Positive Outcomes But Sports Insurance Concerns Linger Over CTE
The sports insurance industry has been fearful of concussion / brain injury lawsuits for over 12 years. Concussions were on the front burner of underwriter concerns, but with a number of positive litigation outcomes, they have been recently leapfrogged by sex abuse / molestation concerns.
But, recent studies have linked repeated head injuries to Chronic Traumatic Encephalopathy (CTE), a neurodegenerative disease. Although CTE can currently only be diagnosed post-mortem via autopsy, the potential development of a blood test or other diagnostic tool could significantly alter the landscape of concussion-related litigation.
As a result, amateur sports organizations must implement serious brain injury risk management programs to combat this threat.
History Of Recent High Profile Concussion Lawsuits And Their Outcomes
At least seven high-profile lawsuits have been filed against amateur sports associations, alleging negligence in their handling of concussions and concerns over long-term athlete safety. Below are the notable cases in chronological order along with the outcomes.
1. Bukal vs. Illinois High School Association
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Court: Cook County Circuit Court, Illinois
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Cause of Action: The class action lawsuit filed against the Illinois High School Association (IHSA) by former football player Daniel Bukal was dismissed in 2015. The lawsuit, the first of its kind against a state high school sports association, claimed that IHSA failed to protect athletes from concussions.
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Outcome: The court ruled that the IHSA had implemented sufficient safety measures and that imposing further liability could negatively impact the sport. Additionally, Illinois law’s “Contact Sports Exception” further shielded IHSA from liability. The case was dismissed with prejudice in 2015.
2. In Re National Collegiate Athletic Association Student-Athlete Concussion Injury Litigation
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Court: U.S. District Court for the Northern District of Illinois
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Cause of Action: Plaintiffs accused the NCAA of failing to protect student-athletes from the dangers of repeated concussions. The suit claimed that despite being aware of the risks, the NCAA did not implement appropriate safety protocols for concussion management and prevention.
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Outcome: A $75 million settlement was reached in 2016. This settlement primarily provided for medical monitoring of former athletes rather than individual damages. The court noted that while the NCAA had a duty to protect student-athletes, the settlement’s terms favored preventative care over compensation for existing injuries. Importantly, this case set a precedent for providing long-term health monitoring to those exposed to concussive risks.
3. Archdiocese of Milwaukee Catholic Youth Football League Concussion Lawsuit
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Court: Milwaukee County Circuit Court, Wisconsin
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Cause of Action: This case involved a youth football player whose parents alleged that the Catholic Youth Football League was negligent in managing concussions, failing to adequately educate coaches and players on the dangers of head trauma, and not implementing proper return-to-play protocols.
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Outcome: The court dismissed the case in 2017, ruling that while the league could have been more proactive, it had met the minimum legal standards of care as per state regulations. The court’s reasoning highlighted the difficulty in proving liability when concussion management standards were either loosely defined or evolving, and organizations were often in technical compliance with the law.
4. Archie and Cornell vs. Pop Warner and USA Football
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Court: U.S. District Court for the Central District of California
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Cause of Action: The lawsuit filed by Kimberly Archie and Jo Cornell against Pop Warner and USA Football was ultimately dismissed. Archie and Cornell sued, claiming that their sons’ deaths were linked to Chronic Traumatic Encephalopathy (CTE) as a result of head injuries sustained during their time playing youth football. The suit alleged that Pop Warner and USA Football failed to adequately warn participants and their families of the long-term risks associated with head injuries.
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Outcome: In 2019, a federal judge in California dismissed the case, ruling that the plaintiffs had failed to provide sufficient evidence to show that the organizations’ actions directly caused their sons’ deaths. Specifically, the judge noted that while the risks of concussions are serious, the plaintiffs could not definitively link their sons’ CTE to their time in Pop Warner football, particularly given the current limitations of CTE diagnosis, which can only be confirmed post-mortem.
5. Pop Warner Little Scholars Concussion Class Action
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Court: U.S. District Court for the Central District of California
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Cause of Action: Parents of children who played Pop Warner football alleged that the organization was negligent in warning participants and parents about the long-term risks of concussions. The plaintiffs argued that Pop Warner downplayed the dangers of repeated head trauma and failed to implement concussion safety protocols.
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Outcome: In 2019, the case was dismissed due to insufficient evidence linking Pop Warner’s conduct directly to the plaintiffs’ injuries. The court found that the organization had implemented some safety measures, and the plaintiffs failed to prove gross negligence. This ruling underscores the challenge of establishing causality in concussion litigation, particularly when symptoms of brain injuries may not manifest for years.
