NFL Settles Concussion Lawsuit

Just days before trial was set to resume, the National Football League and thousands of former players have a reached tentative $765 million settlement in the pending concussion lawsuit. If approved by U.S. District Court Judge Anita Brody, the settlement will provide long-awaited financial support to players suffering from a variety of debilitating medical conditions they claim were caused by concussions.

Players began suing the NFL in 2011, alleging among other things, that the league concealed what it knew about the long-term dangers of concussions and did not properly care for players with head injuries. Although the proposed settlement does not include any admission of guilt or liability by the NFL, it does provide health screenings, care and compensation for all 18,000 former players.

Summary of the Proposed Concussion Lawsuit Settlement

  • NFL to pay $765 million, plus legal costs
    • $675 million would go toward medical exams and concussion-related compensation for NFL retirees and their families
    • $75 million for baseline medical exams
    • $10 million toward medical research and education
    • The remaining $5 million will be used to pay the costs of notice to class members and administrative expenses
  • The league admits no wrongdoing and is not required to disclose any documents relating to what or when they may have known about long-term dangers of concussions
  • Individual awards to players would be capped:
    • $5 million for players suffering from Alzheimer’s disease
    • $4 million for deaths from chronic traumatic encephalopathy (CTE)
    • $3 million for players suffering from dementia.

Why Settle?

Many contend that the settlement is too low. ESPN sports business analyst Darren Rovell even went as far as to call the deal a “bargain” and a “drop in the bucket for the NFL” whose annual revenue was $9 billion last year. So why didn’t the players reject the settlement and proceed to trial?

Settlements offer certainty

Although a trial could potentially provide players with a larger settlement, the case was not a slam dunk. Plaintiff’s counsel would have to contend with contractual issues mandating arbitration. They would also have the difficulty of proving players’ symptoms stemmed from concussions which occurred while in the NFL (and not while in college or high school.)

The wheels of justice move slowly

Trials can be lengthy. Although the two years that has passed since the first claims were brought may seem like a long time, some legal analysts estimated that a full trial between the player and the NFL could take as long as ten years. Sadly, for players suffering from Alzheimer’s disease, chronic traumatic encephalopathy, dementia, and other cognitive brain disorders, time is not a luxury they possess.

In a court order, Judge Brody commended the parties for their negotiations and opined, “From the outset of this litigation, I have expressed my belief that the interests of all parties would be best served by a negotiated resolution of this case. The settlement holds the prospect of avoiding lengthy, expensive and uncertain litigation, and of enhancing the game of football.”

Moving forward

Former U.S. District Judge Layn Phillips, the court-appointed mediator for the case, was also pleased with the outcome. “This is a historic agreement,” he said. “One that will make sure former NFL players who need and deserve the compensation will receive it, and that will promote safety for players at all levels of football.”

Not everyone else is as impressed. In an interview on NBC Nightly News, sports commentator Bob Costas said that many football fans, while they will continue to watch the game, will not let their children play the game. “Participation in youth football is down measurably over the past three years as information about head injuries becomes more generally known,” he reported. “And so the NFL has to be concerned about that. Not only for its own participants, but for players potentially coming up… No matter how popular they are, this is something that could erode that popularity if they don’t continue to deal with it.”

Parents around the country and the children in football and other youth sports programs must be made aware of the serious ramifications of repeated blows to the head. Ohio has already taken some legal steps to prevent injuries and raise awareness through its new Return to Play Laws. However, many predict that students will now be reluctant to report concussion symptoms to their coaches for fear of being taken out of the game.

Visit NBCNews.com for breaking news, world news, and news about the economy

 

If you still don’t think that concussions are a serious problem, I invite you to read, “A Football Widow’s Traumatic Journey” by Tim Rohan. It is a stark, heart-wrenching story of Elanor Perfetto, the widow of former NFL player Ralph Wenzel. Published in the New York Times earlier this year, it details the sad degeneration of a once robust NFL lineman to a “skeleton with skin” who could no longer speak in complete sentences.

 

Sources:

NFL, players reach concussion deal” ESPN.com News Services, August 30, 2013.

NFL Set to Pay More Than $750M to Settle Lawsuits” by Howard Fendrich (AP), ABC News, August 30, 2013.

N.F.L. Agrees to Settle Concussion Suit for $765 Million” by Ken Belson, New York Times, August 30, 2013

Things to Do Following a Car Accident

by Arthur M. Elk

 

Any motor vehicle accident can be incredibly overwhelming. Whether it’s a minor fender bender or major damage, a few bumps and bruises or serious injuries, it is very important to remain calm and collected. There’s a lot to think about. To be prepared, here are a few tips I have as a car accident attorney to help you through the process.

