wooden v. nfl

8/3/2019 Wooden v. NFL

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDAMiami Division

SHAWN W OODEN; and RYANFOWLER ; individually and on behalfofall others similarly situated,

Plaintiffs,COMPLAINT -CLASS ACTION

Defendant./

COMPLAINTThe Plaintiffs Shawn Wooden and Ryan Fowler (the "Representative Plaintiffs"),

individually and on behalf of all others similarly situated, sue the Defendant National Football

League (the "NFL" or the "League"), and state as follows:NATURE OF THE ACTION

1 .his action arises from the concussion crisis afflicting former professional footballplayers in the National Football League (the "NFL" or the "League"). For close to a century,evidence has l inked concussions and long-term neu rological problems, and specialists in braintrauma have been warning about the risks of permanent brain damage from repetitive concussionsfor decades. The NFL - as the organizer and purveyor of a professional sport in which headtrauma is a regular and repeated occurrence - was aware of these risks but deliberately ignored andconcealed them. Rather than warn its players that they risked permanent brain injury if theyreturned to play too soon after sustaining a concussion, the NFL actively deceived players,resulting in the players belief that concussions did not present serious, life-altering risks.

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2. The NFL, through its own initiative and voluntary undertaking, created the MildTraumatic Brain Injury Committee (the "MTBI Committee" or the "Committee") in 1994, TheCommittee was ostensibly created to research and am eliorate the impact of concussions on NFLplayers.

3. Despite clear medical evidence that on-field concussions led directly to braininjuries and frequently had tragic repercussions for its retired players, the NFL failed to protectother players from suffering a similar fate, and failed to inform players of the true risks associatedwith such head trauma. Instead, the NFL purposefully misrepresented and/or concealed medical

evidence on the issue. While athletes who had suffered concussions in other professional sportswere being restricted from return ing to play for full g am es or even seasons, NFL players who hadsuffered concussions were regularly being returned to play after having suffered a concussion inthat same game or practice.

4. The NFLs active an d p urp osefu l con cea l m en t of the severe neurological risksassociated with concussions exposed players to dangers they could have avoided had the Leagueprovided them with accurate information. Many of these players, since retired, have sufferedsevere an d p erm an en t bra i n d am ag e as a result of the NFLs acts and/or omissions. In fact, theMTBI Committees concealment of relevant medical evidence over the years has caused anincreased risk of life-threatening injury to players who were being kept in the dark.

5. The Representative Plaintiffs, on behalf of themselves and all others similarlysi tuated, a re bringing this action for injunctive relief in the form of medical monitoring withrespect to brain injuries caused by repeated traumatic brain and head impacts received during theperiod when they were playing professional football.

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Avenue , 1 5 t h Floor, New York, New York 10017, is an unincorporated association consisting ofthirty-two (32) m em ber football teams.

1 3 .he NFL regularly conducts business in Florida, including, but not limited to th eorganizing and ove rsee ing of gam es for the Miami Dolphins , Tam pa Bay Buccaneers , andJacksonville Jaguars teams, and selecting Florida cities to host the Supe r Bowl in Florida in 196 8,

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professional football l eague in the Un i ted S tates . A s such, the NFL promotes , organizes , andregulates the sport of professional football in th e United S tates.

CLASS ACTION ALLEGATIONS15. This action is brought and m ay properly be m aintained as a class action pu rsuant to

Federal Rule of Civil Procedure 23(a) and (b).16. The Representative Plaintiffs bring this action for injunctive re lief in the form of

m edical m onitoring on b ehalf of themselves an d all others similarly situated (the "C lass"), withrespect to which the NFL has acted or refused to act on grou nds that apply gen erally to the class.

17. This action satisfies the numerosity, commonality, typicality, adequacy,predominance, and superiority requirements of Rule 23.

18. The C lass is defined as:A ll retired NF L players who played p rior to the 2010 NFL season and who,during their NFL careers, suffered a concussion and w ere re turned tocontact play within ten (10) days of having suffered the concussion, andwho, as of the date of class certification, are neither (a) advan cing anindividual personal injury claim for money dam ages against the NFL, nor(b) a salaried employee of the NF L.

19. Any differences in the laws of s tates that perm it m edical mo nitoring can be

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accommodated through the creation of subclasses, which Plaintiffs shall identify in their motionfor class certification.

20. Excluded from the Class is th e NFL, it s parents, subsidiaries, affiliates, members,officers and directors, any entity in which the NFL has a controlling interest, governmentalentities, and a ll judges assigned to hear any aspect of this litigation, as well as their immediatefamily members.

