.

Advanced Football Helmets

Do they offer superior concussion protection?

According to a recent study conducted by the American Academy of Pediatrics, advanced helmet technology and mouth guards don’t offer greater concussion protection for high school football players than standard equipment that is older. The results are in contrast to claims that have been made by helmet and mouth guard manufacturers and call into question whether they are worth the extra cost.

The 2012 study of 115 players at 36 high schools compared the concussion rates among players who wore helmets manufactured by Riddell, Zenith, and Schutt. There was no difference in concussion rates between the helmet type or based on the age of the helmets.

Surprisingly, use of the more advanced custom mouth guards resulted in a higher concussion rate.

“Because the brain is floating inside the skull, I think most experts doubt whether it is possible to ever develop a helmet design that can prevent concussions,” said co-researcher Margaret Brooks.

Source: “Brand of Football Helmet Makes No Difference in Concussion Risk, Study Finds,” FoxNews.com. Oct. 29, 2013.

Add-on Helmet Products

Should they be permitted in youth football leagues?

Many youth football teams and leagues are currently using or considering some new products on the market that will modify their existing football helmets with add-on enhancement devices. These include external soft covers such as The Guardian, Shockstrip, or ProCap, internal shock reducers and shock sensors to help to identify concussion candidates. The helmet manufacturers, primarily the big three – Riddell, Rawlings, and Schutt – either don’t recommend the use of these products or have concerns about their use for various reasons.

Many of my youth football insurance clients have asked for my advice on this matter from a risk management perspective. This is a complicated issue with many elements that need to be considered. I can offer my thoughts based on the current information at hand. Please note that this situation is fluid with new developments and statement releases by NOCSAE and governing bodies occurring frequently.

Do add-on devices actually work?

Before getting into the risk management implications, I have to state that I don’t know whether some of these add-on products provide effective concussion protection or not. Each side’s argument  is backed by its own logic and research. The helmet manufacturers state that they are constantly researching new ways to increase concussion protection and have already incorporated all presently proven materials and designs into their existing models. The helmet manufacturers are wary of liability concerns; they could easily be forced into bankruptcy by adverse jury verdicts or not being able to afford liability premiums. As a result, they must follow all protocols and standards closely as regards the law of product liability to preserve their defenses. This requires them to be conservative and risk-adverse about new and unproven ideas and products.

On the other hand, the add-on product manufacturers  are primarily start-ups that are trying to gain market share with innovative new ideas. They are being fueled by the current concussion hysteria  in football and the rush to find a solution to “save the game.” The add-on device manufacturers allege that the big helmet manufacturers are trying to keep them from gaining a foothold by frightening the public as to the safety of their devices and by unduly influencing NOCSAE, The NFL, and other industry associations. See our recent article, “Helmets Preventing Concussions Seen Quashed By NFL.”

The add-on manufacturers and many safety proponents are concerned that the liability roadblocks thrown up by the helmet manufacturers and NOCSAE are hurting the development of player safety. They point out that, from a historical perspective, the independent research and creativity of smaller companies has benefited society with innovative solutions to problems that were thought to be insurmountable, and as a result they should not be stifled. Furthermore, they state that it is the players and parents who should make the decisions about the use of add-on products.

Regardless of which side is correct in this debate (only time and additional research will tell), the following legal and risk management issues are of  importance in a youth football league’s decision about the use of these add-on devices:

  • Voiding the manufacturer’s warranty
  • Voiding NOCSAE certification standard
  • Failure to follow rules or standards of governing or sanctioning body
  • The law of product liability.

Voiding the manufacturer’s warranty

The typical youth football helmet manufacturer’s warranty asserts that the helmet shell and component parts will be free of defects in materials and workmanship for a period ranging from one to three years. Some manufacturers allow the warranty to be extended if the helmet is reconditioned and re-certified to NOCSAE standards every 1 to 2 years. The warranties are subject to a list of voiding factors, such as failure to recondition/ recertify, inserting used replacement liners, use of a face guard or internal or external device not approved by the manufacturer, use of chemicals which may have damaged the shell, excessive drilling, abuse of helmet or unintended use, and removal of the warranty label. Defective products  under the warranty can be returned to the manufacturer for replacement. The warranties disclaim all liability for consequential damage arising from use of the products.

The helmet manufacturers make a big deal out of voiding their warranty as a reason not to use a third party enhancement device.

