Yup. I believe the League also has an argument that this claim should be arbitrated. The argument would be that plaintiff stands in the shoes of AH, who would have been obligated to arbitrate any claim against the League or club.
Aaron Hernandez: Had Advanced CTE - NEP Sued
- Thread starter sodenj5
- Start date
Yup. For the NFL, limiting discovery is more important than actually winning the case.
I hadn't thought about the class-action settlement as possibly barring this claim. That would be a very tidy way for the NFL to dispose of this case.
As an aside, AH should've had Baez defend him in the Lloyd case, but Fee and his colleagues would really shine in motion practice in a case like this. Maybe Baez will rise to the occasion, but this is not what he does for a living, and it requires a different skill set that he might or might not possess.
I don't think you're saying anything wrong, but people knew that Ray Rice abused his wife, but seeing video REALLY moved the needle.
I think people can look at the Will Smith movie and come away thinking that it was Hollywooded up a lot. But courtroom documents, depositions, and discovery can actually force the NFL to show their hand in a lot of this.
I don't think it's going to get that far, but in a way, I hope it does.
All of his college and pro games are on film. Is causation going to be that difficult? Show the jury clips of him getting rocked a few times in a Pats jersey. This isn't as hard as some people are making it out to be.
It has been reported that AH had only one documented concussion during his Patriots' career, while Dan Wetzel reported earlier that he had multiple concussions when he played high school in Connecticut.
http://blog.masslive.com/patriots/2017/09/aaron_hernandez_cte_concussion.html
If I'm a judge, I don't allow this to go to trial without expert testimony that but-for his play for the NEP, he would not have developed CTE. Seems like a tall order to me.
They may LOVE tobacco companies, but rates of HS students smoking here in Virginia is lower than the national average. They adult rate is slightly higher, but it's clearly changing.
Let's say it could be proven Hernandez did develop CTE while playing for the Patriots...so what? The issue before was that the NFL was withholding information on concussions from its players, correct? That line of argument would seemingly be unavailable at this point. At what point does this become Danny Woodhead suing for his torn ACL?
I also want to bring up the drug issue again. Can't prolonged use of angel dust cause brain damage? Would that show in a way distinguishable from CTE in an autopsy, or would it all theoretically contribute to the same kind of damage?
I also want to bring up the drug issue again. Can't prolonged use of angel dust cause brain damage? Would that show in a way distinguishable from CTE in an autopsy, or would it all theoretically contribute to the same kind of damage?
Please fill in the blanks:
1._________ has both short-and long-term effects on the brain.
2._______________ acts on numerous areas in the brain (in yellow).
Short-Term Effects
Effects of 3.________ include:
5.______________ has also been linked to other mental health problems, such as depression, anxiety, and suicidal thoughts. However, study findings have been mixed.
If you guessed "CTE" or "Marijuana," you would be correct.
--------------
I would be shocked if there was definitive proof that CTE caused Hernandez to kill himself, or enough evidence to blame and convict the Patriots/NFL for "hiding true dangers of the sport." I do not dispute the ill-effects of repeated head-trauma/concussions, but I do have a problem with the studies in that they do not have a starting point of the respective brain conditions of the players (that I am aware of). Yes, 99% of all study participants show signs of CTE. So as far as trying to identify contributing factors to the actual brain degeneration or buildup of Tau/protein deposits, I believe there are two significant factors missing from the equation:
1. Team/organizational treatment(s) (including painkillers)
2. Player self-medications (including marijuana, alcohol, amphetamines, steroid/PED use, etc.)
While CTE is the new shiny toy, the issues referenced above (in 1 and 2) have a long and infamous track record of messing with human brain functions. And these, in Hernandez's case, don't even include other contributing factors such as recreational drug use (not listed as a "treatment" above - anyone else remember the Hernandez PCP stories?) fist-fights and other physical confrontations outside of football.
Edit: and what @Ed Hillel said.
1._________ has both short-and long-term effects on the brain.