21 . The Representative Plaintiffs reserve the right to modify or amend the definition ofthe proposed Class before the Court d etermines whether certification is appropriate.

22 . The Class is so numerous and geographically so widely dispersed that joinder of allmembers is impracticable.

23. There are questions of law and fact comm on to the Class, and those commonquestions predominate over any questions affecting only individual Class members.

24 . The questions of law and fact comm on to the Class include but are not limited to thefollowing:

i. Whether the Representative Plaintiffs and the Class were exposed toa greater than norm al risk of brain injury following a return tocontact play too soon after suffering an initial concussion;

ii . Whether that greater than normal exposure level was caused by theNFLsnegligent misconduct;

iii. W h e th er th e R ep re se nta tiv e P la in tiffs and the Class have anincreased risk of developing latent neurological disorders as aproximate result of the increased exposure;iv . W h ether a m on itoring procedure exists that makes the earlydetection of those diseases or symptoms possible;V.hether that prescribed monitoring regime is reasonably necessaryaccording to contemporary scientific principles; and

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vi.hether the Rep resentative Plaintiffs and the Class are entitled tothe m edical monitoring relief that they seek herein.25,he Repr esentative Plaintiffs claims are typical of the claims of the Class that theyrepresent, and the Representative Plaintiffs will fairly and adequately protect the interests of theproposed Class. The Representative Plaintiffs, like all Class members, have been damaged by theNFLs misconduct related to the concealment of the severe neurological risks associated withconcussions. Further, the factual basis of the NFLs misconduct is common to all Class members,and represents a common thread of negligent misconduct resulting in injury to all members of the

26. The Representative Plaintiffs have suffered the hanrn alleged and have no interestsantagonistic to the interests of any other Class member.

27 . The Representative Plaintiffs are committed to the vigorous prosecution of thisaction an d have retained com petent counsel experienced in the prosecution of class actions.Accordingly, Plaintiffs are adequate representatives and will fairly and adequately protect theinterests of the Class.

28 . The monitoring is med ically reasonable and necessary and will allow the Class to

29 . A class action is superior to other available methods for the fair and efficientadjudication of this controversy. Given th e complex legal and factual issues involved,individualized litigation w ould significantly increase the delay and expense to all parties and to the

30 . Individualized litigation would also create the potential for inconsistent orcontradictory rulings.




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31.y contrast, a class action presents far fewer management difficulties and providesthe benefits of adjudication, economies of scale, and comprehensive supervision by a single court.GENERAL ALLEGATIONS APPLICABLE TO ALL COUNTS

The NFL

33. The organization oversees Americas most popular spectator sport, acting as a tradeassociation for thirty-two (32) franchise owners.

34. The NFL governs and promotes the game of football, sets and enforces rules and

League policies, and regulates team ownership.35. It generates revenue mostly through marketing sponsorships, licensing

merchandise, and by selling national broadcasting rights to the games. The teams share apercentage of the Leagues overall revenue.

36. Owing in part to its immense financial power and monopoly , status in Americanfootball, the NFL ha s enormous influence over the education of team physicians, trainers, coaches,and football players at all levels of the game concerning the assessment and impact of footballrelated injuries.

Concussions and CTE G enerally37. It has been well known for nearly a century that concussions and repetitive head

injuries cause a myriad of long-term sequelae.38. The American Association of Neurological Surgeons defines a concussion as "a

clinical syndrome characterized by an immediate and transient alteration in brain function,including an alteration of mental status and level of consciousness, resulting from mechanicalaTIuuIiB

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39 . The injury generally occurs when the head either accelerates rapidly and then isstopped, or is rotated rapidly. The results frequently include, among other things, confusion,blurred vision, memory loss, nausea, and sometimes unconsciousness.

40. Medical evidence has shown that symptoms of a concussion can reappear hours ordays after the injury, indicating that the injured party has not healed from the initial blow.

41. According to n eurologists, once a person suffers a concussion, he is up to four (4)t imes more likely to sustain a second one. Additionally, after suffering even a single concussion,a lesser blow may cause the injury, and the injured person requires more time to recover. This

goes to the heart of the problem: players returning to play before allowing their initial concussionto heal fully.

42. Clinical and neuropathological studies by some of the nations foremost expertshave demonstrated that multiple concussions sustained during an NFL players career can causesevere cognitive problems such as depression and early-onset dementia.