On the other hand, the add-on manufacturers state that this is not a big deal since the main purpose of the warranty is to replace a broken shell and this rarely happens. Furthermore, some of the add-on product manufacturers offer their own helmet warranty in the event the helmet manufacturer doesn’t honor their own warranty. Another issue is whether the use of an add-on actually voids the manufacturer’s warranty. It depends on the exact wording in the warranty and the nature of the add-on device. It’s almost inconceivable that some add-ons product could damage the helmet shell. One large helmet manufacturer states that they will decide such warranty matters on a case-by-case basis.

It is my opinion that voiding the manufacturer’s warranty is not a big deal for the following reasons:

  1. The financial consequences are not severe because the warranty merely guarantees replacement of the defective helmet part and has nothing to do with liability arising from player injury.
  2. Many add-on product manufacturers provide their own helmet warranty.

Voiding NOCSAE Certification

NOCSAE is a non-profit corporation  formed in 1969 to develop a performance standard for football helmets. The NOCSAE board of directors consists of representatives from associations in the fields of medicine, athletic training, athletic equipment, sporting goods manufacturers, and high schools/colleges. Evidently, the majority of NOCSAE’s operating income comes from sporting goods manufacturers. NOCSAE is conscious of limiting the liability of the manufacturers and promoting the interests of player safety. Their standards are adopted by governing bodies such as NCAA and NFHS.

The NOCSAE football helmet test involves mounting a football helmet (with face mask removed) on a dummy head and dropping it 16 times onto a firm rubber pad from varying heights, contact points, and in various temperatures. Shock measurements are taken to verify that the helmet meets a severity index for concussion tolerance. If it does, the helmet meets the NOCSAE standard. Testing is conducted by the manufacturers prior to the sale of the helmet and afterward by licensed reconditioners. Newly manufactured helmets that pass the test must bear the seal “Meets NOCSAE standards” which must be permanently branded on the outside rear of the helmet. Recertified helmets must bear the NOCSAE seal inside the helmet that reads “This helmet has been RECERTIFIED according to the procedures established to meet the NOCSAE STANDARD.”  It is important to understand that the NOCSAE standard is not a warranty, but simply means that a particular helmet met the standard requirements when it was manufactured or reconditioned.

NOCSAE does not require a helmet to be recertified on a regular basis but recommends that teams/leagues adopt a program of inspection and reconditioning based on a number of factors such as age of players, age of equipment, and usage. NOCSAE does not mandate reconditioning or recertification, but manufacturers may restrict their warranty based on these factors. Any change or modification to the shell or liner from the original manufacturing specifications could alter the performance of the helmet and its performance under the NOCSAE test. However, replacement parts are acceptable if they meet or exceed original manufacturer specifications. The NOCSAE helmet standard does not include the testing of helmets with face masks because they are tested separately. NOCSAE suggests that the original manufacturer be contacted before any materials are applied such as, but not limited to, thinners, paint, wax, solvents, vinyl tape designs, and cleaning agents.

Below is an excerpt from  NOCSAE’S July 16, Press Release:

“The addition of after-market items by anyone that changes or alters the protective system by adding or deleting protective padding to the inside or outside of the helmet, or which changes or alters the geometry of the shell or adds mass to the helmet, whether temporary or permanent, voids the certification of compliance with the NOCSAE standard.”

This ruling likely prompted the Colorado High School Activities Association (CHSAA) to prohibit the use of add-on products during games.

You can also read NOCSAE’s August 7, 2013 Clarification Press Release, which details the helmet manufacturers’ decision on NOCSAE standards being voided.

Pressure from third party manufacturers and safety proponents likely was behind NOCSAE modifying and relaxing it’s original July 16 statement. This new statement  allows the helmet manufacturer to unofficially test the results of its helmet with the add-on device. This statement also makes exceptions for items that are not attached or incorporated (see text below).

Here are some highlights of the August 7, 2013 NOCSAE statement:

The addition of an item(s) to a helmet previously certified without those item(s) creates a new untested model. Whether the add-on product changes the performance or not, the helmet model with the add-on product is no longer “identical in every aspect” to the one originally certified by the manufacturer.

When this happens, the manufacturer which made the original certification has the right, under the NOCSAE standards, to declare its certification void. It also can decide to engage in additional certification testing of the new model and certify the new model with the add-on product, but it is not required to do so.

Companies which make add-on products for football helmets have the right to make their own certification of compliance with the NOCSAE standards on a helmet model, but when that is done, the certification and responsibility for the helmet/third-party product combination would become theirs, (not the helmet manufacturer). That certification would be subject to the same obligations applicable to the original helmet manufacturer regarding certification testing, quality control and quality assurance and licensure with NOCSAE.

