Litigation Trends or “What Was Your Favorite Superbowl Commercial?”

Anyone who watched this year’s exciting Super Bowl may have noticed a commercial for the Pop Warner Youth Football organization. The commercial featured actor Alec Baldwin and focused on the organization’s concussion safety initiative. If we needed confirmation that concussions in general, and brain injuries specifically, have permeated the public consciousness, that ultra-primetime commercial provided it. The NFL’s reported one billion dollar settlement of player brain injury claims, being administered locally by the U. S. District Court in Philadelphia, and the recent release of the film, “Concussion,” further helped to raise awareness of this issue. 

We are now starting to see these issues increasingly work their way into litigation, affecting litigation costs and exposure for businesses nationwide. Whether it’s a work-injury blowing up an employer’s experience modification rating with its worker’s compensation insurer, resulting in a significant jump in premiums, or a third-party claim exposing a business to liability and tying up valuable resources in litigation, these claims can have serious consequences for business operations and a significant impact on the bottom line.

Historically, claims of traumatic brain injuries were typically seen arising from injuries involving open head wounds, skull fractures or penetrations. An increasing trend in litigation now brings claims of traumatic brain injury, mild or otherwise, in claims where there has been some traumatic bodily impact, but no actual head wound or damage to the skull. The medical literature refers to coup and contre-coup injuries, where acceleration/deceleration forces cause the brain to impact the bony surfaces of the interior of the skull and shearing forces stretch the connective tissues attached to the brain. Thus, in situations where there has been no actual blow to the head, the claim may nevertheless arise if there has been rapid shaking or jarring of the head as a result of an impact. Virtually any injury involving some type of impact (an injury at work, a fall on commercial premises, or an auto accident) could potentially lead to such a claim. 

This class of claims can present some significant challenges for the parties defending them. The claims are largely subjective in nature, with little in the way of objective testing available to confirm or refute them. Defending the claims can be extremely expensive, as they generally necessitate the retention of specialized experts in fields like neurology, neuropsychology, psychology and biomechanics. The claimed damages for alleged long-term effects can quickly escalate, pushing up exposure in each case. Those effects can include impaired cognitive functioning, memory loss, depression and behavioral issues (including mood and anxiety disorders). All of these are subjective in nature, but all are potentially catastrophic if accepted by a jury. Economic claims arising from those claimed symptoms can mount to include future care cost projections and impairment of earning capacity.

With the ubiquitous public dialogue on long-term effects from head injuries, juries are more likely to be receptive to these claims than in the past. The increase in the frequency and severity of these claims presents a significant risk to businesses. The fact that they can be claimed from any impact, no matter how minor, has to be considered when managing risks. Businesses need to consider pro-active approaches to risk mitigation and risk management with this growing class of potential claims in mind. It is important to implement strategies early in the life of such claims to minimize or negate exposure, as these claims get worse, not better, over time.