43. Repeated head trauma can also result in so-called "Second Impact Syndrome," inwhich re-injury to a person who has already suffered a concussion triggers swelling that the skullcannot accommodate.

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Encephalopathy ("CTE"), a progressive degenerative disease of the brain.45.TE involves the build-up of toxic proteins in the brains neurons. This build-up

results in a condition whereby signals sent from one cell to thousands of connecting cells invarious parts of the brain are not received, leading to abnormal and diminished brain function.




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46 . CTE is found in athletes (and others) with a history of repetitive concussions.Conclusive studies have shown this condition to be prevalent in retired professional footballplayers who have a history of head injury.

47 . This head trauma, which includes multiple concussions, triggers progressivedegeneration of the brain tissue. These changes in the brain are thought to begin when anathletes brain is subjected to trauma , but symptoms may not appear until months, years, or evendecades after the last concussion or the end of active athletic involvement. The braindegeneration is associated with memory loss, confusion, impaired judgment, paranoia,

impulse-control problems, aggression, depression, and eventually progressive dementia.48 . The University of North Carolinas Center for the Study of Retired Athletes

published survey-based papers in 2005 through 2007 that found a strong correlation betweendepression, dementia, and other cognitive impairment in NFL players and the number ofconcussions those players had received.

49 . To date, neuropathologists have performed autopsies on over twenty-five (25)former NFL players. Reports indicate that over ninety percent (90%) of the players had CTE.

The N FLs Know ledge of the Dan gers and Risks Associated with Concussions50 . For decades, the NFL has been aware that multiple blows to the head can lead to

long-term brain injury, including but not limited to memory loss, dementia, depression, and CTEand its related symptoms.

51 . CTE was first addressed in a 1928 article written by pathologist Harrison Martland,discussing Punch Drunk" syndrome in a group of athletes exposed to repetitive brain trauma (the"Martland study"). The article was published in the Journal of the American MedicalAssociation.

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52. The Martland study was the first to link sub-concussive blows and "mildconcussions" to degenerative brain disease.

53 . In or about 1952, the Journal of the American Medical Association published astudy of encephalopathic changes in professional boxers.

54 . That same year, an article published in the New England Journal of Medicinerecomm ended a three-strike rule for concussions in football (i.e., recommending that players ceaseto play football after receiving their third concussion.)

55 . In 1973, a potentially fatal condition known as "Second Impact Syndrome"n

which re-injury to the already-concussed brain triggers swelling that the skull cannotaccommodatewas discovered. It did not receive this nam e until 1984.

56. Up on information and belief, Second Impact Syndrome has resulted in the deathsof at least forty (40) football players.

57. Between 1952 and 1994, numerous studies were published in medical journalsincluding the Journal of the American Medical Association, Neurology, and the New EnglandJournal of Medicine, warning of the dangers of single concussions, multiple concussions, and/orfootb all-related head traum a from multiple concussions. These studies collectively establishedthat:

i . repetitive head trauma in contact sports has dangerous long-termeffects on the brain;ii. post-mortem evidence of CTE was present in numerous cases ofboxers and contact-sport athletes;iii. there is a relation between neurologic pathology and length of careerin athletes who play contact sports;iv . imm ediate retrograde memo ry issues occur following concussions;

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V .i ld head injury requires recovery time without risk of subjection tofurther injury;vi . head traum a is linked to dementia; andvii. a football player who suffers a concuss ion requires significant restbefore being subjected to further contact.

58 . By 1991, three dis t inct m edical profess ionals /ent it ies , al l independent from the1 1 1 1 1 1 p ~ 1 1 1 1 1 1 1 1 1 1 1 1 11 1 1 1 1 I R I S H 11 1111 111 111111 KEVIN III NO III l~~~

Neurology, and the Colorado Medical Societydeveloped return-to-play criteria for footballplayers suspected of having sustained head injuries.

59 . Upon in formation a nd bel ief , by 1991, the National Collegiate Athletic Association("NCAA") football conferences and individual college teams medical staffs, along with manylower-level footbal l groups (e.g., high school , junior high school, and pee-wee league) hadadopted return-to-play criteria to protect footbal l players even remotely suspected of havingsustained concussions.

60. In 1999, the National Center for Catastrophic Sport Injury Research at theUniversi ty of North Carolina con d u cted a study involving eighteen thousand (18,000) collegiateand high school football players. The research showed that once a player suffered oneconcussion, he was three times more likely to sustain a second in the same season.

