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Brain Injury Association of America Submits Amicus Brief Today to United States Supreme Court To Reject NFL Concussion Settlement
I am pleased that the amicus brief that Shana De Caro and I wrote was submitted today on behalf of the Brain Injury Association of America to the United States Supreme Court in support of the Petition for a Writ of Certiorari to reject the NFL class action concussion settlement.
"This action, commenced for the multi-faceted repercussions of brain damage as a result of longstanding NFL misconduct, fails to compensate the majority of players who have suffered the devastating and enduring effects of traumatic brain injury. The court has an obligation to protect the entire class based upon well-researched, recognized, and cogent medical science. Any settlement that does not, should be rejected as unfair and contrary to the best interests of the majority of class members."
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Brain Injury Association of America Legislative Update
The following legislative update was prepared by the Brain Injury Association of America (BIAA).
Protection and Advocacy for Veterans Act
Members of the Consortium for Citizens with Disabilities (CCD) Task Force on Veterans and Military Families submitted a letter of support last Friday to Representatives Martha Roby (R-Ala.), Dina Titus (D-Nev.), Timothy Walz (D-Minn.) and Lee Zeldin (R-N.Y.), sponsors of H.R. 5128, the "Protection and Advocacy for Veterans Act." H.R. 5128 would establish a pilot program within the Department of Veterans Affairs (VA) to ensure veterans receive proper support in the areas of mental health and substance use. As a member of the CCD Task Force, the Brain Injury Association of America (BIAA) signed the letter.
NIH Pediatric Concussion Workshop
On Oct. 13-14, 2016, the National Institutes of Health (NIH) is sponsoring a Pediatric Concussion Workshop to bring together experts in the field of pediatric concussion to present their most recent findings. The goals of this workshop are to: (1) identify gaps in knowledge about pediatric concussion, (2) identify high priority areas of research in pediatric concussion, and (3) identify populations and study designs that will prove most feasible for addressing knowledge gaps. The workshop will be held at the North Marriott Hotel & Conference Center, Bethesda, Maryland. Participating NIH institutes are the National Institute of Neurological Disorders and Stroke (NINDS); National Center for Medical Rehabilitation Research (NCMRR); National Institute of Child Health and Human Development, known as the Eunice Kennedy Shriver Center (NICHD); and the National Institute on Drug Abuse (NIDA). For details, click here
CDC Report on Guideline for Managing Mild TBI
The Board of Scientific Counselors (BSC), an advisory board to the Centers for Disease Control and Prevention (CDC), met last week and accepted the mild traumatic brain injury (mTBI) workgroup report prepared for Congress. The BSC recommended that CDC move forward with developing the mTBI guideline. More information on the public comment period for this guideline will be forthcoming as that process gets further underway. The TBI Act Reauthorization of 2014 directed the CDC, in consultation with the National Institutes of Health, to conduct a review of scientific evidence related to brain injury management in children and to submit a report to Congress in 2016. CDC's Injury Center is expecting to release the report around the annual Congressional Brain Injury Task Force Awareness Day in March. Click here to review the report.
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Important action alert from the Brain Injury Association of America concerning the Americans with Disability Act
The following alert has been issued by the Brain Injury Association of America concerning proposed amendments to the Americans with Disabilities Axt:
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Domestic Violence and Traumatic Brain Injury
Injuries from domestic violence can result in brain damage to 60% of domestic abuse victims according to research published in the journal Family and Community Health. You can read more by clicking here.
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Concussion a Good Opening Gambit
Shana and I attended an advance screening of the movie Concussion, with a group of sports writers and newscasters. Will Smith gave a compelling performance as Bennet Omalu, and his quest to determine and understand the cause of a specific type of brain damage, later named CTE, first discovered in the brain of former Pittsburgh Steeler, Mike Webster. This was Omalu’s movie and his story, based on the 2009 GQ exposé, Game Brain by Jeanne Marie Laskas. This was not a documentary.
The title for the film, “Concussion” is misleading. The film is not about concussions and the failure on the part of the league to inform players about the signs and symptoms of concussions, the need to refrain from returning to play before a player is healed, or the potential life-long consequences of a concussion. It is a film about the work of Bennet Omalu and his efforts to understand Chronic Traumatic Encephalopathy (CTE).
Importantly the film is based upon a true story, but is not a complete story. It is an excellent presentation of the path Omalu took and the painstaking investigation into the cause Mike Webster’s death. Omalu’s dogged pursuit of answers led to the discovery of the connection between football and brain damage and opened the door to further research. The movie indicated his conflict with the NFL in accepting this information, which the NFL still disputes.
This movie opens the door to a more important conversation, about trauma and brain damage that must continue. The cinematic decisions about the portrayals of different characters and the complete omission of any reference to the Concussion Legacy Foundation in Boston, the past and current role of Commissioner Goodell and the NFL marketing department in deflecting criticism were interesting choices made by the film’s writer and director.
