The discovery of Chronic Traumatic Encephelopathy has led to efforts to make football safer, at all levels. It also has sparked litigation against football, at all levels.
A case in California attempts to link the deaths of two adult males to CTE developed while playing Pop Warner football. On Friday, judgment was entered for Pop Warner football less than three weeks before the car was scheduled to go to trial, via Daniel Kaplan of TheAthletic.com.
Routinely, defendants who are due to face a jury argue before the commencement of the trial that the evidence developed in the case would not allow a reasonable jury to find for the plaintiffs. In this case, a federal judge found that a reasonable jury could not determine that playing youth football led to CTE that caused or contributed to the deaths of two former players years after the fact.
“The Court concludes that there is not a sufficient evidentiary basis that Pop Warner’s alleged negligence in connection with Pop Warner Football, to the exclusion of high school football, other experiences, social or biological factors, was a substantial factor in Paul Bright, Jr.’s motorcycle accident and Tyler Cornell’s suicide,” Judge Philip S. Gutierrez wrote in the order entering judgment for the defense. “Plaintiffs essentially argue that any child that plays Pop Warner football, simply by virtue of participating, without any documentation of head trauma, if found with CTE post-mortem, has a viable cause of action based on any occurrence as a result of recklessness or mood behaviors in that person’s life. The Court does not agree.”
In reaching the conclusion, the judge rejected an effort by Dr. Bennet Omalu — the man who discovered CTE and whose story spawned the film Concussion — to link the deaths to CTE from playing youth football.
“Dr. Omalu’s declaration . . . discusses broadly CTE, but does not explain how he arrived at his conclusion that Pop Warner football was a ‘substantial factor’ in Bright, Jr.’s death, given the multitude of other possible factors,” Judge Gutierrez wrote. “The Court similarly finds that his testimony is unreliable. . . . Dr. Omalu has not offered any specific factual basis or explanation as to whether participation in Pop Warner caused, specifically, Bright, Jr.’s death, as opposed to independent causes.”
An appeal is planned, and it’s possible that a panel of three judge on the traditionally progressive U.S. Court of Appeals for the Ninth Circuit will overturn the reasoning of Judge Gutierrez, who was appointed to the bench by President George W. Bush. With current President Donald J. Trump packing the federal courts (including the Ninth Circuit) with conservative (and, in turn, business-friendly) judges, the chances of getting a trio of judges more inclined to advance the rights of individuals are smaller than they would have been in the past.
And this continues to be the most overlooked — and most important — aspect of Presidential politics. The sitting president has the right to fill any and every vacancy on any and every federal court with judges who have shown during their time as practicing lawyers a mindset consistent with the values of the party to which the sitting president belongs. Although a stew of social issues, along with “likability” of a candidate, will often drive a person’s voting habits, a shockingly small percentage of the electorate realizes that, if/when they or their family members ever seek justice, judges appointed by one of the two major parties are far more likely to give them a day in court — and to hold fully accountable those with the resources to make financial amends for wrongdoing.
But there are still limits to which judges friendly to the rights of individuals will go. As it relates to CTE and football, it continues to be very difficult to establish the kind of link that the law requires. When someone is injured in a car accident, the link between incident and trauma is obvious. In CTE cases, there’s still no way to determine with a significant degree of reliability that Pop Warner football or high school football or college football or professional football caused it.