61 . A 2000 study, which surveyed 1,090 former NFL players, found that more thansixty percent had suffered at least one concuss ion, and twenty-six percent had suffered three ormore, during their careers. Those who had sustained concussions reported more problems withmemory, concentration, s peech imped imen ts , h ead ach es, and other neurological problems thanthose who had not been concussed.

II

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62. In 2004, a convention of neurological experts in Prague met with the aim ofproviding recomm endations for the improvement of safety and health of athletes who sufferconcussive injuries in ice hockey. rugby, football, and other sports based on the most up-to-dateresearch. These experts recommended that a player never be returned to play while symptom atic,and coined the phrase, "w hen in doub t, sit them out."

63. This echoed s imilar medical protocol established at a Vienna conference in 2001.These tw o conventions were at tended by predom inately Am erican doctors wh o were experts andleaders in the neurological field.

64. Upon informat ion and belief, in literally hundreds upon thousands of games andpract ices , concu ssed players ncluding those knocked ent i re ly unco nsciouswe re returned toplay in th e same game or practice.

65. Indeed, wh ile the NF L knew for decades of the harmful effects of concussion s on aplayers brain, i t actively conc ealed these facts f rom coach es , t rainers , players , and the pu bl ic.

The NFL Voluntarily Undertakes the Responsibility ofStudying ConcussionsYet Conceals the Long-Term Effects ofConcussions66. A s described above, the NFL has known for decades that multiple blows to the head

can lead to long-term brain injury, including, but not limited to, Inemory loss, dementia,depression, and CTE and i ts re lated symptom s.

67. Rather than take immediate m e a s u re s to p ro te c t i t s p la y e rs f ro m th e s e k n o wndangers, t h e N F L instead formed a com mittee to study the i s sue in 1994, This Com m it tee , theMild Traumatic Brain Injury Committee (the " M T B I Committee" or the "Committee"),voluntar i ly under took the responsibility of s tudying the effects of concuss ions on N FL players .

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68 . Through its creation of the MTBI Committee, the NFL affirmatively assumed aduty to use reasonable care in the study of concussions and post-concussion syndrome in NFLplayers, and to use reasonable care in the publication of data from the MTB I Com mittees work.

69 . Rather than exercising reasonable care in these duties, the NFL immediatelyengaged in a long-running course of negligent conduct.

70 . The MTB I Com mittees stated goal was to present objective findings on the extentto which a concussion problem existed in the League, and to outline solutions, The MTBICommittees studies were supposed to be geared toward "improv[ing] player safety" and for thepurpose of instituting "rule changes aimed at reducing head injuries."

71 . By 1994, when the NFL formed the MTBI Committee, independent scientists,doctors, and neurologists alike were already convinced that all concussionseven seemingly mildoneswere serious injuries that can permanently damage the brain, impair thinking ability andmemory, and hasten the onset of mental decay and senility, especially when they are inflictedfrequently and without time to properly heal.

72 . The MTBI Comm ittee was intended to be independent from the NFL, consisting ofa combination of doctors and researchers.

73 . In actuality however, the MTBI Committee was not independent, it consisted of atleast five members who were already affiliated with the NFL.

74 ,he Comm ittee was headed by Dr. Elliot Peliman, a rheumatologist who lackedany specialized training or education relating to concussions, and who reportedly had previouslybeen fired by Major League Baseball for lying to Congress regarding his resume. Dr. Pellmanwould go on to chair the MTBI Committee from 1994-2007, and his leadership of the Committee

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methodology, and interpretation of the data, which led to conclusions at odds with com mon

81. For example, in 2004 the MTBI Com mittee published a conclusion in which itclaimed that the Com mittees research found no risk of repeated concussions in players w ithprevious concussions and that there was no "7- to 10- day window of increased susceptibility tosustaining another concussion."

82. In a comment to this publication, one independent doctor wrote that "[t]he articlesends a message that it is acceptable to return players while still sym ptomatic, which contradictsliterature published over the past twenty years suggesting that athletes be returned to play onlyafter they are asymptomatic, and in some cases for seven days."

83. A s further example, an M TB I C ommittee conclusion in 2005 stated that "[t]herewas no evidence of any adverse effect" of a player returning to play in the same game after havingsuffered a concussion. "These data suggest," the Committee reported, "that these players were atno increased risk" of subsequent concussions or prolonged symptoms such as memory loss,headaches, and disorientation.

84. Yet, a 2003 NCA A study of 2,905 college football players found just time opposite:"Those who have suffered concussions are more susceptible to further head trauma for seven to 10days after the injury."