2._______________ acts on numerous areas in the brain (in yellow).Short-Term Effects
Effects of 3.________ include:
- altered senses (for example, seeing brighter colors)
- altered sense of time
- changes in mood
- impaired body movement
- difficulty with thinking and problem-solving
- impaired memory
- hallucinations
- delusions
- psychosis
- temporary hallucinations
- temporary paranoia
- worsening symptoms in patients with schizophrenia—a severe mental disorder with symptoms such as hallucinations, paranoia, and disorganized thinking
5.______________ has also been linked to other mental health problems, such as depression, anxiety, and suicidal thoughts. However, study findings have been mixed.
If you guessed "CTE" or "Marijuana," you would be correct.
--------------
I would be shocked if there was definitive proof that CTE caused Hernandez to kill himself, or enough evidence to blame and convict the Patriots/NFL for "hiding true dangers of the sport." I do not dispute the ill-effects of repeated head-trauma/concussions, but I do have a problem with the studies in that they do not have a starting point of the respective brain conditions of the players (that I am aware of). Yes, 99% of all study participants show signs of CTE. So as far as trying to identify contributing factors to the actual brain degeneration or buildup of Tau/protein deposits, I believe there are two significant factors missing from the equation:
1. Team/organizational treatment(s) (including painkillers)
2. Player self-medications (including marijuana, alcohol, amphetamines, steroid/PED use, etc.)
While CTE is the new shiny toy, the issues referenced above (in 1 and 2) have a long and infamous track record of messing with human brain functions. And these, in Hernandez's case, don't even include other contributing factors such as recreational drug use (not listed as a "treatment" above - anyone else remember the Hernandez PCP stories?) fist-fights and other physical confrontations outside of football.
Edit: and what @Ed Hillel said.
Sources said they believed he had multiple concussions in high school. I'd be shocked if a dude that size was getting rocked that often playing high school ball in CT.
Regardless, a good lawyer is going to roast the NFL here with their own bullshit. I'd show footage of all the times Cam Newton and a bunch of other guys were drilled in the head and not put in the concussion protocol or found to have a documented concussion.
We seem to be going down the "concussions caused CTE" route in the hypotheticals here but isn't the thinking now that it's both concussions and sub-concussive hits?
He was only 6'1, 245lb in the NFL. He probably wasn't all that big in high school.
I dunno, man. If he was 6'1 in the NFL, he was probably around 6'0 in high school.
It may have been New England, but a 6'0, 205lb kid can still take plenty of hits. That was my size in high school - I went to school in the south shore - and I wasn't immune to getting popped, and there were certainly kids bigger than me in every game.
How'd you find his old Tinder profile?I dunno, man. If he was 6'1 in the NFL, he was probably around 6'0 in high school.
It may have been New England, but a 6'0, 205lb kid can still take plenty of hits. That was my size in high school - I went to school in the south shore - and I wasn't immune to getting popped, and there were certainly kids bigger than me in every game.
If he was hanging out with as many gangbangers as we've been led to believe, is out of the question that there were non-football concussions in high school? They didn't all have to happen on the field.
Knowing people who knew him growing up, it was certainly true and Hernandez got in fights regularly. I have no idea how much it contributed to CTE, but it's impossible for that to be none.
I should have been more clear; sorry. The laws that bar lawsuits by employees (and dependents) against their employers do not apply here. That's what I meant by "this is not a workers' compensation case."
(I say this because intentionally misleading a employee as to the dangers is the exception cut out and, like coal and black lung, this case is a slam dunk for that)
As I said above, MA worker's compensation law barring private injury suits carves out willful misconduct, so Baez should be able to survive a motion to dismiss on those grounds. I'm not as sure as you that this case is a "slam dunk" for that, given the timeline of AH's career, but that's what discovery is for (assuming the case isn't dismissed on other grounds).
As bad as a series of lawsuit judgements for the plaintiffs could be for the NFL, the real kill shot would be scientific determination that CTE is an inherent part of playing in the NFL with the only question being time of onset and severity.
