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Late appeal means NFL concussion could head to Supreme Court
0:52 | NFL
Late appeal means NFL concussion could head to Supreme Court
Michael McCann and Austin Murphy
Thursday September 1st, 2016

Kimberly Archie wants “CTE” to appear on youth football helmets, not unlike a cigarette warning label, and is suing to make it happen. She’s one of two plaintiffs (so far) in a lawsuit filed today against “Pop Warner Little Scholars, Inc.”

Archie is the legal consultant who appeared in the recent SI story “Endgame”, about football’s murky future amid increasing caution about head injuries. She is described within that piece as “Erin Brockovich with a neurologist’s grasp of traumatic brain injuries” and comes by that knowledge honestly—and tragically. Her son, Paul Bright, was an aspiring chef who died in 2014 at the age of 24.

Bright crashed his motorcycle at a high speed, consistent with the erratic, reckless behavior that marked the final two years of his life. He’d played football from age seven through his freshman year of high school. After his death, his mother had a hunch. Having consulted with the plaintiffs in the concussion lawsuit the NFL recently settled with more than 5,000 ex-players, she asked that her son’s brain be tested. As it turned out, he suffered from Chronic Traumatic Encephalopathy, or CTE.

Archie filed a class action suit along with Jo Cornell, the mother of Tyler Cornell, a former Pop Warner player who “began experiencing behavioral issues and was diagnosed with depression.” He committed suicide in 2014, at the age of 25. The following year, it was discovered that he, too, suffered from CTE.

Read the full complaint from Archie and Cornell against Pop Warner

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Here’s SI legal analyst Michael McCann’s take on the suit:

Nature of the lawsuit as a survival action

The two named plaintiffs in this case, Kimberly Archie and Jo Cornell, are suing Pop Warner and the three other defendants with causes of action that “survived” the deaths of their two sons, Paul Bright Jr. and Tyler Cornell, respectively. A survival lawsuit is distinct from a wrongful death lawsuit. The former raises claims that belonged to a person before he or she died and that, after the person died, passed on to their estate. A wrongful death lawsuit, in contrast, raises a claim that the person died due to the negligence of the defendant. Archie and Cornell, in other words, are suing with causes of action that their sons could have brought to court while they were alive.

Class certification

Before evaluating the legal arguments brought by Archie and Cornell, it is important to note that while this lawsuit will be portrayed as a “class action” it is not yet a class action and might not become one. In order for a lawsuit to become a class action, a judge must certify that the individuals who are named as plaintiffs can sue on behalf of others. Here, Archie and Cornell seek to sue on behalf of millions of persons. Archie and Cornell identify two specific but large groups in their purported class: all persons who played Pop Warner from 1997 to present and who have suffered brain injuries, damage or diseases, and all parents who enrolled their children in Pop Warner from 1997 to the present.

It is possible that other parents and perhaps former Pop Warner players will join Archie and Cornell as named plaintiffs, but for now only Archie and Cornell are the named plaintiffs. A judge will eventually decide whether Archie and Cornell (and any others added as named plaintiffs) and their legal claims have sufficient numerosity, commonality, typicality and adequacy—the four basic elements judges use to evaluate petitions for class certifications.

To display “numerosity,” the named plaintiffs must show that all Pop Warner football players who played between 1997 and the present, and who suffered relevant injuries, and all parents of Pop Warner players during that time period represent too many persons to file individual lawsuits against the four defendants. It would be inefficient, the plaintiffs will contend, to expect each of these thousands of persons to bring their own lawsuit. In terms of “commonality,” the plaintiffs must show that the questions of law and fact they raise are common to other Pop Warner players and parents. “Typicality” is similar: The plaintiffs must persuade a judge that their alleged injuries are generally typical to other Pop Warner players who would be class members. Likewise, “adequacy” refers to the named plaintiffs convincing a court that their interests are mostly aligned with those of others who they want in the class.

Pop Warner will surely fight Archie and Cornell on each of these elements. Pop Warner will do so because this lawsuit would be much more threatening as a class action representing millions of persons than an ordinary lawsuit representing only two former players and their parents. This would be a more expensive case for Pop Warner to settle as a class action since it would require payment to millions of persons. It would be an even more expensive case for Pop Warner to lose, as the accompanying damages could be catastrophic for this 87-year-old football organization.