It was a compelling introduction for the public to the health issues generated by trauma in football. This theme must be expanded. If this movie provokes a national conversation about the larger issues associated with all types of brain damage, from football, other sports and everyday accidents, then it has been a great public service. It would be misleading, if however, it leaves the impression that the problems have been remedied or that the only public health concern is CTE. This is the tip of the iceberg of the full-range of chronic life-altering effects of concussions.
Brain injury is a chronic condition with life-long consequences. According to the Centers for Disease Control (CDC), each year there are over 200,000 visits to emergency departments by children under the age of 19 suffering concussion related problems from organized sports. Omitted from these statistics are visits to urgent care facilities, physicians’ offices, and cases where concussion is not the principal diagnosis. The CDC estimates that the accurate number is between 1.6 million to 3.8 million sports related concussions documented each year! This is a true public health crisis. Labeling a condition does not address treatment issues and how we, as a society, address the impact of a chronic condition that has consequences for families and society.
We applaud the efforts of all those involved in making this important film, and hope it engenders continued investigation and research into not only prevention, but improved identification and treatment options that will assist this vulnerable population.
SHANA DE CARO, ESQ. is a member of the Board of Directors of the Brain Injury Association of America and immediate past chair of the American Association for Justice Traumatic Brain Injury Litigation Group.
MICHAEL V. KAPLEN, ESQ. is a Professorial Lecturer in Law teaching the only course in traumatic brain injury law at The George Washington University Law School, a member and immediate past chair of the New York State Traumatic Brain Injury Coordinating Council, three term president of the Brain Injury Association of New York State and a past chair of the American Association for Justice Traumatic Brain Injury Litigation Group.
DE CARO & KAPLEN, LLP is a New York based law firm with a focus on representing victims of traumatic brain injury throughout the nation. Shana and Michael are frequently invited to lecture attorneys and public advocacy groups nationwide on the legal issues pertaining to brain injury, public health concerns and the impact of brain injury on the lives of its victims.
Shana and Michael authored the New York Law Journal expert column on brain injury law and the chapter on brain injury law in the special issue of Psychiatric Clinics of North America.
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Roger Goodell Jokes About Concussions
A concussion is a brain injury. NFL Commissioner Roger Goodell should know better.
Concussions are no laughing matter. Read my sentiments in this New York Daily News Article.
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NFL influences Sony in Production of Concussion Movie
The NY Times reports this evening that they have discovered Wiki leaks showing how the NFL pressured Sony to alter their upcoming film, Concussion which documents the discovery of the link between professional football and the development of CTE. Rad the full article Sony Altered ‘Concussion’ Film to Deter N.F.L. Protests, Emails Show
Unless the NFL is placed under oath, the public will never know the truth, the whole truth and nothing but the truth about what the NFL knew and when they knew it.
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NFL Concussion Litigation: Brain Injury Association of America Files Amicus Brief With Third Circuit Court of Appeals
My partner, Shana De Caro and I are honored to have submitted an amicus brief on behalf of the Brain Injury Association of America (BIAA) to the United States Third Circuit Court of Appeals in the NFL concussion litigation explaining the science of Traumatic Brain Injury (TBI) and the misconceptions inherent and relied upon by the District Court in the settlement agreement.
We hope that the information and authorities we have provided will assist the Court in reexamining the settlement terms in proper context and set the agreement aside in the interest of all retired NFL football players who have sustained brain injury.
Founded in 1980, the Brain Injury Association of America (BIAA) is the oldest, largest, non-profit, nationwide brain injury, advocacy organization. As the leading advocate for all victims of brain injuries, BIAA has an interest in ensuring this settlement fairly considers all brain-injured players for whose benefit this action was commenced. BIAA seeks to provide the Court with unbiased, accurate information regarding consequences of traumatic brain injury and protect the integrity of traumatic brain injury scientific research.
From the amicus brief submitted on behalf of the Brain Injury Association of America:
“The settlement neither recognizes nor compensates the majority of players suffering long-term consequences of brain trauma, but merely rewards certain, small, discrete groups. The vast majority of retired football players experiencing physical, emotional, and behavioral impairments following repetitive concussions remain excluded and uncompensated under settlement terms. In the interest of expediency, the District Court relied on self-serving submissions of counsel, which unjustifiably categorized the vast majority of brain injuries as not being “serious” or unrelated to repetitive head trauma, ignoring the overwhelming scientific consensus regarding the causes and ramifications of traumatic brain injury.”