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Update on Hernandez’s CTE from Washington Post
“...suffered from most severe CTE ever found in a person his age."
“...suffered from most severe CTE ever found in a person his age."
I mean, that's awful for the NFL, but what is the sample size? Most of the players that committed suicide were already retired and in their late 30s or 40s. It's a pretty unique situation for the Hernandez to have been as young as he was.
I had the same questions, though they did say age group in the article, so I guess it gives them a little bit more latitude. I still think that is a very valid observation that I'm curious about too.
This is big news.
Both are thought to contribute. Nothing is proven. Both means "concussions caused CTE" is likely true and "subconcussive hits caused CTE" is likely true and "concussions and subconcussive hits caused CTE" is likely true
What happens if an expert can testify that his play for the NFL certainly worsened any CTE he may or may not have had?
Why is it big news? Wouldn’t they still have to prove Kraft, the NEP, and the NFL were negligent in letting him play? I don’t see that yet. Regardless, it would probably be settled for a nominal amount if a judge would let it go forward.
"Nothing is proven" makes it difficult to elicit that testimony. Every trial lawyer has his or her "hos", but this seems a steep climb. Especially since there was no scan of the brain pre-NFL.
The answer to your question is "yes", in all likelihood, at least to the extent of creating an issue of fact sufficient to get to jury, but again, a tough climb.
In addition, the estate would have to prove by a preponderance of the evidence that had AH been warned by the NFL, he would have declined to play.
And it also has to prove that the football induced injury caused the suicide, this being a loss of consortium claim.
One thing this estate and these players will never be able to do -- sue for any NFL lost earnings. The premise of any claim is that a warning would have led the player to quit football. Cannot have it both ways, as much as we'd like to around these parts.
NFL earnings, fine. But what about other professions? Can you cite to a similar case? Have coal miners for example sued and been denied lost earnings for other jobs? Or have they been allowed to recover earnings they could have earned in another profession? Couldn't a good lawyer and expert argue lost earnings based on Hernandez's potential basketball career?
Basketball? Please. When the NFL got him, there was no plausible basketball career.
In general, in any wrongful death case lost earnings are potentially on the table, provided they are not speculative. And remember in this connection that he was serving a life sentence.
He wasn't serving a life sentence "when the NFL got him." If I'm his lawyer, I argue that he wouldn't be serving a life sentence were it not for the NFL's deception/omissions.
None of this is the slam dunk you're making it out to be.
And how would you prove it happened while he was in the NFL and not while in college or high school?
The same way you always do in these cases, through expert testimony.
Also, your premise, i.e. that he would need to show the NFL is the only cause of CTE, is flawed. The test to be applied is likely whether the NFL's acts or omissions were a substantial factor causing the harm suffered.
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Diagnosing CTE is still in its infancy. What's to say that meth use, as an example, doesn't increase the velocity of symptoms? We just don't know enough about this to pin Hernandez's downfall on head trauma, specifically from being in the NFL.
That's an argument for the defense lawyer and defense experts to make. But it's far from a silver bullet or unique to this case. It's from the same playbook defense lawyers and experts use in every single toxic tort case from tobacco, to asbestos, to Johnson's baby powder. First they argue that their product doesn't cause the condition. If that doesn't work, they argue that other things cause the condition too, and you can't pin it on us. Ultimately, it's for a jury to decide. Sometimes it works, and sometimes it doesn't.
The difference being that football players are football players well before getting to the NFL. This would be like someone smoking cigarettes for 20 years, then suing their eighth employee for giving them smoke breaks.
Football players bash their heads into each other from the time they're 6 years old. If the argument is repetitive head trauma causes CTE, then a player does it for 15 years before even reaching the NFL. There are certainly college players with CTE. Same for high school kids. There is no 1 party responsible for CTE, and trying to isolate the most wealthy one isn't going to fly.
And you're saying this as a legal expert, or as Kenny F'ing Powers, message board authority on all things? Because there are plaintiff's lawyers currently investing millions of dollars of their own money into contingency fee-based lawsuits because they obviously believe it is is going to fly. And there are law professors who've spent their lives studying tort law who think it might, too.