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The central legal argument

Archie and Cornell’s basic theory of fault tracks other concussion-related litigation against football organizations. They contend that Pop Warner failed to adequately train its coaches and staff on neurological injury prevention and identification. For instance, they charge that Pop Warner “failed to create and implement league-wide guidelines concerning the treatment and monitoring of players who suffer a brain injury during a practice or a game.” The plaintiffs also allege that Pop Warner failed to adequately warn players and parents of the dangers of the sport. Alleged failures to train, warn and prevent have all been raised in concussion litigation against the NFL, NCAA and high school athletic associations.

While this case is structurally similar to other concussion cases, the facts are distinguishable in ways that impact the legal analysis. Obviously, the players at issue in this lawsuit are children. Pop Warner offers football to children who are between the ages of five and 16. Archie and Cornell stress that by offering football to children, Pop Warner and the other defendants “voluntarily assumed a duty to protect the health and safety of its minor participants.” The four defendants, Archie and Cornell insist, “have repeatedly confirmed its duty to take reasonable and prudent actions to protect the health and safety” of these young players through enacting various rules, policies and regulations and through introducing equipment such as hard-shell helmets. While the concept of a football league stepping into a parenting role is to some extent present in high school football, it is instrumental in Pop Warner football and enables Archie and Cornell to raise additional theories of fault as a result.

The players’ young age is also crucial to Archie and Cornell’s argument that Pop Warner engaged in misleading advertising. “The systematic marketing and deception of Pop Warner participants, both minor children and the parents of said children,” Archie and Cornell allege, “is an unlawful or deceptive business practice.”  Archie and Cornell highlight how Pop Warner advertised its programs as offering a “safe environment” where children are “trained in proper tackling techniques” and are advantaged by safety rules that reduce injury rates. Archie and Cornell argue these advertisements are not only false, but are intended to deceive.

Age is also essential when considering the public relations aspects of this lawsuit. Through their own personal tragedies, Archie and Cornell are able to offer a frightening theory: that playing Pop Warner causes chronic traumatic encephalopathy, better known as CTE. Postmortem neuropathological analyses revealed that both of their sons suffered from CTE. This condition has received substantial attention in recent years, with a study by Boston University’s CTE center finding that the brains of 90 of 94 deceased NFL players tested positive for CTE.

While the players’ age can advantage Archie and Cornell’s lawsuit, it might disadvantage it in other ways. Unlike former NFL and college players, children could not have participated in Pop Warner unless their parents and guardians consented. As explained below, the inclusion of parents and guardians could provide an important defense to Pop Warner.

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Legal defenses for Pop Warner

Pop Warner will likely raise at least four types of legal defenses.

First, Pop Warner might insist that there is a lack of provable causation between playing in Pop Warner and the alleged neurological problems suffered by Paul Bright Jr. and Tyler Cornell. While the lawsuit notes that both former players suffered from CTE, Pop Warner will want to know if they suffered head trauma playing football after their Pop Warner days—both Bright and Cornell continued to play football in high school—and if they suffered any non-football-related head trauma before they passed away at ages 24 and 25, respectively. If so, Pop Warner could contend that it was not Pop Warner football that caused the CTE but rather some other activity or incident.

Should the lawsuit become a class action, Pop Warner is poised to raise a lack of causation as a general defense. Plaintiffs would include children who became adults and not played in Pop Warner for several years. Some have continued to play football long after their Pop Warner days. They would go on to play against older, stronger and faster players and with whom collisions would be more impactful. Others of them will have engaged in sports and activities that risked neurological injury. Still other former Pop Warner players have encountered environmental hazards that altered their brain chemistry. The takeaway from this type of defense is that to the extent prospective plaintiffs suffer from neurological problems, the cause or causes of those problems is uncertain and cannot be reliably pinned on Pop Warner.