One way to prepare is to ensure that you have all the information you will need to share with the other party. Make sure that you have a pen and a piece of paper so you can write down their information. You will need their name, address, contact phone number or e-mail, as well as the make and model of their vehicle, the license plate number, and their insurance carrier and policy number.

accidentchecklist-small-1

As a car accident lawyer, I know how stressful being in a crash can be. The very first thing that you should do is to think about your safety and the safety of others. Move your vehicle off the road if you can. If you or someone else is injured, call 911. If there is significant damage to the vehicle or debris in the road, call the police. If there is minimal damage or you need to see if anything has happened, you can choose to simply swap information with the other driver.

Once you start talking, be sure to watch what you say. Even if you feel bad about what happened, resist the urge to apologize or admit fault in any way. Your statements may used against you later by the police or insurance companies. If the police are called, make sure that in addition to the other driver’s information, you get the officer’s name, badge number, and the police report number. This will make filing a claim easier and help your car accident lawyer access the information when needed.

Remember to utilize all the resources available to you: The police,  emergency medical staff, and an experienced attorney are there to help when you need it the most.

For more information, download our FREE Accident Checklist to keep in your car.

 

Things to Do Following a Car Accident

by Arthur M. Elk

 

Any motor vehicle accident can be incredibly overwhelming. Whether it’s a minor fender bender or major damage, a few bumps and bruises or serious injuries, it is very important to remain calm and collected. There’s a lot to think about. To be prepared, here are a few tips I have as a car accident attorney to help you through the process.

One way to prepare is to ensure that you have all the information you will need to share with the other party. Make sure that you have a pen and a piece of paper so you can write down their information. You will need their name, address, contact phone number or e-mail, as well as the make and model of their vehicle, the license plate number, and their insurance carrier and policy number.

accidentchecklist-small-1

As a car accident lawyer, I know how stressful being in a crash can be. The very first thing that you should do is to think about your safety and the safety of others. Move your vehicle off the road if you can. If you or someone else is injured, call 911. If there is significant damage to the vehicle or debris in the road, call the police. If there is minimal damage or you need to see if anything has happened, you can choose to simply swap information with the other driver.

Once you start talking, be sure to watch what you say. Even if you feel bad about what happened, resist the urge to apologize or admit fault in any way. Your statements may used against you later by the police or insurance companies. If the police are called, make sure that in addition to the other driver’s information, you get the officer’s name, badge number, and the police report number. This will make filing a claim easier and help your car accident lawyer access the information when needed.

Remember to utilize all the resources available to you: The police,  emergency medical staff, and an experienced attorney are there to help when you need it the most.

For more information, download our FREE Accident Checklist to keep in your car.

 

School Drowning Caused by Design Flaw

 

Nothing is more tragic than a child dying from an accident. Children are supposed to outlive their parents and when a child dies unexpectedly it can be devastating.

Such is the case for one of our clients, parents of a 16 year-old boy who was found at the bottom of a school swimming pool.

The young man had special needs and was supposed to be supervised while swimming. However, the solitary teacher tasked with watching him was also tending to a basketball game and other students within the same area. He was unable to focus on just one student. There was also no lifeguard on duty whose sole responsibility would have been to look after students in the pool.

The young man had fallen beneath the surface sometime during class. We know this because the teacher actually deducted points from his grade for leaving early, so his absence was noticed at some point. Even when the other students reported that his normal clothes were still in the locker room, no one went searching for the missing student. It was only much later at night that a security guard noticed the young man sitting at the bottom of the pool.

But how could it be that no one else saw him? We determined that the school had changed the lights from being above the pool to the walls on the side of the pool. Why does this matter? The lighting caused a reflection when there were waves in the pool, also known as ‘surface tension disruption’. This basically means the top of the pool looked like a sheet of glass and any onlooker’s view of the bottom was obscured.  We were able to prove this lighting design defect made the boy invisible to other students and the teacher.

This death by drowning was completely preventable and should have never happened. There should have been a lifeguard on duty, more teachers around and the physical changes to the pool area should have been researched to ensure each and every kid’s safety.

To learn more about personal injury law, I encourage you to watch the video above and to explore our educational website at http://www.elkandelk.com. If you have legal questions, please call us at 1-800-ELK-OHIO. I welcome your call.

– James (Jay) M. Kelley III

NFL Concussion Trial to Resume

photo_12938_20090811A massive lawsuit brought against the NFL by more than 4,000 players will be back in court next week. Professional football players and, in some cases, their surviving families claim the NFL knew about and conspired to hide the dangers associated with concussions, including increased risk of dementia, depression, and suicide.