85. Other contrary conclusions that the MTB I Committee published over several yearsinclude but are not limited to the following:

i .n October 2006 article by Drs. Peilman an d Viano stated thatbecause a " significant percentage of players returned to play in thesame game [as they suffered a concussion] and the overwhelmingmajority of players with concussions were kept out offootball-related activities for less than 1 week, it can be con cluded15Podhurst O rseck, P.A.25 West Flagler Street, Suite 800, Miami, FL 33130, Miami 305.358.2800 Fax 305.358.2382 Fort Lauderdale 954.463.4346 ww.podhurst.com



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that mild [concussions] in professional football are not seriousinjuries;"

ii . that NFL players did not show a decline in brain function after aconcussion;iii. that there were no ill effects among those wh o had three or moreconcussions or w ho took hits to the head that sidelined them for aweek or more;iv . that "no NFL player experienced the second-impact syndrome orcumulative e ncephalopathy fr om re peat concussions;" andV.hat NFL players brains responded and h ealed faster than th ose ofhigh sch ool or college athletes with the same injuries.

86. Th e Com mittees papers (the "Pellman Papers") received significant criticism inthe media from independent doctors and researchers, and were met with sk epticism in peer reviewsegments following each articles publication.

87. Renowned experts Dr. Robert Cantu and Dr. Julian Bailes wrote harshly criticalreviews of the studies conclusions.

88. The Peliman Papers were also criticized in the popular press by ES PN and the NewYork Times when repeated inconsistencies and irregularities in the MTBI Committees data wererevealed.

neuropsychological tests done on NF L players in the results of the Co m m ittees studies on th eeffects of concussions. The article further revealed that Dr. P eilman, had fired aneuropsychologist for the New Y ork Jets, Dr. W illiam Barr, after Dr. Barr voiced concern that Dr.Pe ilman might be p icking and ch oosing wh at data to include in the Com mittees research to getre sults that would downplay the neg ative effects of concussions.

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90 . As described in the following paragraphs, when faced with studies whichimplicated a causal link between concussions and cognitive degeneration, the NFL, through theMTBI Committee, continued to produce contrary findings which were false, distorted, anddeceiving, all in an effort to conceal and deceive players and the public at large.

91 . Between 2002 and 2007, Dr. Bennet Omalu examined the brain tissue of deceasedNFL players, including Mike Webster, Terry Long, Andre Waters, and Justin Strzelczyk. Dr.Omalu concluded that the players suffered from CTE. Some of his findings were published inNeurosurgery articles.

92. In response to Dr. Omalus articles, the MTBI Committee wrote a letter to theeditor ofNeurosurgery asking that Dr. Omalus article be retracted.

93 . In 2005, a clinical study performed by Dr. Kevin Guskiewicz found that retiredplayers who sustained three or more concussions in the NFL had a five-fold prevalence of mildcognitive impairm ent in comparison to NFL retirees without a history of concussions. In doingthis research, Dr. Guskiewicz conducted a survey of over 2,550 former NFL athletes. The MBTICom mittee attacked and undermined the study, stating: "We want to apply scientific rigor to thisissue to make sure that were really getting at the underlying cause of whats happening. . . . Youcannot tell that from a survey."

94 . In August 2007, the NFL, in keeping with its deceit, issued a concussion pamphletto players which stated: "Current research with professional athletes has not shown that havingmore than one or two concussions leads to permanent problems if each injury is managed properly.

Research is currently underway to determine if there are any long-term effects ofconcussion[ s] in NFL athletes,"

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95 . In a statement m ade around the time that the concussion pamphlet was released,NFL Commissioner Roger G oodell said, "We want to make sure all NFL players . . . are fullyinformed and take advantage of the most up to date information and resources as we continue tostudy the long-term impact on concussions." The NFL decided that the "most up to dateinformation" did not include the various independent studies indicating a causal link betweenmultiple concussions and cognitive decline in later life.

The NFLs Belated Acknowledgement of he Concussion Crisis96. Facing increasing med ia scrutiny over the MTBI Committees questionable

studies, Dr. Peliman eventually resigned as the head of the Committee in 2007. He was replacedas head by Dr. Ira Casson and Dr. David Viano, but remained a member of the Committee.

97 . Dr. Casson continued to dismiss outside studies and overwhelming evidencelinking dementia and other cognitive decline to brain injuries. When asked in a 2007 publicinterview w hether concussions could lead to brain damage, dem entia, or depression, Dr. Cassondenied the linkage six separate times.

