Federal appeals court seems to accept evidence of CTE in living patients

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One of the most widely-accepted realities of Chronic Traumatic Encephelopathy has been undermined by one of the highest courts in the United States.

The U.S. Court of Appeals for the Fourth Circuit, one of various appellate courts that sit one step below the Supreme Court, has ruled in a case involving former NFL linebacker Jesse Solomon that the joint NFL-NFL Players Association Disability Plan abused its discretion in denying Solomon’s claim for disability benefits. In so doing, the court seemed to accept the notion that Solomon, who was involved in 69,000 high-speed collisions while playing football, has “CTE-related disability” and “CTE injuries.”

While hardly a medical finding that CTE can indeed be diagnosed without examining the brain tissue of a deceased patient, the court’s 13-page ruling seems to accept as a given the notion that CTE can be diagnosed based on a combination of MRIs and an assessment of symptoms.

It’s possible that those observations slipped in to the final written decision because the lawyers representing the Plan didn’t sufficiently focus on that point in written materials or while arguing the case in the courtroom. As to the former, it’s possible the lawyers regarded the inability to firmly diagnose CTE in living patients as a given. As to the latter, and based on a press release issued by Solomon’s lawyers, it’s possible the lawyers were too busy taking flak from judges to quibble with medical and scientific niceties.

“Why is the Plan fighting him so incredibly hard?” Judge Dennis Shedd said. “And when he makes the claim through your own doctor that he’s got a problem? . . .  Why in the world would you – I guess current players don’t want money to come out for past players, or something? . . . Why in the world would any player playing professional football . . . look at this and go, ‘This is one heck of a great deal for players.’ We play as hard as we can, give everything we got, get banged up — I saw something in the record [about] 69,000 tackles, that’s incredible.  We do all we can, and then we apply and when doctors say I have a problem based on those hits, and they say, ‘You’re not orthopedically disabled, go away.’ . . .

“[S]omebody ought to scratch their head and say, Does this really look good?  We don’t have much of a legal argument, but we’re willing to fight it to the death to deny somebody . . . Does that make sense to you? . . . Do you think that looks good to players, what’s going on in this courtroom today?  It’s not necessarily part of the determination, I’m just asking a real-world question.”

The real-world outcome is that Solomon will receive disability benefits, because the panel unanimously concluded that the Plan “relied on no evidence at all” in rejecting Solomon’s claim. It’s a stunning observation given the supposed sensitivity to brain injuries. Perhaps more importantly, the ease with which the judges seemed to agree that Solomon proved that he has CTE while still alive raises renewed questions about whether the massive concussion settlement should have allowed players to secure benefits if they can sufficiently prove that they suffer from CTE.

17 responses to “Federal appeals court seems to accept evidence of CTE in living patients

  1. Ugh a long series of dependent clauses strung together with a lot of mushy syntax. Is that a lawyer thing? My sister can’t write for s*** either. I should have been compensated for proofing and rewriting the bulk of her law school assignments.

    For those of you that aren’t patient enough to wade through this morass of word sludge, the point is that a major court decision seems to establish that CTE can be diagnosed well enough in living people to award them benefits. Precedent set, future interesting.

  2. 69,000 collisions or tackles in a career is unrealistic. Where did his attorneys come up with that number?

  3. Football = likelihood of some brain trauma.

    This aint rocket science. Anyone with a pulse knows it.

    Players shouldn’t sue, they know it too.

    NFL owners morons to cover up.

    Sign a waiver, get paycheck, go play. Simple.

    Also, fire Krapft, he’s the liar responsible.

  4. I was in the military for 13 yrs and had a concussion, i broke my cheek bone and eyesocket in training and was radiated by the neclear reactor in japan helping with the clean up. I have constant back and knee pain and dont recieve a dime from them because they say I fine. I joined the Marine Corp to serve my country and I knew I might end up hurt or even dead but that was the choice I made. If you expect me to believe these spoiled athletes who made good money didn’t know what could happen playing football I don’t buy it. They don’t deserve a penny and I have not pity for them just like I don’t have pity for myself. I wear my injuries as a badge of honor as should they.

  5. Just looking at the judge’s comments it appears they did little listening beyond the “you played football and you are disabled so therefor you deserve more money” mindset they may have had before the case was opened.

    As with many insurance issues I have seen reported, it seems like one side tries to prove that x should be covered and the other side tries to prove that x is not covered but neither side does their job conclusively. The judge(s) then pick which side they want to win and then say the other side didn’t prove their case (while conveniently ignoring the fact that the other side didn’t either). Granted, that perception could be due to the way the reports were presented but it seems murky regardless.

