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6 Concussion Litig. Rep. [1] (2017-2018)

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July 2017, Vol. 6, No. 1

Timely reporting on developments and legal strategies at the intersection of sports and concussions-
articles that benefit practicing attorneys who may be pursuing a claim or defending a client.

Contents


     Fourth Circuit Affirms Lower Court Ruling, Finding NFL's Post-Retirement Disability
      Apparatus Failed Ex-Player
     Court Dismisses Concussion Lawsuit Against Coach as Her Inexperience Works in Her
      Favor
     Boogaard Ruling Blurs NHL Liability in Head-Injury Suits
     Negligence or Assumption of Risk? The Case of Rugby Player George North
     A Boxing Tragedy: The Prichard Colon Case
     Bylaw Giving Teeth to Physicians and Athletic Trainers in Return-to-Play Decisions Set
      to Kick Off for Division II and III
     Head Impact Exposure Increases as Youth Football Players Get Older, Bigger
     Magistrate Recommends That Some of Omnibus Claim From Mother and Her Concussed
      Daughter Can Continue
     Looking in all the Wrong Places: The Tragic Death of Aaron Hernandez


Fourth Circuit Affirms Lower Court Ruling, Finding NFL's Post-
Retirement Disability Apparatus Failed Ex-Player
A panel of judges with the 4th U.S. Circuit Court of Appeals has affirmed the ruling of a district judge
that the Bert Bell/Pete Rozelle NFL Retirement Plan and the NFL Player Supplemental Disability Plan
(The Plan) abused its discretion when it denied disability benefits to a former NFL player, who is
currently suffering from the after-effects of multiple concussions and other injuries.

In so ruling, the panel noted that the defendants failed to follow a reasoned process or explain the
basis of its determination-- neither addressing nor even acknowledging new and uncontradicted
evidence supporting (the plaintiffs) application, including that of the Plan's own expert.

Plaintiff Jesse Solomon played professional football in the NFL for nine seasons before his retirement
in 1995. During his football career, he sustained more than 69,000 full-speed contact hits. As a result,
he experienced symptoms associated with chronic traumatic encephalopathy (CTE), a degenerative
brain condition caused by repeated head trauma. He also suffered numerous knee injuries requiring
multiple operations. Solomon now suffers from chronic knee pain, chronic headaches, depression, and
anxiety that doctors expect to worsen over time. These injuries forced Solomon to resign from his
post-NFL career as a high school teacher and football coach in 2007. Because he was unable to
work, Solomon sought benefits under The Plan.

The court went on to explain the mechanics of The Plan, which provides disability benefits to retired
players who become totally and permanently disabled (TPD) as a result of their football career.

On March 11, 2009, Solomon first applied for disability benefits under the Plan, asserting that football-
related orthopedic injuries rendered him TPD. Although Solomon did not seek benefits for his CTE-
related disability in this first application, the medical records he submitted contained evidence of brain
injuries. These records included a 2005 MRI showing white matter changes in the deep white matter
of both parietal lobes of the brain, according to the complaint, and a 2006 letter from Solomon's
primary care physician, Dr. Mark Hudson. Dr. Hudson linked the white-matter changes to chronic

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