98 . In June 2007, the NFL convened a concussion summit for team doctors andtrainers. At the summit, Dr. Casson told team doctors and trainers that CTE has never beenscientifically documented in football players.

99 . When Boston Universitys Dr. Ann McKee found CTE in the brains of two moredeceased NFL players in 2008, a MTBI Committee representative characterized each study as an"isolated incident" from which no conclusion could be drawn.

100. In 2008, under increasing pressure, the NFL commissioned the University ofMichigans Institute for Social Research to conduct a study on the health of retired players. Over1,000 former NFL players took part in the study. The results of the study, released in 2009,

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reported that "Alzheimers disease or similar memory-related diseases appear to have beendiagnosed in the leagues former players vastly more often than in the nationalpopulation-..-including a rate of 19 times the normal rate for men ages 30 through 49."

101. The NFL, who commissioned the study, responded to these results by claimingthat the study was incomplete, and that further findings would be needed. Other experts in thefield found the NFLs reaction to be "bizarre," noting that "they paid for the study, yet they tried todistance themselves from it,"

102. After the results of this study were released, Representative John Conyers, Jr.,

Chairman of the House Judiciary Committee, called for hearings on the impact of head injuriessustained by NFL players.

103. At th e first hearing in October 2009, NFL Commissioner Roger Goodellacknowledged that th e NFL owes a duty to the public at large to educate them as to the risks ofconcussions du e to the Leagues unique position of influence: "In addition to our millions of fans,more than three million youngsters aged 6-14 play tackle football each year; more than one millionhigh school players also do so and nearly seventy five thousand collegiate players as well. Wemust act in their best interests even if these youn g men never play professional football."

104. Also at the October hearing, NFL Players Association Executive DirectorDeMaurice Smith stated, "[T]here have been studies over the last decade highlighting [connectionbetween on-field injury and post career mental illness]. Unfortunately, the N.F.L. has diminishedthose studies, urged the suppression of the findings and for years, moved slowly in an area wherespeed should have been the impetus."

105. Dr. Casson gave testimony at these hearings, and continued to deny the validity ofother non-NFL studies, stating that "[t]here is not enough valid, reliable or objective scientific

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evidence at present to determine whether or not repeat head impacts in professional football result

106. In 2007, in a televised interview on HB Os Real Sports, Dr. C asson definitively andunequivocally stated that there was no l ink between concuss ions and depress ion, demen t ia,Alzheimers disease, or "anything like [that] whatsoever."

107. Sh ortly after the 200 9 congressional hearings, howev er, the NF L annou nced that i twould impose its most stringent rules to date on m anaging concussions , requir ing players wh oexhibit any significant sign of concussion to be remov ed from a gam e or practice and be barredfrom returning the same day.

108. On or about December 20, 2009, the NFL publicly acknowledged for the first time,through its spokesman G reg Aiello, that "concussions can lead to longterrn problems."

player head injuries. Representative Co nyers noted that "until recently , the NFL had m inimizedand dispu ted evidence linking head injuries to mental impairment in the future."

110. The N FLs belated change of pol icy contradicted past recomm endat ions by i tsM T BI Committee which had recomm ended as safe the Leag ues practice of returning players tothe game after a concuss ion. In fac t , the Com mittee had pub l ished a paper in 2 00 5 that s ta ted"[p]layers who are concussed and return to the same gam e have few er initial signs and sym ptomsthan those remo ved from play. Return to play does not involve a significant r isk of a secon dinjury either in the same gam e or during the season."

111. In 2010, the NFL re-nained the MTBI Committee to the "Head, Neck, and SpineMedical Committee" and announced that Dr. Peliman would no longer be a m emb er of the panel.Drs. H . Hunt B atjer and Richard Ellenbogen w ere selected to replace Drs. Casson an d Viano.

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111 Under its new leadership, the Committee admitted that data collected by the NFLsformerly appointed brain-injury leadership was "infected," and said that their Committee shouldbe assembled anew.

113. Dr. Batjer was quoted as saying, "[w]e all had issues with some of themethodologies described, the inherent conflict of interest that was there in many areas, that was notacceptable by any modem standards or not acceptable to us. I wouldnt put up with that, ouruniversities wouldnt put up with that, and we dont want our professional reputations damaged byconflicts that were put upon us ."