In a motion to dismiss the case, the NFL argued that a majority the players cannot bring such a lawsuit because their contracts require disputes to be settled through binding arbitration – a method of alternate dispute resolution which takes place outside of the courtroom and usually contains a confidentiality agreement. A ruling on the motion was expected in July, but instead U.S. District Judge Anita Brody ordered the parties to participate in mediation.

While a settlement is unlikely at this point of the process, if Judge Brody allows the lawsuit to move forward, the parties will proceed with the discovery phase, when both parties must disclose evidence related to the trial. In their 90-page complaint, the plaintiffs allege 18 separate counts against the NFL and helmet-maker Riddell arising from “the pathological and debilitating effects of mild traumatic brain injuries” such as concussions. The introduction states:

This case seeks a declaration of liability, injunctive relief, medical monitoring, and financial compensation for the long-term chronic injuries, financial losses, expenses, and intangible losses suffered by the Plaintiffs and Plaintiffs’ Spouses as a result of the Defendants’ intentional tortious misconduct, including fraud, intentional misrepresentation, and negligence.

According to the Miami Herald, “Some believe the players’ claims could be worth $1 billion or more if they move forward in court.” The trial will resume September 3 in the U.S. Federal Courthouse in Philadelphia.

Multiple Concussions Put Athletes at Risk

Tests on many former football players, including former NFL players, have established that football players who sustain repetitive head impacts while playing the game have suffered and continue to suffer brain injuries that result in any one or more of the following conditions:

  • Early-onset of Alzheimer’s disease
  • Dementia
  • Depression
  • Deficits in cognitive functioning reduced processing speed, attention and reasoning
  • Loss of memory
  • Sleeplessness
  • Mood swings
  • Personality changes
  • Chronic Traumatic Encephalopathy (CTE) – a debilitating and latent disease that causes diminished brain function, progressive cognitive decline, and many of the symptoms listed above. CTE is also is associated with an increased risk of suicide.

Former NFL players Junior Seau, Dave Duerson and Ray Easterling all killed themselves and were later found to have had CTE.

 

Related Posts:

Proposed NCAA Accountability Act addresses head injuriesOhio’s Return to Play Law – what you need to knowDo helmets protect football players? Jury awards $11.5 million to family in helmet lawsuit

 

Sources:

“NFL concussion lawsuits back in court next month” by Maryclaire Dale (AP), Miami Herald, August 24, 2013.

NFL great Junior Seau had brain disease CTE when he committed suicideFox News, January 10, 2013.

Kids taking some ADD meds at risk for diabetes

New study shows children taking antipsychotics are three times more likely to develop diabetes.

As if parents of children with behavioral issues didn’t have enough to worry about, new research shows certain medicines prescribed to treat ADD and other disorders may lead to serious health problems. A recent study published in JAMA Psychiatry reveals that children who are prescribed antipsychotics have an increased risk of diabetes triple that of other kids.

Once prescribed only to children for severe cases such as schizophrenia, antipsychotics are now also widely recommended for children with attention deficit/hyperactivity disorder (ADD/ADHD) and aggressive behavior problems.

Medications that have been linked to an increase of type 2 diabetes in kids and teens include brand name drugs and their generic equivalents:

Earlier studies had also indicated a link between these medications and adults, but there was limited data on their effect in children.

Diabetes can develop quickly

The study concluded that the increased risk occurred within 12 months of taking the drugs, with kids on higher doses even more likely to develop type 2 diabetes. Even when children stop taking their medication, their risk remains elevated for as much as one year.

The authors of the study attributed the increased risk of developing type 2 diabetes to a number of factors including weight gain, which is common among users of antipsychotics, and the manner in which the drugs alter the body’s insulin resistance.

Talk to your doctor

“My advice would to be very cautious about starting an antipsychotic,” said Wayne A. Ray, Ph.D., Vanderbilt professor of preventive medicine and co-author of the article.  “If the child has one of these indications for one of these other medications, that means looking very carefully at alternative medication — perhaps trying them first. … Then, perhaps at the end of the day it may be necessary to use an antipsychotic, but you at least will have tried the safer options.”

Related posts:   FDA investigating Zyprexa deathsBoys developing breasts after taking Risperdal

Source: Study: Antipsychotic drugs put kids at diabetes risk” by Tom Wilemon, The Tennessean / USA Today, August 21, 2013.

Use of Expert Witnesses in Your Personal Injury Case

 

Being in an automobile accident can be a traumatic and life changing event if your injuries are serious enough. You will have a lot of decisions to make and this can be very daunting.