6. California High School Football Concussion Case (Rashaun Council vs. Grossmont Union High School District)
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Court: San Diego Superior Court, California
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Cause of Action: A California family sued after their son continued to play football despite showing signs of a concussion. The family alleged that the coaching staff and school district were negligent in not pulling their son from the game, which led to severe long-term injuries.
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Outcome: In 2020, the family received a $7.1 million settlement. The case was settled after the family successfully defeated a summary judgment motion, resolving the case before it went to trial.
7. Oregon High School Football Concussion Case (Dawna Martin and Todd Martin v. Hermiston School District 8R et al.)
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Court: U.S. District Court, Oregon
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Cause of Action: An Oregon family is seeking $39 million in damages after their son suffered severe neurological issues, including memory loss and depression, following a high school football concussion. The lawsuit alleges that the school district failed to take appropriate action to protect the student after his injury.
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Outcome: The case is ongoing as of 2023. The lawsuit survived dispositive motions in 2019, meaning it avoided dismissal at that time, but no settlement has been reached as of the last reports.
Second Impact Syndrome
Second Impact Syndrome (SIS) is a rare but severe condition that occurs when a person sustains a second concussion before fully recovering from an initial one. This can lead to rapid and catastrophic brain swelling, often resulting in severe neurological damage or even death. SIS is most common in young athletes, whose brains may be more vulnerable to such repeated trauma. The key to preventing SIS is ensuring that individuals do not return to physical activity until fully healed from the first concussion, as even a mild second impact can have devastating consequences.
The California and Oregon high school concussion cases above are clearly instances of second impact syndrome and negligent return to play when symptoms were exhibited. Plaintiffs will continue to prevail in these types of cases. Most concussion / brain injury risk management attention is given to recognizing signs and symptoms, immediate removal, return to play protocols, and medical clearance. Widespread education on this topic provided by current risk management programs to players, coaches, administrators, and parents should greatly reduce the instances of this type of injury and related litigation.
The Role of CTE in Litigation
One of the major obstacles plaintiffs face in concussion-related lawsuits is proving a direct link between head trauma sustained in youth sports and long-term conditions like CTE. Currently, CTE can only be definitively diagnosed post-mortem through an autopsy, which complicates claims of negligence related to CTE since living plaintiffs cannot demonstrate the condition. However, research is underway to develop diagnostic tools, such as blood tests or imaging techniques, that could identify CTE in living individuals. Should a reliable diagnostic test for CTE be developed, it could dramatically change the legal landscape. The ability to diagnose CTE in life would give plaintiffs a powerful tool to prove their injuries were caused by inadequate concussion management. This could open the door to more successful lawsuits and potentially larger settlements, as it would be easier to establish causation and long-term harm.
Success Rate and Implications for the Future
The success rate of concussion-related class action lawsuits against amateur sports organizations has been mixed. Some lawsuits, like the NCAA settlement, have provided for medical monitoring and preventive care, but many others have been dismissed due to the difficulty in proving negligence or causation. Courts often struggle to assign liability in cases where organizations were in compliance with state regulations at the time or where the causal link between a player’s injury and the organization’s negligence is unclear.
What This Means for the Future
The future of concussion litigation may hinge on advancements in medical diagnostics. If CTE or other concussion-related conditions can be diagnosed in living individuals, it will likely lead to a surge in successful lawsuits. Organizations will face greater pressure to implement stringent concussion protocols and to ensure they meet the highest standards of care. In the meantime, the lawsuits that have already been filed have pushed many organizations to improve their safety practices. More rigorous concussion protocols, coach education, and return-to-play guidelines are becoming the norm in youth sports. However, until a reliable test for CTE or other long-term effects of concussions is available, plaintiffs will continue to face challenges in proving their cases.
Sadler Brain Injury / Concussion Risk Management Plan
Sadler Sports Insurance offers its clients a free brain injury / concussion risk management program that can be easily adopted and implemented by an amateur sports organization. We offer a program for youth tackle football and cheer and a generic program for other sports. Both are easily customizable. To follow is a summary outline of our generic program:
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Policies & Training: Policies include educational awareness training for athletes, staff, and parents.
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Baseline Testing: Athletes should take a baseline neurocognitive test before training to assist with return-to-play decisions after a concussion.
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Identifying Concussions:
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Signs
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Symptoms
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Danger Signs
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Mandatory removal
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Medical clearance
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Return to play protocols
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Educational Training
Trust Sadler For Your Sports Insurance And Concussion Risk Management Programs
Sadler Sports Insurance provides best in industry insurance plans for amateur sports organizations of all types. If you are interested in a quote visit our website and select the appropriate program to get an instant online quote. Also, check out our risk management page which has a section dedicated to concussion / brain injury. Or contact us or call us at 800-622-7370.
