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From Products Liability Law Daily, January 30, 2014

Ex-NFL player files suit against NFL and helmet manufacturer for brain injuries

By Susan Lasser, J.D.

An ex-NFL football player has filed suit against the National Football League (NFL) and Riddell, Inc., the manufacturer of the official football helmet of the NFL since 1989, alleging that the League and the manufacturer were liable for the “pathological and debilitating effects of mild traumatic brain injuries (MTBI) caused by the concussive and sub-concussive impacts” he experienced during NFL football games (Best v. National Football League, complaint filed January 28, 2014).

Background. Jahvid Andre Best is a former NFL football player who played for the Detroit Lions Professional Football Team beginning in 2010 and was released in 2013. He sustained serious and permanent head injuries, the complaint states, in games on October 16, 2011, and on August 19, 2011. The complaint also notes that during his college football career for the California Golden Bears, he sustained two concussions: one on October 31, 2009, in a game against Arizona State University; and the other on November 7, 2009, against Oregon State University. The complaint states that although the NFL knew of these events and his concussions, he was allowed to enter the NFL draft in 2010, which is when the Lions drafted him.

The Riddell defendants (Riddell) include Riddell, Inc. (d/b/a Riddell Sports Group, Inc.), All American Sports Corporation, d/b/a Riddell/All American Riddell Sports Group, Inc., Easton-Bell Sports, Inc., Easton-Bell Sports, LLC, and EB Sports Corp., RBG Holding Corp. Riddell is described as being engaged in the business of selling, manufacturing, designing, testing, engineering, marketing, modifying, assembling, inspecting, distributing, and controlling the helmets and other similar equipment for use by Best and within the NFL. According to Best’s complaint, he did not know the long-term effects of concussions and relied on the NFL and Riddell to protect him.

The complaint describes Riddell's history in making helmets, and the different designs and materials used through the years since the 1930s. In 2002, the company developed its Revolution Helmet, which it claimed reduced concussions by 31 percent. In 2003, Riddell developed, designed, manufactured, sold, and/or distributed a real-time, Head Impact Telemetry System (HITS) to monitor and record significant incidences of head impact sustained during a football game or practice. The system measured the location, magnitude, duration, and direction of head acceleration and transmitted that information wirelessly to the sideline, according to the complaint.

Claims against Riddell. The complaint first alleges that Riddell had a duty to protect against the long-term risk of concussions. Best alleges that in spite of years of science and medicine linking the risk of long-term brain injury from repeated concussions, it was not until the release of the Revolution Helmet wherein a notification reminding players to “sit out” if they suffered a concussion was placed on the helmet. He asserts that Riddell has not acknowledged a link between repeat concussions and later life cognitive problems.

Strict liability claims for design defect and for manufacturing defect. Best’s claim for strict liability for design defect alleges that at the time the helmets were designed, manufactured, sold, and distributed by Riddell, the helmets were defective in design, unreasonably dangerous, and unsafe for their intended purpose because they did not provide adequate protection against the foreseeable risk of concussive brain injury. The complaint’s allegations include that the design defect includes that Riddell negligently failed to design the helmet with a safe means of attenuating and absorbing the foreseeable forces of impact to minimize/reduce the forces and energy directed to the player's head; negligently designed the helmet with a shock attenuating system which was not safely configured; and negligently failed to test properly and adequately the helmet model. He also alleges that the defective design and unreasonably dangerous condition were a proximate and producing cause of the personal injuries suffered by Best. Best’s strict liability for manufacturing defect claim asserts similar allegations.

Failure to warn claim. The failure-to-warn claim incorporates the allegations supporting the design and manufacturing defect claims and also includes the following assertions: that Riddell knew or should have known of the substantial dangers involved in the reasonably foreseeable use of the helmets; that Riddell failed to provide necessary and adequate safety and instructional materials and warnings of the risk and means available to reduce and/or minimize the risk of concussive brain injuries while playing football; that Riddell failed to provide necessary and adequate information, warnings, and/or instructional materials regarding the fact that other model helmets provided greater shock attenuation from blows to the head area; that Riddell knew that these substantial dangers were not readily recognizable to an ordinary consumer or user; and that Best neither knew nor had reason to know of the existence of the defects, or increased risks of harm.

Claims against the NFL. The complaint alleges that for decades, evidence has linked repetitive mild traumatic brain injuries to long-term neurological problems in many sports, including football. Also alleged is that the NFL: has mythologized violence through the media; markets and glorifies football’s violence through NFL films; has known for many years the dangers of, and the pathological and debilitating effects of MTBI caused by the concussive and sub-concussive impacts that have afflicted former professional football players in the NFL; was and is in a superior position of knowledge and authority, and owed a duty to NFL players; knew the dangers and risks associated with repetitive head impacts and concussions; and voluntarily undertook responsibility to study head impacts in football, yet fraudulently concealed the long-term effects of those impacts. In 2009, a House Judiciary Committee conducted hearings on the impact of head injuries sustained by NFL players, and NFL Commissioner, Roger Goodell acknowledged the risks and that that “the NFL owes a duty to the public at large to educate them as to the risks of concussions due to the League's unique position of influence,” according to the complaint.

As against the NFL, Best claims fraudulent concealment; negligent misrepresentation; separate counts of negligence as to the conduct of the NFL—pre- and post-1968, between 1987 and 1993, and post-1994; negligent hiring, and negligent retention. In addition, his requests for relief include: that the NFL declare it knew or reasonably should have known that the repeated traumatic head impacts that Best endured while playing NFL football were likely to expose him to excess risk to neurodegenerative disorders and diseases, including but not limited to chronic traumatic encephalopathy (CTE), Alzheimer’s disease or similar cognitive-impairing conditions; that based on the NFL's voluntary undertaking to study the issue of MBTI, it had a duty to advise Best of the heightened risk; that the NFL willfully and intentionally concealed from and misled the Best concerning that risk; and that the NFL recklessly endangered Best. He also requests that the NFL provide medical monitoring.

Other claims. The complaint also asserts claims for negligence against Riddell. Against both Riddell and the NFL, Best alleges claims of civil conspiracy and fraudulent concealment.

Relief sought. Best requests a trial by jury. In addition to declaratory relief and medical monitoring, he requests compensatory and punitive damages for all brain injuries—past, present, and future—that he suffered due to the actions and inactions of both the NFL and Riddell.

The case number is 14-001024-NO.

Attorneys: Bret A. Schnitzer (Law Offices of Bret A. Schnitzer) for Jahvid Andre Best.

Companies: National Football League; NFL Properties, LLC; Riddell, Inc. (d/b/a Riddell Sports Group, Inc.); All American Sports Corp., d/b/a Riddell/All American Riddell Sports Group, Inc.; Easton-Bell Sports, Inc.; Easton-Bell Sports, LLC; EB Sports Corp.; RBG Holding Corp.

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