Head Injuries and Sports: Emerging Claims Issues

By Kathryn Thomas

(Education Content Featured at March 2013 Membership Meeting)  

 

Joe McCullough (Freeborn & Peters) moderated a lively panel that discussed the emerging insurance and reinsurance issues arising altout of the highly-publicized NFL and NCAA repetitive stress head injury lawsuits.  The introduction highlighted the facts that youth head injury cases have grown in prevalence since 2011 and that the pool of potential claimants is significant.  An estimated 1.2 million children play high school football each year and an additional estimated 3.6 million children participate in organized football below the high school level.  When other high-impact sports, such as soccer, rugby and hockey are included, the number of potential claimants nearly doubles.

altKathryn Thomas (Freeborn & Peters) began the panel discussion by providing background information on the medical science underlying the repetitive stress head injury lawsuits.  Chronic Traumatic Encephalopathy, CTE, is a degenerative brain disease in athletes with a history of repetitive head trauma.  Researchers have opined that CTE develops when an athlete experiences repeated head trauma because the impact of the brain against the inside of the skull causes tau, a naturally occurring protein in the brain, to become dislodged.  In the brain, tau serves the function of holding microtubules, hollow rods that serve as conduits between the brain cells, together.  The displaced tau eventually becomes insurgent, killing more and more of the brain’s cells.  Currently, CTE can only be diagnosed post mortem by autopsying the brain and studying the tau distribution.  However, the medical science in this area is developing very quickly.  In January 2013, UCLA conducted a pilot study on five former football players’ live brains, showing that tau could be imaged through live brain scans.  Although the UCLA study has been criticized, if the study of living brains continues to develop, researchers hope to be able to intervene in the degenerative process.  Ms. Thomas also provided a summary of the ongoing NFL and NCAA class action lawsuits as well as a summary of the five declaratory judgment actions arising out of those cases.

With this background in mind, Mr. McCullough provided the audience with a hypothetical to illustrate insurers’ difficult choices in repetitive head trauma cases.  Through a role playing exercise, the panel demonstrated the potential defenses and different approaches an insurer can take. 

altMichael Fitzgerald (Inpoint and AIRROC Board member) played the role of a run-off company claims handler whose employer acquired an insurer which issued CGL policies to NCAA universities in the 1980s.  Mr. Fitzgerald received a lawsuit brought by the family of a deceased NFL player who played for the college from 1985 through 1989 and was diagnosed with CTE after his death.  Katheleen Ehrhart (Freeborn & Peters) played the role of Mr. Fitzgerald’s outside counsel and advised her client on various coverage defenses including the intentional acts exclusion, the definition of occurrence as an accident and known loss/assumption of the risk.  

Rod Perry (Head of U.S. Global Operations, AXA Liability Managers) played the role of a reinsurance adjuster whose company reinsured the risk from 1987 through 1989, while an insolvent reinsurer was responsible for 1985 through 1986.  Robin Dusek (Freeborn & Peters) played the role of outside reinsurance counsel and advised her client on various issues including allocation.  There was lively interaction among the panel members when Mr. Fitzgerald settled the lawsuit for $10 Million and allocated the loss to the years that Mr. Perry’s company reinsured. 

Bottom line:  as repetitive stress head injury claims and lawsuits become more prevalent, insurers and reinsurers, along with theiralt counsel, must be educated on the developing science, potential defenses and insurance and reinsurance coverage and allocation issues in order to intelligently manage their exposure. 

Kathryn C. Thomas is a Parter at Freeborn & Peters. kthomas@freeborn.com