Products such as skull caps, headbands, mouth guards, ear inserts or other items that are not attached or incorporated in some way into the helmet are not the types of products that create a new model as defined in the NOCSAE standards and are not items which change the model definition.” (Note: This is not the official position of NOCSAE or any helmet manufacturer but a leading concussion blogger speculates that the exception applies to MC10/Reebok Checklight and Guardian Cap.)

See the April 2013 statement from National Athletic Equipment Reconditioners Association (NAERA) regarding the removal of aftermarket enhancements and related complications during the recertification process:

Based on the latest NOCSAE clarification, the helmet manufacturer has the right to void the original NOCSAE certification for a particular add on product. This being the case, there is legal risk in allowing the use of an add on device on a helmet in a youth football program if an injury and lawsuit results where the helmet manufacturer takes the position that it voided the NOCSAE certification due to the add on  product.

Violation of governing/sanctioning body mandates

Do the use of these add on devices violate the rules of the various governing / sanctioning bodies such as NFHS, American Youth Football, Pop Warner, USA Football?

Most youth football leagues follow the rules of their state version of the NFHS rules and regulations.

The NFHS has not disallowed the use of certain external enhancement devices per their Rules Review Committee Statement, August 2012.  Here is the critical element of their opinion: “In the absence of a clear answer to the “net impact on protection” issue, the decision as to whether to use or not use helmet attachments remains, at the high school level and all other levels, within the discretion of the various teams, coaches, athletes and parents.”

However, as a result of the latest August 7, 2013 NOCSAE clarification, the NFHS may be pressured to reconsider its position and to disallow an add on product should a helmet manufacturer declare that its use voids the original helmet certification.

The NFHS rules can be amended by the various state member associations. For example, the Colorado High School Activities Association (CHSAA) recently prohibited the use of these products during games but not during practice.

It is always safest from a liability perspective to follow the rules of the governing / sanctioning body. Failure to do so will certainly be used against a team or league in a court of law and can be a strong indication of negligence.

Use of add-on products trigger legal defenses for helmet manufacturers

In the event of a serious head or neck injury, the plaintiff’s attorney will likely sue the helmet manufacturer/ distributor; add on product manufacturer / distributor; team / league; individual administrators; coaches, managers, trainers, and referees; and possibly the sanctioning body organization. Each will likely point the finger at the other defendants and will plead all the legal defenses that are available such as the absence of negligence, the other defendants were negligent, assumption of risk, waiver / release, etc.

What does product liability case law say about the legal defenses that are available to helmet manufacturers that may be triggered by the unauthorized use of add on products? Here is a list of such defenses:

  • Improper Use Defense — Helmet was not used in manner intended by helmet manufacturer when plaintiff (injured party) was injured.
  • Product Labeling And Directions Defense – The plaintiff or other responsible parties (parent, team, league, etc.) ignored the written warnings, directions, and risks that were communicated in helmet manufacturer’s materials.
  • Altered Product Defense – The helmet manufacturer is not responsible for plaintiff’s damages if the plaintiff or other party altered the product once it left the helmet manufacturer’s control and furthermore the alterations caused the plaintiff’s injury rather than the original unaltered helmet.

Should add-on products be used due to concussion concerns?

Based on the analysis above, from a legal and risk management perspective, it is safest to follow the recommendations of the helmet manufacturers as regards the use of add on products. If you follow their recommendations, they will be the deepest pocket in the event of a catastrophic head or neck injury in your program. The major helmet manufacturers likely carry a combined General Liability / Excess Liability insurance limit in the range of $10M to $25M. On the other hand, the add on product manufacturers likely carry much lower limits of liability insurance due to their restricted start up budgets.

However, if your sports program is going provide or allow the use of add ons that are declared by the original helmet manufacturer to void the NOCSAE certification, despite the liability risks of doing so, it is recommended that your program carry its own General Liability/Excess Liability policy with combined each occurrence limits of at least $5,000,000 such as the insurance program provided by American Youth Football. In addition, the requirement that players and parents sign an appropriately worded waiver/release agreement that specifically warns of the dangers of violating the manufacturer’s instructions as regards add on products should be considered.  

Additional research may vindicate many of the add on product manufacturers to the point where public demand will force the major helmet manufacturers to accept their products if they are proven to promote safety.

Soft Cover Football Helmet Add-ons

Liability issues result in add-ons being banned

The Colorado High School Activities Association ruled that the helmet shell called the  Guardian Cap can’t be worn in games and that schools may void protection from helmet manufacturers’ warranties if they allow the use of such helmet shells during practices. Approximately 15 high school and youth teams in Colorado were using the Guardian Cap.