“The settlement, as approved by the District Court, is faulty in many respects, including but not limited to : 1- failure to consider subtle differences and distinctions of developing brain damage not immediately apparent; 2- omission of mild brain injury; 3- failure to compensate recognized physical, behavioral, emotional, and cognitive sequelae of concussion; 4- exclusion of well-recognized categories of presumptive brain injury; 5- failure to provide meaningful benefits for cognitive impairment; 6- arbitrary compensation distinctions based upon years of play and age; 7- implicit disregard of overwhelming medical evidence that one concussion can precipitate life-long consequences; 8- an illusory benefit failing to account for required Medicare and Medicaid lien offsets; 9- insurmountable neuropsychological testing criteria; 10- ignoring physical, emotional, and behavioral impairment undetectable by the settlement’s testing protocol; 11- overemphasis on malingering tests; and 12- failure to consider alternate testing modalities, such as diagnostic imaging.”
Shana De Caro, Esq. is a member of the Board of Directors of the Brain Injury Association of America and immediate past chair of the American Association for Justice, Traumatic Brain Injury Litigation Group. Michael V. Kaplen, Esq. is a Professorial Lecturer in Law at The George Washington University Law School teaching the only course on traumatic brain injury law in any US law school and past president of the Brain Injury Association of New York State.
Shana and Michael are partners in the New York personal injury law firm, De Caro & Kaplen, LLP
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CDC Updates on Traumatic Brain Injury
The Journal of Head Trauma Rehabilitation released a special issue highlighting work from CDC and CDC’s partners to prevent traumatic brain injury (TBI) and to help people better recognize, respond, and recover if a TBI occurs. These studies present a clearer picture of TBI in the United States and the progress in the field.
Some key findings include:
• Online Training Effectiveness: CDC and the National Federation of State High School Association’s concussion course online was effective in increasing concussion-related knowledge across a wide range of individuals.
• Sports and Recreation TBI: About 7% of all sports and recreation-related injuries treated in United States emergency departments were TBIs.
• Data Sources: New sources of TBI-related data on emergency department visits and hospitalizations will improve the ability to examine subpopulations most at risk for TBI.
• Unemployment: About 60% of people (ages 16 to 60) who were discharged from inpatient rehabilitation following a TBI between 2001 and 2010 were still unemployed two years after their injury.
• Motorcycle TBI death: Motorcycle crash patients with a TBI were 3 times more likely to die in the emergency department compared to those without a TBI.
You can review the special issue of the Journal by clicking here .
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Brain Injury Association of America files motion in federal court disputing the terms of NFL settlement
The Brain Injury Association of America (BIAA) filed a motion today in the United States District Court for the Eastern District of Pennsylvania seeking permission to appear as a friend of the court )amicus curiae to explain concerns it has with the proposed NFL brain injury settlement..
Similar to concerns raised by my partner, Shana De Caro who chairs the American Association for Justice, Traumatic Brain Injury Group and myself in our numerous op-ed pieces that have appeared on the Huffington Post and in the National Law Journal, the Brain Injury Association believes that the settlement unfairly discriminates among different groups of players and fails to provide any compensation to the majority of NFL players who sustained life altering traumatic brain injuries as a result of playing professional football.
Following are some of the areas of concern noted in the affidavit filed in support of the motion to intervene:
•The settlement excludes numerous physical and behavioral consequences of brain injury from the list of qualifying diagnoses for treatment and compensation. A concussion results in a wide range of neurological, physical, cognitive, and neuropsychological impairments that can appear immediately or many years after injury, requiring specialized treatment on an ongoing or intermittent basis.
•The approach to diagnosing impairment is “deeply flawed” and will exclude many former players from receiving compensation. The determination of eligibility is heavily weighted towards those with severe memory dysfunction and/or evidence of neuromuscular abnormality. If a player has impairment in language or visual function, but not in executive function, learning or memory, he will not qualify.
•The downward adjustment of compensation based on the number of seasons played, the age of the player at the time of diagnosis, and incidence of stroke or traumatic brain injury (TBI) prior to being admitted to the class, demonstrates a serious lack of understanding of concussion and mild TBI. A single concussion, whether diagnosed or not, can result in debilitating physical, cognitive, and behavioral impairments that interfere with the activities of daily living and require a lifetime of treatment. Therefore, the nature and extent of the impairment – not the number of seasons played – should be the determining factor in any monetary award.
•The limitation of pharmacy vendors to mail order pharmacies. Some medications require distribution that controls for temperature, light, vibration, and other conditions and cannot be reliably distributed by mail order. In addition, use of mail order prevents a physician from making quick and immediate medication changes.
•The BAP Supplemental Benefits program fails to recognize the full extent of the treatment team that may be required. The standard of care for patients with TBI dictates that rehabilitation and other medical treatment plans are developed and carried out by a multi-disciplinary team of licensed, credentialed clinicians working in specialized settings and accredited programs. These include endocrinology, physical medicine, ophthalmology, neuro-optometry, otolaryngology, psychiatry, physical therapy, occupational therapy, speech/language therapy, and neurobehavioral therapy, among others.
Copies of the motion and affidavit filed by BIAA can be obtained on their website.