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Old 05-04-2012, 08:14 AM   #1
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Default NFL Concussion lawsuits

If they're going to be discussed and disparaged they should, at least, be read.

http://www.scribd.com/doc/91113420/Toby-Myles-v-NFL

There are strong allegation in the complaint. There is a cause of action for fraud. To sustain a claim of fraud, they are required to plead and prove each of the nine elements of fraud: (1) a representation; (2) falsity of the representation; (3) materiality of the representation; (4) speaker’s knowledge of the falsity of the representation; (5) the speaker’s intent it should be relied upon; (6) the hearer’s ignorance of the falsity of the representation; (7) the hearer’s reliance on the representation; (8) the hearer’s right to rely on the representation; and (9) the hearer’s consequent and proximate injury caused by reliance on the representation.

It's not as easy burden but what if they meet it?
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Old 05-04-2012, 08:48 AM   #2
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Default Re: NFL Concussion lawsuits

Not claiming to have any specific knowledge of the litigation strategy for either side, but it seems as if there are a lot of similarities between these lawsuits and the tort claims brought by smokers against the tobacco companies for concealing the risks associated with smoking. Those cases were tough to prove and, unlike the NFL players, smokers did not have a collective bargaining agreement with Big Tobacco that set the terms and condition of their employment.with defendant

There are of course two sides to this story. For the NFL's position on these lawsuits, atttached is a link to the motion by the NFL to dismiss the lawsuit filed by former Atlanta Falcon Ray Easterling. Mr. Easterling took his life several weeks ago.

http://www.scribd.com/doc/77899568/N...o-Dismiss-Copy
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Old 05-04-2012, 09:14 AM   #3
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Default Re: NFL Concussion lawsuits

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Originally Posted by Atlanta Dan View Post
Not claiming to have any specific knowledge of the litigation strategy for either side, but it seems as if there are a lot of similarities between these lawsuits and the tort claims brought by smokers against the tobacco companies for concealing the risks associated with smoking. Those cases were tough to prove and, unlike the NFL players, smokers did not have a collective bargaining agreement with Big Tobacco that set the terms and condition of their employment.with defendant

There are of course two sides to this story. For the NFL's position on these lawsuits, atttached is a link to the motion by the NFL to dismiss the lawsuit filed by former Atlanta Falcon Ray Easterling. Mr. Easterling took his life several weeks ago.

http://www.scribd.com/doc/77899568/N...o-Dismiss-Copy
The CBA argument isn't a factual defense. If the Motion is correct on the 12(b)(6) grounds of simply failing to allege required elements in an Amended Complaint, that's the attorney's failure and doesn't speak to the merits. I' d be more interested in a SJ motion with attachments if you see one.
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Old 05-04-2012, 10:51 AM   #4
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Default Re: NFL Concussion lawsuits

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The CBA argument isn't a factual defense. If the Motion is correct on the 12(b)(6) grounds of simply failing to allege required elements in an Amended Complaint, that's the attorney's failure and doesn't speak to the merits. I' d be more interested in a SJ motion with attachments if you see one.
The CBA argument is a standard pre-emption argument (NFL previously has relied upon the CBA to bar a challenge to the draft and needing to stay in college three years before being allowed to play pro ball) and other dismissal argument is failure to plead fraud with specificity

If you do not have facts you are not simply allowed to throw allegtaions againt the wall in a complaint and then plan to prove it up in discovery - the attorney's failure is filing a case without supporting facts - I doubt the attorney left anything out since the complaint to which you linked threw in the kitchen sink (e.g. - citing ESPN Magazine articles as averments of fact)

SJ motions will not be filed until the obligatory motions to dismiss are considered by the Courts in these cases - you then will get discovery and summary judgment motions will not be filed until at least 2013 if the cases do not settle.
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Old 05-04-2012, 11:16 AM   #5
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Default Re: NFL Concussion lawsuits

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The CBA argument is a standard pre-emption argument (NFL previously has relied upon the CBA to bar a challenge to the draft and needing to stay in college three years before being allowed to play pro ball) and other dismissal argument is failure to plead fraud with specificity

If you do not have facts you are not simply allowed to throw allegtaions againt the wall in a complaint and then plan to prove it up in discovery - the attorney's failure is filing a case without supporting facts - I doubt the attorney left anything out since the complaint to which you linked threw in the kitchen sink (e.g. - citing ESPN Magazine articles as averments of fact)

SJ motions will not be filed until the obligatory motions to dismiss are considered by the Courts in these cases - you then will get discovery and summary judgment motions will not be filed until at least 2013 if the cases do not settle.
Using the CBA to defend the draft and using it to prevent the coming to light of fraudulent behavior is different. Using the ESPN investigation is fine to make allegations of fact. Having all the evidence is not required before filing. i would refer you to the discovery rules. They have a purpose for existing.

Do you actually believe the NFL didn't push bad research to deny the connections? Do you just not care? The studies themselves were nothing more than loose stool water. They were ass gravy of the worse kind are are not defended as accurate anywhere.

Insurance defense lawyer?
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Old 05-04-2012, 05:01 PM   #6
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Default Re: NFL Concussion lawsuits

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Using the CBA to defend the draft and using it to prevent the coming to light of fraudulent behavior is different.
Using a CBA is the Swiss Army knife of defenses involving employee lawsuits - that is one reason the fraudulent concealment argument is a crucial issue to get around the CBA pre-emption

Quote:
Insurance defense lawyer?
No


Quote:
Do you just not care?
I think the league and the players both know and have known what they were getting into for decades - pro football is a dangerous game and any former player who contends they just figured that out is lying. Players being brain damaged is a tragedy, just as it is when a smoker dies of lung cancer (I have lost several family members to that vile disease). But I personally have problems with people filing suit against the tobacco companies for damages - you buy the ticket, you take the ride

As far as me being the poster who may not care, this was an interesting interview with Malcolm Gladwell on the issue of where fans fit into the issue of continuing to watch a game that is known to seriously injure a significant percentage of its participants

Should the NFL be banned too?