The National Operating Committee on Standards for Athletic Equipment issued a statement that read in part: “The addition of after-market items by anyone that changes or alters the protective system by adding or deleting protective padding to the inside or outside of the helmet, or which changes or alters the geometry of the shell or adds mass to the helmet, whether temporary or permanent, voids the certification of compliance with the NOCSAE standard.”

In my opinion

Add-on helmet productsWhen a youth football client asked my opinion on whether or not to experiment with the use of such helmet shell products in the face of concussion concerns, I provided the following response:

It is true that the attorney of a football player who has suffered a serious brain or spinal injury will sue all parties that could be remotely responsible, including the helmet manufacturer, helmet distributor, helmet cover manufacturer, helmet cover distributor,  conference administrators, coaches, sanctioning body, etc. The helmet manufacturer would certainly argue that that it was not responsible for the injury due to the use of the helmet cover product which voided the manufacturer’s warranty. I’m not sure whether the helmet manufacturer could completely escape liability with such an argument. If they were successful, that leaves the General Liability insurance policies of the helmet cover manufacturer including any distributors and the conference on the hook. It’s likely that the helmet manufacturer carries a much higher liability limit than the other parties.

From a common sense point of view, it would seem that the additional padding and shock absorption would lessen the impact. On the other hand, the larger diameter and weight could increase rotational torque which could also impact concussions. But common sense is not always reality. For example, commotio cordis (sudden cardiac arrest due to arrhythmia) is an infrequent but usually fatal occurrence in youth baseball when a ball strikes the heart at the precise millisecond of the heart rhythm. It made common sense that youth players should use padding or a shield to protect against this risk and a number of products were introduced to provide such protection. But, one lab study using pigs being shot in the heart by baseball pitching machines showed that this type of protective device actually made a commotio cordis event more likely. It is best to leave the safety decisions up to the scientists. Of course, scientific progress can be slow and it can be difficult to determine if they have an agenda. Also, scientists can be wrong even if most are in agreement.

So what’s the answer?

The safest play from a liability perspective is to go with the recommendations of 1) your manufacturer, 2) NOCSAE, and 3) the sanctioning/governing body if they have an opinion on the issue. There is always safety in siding with the recognized authorities, though, this does not mean that they are correct.

The manufacturers of soft helmet shell covers and other similar add-on devices claim that the big helmet manufacturers are shutting them out of the process with their influence over the various sanctioning bodies and NOCSAE.  They point out that smaller companies have historically played an important role with scientific research, creativity, and problem solving.

I would like to hear your thoughts on this issue.

Source: Guardian Cap: Controversial Ruling May Mean End To Use In Colorado; Adrian Dater; Denver Post; 8-1-13

Ice Hockey Face Visors

Should sports disability carrier mandate use?

Sports insurance carriers are often pressured by advocates to require certain safety rules or safety equipment as a prerequisite of coverage.  The latest incident of this occurred in the sports disability insurance market for NHL professional hockey players.  Personal Disability insurance covers loss of income as a result of certain career ending injuries. One specialty Accident carrier decided to mandate the use of face visors as a precondition of extending coverage.  However, Disability broker, Greg Sutton of Sutton Special Risk in Toronto argues that it is not the role of sports insurance carriers to affect change as such. These changes, he said, should be left up to NHL players.

Sutton cites the following reasons for not mandating the face visor as a precondition of Personal Disability coverage:

  • The last career-ending injury that a face visor may have prevented occurred in the 2000 season when Bryan Berard lost most of the vision in one eye after being struck by a stick.  The Disability carrier actually paid a lump sum, which he paid back when he decided to continue his career in 2001-2002.  Therefore, mandating the face visor would not make a significant impact on reducing claim payouts.
  • Concussions are a much larger issue in NHL than injuries that could be prevented by face visors.
  • Sutton personally favors the use of face visors and thinks that the insurance industry should consider discounts for their use. However, the policies are already highly discounted.
  • Currently 73% of the NHL’s 740 players voluntarily wear face visors and the players union may consent to mandatory use with older players being grandfathered in.

In my opinion:

In my experience, sports Accident and General Liability carriers only mandate certain safety rules or safety equipment when their use would prevent catastrophic injuries.  As regards discounts, most don’t want to give up front discounts, as discounts will be provided on the back end when claim reductions work their way into the loss history of an account.