After every accident, you will need to seek medical help and that can be very expensive. You need to get your car fixed, deal with your insurance company and handle a number of other details.

What you don’t need is to have to fight with someone to recover for your damages and loss. You shouldn’t have to deal with people who lie about who caused the accident and aren’t willing to take responsibility. But sometimes that’s the world we live in.

As your personal injury attorneys, our job is to prove to the other side that they were at fault and should be held liable for your damages. You deserve to be compensated for the pain and suffering they’ve inflicted on you. We prove your case in a variety of ways.

After we’ve researched your case and came to the conclusion that someone else was liable for your injuries, we talk to the other side. We try to explain that they are responsible and sometimes they don’t want to cooperate. So we go to court.

Now in a court room, we’re either going to have to prove your case to a judge or a jury. And we do that by producing and showing evidence on your behalf. This evidence is brought to the jury in several types of ways. It could be photographs, charts, video footage and more commonly, witnesses. Each witness will be there to prove your case by either sharing what they saw or what they know of the accident. This is where an expert witness can be utilized.

An expert witness can be anyone from a doctor who specializes in an area or an accident reconstructionist. An accident reconstructionist will basically rebuild the entire accident scene through research data and models to help determine who was at fault for the accident. We may also bring in an economist. Their job is calculating all of your damages. Your damages include all of the monetary losses you suffered from medical expenses and bills. The economist will determine that loss as well as any future losses you may sustain due to a long-term or permanent injury.

To learn more about personal injury law, I encourage you to watch the video above and to explore our educational website at http://www.elkandelk.com. If you have legal questions, please call us at 1-800-ELK-OHIO. I welcome your call.

William J. Price

Johnson & Johnson Considers $3 Billion Settlement

Healthcare giant Johnson & Johnson is reportedly contemplating a massive settlement agreement with patients injured by their DuPuy unit’s ASR Hip Implant. Bloomberg News reports that “five people familiar with the matter” revealed that J&J may be willing to pay more than $300,000 per case, pushing the total settlement amount over $3 billion if most plaintiffs accept the offer.

In August 2010, DePuy Orthopaedics, a division of Johnson & Johnson, issued a voluntary recall of its ASR™ XL Acetabular Hip System and DePuy ASR™ Hip Resurfacing System. According to the U.S. Food & Drug Administration (FDA), the recall was due to the high failure rates associated with the metal-on-metal hip replacement devices.

More than 11,500 lawsuits have been filed against J&J in the U.S., with plaintiffs alleging the metal-on-metal implants caused a number of serious complications, including pain, swelling, and metallosis (a build-up of metal debris in the soft tissue of the body) which sometimes resulted in revision surgery to replace the failing hip.

Too Early to Guess

Two individual trials involving DePuy ASR recall claims have already concluded in other states with split results. In March of this year, a plaintiff was awarded more than $8 million after a California jury found that the ASR implant was defectively designed. However, just a few weeks later, a jury in Chicago found in favor of Johnson & Johnson in a second trial.

No official word has come from Johnson & Johnson regarding a settlement ahead of litigation. DuPuy representative Laurie Gawreluk issued an email stating, “Reports about a possible resolution of the litigation are premature and speculative, including any estimates of resolution amounts.”

Several consolidated federal cases will soon be heard around the country. The Court has scheduled McCracken v. DePuy Orthopaedics, Inc., et al., Case No 1:11 dp 20485, to be the first bellwether trial. The case will be heard on September 9, 2013 at the U.S. District Court, Northern District of Ohio (Cleveland).

Stryker Hip Implant Recall

In July of 2012, two other types of hip systems were also recalled.  The Rejuvenate Modular Primary Hip System and Rejuvenate Total Hip System, both manufactured by the Stryker Corporation, were recalled due to possible side effects similar to those seen in metal-on-metal hip implants.

Design issues are a key factor in these devices, but so is the choice of materials. Using the combination of titanium and cobalt chromium in a modular implant can result in corrosion. In addition, it exposes patients to potential multi-organ injuries from the release of heavy metals into the body. A study of the U.S. Food and Drug Administration’s Adverse Event database reveals Stryker Rejuvenate Modular Hip System has been linked to a number of problems and has caused injuries to patients, as well as requiring painful additional surgical operations to remove the devices.

If you have experienced pain and discomfort as a result of a Stryker hip implant, please call our medical device attorneys today. We can be reached 24 hours a day, 7 days a week, 365 days a year at 1-800-ELK-OHIO or just fill out our easy no-obligation online contact form.