114. In June 2010, scientific evidence linked mult ip le concussions to yet anotherdegene rat ive brain d iseaseAmyotrop h ic Latera l Sclerosis ("ALS"), commonly referred to as

115. In October 2011, Dr. Mitchel Berger of the Head, Neck, and Spine MedicalCommittee announced that a new study was in the planning process. He admitted that the MTBIC o m m i t t ee s previous long-range study was useless because "[t]here was no science in that." Dr.Berger further stated that data from the previous study wou ld not be used. "Were really movingon from that data. Theres really nothing we can do with that data in terms of how it was collectedand assessed."

116. Now, the NFL requires its memb er teams to have concussion experts on thes idel ines during g a m e s to clear players suspected of concuss ions prior to their return to play.

117. Notwithstanding th is new policy, on October 23, 2011, San Diego Charger KrisDielman plainly suffered a concussion early in a game an d cou ld b e seen staggering back to thehuddle. Despite the obvious brain injury, Mr. Dielman was neither evaluated by a doctor nor heldou t for even on e p lay . He suffered grand mal seizures on the teams plane ride home.

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Podhurst O rseck, P.A.25 West Flagler Street, Suite 800, Miami, FL 33130, Miami 305.3582800 Fax 305.358.2382 Fort Lauderdale 954.463.4346 1ww.podhurst.comCase 1:12-cv-20269-JEM Document 1 Entered on FLSD Docket 01/24/2012 Page 21 of 26


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118. Ten days later, in November of 2011, the Leagues injury and safety panel issued adirective tell ing its game officials to watch closely for concussion symptoms in players.

119. On or about December 21, 2011, th e NFL alerted all thirty two teams that, effectiveimme diate ly , an independent ly cert i fied athletic trainer would be assigned to monitor all suspectedconcussion.-related injuries. The independent tra iners are paid by the NFL and approved by theNFL Players Association. The trainers sole purpose is to oversee the treatment of possibleconcussions and ensure that medical staff on each sideline are following proper League protocoland testing for any head traum a.

120. Why League policy changes, accurate information sharing, strict fines andwarnings were not recommended by the NFLs so called "expert" committee soon after its creationin 1994 is difficult to comprehend. That it took sixteen (16) years to admit that there was aproblem and to take real act ion to address that problem is willful and wanton and exhibits areckless disregard for the safety of its players and the public at large.

THE REPRESENTATIVE PLAINTIFFS SPECIFIC FACTUAL AL LEGA TIONSPlaintiff Shawn W oodens Con cussion History in the NF L and Injuries

121. Plaint i ff Sean W ooden played in the NFL from 1996 to 2004.122, Plaintiff Wooden sustained numerous diagnosed and undiagnosed concussions

while playing in the NFL.123. Pla in t if f W ooden was return ed to play too soon after having suffered his

concussions an d subsequent ly suffered other head injuries or blows to the head.124. At no time did the NFL inform Plaintiff Wooden that he risked severe and

permanent brain damage by returning to play too soon after sustaining a concussion. The NFLsfailure was a substantial cause of his current injuries.

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125. As a result of the nu merou s concussions suffered during his playing career,Plaintiff Wooden suffers from, inter alia, problems with short-terrn memory and migraineheadaches. Plaintiff Wooden is also at heightened risk of developing further adverse neurologicalsymptoms in the future.

Plaintiff Ryan Fo wlers Concussion History in the NFL and Injuries

127. Plaintiff Fowler sustained numerous diagnosed and undiagnosed concussions whileplaying in the NFL .

128laintiff Fowler was returned to play too soon after having suffered his concussionsand subsequent ly suffered other head injuries or blows to the head.

129. At no time did the NFL inform Plaintiff Fowler that he risked severe and permanentbrain damage by returning to play too soon after sustaining a concussion. The NFLs failure was asubstantial cause of his current injuries.

130. As a result of the numerous concussions suffered during his playing career,Plaintiff Fowler suffers from, inter alia, m o o d swings. Plaintiff Fowler is also at heightened riskof developing further adverse neurological symptoms in the future.

COUN T I.CLASS ACTION CL AIM FOR MEDICAL MON ITORING131, The Representative Plaintiffs adopt and incorporate by reference all prior

paragraphs of this Complaint as if fully set forth herein.132. As a result of the NFLs negligent misconduct , the Representative Plaintiffs and the

Class have been exposed to a greater than normal risk of brain injury following a return to contactplay too soon after suffering an initial concussion, thereby subjecting them to a proven increasedrisk of developing the adverse symptom s and condit ions described above.

