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Indy attorney represents 2 in NFL brain-injury cases

February 24, 2016
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Attorney Dan Chamberlain displays a model of the human brain. He says the NFL's handling of concussion and brain-injury issues prompted him to give up Indianapolis Colts season tickets. (IL Photo/Dave Stafford)

Attorney Dan Chamberlain is betting on a couple of ex-players with tarnished pasts in lawsuits that contend the National Football League failed to adequately compensate retired players who suffer traumatic brain injuries. He also says the NFL’s nearly $1 billion concussion settlement excludes current players who may not know for years whether hits on the field caused lifelong neurological impairment.

“Seventy-two percent of the class so far gets nothing,” Chamberlain said of the key weakness he sees in the NFL settlement. Lawyers for players who challenge the settlement make similar claims in a federal appeal.

“The NFL sees this as a media disaster,” Chamberlain said. “They want this to go away in the worst possible way. … The NFL pulled the trigger really quick to get (the settlement) done.” Plaintiffs’ lawyers, he said, “did not do any discovery, they did not do any depositions, and there was no real exchange of any fundamental documentation” to learn what the league knew about brain injury dangers and when.

Chamberlain, a Cohen & Malad P.C. partner and past chairman of the Brain Injury Association of America, is representing troubled one-time Indianapolis Colts quarterback Art Schlichter and the estate of former running back Lawrence Phillips. Schlichter is in federal prison; Phillips, 40, was found dead last month in a California prison, his death ruled suicide. Both were college legends but first-round NFL draft pick busts whose off-field activities resulted in multiple felony convictions.

Schlichter, 55, has Parkinson’s disease. He receives assistance from the NFL, but Chamberlain argues he should be credited for an additional active year for a season he was suspended in order to earn 100 percent of the possible benefit. Chamberlain suspects Phillips may have had chronic traumatic encephalopathy from repeated brain injury, a diagnosis that can be confirmed only after death. He said the analysis of Phillips’ brain should be completed in about six months.

Chamberlain makes no excuses for the conduct of Phillips and Schlichter that put them behind bars, but he believes they deserve representation to gain benefits that otherwise would be picked up by taxpayers.

Kathleen DeLaney represents the Bert Bell/Pete Rozelle NFL Player Retirement Plan in the Schlichter case and did not return messages seeking comment. In a court reply to the complaint, she wrote that as a result of his suspension, Schlichter “was obligated not to perform football playing services during the 1983 season, and he is not entitled to a ‘credited season’ for that year” to receive full benefits.

NFL on trial

America’s most popular sport says it’s been proactive in dealing with concussions and CTE, issues highlighted in the 2015 Will Smith movie “Concussion,” and the suicides of retired greats such as Dave Duerson and Junior Seau. Those players and others who lived with the effects of CTE killed themselves in ways that comported with their wishes to preserve their brains for confirming diagnoses.

The NFL through a spokesperson said the league instituted 39 rule changes to protect player health in the last decade, established a concussion protocol, and supports former players with resources tailored to promote their well-being. Various benefits cover dementia, amyotrophic lateral sclerosis, and Parkinson’s disease without respect to cause, and in 2011, the league instituted a neurocognitive benefit plan for retired players. Youth football programs the NFL supports, such as USA Football, have developed the Heads Up Football program that emphasizes education and training on proper tackling and blocking techniques and concussion recognition and response, among other things.

The nearly $1 billion concussion settlement aims to compensate former players who suffer lifelong brain injury. In general, the settlement awards up to $5 million for an ALS diagnosis, $4 million for CTE, $3.5 million for Parkinson’s or Alzheimer’s disease, and lesser amounts for early or moderate dementia. Those with less than five years on active rosters are eligible for prorated amounts corresponding to the number of years for which they’re credited.

But the settlement is far from settled. The 3rd Circuit Court of Appeals heard arguments in November from a minority of the class who opposes it, largely on grounds that it treats current and future players unfairly and makes little provision for evolving science that may lead to improved diagnoses and treatment. The case is In Re: National Football League players concussion injury litigation, Nos. 15-2206, et al.

“You can die with CTE a day before final settlement approval and be awarded up to $4 million, and die one day after and get nothing,” lawyer Steven Molo argued in November to the Philadelphia panel. “The question is, what do you do for these future claimants?”

Judges noted the settlement contains negotiable elements that ultimately can be resolved in individual cases in court if need be, but plaintiffs’ lawyers argued the settlement leaves too much discretion to the NFL. But Circuit Judge Thomas Ambro pointed out the settlement was widely embraced by the class it represents and was an agreement few thought could be reached. Lawyers for the NFL said the settlement will provide players for the first time with baseline diagnoses and continuing neurological monitoring. Those not covered under the deal are players and retirees who have no diagnosis of brain injury.

“It’s not a settlement that purports to treat every underlying manifestation of a life spent playing football,” attorney Samuel Issacharoff argued to the 3rd Circuit. “It’s largely an insurance policy for every single class member that says, if you should be befallen by one of these conditions, your lives will be materially improved and you will get the assistance needed. … If you don’t get them, all the better.”

NFL lawyer Paul Clement argued the settlement is fair, reasonable and more than adequate. He said the class gets good value compared to individually litigating claims. “Proving causation in a case like this would be an absolute nightmare for the class, and they know it.”

What’s known, what isn’t

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Notre Dame Law School sports law professor Ed Edmonds said the concussion case gets at fundamental questions about football. “One thing that’s fascinated me all the years I’ve studied this is, the number of former NFL players is a fairly specific number – it’s not a huge number of people – yet we don’t have much in the way of longitudinal study of the long-term impact on their health,” he said.

Edmonds said the disparate treatment of current players and retirees is concerning, and he thinks the league could be doing more. “I’d love to see more money for therapy and to help families trying to cope with the side effects of playing the game – the loss of memory, the mood swings. … You hear family stories saying this isn’t the person we knew for long periods of time, I’m just not sure that we yet are really targeting everything in the right directions.”

Even with the focus on brain injury, Edmonds doubts there will be a tremendous decline in young people playing football. “The lure of the game is just enormous. It’s just part of the culture, both good and bad at that level, because we lionize athletic ability in this culture from the time a child is very small. It’s very seductive.”

In his youth, Chamberlain learned about brain injury when he spent summers working in a nursing home operated by an uncle who was a minister in the Cincinnati area. The home was a leader in treating people with brain injuries, he said, involving people in activities and developing compensatory strategies for daily living. That experience put him on a path to becoming a sought-after lawyer for these kinds of cases and an expert who speaks to groups of attorneys around the country on brain injury, stressing lawyers taking these cases must understand the science.

Chamberlain said lessons learned at the nursing home still guide him. “Brain injury is a chronic, lifelong, ongoing disease process. It never gets better and it gets worse over time,” he said. “The worst thing you can do is, A., not recognize there’s a problem; B., not try to help; and C., not try to get people back to their families and back into society.”•

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