 

Source:

J&J Said to Weigh $3 Billion Settlement of Its Hip Implant Cases” by Jef Feeley & David Voreacos, Bloomberg News, August 21, 2013.

Ohio factory cited for safety violations

Republic Steel has been cited for 2 dozen safety violations and is facing federal penalties in excess of $1.1 million. Fifteen willful violations were discovered at the company’s steel manufacturing plant in Canton, Ohio.

The Occupational Safety and Health Administration (OSHA) inspected the plant after receiving a formal complaint from the United Steelworks Union which alleged inadequate fall protection and other unsafe practices. OSHA determined that two workers had been seriously injured in due to falls in the past year.

Slag_runoff_Republic_SteelOSHA cited Republic Steel for several safety issues, including: tripping hazards and lack of protective equipment. The company also failed to provide fall protection for employees working at substantial heights – where agency officials found damaged and missing guardrails. In some instances, workers were exposed to falls above the slag pit, which is filled with molten metal. More than half of the violations were deemed “willful,” meaning they were committed with intentional, knowing, or voluntary disregard for the law or indifference to employee safety.

This isn’t Republic’s first brush with OSHA. Just last year, the company reached a settlement at its Lorain, Ohio plant, promising to fix similar safety violations.

“Republic Steel has a long history of OSHA violations and disregard for employee safety and health,” said David Michaels, assistant secretary of Labor for occupational safety and health. He called it “unacceptable” that the company has not taken more effective steps to improve safety at the Canton plant, particularly in light of the 2012 settlement.”

Republic Steel has been in OSHA’s Severe Violator Enforcement Program since 2011 for committing willful violations, repeat violations, and failing to fix hazards after being cited. As a corporate entity, Republic Steel has been inspected 79 times resulting in the issuance of six willful, 15 repeat, 145 serious and 70 other-than-serious final order citations.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. For more information, contact our experienced workplace injury attorneys by calling 1-800-ELK-OHIO (1-800-355-6446) or complete our free, no-obligation online form.

 

Source:

Republic Steel Faces $1.1M in Fines for Violations” by Sam Hananel (AP), ABC News, August 13, 2013.

Back-to-School Safety: Teen Driving

photo_894_20060124For many parents, the phrase “back to school” brings to mind #2 pencils and loose-leaf notebook paper. But for parents of older kids, the announcement of a new school year beginning evokes a very different (and terrifying) image: their teen behind the wheel.

It should come as no great surprise that most teens prefer driving to school. Some studies estimate that nearly 80 percent of teens get their license just so they don’t have to take the bus.

Parents should take the time to sit down and go over these teen driving safety tips before handing over the keys on the first day of school.

  • Pay Attention. Distracted driving accounts for thousands of deaths every year.
    • Do not talk on the phone or text while driving. Drivers who text and drive are 23 times more likely to get into an accident.
    • Do not fiddle with the radio, MP3 player, or navigation system.
    • Refrain from eating or drinking, checking your appearance in the mirror, or talking to passengers.
  • Limit Passengers. The more friends your teen has in the car, the more likely they are to be involved in an accident. (In Ohio, 16-year-old licensed drivers are not permitted to transport more than one person who is not a family member at any time, unless the driver’s parent or guardian is in the vehicle as well.)
  • Do a trial run. Many teens think they know where they’re going, but things are different without mom or dad in the passenger seat. Encourage your teen to look at a map before they go anywhere. It’s also a good idea to make sure they know multiple routes in case construction or an accident causes a road closure.
  • Get a good night’s sleep. If your teen has been a night owl all summer, encourage them to start going to bed earlier so they are alert in the morning. Drowsy driving can decrease your reaction time, impair your vision or judgment, and can increase your chances of getting into a car crash.
  • Leave early. Encourage your teen to arrive at school at least ten minutes before the first bell rings. Teens who feel they may be late are more likely to speed, tailgate, or drive erratically. The parking lot will also be less congested earlier in the morning.
  • Always wear your seat belt. Remind your teen to never start the car until they are certain everyone is wearing a safety belt (front and back seats.)
  • Keep your cool. Don’t try to compete with aggressive drivers; just stay out of their way. Teens may be tempted to race, tailgate, or “get back at” drivers who cut them off or offended them in some way. Remind your teen that emotional driving can be extremely dangerous. The U.S. Highway Safety Office reports that each year, tens of thousands of automobile accidents can be linked directly to the expression of road rage or by aggressive driving.

As parents, we can help our teens by modeling good driving habits and encouraging them to do the same for their friends.

For more information, visit Drive It Home, a program launched by the National Safety Council which offers specially created resources to help parents keep their teens safer on the roads.