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133he Representative Plaintiffs and the Class have not yet fully begun to evidencemany of the longterm physical and men tal effects of the concussive injuries they sustained whileplaying in the NFL, which m ay remain latent and go undetected for some period of time.

134. These latent brain injuries require specialized testing that is not generally given tothe public at large.

1 35he available monitoring regime is specific for individuals exposed to concussions,and is different from that normally recommended in the absence of exposure to this risk of harm.The medical monitoring regime includes, but is not limited to, baseline exams and diagnosticexams which will assist in diagnosing the adverse health effects associated with concussions.This diagnosis will facilitate the treatment and behavioral and/or pharmaceutical interventions thatwill prevent or mitigate the various adverse consequences of the latent neurodegenerativedisorders and diseases associated with the repeated traumatic head impacts that these playersexperienced w hile playing in the NFL,

136 The available monitoring regime is reasonably necessary according tocontemporary scientific principles within the medical community specializing in the diagnosis ofhead injuries and their potential link to, inter alia, memory loss, early onset dementia, CTE,Alzheimer-like syndromes, and similar cognition-impairing conditions.

137. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Plaintiffs seekcertification of a m edical monitoring class in this matter, consisting of:

All retired NFL players who played prior to the 2010 NFL season and who,during their NFL careers, suffered a concussion and were returned tocontact play within ten (10) days of having suffered the concussion, andwho, as of the date of class certification, are neither (a) advancing anindividual personal injury claim for money damages against the NFL, nor(b) a salaried emp loyee of the NFL.

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138 Bymon itoring and testing these former NFL players, the risk of each such playersuffering the long term injuries, disease, and losses, as described above, will be significantlyreduced.

139. Because the NFL has until now failed to properly, reasonably, and safely monitor,test, and/or otherwise study whether and w hen a player has suffered a concussion to minimize therisk of long-term injury o r illness, medical monitoring is the most appropriate method to determinewhether a particular individual is now at risk of long-term injury or illness associated with aconcussive event.

140. Accordingly, the NFL should be required to establish a medical monitoringprogram that includes, inter alia:

Establishing a trust fund, in an am ount to be determined, that willpay for the medical m onitoring, as necessary and appropriate, of allretired NF L players wh o played prior to the 2010 NFL season andwh o, during their NFL careers , suffered a concussion and werereturned to contact play within ten (10) days of having suffered theconcu ssion, and who, as of the date of class certification, are neither(a) advancing an individual personal injury claim for moneydam ages against the NFL , nor (b) a salaried employee of the NFL;an d

ii .otifying in writ ing al l Class members that they should havefrequent medical monitoring.141he Representative Plaintiffs and Class members have no adequate remedy at lawbecause monetary damages alone cannot compensate them for the risk of long-term physical andeconomic losses due to concussive injuries. Without a Court-approved medical monitoringprogram as described herein, or established by the Court, the Representative Plaintiffs and Classmembers will continue to face an unreasonable risk of injury an d disability, and any potentialdamages they suffer will be exponentially increased due to a lack of timely diagnosis.

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WHEREFORE, the Representative Plaintiffs individually and on behalf of the proposedClass, demand a jury trial on all claims so triable, and pray for judgment as follows:

Certification of the p roposed Class pursuant to Federal Rule of CivilProcedure 23;

ii , Designation of Plaintiffs as representatives of the proposed Classand designation of the Representative Plaintiffs counsel as Classcounsel;iii, The establ ishmen t of a medical monitoring program/regime whichincludes , am ong o ther things , those measures described above;iv .osts and disbursements incurred by the Representative Plaintiffs inconnect ion with this act ion, including reasonable attorneys fees

and costs pursu ant to applicable law; andV.uch other relief as the Court deems just and proper.Dated this 24 h day of January, 2012. Respectfully submitted,

P O DH U RS T O RS ECK , P .A.25 W est Flagler Street, Suite 800Miami, FL 33130Telephone: (305) 358-2800Fax: (305) 358-2382

By:s/ Stephen F. RosenthalSTEVEN C. MARKSFla. Bar. No . 516414Em ail: s arks phrt.csmSTEPHEN F. ROSENTHALFla. Bar No. 0131458Email: srosenthalipodhurst.cpmR I C AR D O M. MARTINEZ-CIDFla. Bar No. 383988Email: dost.cpiR AM O N A. RASCOFla. Bar No. 0617334Email: rrasco(dipodhurst.coAttorneys for Plaintiffs


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