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Concussion lawsuits are next big US litigation

Saturday - 6/30/2012, 7:03pm  ET

By GREG RISLING
Associated Press

LOS ANGELES (AP) - Smokers and pro football players have something in common: They engage in risky behavior that can be potentially harmful to their health over time.

And to hear some lawyers tell it, the National Football League is the equivalent of Big Tobacco.

The recent wave of lawsuits filed on behalf of retired players uses similar arguments to those made by attorneys representing smokers who sued tobacco companies more than 15 years ago _ in this case, that the National Football League knew repeated concussions could lead to brain damage and yet hid the information.

More than 2,400 retired players are now plaintiffs, looking for the kind of success smokers had against the tobacco companies. The result then was a landmark, $206-billion settlement shared among 46 states. But the ex-players face a huge challenge as they take on a multibillion dollar industry that is the most popular sport in the United States.

"I don't think it's the same good versus evil you saw in the tobacco litigation, but there are some potential similarities," said Gabriel Feldman, director of the sports law program at Tulane University. "It's a lot grayer on both sides. That could change if some smoking guns are found during discovery if the case gets that far."

At issue is whether the NFL knew if there were links between football-related head trauma and permanent brain injuries and failed to take appropriate action. Attorneys for former players such as Jim McMahon and Art Monk accuse the NFL of negligence and intentional misconduct in its response to the headaches, dizziness and dementia that their clients have reported, even after forming the Mild Traumatic Brain Injury Committee to study the issue in 1994. The league has consistently and strongly denied the claims.

"The NFL took a page right out of the tobacco industry playbook and engaged in a campaign of fraud and deception, ignoring the risks of traumatic brain injuries in football and deliberately spreading false information to its players," said Sol Weiss, co-lead counsel for the plaintiffs.

The NFL has said it has spent more than a billion dollars on pension and disability benefits for retired players in a partnership with the NFL Players Association. League officials argue player safety has long been a priority, and it makes health programs available to current and former players, including neurological evaluations.

"Any allegation that the NFL intentionally sought to mislead players or otherwise conceal information from players concerning the risks, treatment or management of concussions is entirely without merit," the league said in a statement.

According to an Associated Press review of 95 lawsuits filed through last Monday, 2,425 players are now plaintiffs in concussion-related complaints against the NFL. The total number of plaintiffs in those cases is 3,762, which includes players, spouses and other relatives or representatives. Some of the plaintiffs are named in more than one complaint, but the AP count does not include duplicated names in the total.

Many of the suits were recently consolidated before a federal judge in Philadelphia, and seek medical care.

League officials have heard the tobacco-concussion comparisons before.

Three years ago, NFL Commissioner Roger Goodell appeared before Congress regarding concussions and didn't acknowledge a connection between head injuries suffered on the field and later brain injuries. Several members of Congress were frustrated with Goodell's testimony, including Rep. Linda Sanchez, D-Calif., who said the NFL's response to the issue reminded her of tobacco companies saying there weren't ill health effects due to smoking but later had to admit there was.

These lawsuits "could have been avoided if the NFL had taken proactive steps to address the issue _ pardon the pun _ head on rather than obscuring it," Sanchez recently told the AP. "Common decency dictates that the league has a responsibility to these players."

Yet some legal observers said the similarities between the tobacco and concussion lawsuits are superficial at best. Not only does the league have team trainers on the sidelines during games to gauge a player's health but it's difficult to determine what effect a concussion will have, especially if someone has suffered others in the past.

"The allegations deal with what happens after a player is injured _ and injuries are expected in football _ as opposed to tobacco cases where the initial injury _ the smoking-related illness _ is the event at issue," said attorney Stephen Brody, who was part of a team of government prosecutors who filed a civil racketeering lawsuit that resulted in a judge finding that tobacco companies conspired to dupe consumers about the health risks of smoking.

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