Source: David Shoalts, “Player Safety: Onus for Visor Use Must Stem From Players, Insurance Magnate Says.” theglobeandmail.com. 24 Mar. 2015.

New Helmet Offers More Protection

Start-up company claims it outperforms the competition

New  football helmet manufacturer SG Helmets claims that recent laboratory impact testing indicates that its youth football helmet SG Helmet technologyoutperforms the leading industry competitor by a margin greater than 2 to 1. This is timely information since concussions are the leading concern in youth tackle football at the present time. SGH claims that its youth football helmet weighs slightly over one pound (leading competitor’s helmet weights over three pounds) and that its space age inner liner absorbs more shock. The technology used by SGH comes from its prior experience in manufacturing helmets for NASCAR. Test results are available on the SGH website.

These results are impressive, but additional field testing should be conducted. Should the results be confirmed in the field, this would be a huge positive to General Liability carriers that insure sports organizations.

Tree Stand Industry Responds to Risks

Warnings, education, and body harness included in manufactured tree stands

Based on our experience in insuring archery and hunt clubs, falls from tree stands represent one of the biggest lawsuit hazards along with ATV accidents.

I recently set up a manufactured tree stand with my son, as shown in the photo.  We were amazed at the detailed safety instructions explaining all the different things that could go wrong in the set up and while actually hunting.  Evidently, every manufactured tree stand Hunt club safetyof this type comes with a body harness that should be worn at all times and attached to the tree by a climbing belt or a tether.

If these safety recommendations are followed, a mishap should never result in a fall where the hunter hits the ground.  But, I had no idea that a hunter who falls and remains suspended in the air by the tether can quickly become unconscious and die due to blood pooling in the legs (with the body harness wrapped around legs).

Note that in the picture, my son’s tether was not attached high enough on the tree.  I guess that’s why you should read the instructions and view the DVD before assembly! It scared the heck out of me.

Tree stand safety is serious business and the industry has responded with appropriate warnings and education. I have a better understanding and appreciation of the risks faced by my archery insurance and hunt club insurance clients.

New Football Helmet Warning Label

Riddell helmet warning is response to concussion concerns

A new warning label is being posted on the back of the new Riddell 360 football helmet that reads in part:

NO HELMET CAN PREVENT SERIOUS HEAD OR NECK INJURIES… Contact in football may result in CONCUSSION BRAIN INJURY which no helmet can prevent. Symptoms include: loss of consciousness or riddell-225x300memory, dizziness, headache, nausea, or confusion. If you have symptoms, immediately stop playing and report them to your coach, trainer, and parents. Do not return to a game or practice until all symptoms are gone and you have received MEDICAL CLEARANCE. Ignoring this warning may lead to another and more serious or fatal brain injury.

This new warning label is in response to recent litigation against Riddell by retired NFL players who allege that football manufacturers failed to properly protect them against long-term concussion risks and lied about the company’s ability to reduce head trauma. The new sticker is an attempt by Riddell to provide better information to their consumers.

Will this new sticker be used against Riddell in the current litigation as an admission of fault? Not likely, according to attorneys, since subsequent remedial measures are not allowed to be introduced into evidence under Rule 407 of Federal Rules Of Evidence.

It’s interesting that the warning did not specifically mention the risks of brain injury from cumulative sub-concussive impacts (also known as chronic traumatic encephalopathy or CTE), which is as much of a concern as concussions.

For further reading on helmet safety, research and preventing concussions, click here.

Source: Darren Heitner, Wolfe Law Miami, P.A.

Concussion Experts on Protective Soccer Headgear:

Manufacturer’s claims don’t hold up

The video below chronicles the use of a specific soccer headgear product for girls that claims to reduce the possibility of concussions by 50%. Concussion experts disagree with the claims of the manufacturer and fear that the headgear will give players a false sense of security, causing them to be even more aggressive and put themselves at even more risk for concussions. One doctor suggests that neck strengthening exercises would have more of a positive impact than soccer headgear.

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Source: msnbc.com

Shockstrip External Helmet Pads

Product intended to reduce micro traumatic brain injuries and concussions

Check out Shockstrip.com for complete information on this new product, including the testing results, coach, player, and parent testimonials, and information on concussions.  Test results include adhesive compatibility, friction coefficient analysis, drop testing, and linear impact testing.

Shockstrip is one of many newly-introduced products that claim to reduce impact forces helmet-to-helmet contact that will reduce the chance of micro traumatic brain injury and concussion.

Shockstrip may void the helmet manufacturer’s warranty but they are offering their own warranty in it’s place.

Source: www.shockstrip.com