Game Changers in Concussion Litigation: How Medical ...0c6e52a0-15ca-4b41... · Game-changers in Concussion Litigation 15 Non-cumulative injury Many sports policies cover injury,

Game-changers in Concussion Litigation

Game Changers in Concussion Litigation: How Medical Advances Will Impact Liability and Coverage

Adam H. FleischerBatesCarey LLP191 N. Wacker, Suite Chicago, IL [email protected]

Lisa SimonSwiss Re 175 King StreetArmonk, NY [email protected]


What is Today’s Game Plan?

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Chronic traumatic encephalopathy (“CTE”): What is

this?

New breakthroughs on diagnosing CTE!

“Game Changers”

How would early detection impact liability issues?

How would early detection impact coverage issues?

Takeaways


CTE: A progressive degenerative disease (Not concussion or injury?)

Caused by slow accumulation of Tau protein in the brain.

Changes in the brain can manifest years, or even decades after the last brain trauma or end of active athletic involvement.

2008-2010, Dr. Bennet Omalu performed postmortem evaluations on the brains of 12 former NFL players, and all of them showed evidence of CTE. (Since found in 99% of NFL donated brains.)

Timing of diagnoses? Post-mortem. (NFL carve out)

What IS this thing? Chronic Traumatic Encephalopathy

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Why is CTE only diagnosable AFTER DEATH?

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Let The Litigation Begin

Who is being diagnosed? NFL players

Other contact sport athletes, even high school and college

Potential Universe: 21,000 retired NFL players; 4,800 living former NHL players; 4.4m former NCAA athletes; 45m participants in youth sports

How about non-athletes? LARGER UNIVERSE OF CLAIMS

• People with epilepsy, developmentally disabled

• Soldiers returning from Iraq and Afghanistan

• Victims of domestic violence and physical abuse

How prevalent is CTE? Who is being diagnosed?

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Who is being sued? What are the claims?

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•Deceased•Injured•Worried (not just athletes!)

Plaintiffs

•Pro leagues•College sports (NCAA, Conferences, Schools)•Youth sports leagues•Helmet manufacturers

Defendants

•Knew/should have known of risk of repetitive head trauma and failed to warn/protect

Allegations


Game Changers! 2017 Breakthroughs in diagnosing CTE!

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What is a biomarker? • Imaging: PET scans, CT, MRI / Molecular: biopsy, spinal fluid

FIRST STUDY: September 2017 Omalu, Bailes • Fred McNeil, experimental brain scans in 2012• Radioactive “tracer” called FDDNP to view PET scans• McNeil died in 2015; CTE confirmed; Tests evolving

SECOND STUDY: Sept. 2017 Boston University (McKee) • Found biomarker CCL11 protein; first of many markers• Positive correlation between CCL11 and years played


Game Changers! Early detection impact on Liability?

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Cau

sati

on • Currently very difficult to prove• Are biomarkers a solution?• Conclusive proof of injury or no injury• If CTE is the result of cumulative

concussions, causation problems will remain



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Dut

y to

War

n• Will there be a new and heightened duty?

• Duty to screen prior to participation?• Duty to exclude at-risk individuals?• Use of waivers where permissible?



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First CTE Trial!Coverage and Liability Collide!

• Played 1968-1971

• 2009 TBI diagnosis!

• 2015 suit, death, CTE

When does the 2 yr. SOL run on this claim?

• Court punts on SOL!• Insurers left with very

difficult question . . .


Trigger of Coverage:

GL trigger: injury DURING THE POLICY PERIOD

Played 1994 to 1998. Post-mortem CTE 2018.

Possible insurance coverage triggers:

• Could be 1996 when concussion took place

• Could be 1994-1998 re: sub-concussive blows

• Could be 2018 when CTE diagnosed

• Could be 1994 to 2018 with progressive injury

Is CTE more like:

• Car accident =single date; despite arthritis

• OR more like asbestos continuous trigger?

Game Changers! Early detection impact on Coverage?

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Trigger of Coverage Ex: 1994-1998, Diagnosis 2018 Trigger of coverage certainly cut off in 2004

Insurance exposure for defense and indemnity cut by 14 years!

Still need legal ruling as to how to apply trigger from 1994 to 2004


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What if CTE could be diagnosed with a test

in 2004?



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“Bodily injury”

Disease

vs.

• If new test shows when CTE begins, then is it more of a disease?

• Some policies cover ONE, BUT NOT THE OTHER

1. How to VALUE a disease whose impact hasn’t yet hit? 2. DEFENSE COSTS saved– no proof of causation, no med bills? 3. COST of claims goes down, but NUMBER OF CLAIMS goes up.

Think about other impacts on EXPOSURE:

Game-changers in Concussion Litigation 15

Non-cumulative injury Many sports policies cover injury, but exclude cumulative injury.

• Example: broken leg (non-cumulative) vs. arthritis (cumulative) But if we can diagnose CTE as it develops, then:

• We can probably agree that the “final blow to the head” to end someone’s career may not be covered because there is a record of cumulative injury.

• However, at what point does a scan that shows the “progression” or “start” of CTE constitute an injury?



•Policies cover “damages on account of bodily injury”?

•Are these expensive MONITORING TESTS covered if there is no diagnosed injury to begin with?

•BUT WAIT! If we have a diagnosis, then is continuing testing “on account of bodily injury”?

Are “medical monitoring

costs” really covered?

Game Changers! Early detection impact on Coverage? Med Monitoring

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1. CTE issues may be THE CANARY IN THE COAL MINE - Far reaching impact

2. Monitor the DIAGNOSTIC ADVANCEMENTS

3. Monitor the COVERAGE CASE LAW: Trigger, allocation

4. Monitor LIABILITY RULINGS: Statute of limitations, causation, etc.

5. Coordination between UNDERWRITING AND CLAIMS

Takeaways and Conclusions for complex injury claims

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Game-changers in Concussion Litigation 18

Game-changers in Concussion LitigationGame-changers in Concussion Litigation

Legal notice

©2018 Swiss Re. All rights reserved. You are not permitted to create any modifications or derivative works of this presentation or to use it for commercial or other public purposes without the prior written permission of Swiss Re.

The information and opinions contained in the presentation are provided as at the date of the presentation and are subject to change without notice. Although the information used was taken from reliable sources, Swiss Re does not accept any responsibility for the accuracy or comprehensiveness of the details given. All liability for the accuracy and completeness thereof or for any damage or loss resulting from the use of the information contained in this presentation is expressly excluded. Under no circumstances shall Swiss Re or its Group companies be liable for any financial or consequential loss relating to this presentation.

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Game Changers in Concussion Litigation: How Medical ...0c6e52a0-15ca-4b41... · Game-changers in Concussion Litigation 15 Non-cumulative injury Many sports policies cover injury,

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