And if they go to court and lose, then they could have saved millions of dollars by reading my posts here. Bully for them.
Edit: on second thought...so fucking what? Lawyers think they have a chance at the golden goose, and I'm supposed to be surprised that they're going to try and push this? After decades of studying the law, Law professors think, "I dunno...maybe?" and I should be blown away? Fuck you and your shithead, condescending post.
It wasn't condescending so much as challenging you to actually contribute something useful to the board. Saying something "isn't going to fly" without supplying your basis for saying so doesn't actually do that. There are actual standards for these things. So, while you may think "trying to isolate the wealthy party" responsible for CTE isn't going to fly, all it actually will take is convincing a jury (even just a majority of a jury in some states) that it is "more likely than not" that playing in the NFL was a "substantial factor" in causing or exacerbating CTE.
Really? You mean people can sue in court and could win if the jury agrees with them?
Mind blown. You're right. There really are standards for these things.
I'm still waiting for you to lay out your well thought out, crafted argument.
As I see it, your argument is, "take 'em to court, and any given Sunday...!"
As nuanced as that is, it's a shitty take. Put as much lipstick on that pig as you can. Guys are bashing their heads against each other for a decade and a half before getting to the NFL. Due to severely limiting the number of contact practices, they do it much more frequently prior to joining the league than they do in the NFL.
If you think some lawyers looking for a payday trotting out Dr. Nick is some kind of golden bullet, it's more of an indictment on you than anything else. It may fly as a hot take on ESPN, but critical thinking matters here.
Edit: by the way, sick burn, bro! People have been saying it on message boards for decades, but it really hit home when you typed it. Well done!
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What well crafted argument do I need to make? You said:
When I pointed out that legally, you don't need to say that meth "doesn't increase the velocity of symptoms," only that playing in the NFL was a substantial factor, and that your type of argument has failed in a variety of tort contexts, you started throwing a temper tantrum.
It doesn't matter that CTE may have begun developing before he got to the NFL. There is still liability and damages available based on his time in the league.
You're basically telling us how Kenny Fing Powers would vote as a juror without ever having heard the evidence or received instruction in the law. Or having read, say, the Adrian Robinson complaint, I'm certain. Very powerful and enlightening stuff, and duly noted. You can move on.
And seriously, you saying "critical thinking matters here" is the height of irony.
As I've already stated, the problem is that we don't know enough about CTE. You say it doesn't matter if he began developing CTE symptoms prior to entering the NFL because damage was still caused by the NFL. First of all...prove it. What proof do they have that he received a single concussion in the NFL? Maybe he was on an injury report for concussions? I dunno.
Either way, because we have very little knowledge of CTE, it almost can't be proven that the NFL has any liability because we can't actually prove he received head injuries in the NFL. Maybe it only takes 100 concussive hits before CTE reaches its peak in degeneration. Hell, maybe genetic conditions (or drug use, as I alluded to previously) increase the velocity of CTE, and he never actually received any concussive blows in the NFL. Not likely, but again, how do you prove he did?
This all probably becomes elementary in 10 years when science advances, but right now, there isn't enough foundational knowledge on the subject to hold one specific entity responsible for decades of head trauma.
I suppose the other question here would be, if true that players can sue based off any damage done, the natural progression would be thousands of football players suing colleges, high schools, towns (little league), etc, yeah? The precedent for allowing players to sue one entity allows the door to open for any player to sue any entity. It seems like a door the courts won't want open.
Probably not. The crux of the cases won't be just "football is dangerous," but that you (the NFL) were privy to information (through studies, fraudulent studies, etc. going back decades) about its dangers that you concealed, or at least failed to pass on. Absent some really bizarre conspiracy to share and conceal head injury studies with Pop Warner coaches, the successful suits will likely be limited to the NFL. Now, going forward, schools etc. probably won't be able to disavow knowledge, but they would present types of "assumption of the risk" defenses, because you Mr. Parent, read the news, too.