Gladwell: As long as the risks are explicit, the players warned, and those injured properly compensated, then I'm not sure we can stop people from playing. A better question is whether it is ethical to WATCH football. That's a harder question.


http://www.slate.com/articles/sports...football_.html

Following up on that observation have been a series of posts in The Atlantic

We need to be honest here: If you're going to play pro football, being hurt isn't merely a problem because you want to play. It's a problem because your absence could decrease your team's chance of winning, hurt your own image of self, and (perhaps most importantly) put you on the waiver-wire. Football is a job. I have no idea how, specifically, the NFL can change that. It's strikes me as built into the structure of the game.

I'll have more (in longer form) on my decision to turn away, a feeling that's only deepened as I've thought more on this. But I want to double down on something. I can't really over-emphasize how much this is a personal decision, and not—as one commenter put it—a "personal boycott."

I have no real designs to keep grown men from playing football. I don't really have designs on anything. I think as progressives we sometimes get trapped into discussing morality strictly in the paradigm of "affecting change." But I think morality in the Emersonian paradigm—that "nothing is at last sacred, but the integrity of your own mind," that religion is what you do when no one's looking... In football, as in so many other things, each of has to decide where that demonstration to self must be made. Personal morality is rarely improved in a crowd
.

http://www.theatlantic.com/entertain...d-cont/256722/

My guess is your concerrns about the conduct by the NFL and whether others care about it has not reached the point where you are willing to forego watching the games?

No intent to throw rocks at your well reasoned posts, just suggesting that there is a certain tension between contending the NFL has been callous about player safety while continuing to patronize its product that we all know has to a significant extent become so popular due to the mayhem that occurs between the lines.

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Old 05-04-2012, 05:47 PM   #7
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Default Re: NFL Concussion lawsuits

They haven't known. People on this site deny the severity of the problem even now. The suits allege that the NFL knew the dangers and hid them from the players. If true, what is that worth to those whose lives are destroyed? The league still won't mandate the best helmets, not that they prevent the majority of concussions. But they do prevent some. Education and acceptance will help too if appropriate care is taken in not returning players to the field too soon. The damage is cumulative.

I am right that you are a lawyer too. Do you handle injury cases. I've had too many brain injury cases. I have one 10 years old going to trial in June. Sure, sometimes they're worth a lot but I'd rather a good knee replacement case any day. Brain injury cases are as emotionally draining as custody battles between 2 people who should have never passed on their genes.
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Old 05-04-2012, 06:17 PM   #8
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Default Re: NFL Concussion lawsuits

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They haven't known..
No question brain injuries are traumatic - but there is a difference between someone being injured by a drunk driver as opposed to jumping into the shallow end of the pool

Roger Staubach retired due to concussions after the 1979 season and Lynn Swann retired due to concussions after the 1982 season

Sports Illustrated ran an article on brain dysfunction tied to concussions in 1994

http://sportsillustrated.cnn.com/vau...87/1/index.htm

The adverse consequences of concussions arising from playing football appears to have been out there since at least the late 1970s

Exactly how much do you contend needs to be "known" before it is presumed a player played football with the knowledge he might sustain a concussion that causes long term physical harm but elected to assume that risk?

Or are you contending the NFL is strictly liable and that the players assume no responsibility for the consequences of electing to play football?
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Old 05-04-2012, 06:20 PM   #9
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Default Re: NFL Concussion lawsuits

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Roger Staubach retired due to concussions after the 1979 season and Lynn Swann retired due to concussions after the 1982 season

Sports Illustrated ran an article on brain dysfunction tied to concussions in 1994

http://sportsillustrated.cnn.com/vau...87/1/index.htm

The adverse consequences of concussions arising from playing football appears to have been out there since at least the late 1970s

Exactly how much do you contend needs to be "known" before it is presumed a player played football with the knowledge he might sustain a concussion that causes long term physical harm but elected to assume that risk?

Or are you contending the NFL is strictly liable and that the players assume no responsibility for the consequences of electing to play football?

Webster's brain was the first one tested and the league denied any connection. That was yesterday. Today they admit it.

I'm not worried about liability. Let's call it worker's comp and OSHA compliant.
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Old 05-04-2012, 07:11 PM   #10
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Default Re: NFL Concussion lawsuits

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Let's call it worker's comp and OSHA compliant.
How and where to seek workers comp for NFL related injuries is another front in this war

The National Football League and the Atlanta Falcons are suing nine former Falcons players to force them to litigate workers' compensation cases in Georgia rather than in California, where dozens of current and former NFL players have sought compensation for injuries sustained from playing football....

The suit appears to be part of a broader fight between the league and the players over how and whether current and former players should be compensated for injuries incurred on the playing field. ..

According to a 2010 New York Times investigation, California is the only state where professional athletes who have played as little as a single game in the state may file workers' compensation claims for long-term injuries they may have sustained years earlier.

According the Times report, California law also bars employees from signing away certain workers' rights and their unions from bargaining them away. Those policies have prompted the players association to argue that player contracts requiring them to file workers' compensation claims in their teams' home states may be unenforceable....

But NFL attorneys have fought back, taking the players' claims to arbitration and then seeking federal judgments to enforce the owners' contentions that players' contracts require them to seek compensation in the states where the professional teams for which they played make their homes....


http://www.law.com/jsp/cc/PubArticle...4009&thepage=1

NFL will fight hard to keep these claims from turning into tort claims
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