The National Football League is in a litigation battle with four insurance companies, American Guarantee and Liability Insurance Company, TIG Insurance Company, the North River Insurance Company, and the U.S. Fire Insurance Company, to be reimbursed for paying off the 2017 concussion settlement with NFL players worth at least $1.3 billion.[1]
The NFL and the four insurance companies are in a classic legal battle of the experts. The insurance companies found three experts who prepared reports to dismiss the National Institute of Health’s study that there is a causal link between multiple head hits and chronic traumatic encephalopathy (CTE).[2] For example, Professor of Neurology at the NYU Grossman School of Medicine in New City, William Barr, MD, said, “It is well-known in the neuropsychological literature that feigning and malingering is present in approximately 40% of individuals receiving testing in a litigation context and in cases where there is a potential secondary financial gain.”[3] In Barr’s report, he cites the “neuropsychological literature” to suggest that the NFL players are faking their injuries for money. Yet, Barr never said that he physically examined any of the athletes, which is another typical insurance defense expert tactic. Barr also said, “approximately 40% of individuals receiving testing in a litigation context.”[4] What about the injured people who never filed a lawsuit? Were their injuries more real because they did not have an attorney? What if the NFL settled prior to the Players filing litigation? Would the Players’ injuries be more real? Barr’s expert testimony fails to be persuasive.
Medical experts fighting medical experts is hardly a novel legal strategy by insurance companies. In tort cases such as motor vehicle wrecks, medical malpractice, and slip and falls, it is a common insurance strategy to doubt the veracity of medical bills and records by getting another medical expert to question the plaintiff’s medical expert. This strategy tries to muddy up the water by attempting to place doubt in the minds of jurors to believe plaintiffs and their doctors. Unfortunately, finding such a medical defense expert is relatively simple. Just Google it. There are many well-known companies that offer medical expert services such as Juris Pro Expert Witness Directory, SEAK Expert Witness Directory, and American Medical Forensic Specialists where you can find an expert like picking out an Uber.[5] You can even find experts that will already side with your case, because the searches can be broken down into specifically Defense Medical Experts.[6] Expert battles over concussions are expensive and will inevitably fail to provide a definitive answer.
The fundamental problem with diagnosing concussions is that people can exhibit an entire range of symptoms including but not limited to headaches, dizziness, nausea, vomiting, visual disturbances, sensitivity to light and sound, amnesia, brain fog, attention and concentration deficit, emotional symptoms such as anxiety, depression, insomnia, post-traumatic stress disorder, and hormone irregularities due to pituitary dysfunction.[7] NFL players may have a group of these symptoms but not all of these symptoms. For example, Luke Kuechley had a concussion and began uncontrollably crying while Tua Tagovailoa’s concussion on Thursday Night Football put him in a state of shock, a “fencing” response.[8] Due to the widespread nature of concussion symptoms, new tools and tests are becoming available. For example, the Food and Drug Administration authorized Q-Collars to be worn by football players as a way to help reduce the risk of the brain shaking inside of the skull.[9] The NFL has embraced Q-Collars with the following players wearing them in 2023: Chargers LB Drue Tranquill, Cowboys RB Tony Pollard, Cowboys TE Dalton Schultz, Panthers LB Shaq Thompson, Rams S Taylor Rapp, Eagles RB Boston Scott, and Seahawks TE Colby Parkinson.[10] The NFL has yet to embrace new tests for concussions: Brain Scope and Diffusion Tensor Imaging.
A BrainScope is an FDA-approved device that uses electrical activity in the brain to diagnose concussions in athletes.[11] In a study from 2017 to 2019, male and female athletes from 13 to 25 years old with concussions and athletes without concussions were assessed within 72 hours of the injury.[12] The study included a combination of 49 high schools, colleges, and concussion clinics in the United States. 580 people participated in the study.[13] 207 were diagnosed with a concussion and 373 were not diagnosed with a concussion.[14] The Concussion Index had a sensitivity of 86%, specificity of 71%, and negative predictive value of 90%.[15] Leslie Pritchett, MD, Chief Scientific Officer of BrainScope said, “The results of this study are an independent demonstration of the power and reliability of BrainScope's Concussion Index –– as an objective marker in the clinical assessment of concussions at the time of injury and as a reliable indicator of change over time."[16] The BrainScope device is portable enough that it can be used on NFL sidelines during games.