Second, Pop Warner is poised to maintain that parents and guardians of Pop Warner players contractually assumed the risk of injury on behalf of their children. Pop Warner and its affiliates require, as a condition to play, that parents and guardians expressly consent to the possibility of their children suffering serious injury while playing. For instance, in one Pop Warner parental consent form, parents must accept this term:

2. INTENT TO INFORM: I acknowledge that I am fully aware of the potential dangers of participation in any sport and I fully understand that participation in football, cheerleading and/or dance may result in SERIOUS INJURIES, PARALYSIS, PERMANENT DISABILITY AND/OR DEATH. Furthermore, I fully acknowledge and understand that protective equipment does not prevent all participant injuries, and therefore I do hereby waive, release, absolve, indemnify, and agree to hold harmless the coaches, local, league and regional Pop Warner organization(s), Pop Warner Little Scholars, Inc., and any and all organizers, sponsors, supervisors, participants, and persons transporting the above named participant to and from activities, from any claim arising out of any injury to my/our child whether the result of negligence or for any other cause.

Parental waivers are not always effective defenses for organizers of youth sports. States vary widely in laws as to the enforceability of contractual waivers, particularly when the injured person is a minor. Further, waivers are less likely to excuse liability when a particular danger was unknown and hidden. Here, the plaintiffs contend that the neurological dangers of playing Pop Warner football were intentionally concealed. Even if a waiver is not a complete defense for Pop Warner, it is an advantageous form of evidence: Pop Warner can stress that if the former players want to assign blame over possible injuries suffered when playing Pop Warner football, they should look to their parents.

Third, Pop Warner can assert that that it has acted reasonably and proactively in the care of children who played football with their parents’ blessing. The organization will stress that it offers seven divisions to players based on their age and weight as proof Pop Warner wants to avoid dangerous size mismatches among players. Pop Warner will also highlight it has proactively taken steps to become safer. For instance, earlier this year, Pop Warner eliminated kickoffs in hopes of reducing head injuries. A few years ago, Pop Warner became the first youth football organization to adopt rules that limit contact during practices. These and other steps, Pop Warner will argue, are indicative of an organization that values safety.

Fourth, expect Pop Warner to stress the potential economic consequences of losing this litigation. Pop Warner will admonish the court that should it lose this case, the football organization’s economic model would change drastically. Pop Warner might warn that it would need to substantially raise the cost to play and accompanying registration fees for parents and guardians in order to offset potential liability. This could make it harder and even impossible for some parents and guardians to afford to send their children to Pop Warner.

Similarly, Pop Warner would caution that losing this litigation would cause an increase in Pop Warner’s insurance premiums. These new costs, Pop Warner would contend, would be passed on to parents and guardians in the form of higher fees.

This type of economic-based argument enjoyed success recently for the Illinois High School Association, which had been sued by football players over head injuries. Cook County Judge Leroy Martin dismissed the case last October, stressing that “imposing broader liability on this defendant would certainly change the sport of football and potentially harm it or cause it to be abandoned.”

Possibility of litigation settlement

Pop Warner has already exhibited a willingness to settle in response to allegations that its sport poses safety risks to his participants. Along those lines, Archie and Cornell v. Pop Warner et al. is not the first concussion-related or CTE lawsuit against this youth sports organization.

Last year, for example, the family of Joseph Chernach, who committed suicide at 25 in 2012, sued Pop Warner in a wrongful death lawsuit. A postmortem neuropathological analysis revealed that Chernach suffered from CTE. Chernach played football through high school, meaning he may have acquired CTE by playing football in Pop Warner and high school. Chernach’s family contended that he suffered multiple head injuries while playing and Pop Warner coaches were not properly trained to identify the injuries. Pop Warner and Chernach’s family, who had sought $5 million, reached a settlement in March of this year for an undisclosed amount of money. The New York Post reported the amount of the settlement is less than the $2 million insurance policy Pop Warner has for its players. It is possible Pop Warner and the other three defendants could adopt a similar strategy with Arhcie and Cornell, particularly before the lawsuit risks becoming a class action.

The settlement strategy is also one employed with success by the NFL and NCAA to resolve most, although not all, of concussion litigation brought by football players. While it is too early to anticipate a settlement here, there is a good chance that it is how the lawsuit ends. Further, a settlement would likely involve a combination of financial payments to former players and policy changes to make the sport safer.

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