7/24/2014

Shadow of Doubt

Problems with the NFL’s assumption of the risk defense.

By Christopher Fusco

In the last year, the NFL has been no stranger to class action lawsuits brought by former players. I have written extensively for Claims Management and my own blog about the legal ramifications and issues raised in the concussion-related litigation and the potential for insurance triggering coverage. In my view, however, the recent class action alleging that the NFL covered up the use and long-term side effects of the abuse of painkilling drugs has a unique potential to create some “bad law” affecting the venerable defense of the assumption of the risk.

According to the most recognized source, Prosser’s Restatement (Second) of Torts, the affirmative defense of “assumption of the risk” can be defined many ways. However, in its most basic meaning, it states that a defendant may be relieved of an obligation of conduct toward a plaintiff when the plaintiff has given his consent to run the risk of an unintended injury. Put another way, the assumption of the risk occurs when a plaintiff knows he is “taking his chances” with a known risk. The plaintiff’s choice to roll the dice concerning a specific conduct should shield a defendant from negligence.

This is where I start to get concerned. According to the parties and some media reports, the widely publicized (and somewhat judicially criticized) $765 million concussion-litigation settlement was premised on two major points. First, there were many players who were in extremis and could not wait for the legal process and all appeals to be exhausted. These former players are suffering from debilitating brain injuries and need money now. Second, the Achilles’ heel in the plaintiffs’ proof has always involved the issue of injury causation. In sum, in a lifetime of football, how can the individual plaintiff factually pinpoint the precise moment when an injury or concussion was caused? Every hit to the head must take some toll on the player.

The settling plaintiffs (or their lawyers) in the concussion litigation seemed to understand that this causation issue was going to earn the NFL a “discount” in a settlement, and this concern was likely a factor in the negotiations. So this brings me back to this new painkiller case and my concerns about the assumption of the risk defense.

As of this writing, about 250 former NFL players now claim that the league and its team doctors gave them powerful narcotics such as Percocet and Vicodin, as well as strong anti-inflammatory drugs and sleep aids, to mask pain and serious injuries for the sole and improper purpose of keeping a player on the field. It is claimed that these drugs were available “like candy on Halloween” and were literally taken by the handful. The former players allege that the painkillers were used to cover up severe injuries like broken bones and muscle tears. In addition, the plaintiffs claim long-term related ailments like nerve damage and internal organ failure.

ESPN analyst and co-plaintiff Marcellius Wiley states that he suffered kidney damage from being injected with painkillers by an NFL team doctor without a proper diagnosis of the true extent of his injuries. But here’s where the claim can get tricky. Wiley was quoted by ESPN.com as blaming the NFL for a “play through the pain, fall on your sword” culture.

Wiley, in reacting to anticipated detractors’ comments, said, “And the next question when people hear about this stuff is: Where is the personal responsibility?” Wiley correctly identifies the defense that I anticipate in this painkiller abuse case. Simply stated, isn’t a professional athlete responsible for what goes into his body?

The problem is when it comes to the NFL and its alleged “play at all costs” culture, the legal issue of personal responsibility and assumption of the risk becomes murky at best. The NFL has become the monolith of sports partially based on a having a league with nonguaranteed contracts for players who have an injury rate of 100 percent. While these contracts allow teams to have flexibility with their rosters, you have to wonder how this employment culture provides added incentive for a player to sue.

If an injured player knows that he cannot get back on the field without taking substances that he may not understand, can he really assume the risk of what drugs the team doctor gives out or places in the team’s punchbowl of painkillers? If a player sees the harsh reality that he had better take the injection or risk getting cut and losing his livelihood, does he really have a choice when it comes to consent and his employer? Players in professional sports understand that their time in the spotlight can be short-lived. According to the NFL Players Union, the average player has a career of only 3.2 years. Given this employment concern, can an injured player really assume any risk of taking a painkiller when he is hurt? What if the player has to decide to take a drug at halftime or risk being cut after the game? What if the player has a questionable education or no basic training in medicine?

Wiley correctly points out to the critics that the plaintiffs in this lawsuit will attempt to use the NFL’s employment culture to defeat the consent defense. So with that, my question becomes: What if the former players are successful?

No defense lawyer likes to see a useful affirmative defense get “dinged” in a lawsuit. Maybe my concerns are somewhat premature with this case, but I can’t help but wonder what happens when you play all of this forward? In our industry, insurance coverage is extended to many dangerous occupations, such as construction, energy, and even health care. These fields have jobs where workers or independent contractors can get injured or sickened. What happens if plaintiffs adopt the former players’ anticipated argument of injecting an employer’s workplace culture to counter the useful assumption of the risk defense? What would discovery on employment “culture issues” involve? I see the potential for warning flags on the field of litigation play.  



Christopher Fusco is the managing partner of CLM Member Firm Callahan & Fusco LLC. His blog, Sports in the Courts, can be found at www.sportsinthecourtsblog.com. He may also be reached at cfusco@callahanfusco.com.

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