Diffusion Tensor Imaging is a type of magnetic resonance imaging technique that tracks the water molecules in the brain.[17] Imagine taking a bird's eye view of a 6-lane highway where you can see multiple cars going east and west. Then, in one of the eastbound lanes, a car stops clogging up traffic in only that lane while the other lanes are going smoothly. A DTI device takes images of the water molecules throughout your brain like cars on a highway and when you get a head injury, the water stops.[18] The DTI can find the location of the brain injury by finding where the molecules stop. Currently, DTIs remain legally controversial, because they are failing the Daubert and Frye evidence tests, but some courts are still allowing them including 16 jurisdictions.[19] The overwhelming benefit of BrainScope and DTI is that no one can fake the electrical activity in the brain, nor can anyone fake water molecules stopping in the brain. BrainScope and DTI can end the battle of medical experts and start a new future in accurately and objectively diagnosing concussions.
Currently, the NFL uses an independent medical doctor to conduct a checklist to determine whether the player can return to play. Answering pre-determined questions can be easily circumvented by athletes with real injuries which has been described by Former New England Patriots Wide Receivers, Julian Edelman and Danny Amendola, here and Former Tennessee Titans Linebacker and current Seattle Seahawks Assistant Coach NFL Veteran, Daren Bates, here. The NFL should embrace a more objective approach to diagnosing concussions with a Brain Scope or Diffusion Tensor Imaging in conjunction with their concussion protocol.
John Camacho is a graduate of South Texas College of Law where he earned a J.D. and a graduate of the University of Missouri, St. Louis where he received a M.A. in Philosophy. He is a Co-Founder of The Moral Questions of Sports Podcast and a Co-Host of the Oxford Public Philosophy Podcast. You can connect with him via Linkedin or via The Moral Questions of Sports. He can be reached on Twitter @Camachotalk and Instagram @themoralquestionsofsports.
Sources:
[1] See Danial Kaplan’s Front Office Sports article, “’Still a Great Deal of Uncertainty’: Deposition Exposes Goodell’s and NFL’s Concussion Deliberations.” https://frontofficesports.com/still-a-great-deal-of-uncertainty-deposition-exposes-goodells-and-nfls-concussion-deliberations/#:~:text=In%20the%20nearly%20nine%2Dhour,with%20playing%20contact%20sports%20to
[2] See Daniel Kaplan’s Front Office Sports article, “The NFL’s $1B Battle Over Concussion Settlement Heats Up.” https://frontofficesports.com/the-nfls-1b-battle-over-concussion-settlement-heats-up/#:~:text=In%20a%20bid%20to%20avoid,there%27s%20no%20scientific%20CTE%20evidence.
[3] Id.
[4] Id.
[5] Search these words in Google, “Expert Medical Witness” and these businesses came up.
[7] Center for Disease Control “Facts about Concussion and Brain Injury Where to Get Help” https://www.cdc.gov/headsup/pdfs/providers/facts_about_concussion_tbi-a.pdf
[8] See Tom Lutz’s The Guardian article, “The brilliant Luke Kuechly gave us a searing image of brain trauma” https://www.cdc.gov/headsup/pdfs/providers/facts_about_concussion_tbi-a.pdf and Rob Maaddi’s Associated Press article, “Explainer Tua Tagovailoa, fencing response and NFL protocol” https://apnews.com/article/tua-tagovailoa-fencing-response-de6a1e5d95a5ab869e043369cb6546c3
[9] Addy Bink’s The Hill article, “What are NFL players wearing on their necks?” https://www.ksn.com/sports/what-are-nfl-players-wearing-on-their-necks/
[10] Joe Rivera’s Sporting News article, “What is the Q-Collar? Explaining the band NFL players like Dalton Shultz, Tony Pollard wear around their neck” https://www.sportingnews.com/us/nfl/news/nfl-players-neck-band-q-collar-wear/cssc7pf8z69dnfwzowfhbo1x
[11] See “JAMA Highlights Success of BrainScope’s EEG-based Concussion Index as Reliable Indicator of Concussion”https://www.brainscope.com/all-pr/jama-highlights-success-of-brainscopes-eeg-based-concussion-index-as-reliable-indicator-of-concussion. For more info, see Jeffrey Bazarian, MD, study “Validation of a Machine Learning Brain Electrical Activity-Based Index to Aid in Diagnosing Concussion Among Athletes”https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2776443?widget=personalizedcontent&previousarticle=0
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Nikos Makris, MD, PhD, et al article with American College of Neuropsychopharmacology, “Diffusion Tensor Imaging” See https://acnp.org/wp-content/uploads/2017/11/CH27_357-372.pdf.
[18] Id.
[19] See Andrew Lehmkuhl’s University of Cincinnati Law Review article, “Diffusion Tensor Imaging: Failing Daubert and Fed. R. Evid. 702 in Traumatic Brain Injury Litigation., page 298. https://scholarship.law.uc.edu/cgi/viewcontent.cgi?article=1261&context=uclr