    Legal precedent should be established via valid legal argument, not the whim of a judge’s feelings

  6. An unreported aspect of why the NFL Plan fought it is that to claim the higher rate for degenerative disorders the claimant has to file within 15yrs of playing, and his (NFL retirement appointed doc) didn’t highlight likelihood of CTE until 2010/11 – i.e. in the 16th year following the end of his playing days. However, that’s really on the retirement-plan’s docs because he clearly had some brain-scan abnormality in 2005 and had to stop working at all in 2007. So the NFL was basically using the difficulty, and time taken by it’s own scheme, to define a degenerative issue as a means of avoiding the claim. Nice. But you can be sure the honest doctor won’t be employed on Fraudger’s retirement plan much longer.

  7. u4iadman says:
    Jun 23, 2017 5:03 PM

    Also, fire Krapft, he’s the liar responsible.

    ———————-
    Kraft is not an NFL employee. He owns the Patriots.

  8. So many fans say “people know the risks of playing football,” which isn’t entirely accurate. Yes, it’s reasonable to think that head trauma will cause issues, but the actual risks and medical consequences have recently been discovered. CTE was not known until recently and any attempts by the NFL to cover up or down play discoveries like this should be met with lawsuits. The amount of money players make is irrelevant. An employer cannot be allowed to maliciously do things like this for its own gain.

  9. I have yet to hear any judge get real..

    “I see here your lawyer estimates you were involved in 69,000 tackles. How many lines of coke do you estimate you consumed during your career?”

  10. realoldguy says:
    Jun 23, 2017 4:54 PM
    69,000 collisions or tackles in a career is unrealistic. Where did his attorneys come up with that number?
    ************************************************
    If you figure 12 games in high school, that probably means 60 practices/games (4 days a week practicing, plus the game) (he only played his junior year in HS). Same basic math for college, 12 games equate to approx. 60 sessions, times 4 years. Then in the pros, 4 weeks/year of training camp (when they were still hitting all the time), 4 preseason games and 16 regular season games – it comes out to basically 25-ish collisions per session (game or practice). Not completely unrealistic, but I agree that it is probably a bit high.

  11. realoldguy says:
    Jun 23, 2017 4:54 PM
    69,000 collisions or tackles in a career is unrealistic. Where did his attorneys come up with that number?
    ————————
    As a DE, most plays would involve a move and a hit into (or by) a big guy (I know, as this was my position as a teen and it’s a tough one). He could easily have amassed nearly 1000 hits/year just in 16 game times alone = say 8,000. Then there’s all the daily practices and impact training and preseason etc) which could easily take that north of 50,000. My playing days as DE ended in a very nasty practice session accident. Practice can be tough – at least back then it was.

  12. u4iadman says:
    Jun 23, 2017 5:03 PM
    Football = likelihood of some brain trauma.

    This aint rocket science. Anyone with a pulse knows it.

    Players shouldn’t sue, they know it too.

    NFL owners morons to cover up.

    Sign a waiver, get paycheck, go play. Simple.

    Also, fire Krapft, he’s the liar responsible.
    ———————————————-

    Somewhere there is probably a judge that could be convinced by that post there is now evidence of CTE in living trolls.

  13. ^ps to my above calculation – you have to remember that plays could easily involve more than one hit/collision – each individual impact counts. Bigbeefyd’s estimate of 25 is far too low. Say 60 plays a game, in which he was present for 50, and his collisions could be zero, 1, 2, or posibly more per play. Even taking just 1/play x 50 plays x 16 games = 800/yr easily just in game time alone. Then there’s any playoffs, preasons. Then of course all the practices. 50,000+ in an 8yr career is easily achieved.

  14. Why isn’t everyone as concerned about construction workers wearing out their backs or office workers damaging their hands or eyes?

  15. There are several important factors here. Guys played football in middle school, junior high, high school, and college. How do you sort out where the brain injuries come from?

    And what about players who lie about their concussion symptoms so they can stay in the game? Do we ever hear about players who reported their undiscovered symptoms?

    The players have to know about concussions. They get paid enough to go to their own doctors. It’s like people smoking now, getting lung cancer, and then suing the tobacco companies.

  16. “Why isn’t everyone as concerned about construction workers wearing out their backs or office workers damaging their hands or eyes?”

    Answer: When their average life span becomes 52 and they start DYING from these injuries to their hands and backs we will show the same level of concern.

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