Can Concussion Litigation Make the Leap to Products Liability?

Types : In the News

Sports-related concussion litigation has been expanding across the country, with everything from the NFL and colleges to high schools and youth sports programs becoming defendants. But, even as the number of cases continues to climb, some see hurdles if attorneys want to push concussion litigation beyond basic negligence claims.

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Montgomery McCracken Walker & Rhoads attorney Steven Pachman, who focuses on defending concussion lawsuits, said that the majority of concussion cases involve failure to warn claims.

“There really haven’t been too many cases that I’ve seen in the product liability context, or certainly successful ones in the concussion arena,” he said. “It’s pretty well-known now, through how publicized the concussion issue is, that helmets cannot prevent concussions.”

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“I don’t see it as a primary liability theory, but I certainly see it as being part of the many factors,” he said. ”There is a constellation of additional ancillary issues and avenues of investigation.”

Pachman said that, although he does not foresee products liability becoming the focus of concussion litigation, the types of concussion-related claims being brought is still expanding.

A decade ago, he said, not all schools had policies and protocols in place dealing with concussion. However, as the science around concussion detection improves and the public’s awareness of the issue grows, the protocols are becoming more complex and schools are increasingly needing to update those policies to stay on top of the latest understanding of the injury. He noted that in 2010, most college sports teams only needed to have a concussion management plan on file, but seven years later those same schools are now required to submit new protocols each year to specialized safety committees and to do baseline neurocognitive testing on the athletes.

Whereas cases used to focus on a school’s failure to have a policy in place, Pachman said, claims are now beginning to focus on whether the policy was properly followed, or if it is up to date.

“I see lawsuits continuing for some time to come largely because of the detailed requirements on schools and trainers that just weren’t there a few years ago,” Pachman said.

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