No easy answers in concussion suit - The Buffalo News
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No easy answers in concussion suit

The news that retired NFL players were suing the league because of concussions sent NHL bosses scrambling. If this was happening in football, it could happen in hockey.

“As an owner, the NFL lawsuits could put us at risk,” Montreal owner Geoff Molson wrote in an email to Commissioner Gary Bettman. “Although we are making good progress, I don’t think it’s enough until any head hit is made illegal. I hope we get there soon!”

Bettman was unconcerned in his August 2011 reply.

“As you know, I understand and respect your view,” the commissioner wrote. “However, for a variety of reasons, I do not believe that we are in the same situation as football and I do not believe the lawsuits should ‘put us at risk.’ Among other things, we have been the leaders in the area of concussions and have set the standard on diagnosis, treatment and rule changes at the professional level.”

“Good to hear we are unlikely at risk,” Molson wrote. “That is (was) my biggest fear.”

It turned out Molson had reason to be fearful. The NHL is indeed part of a concussion lawsuit, brought by 104 former players who claim the league was negligent in its care and fraudulently concealed the long-term risks of head injuries. They are seeking medical monitoring and compensatory damages.

Despite the ongoing legal battle and possible forfeiture of hundreds of millions of dollars, Bettman remains unconcerned. He says the lawsuit is without merit.

“I think it’s fairly clear that playing hockey isn’t the same as playing football,” Bettman said in March. “And as we’ve said all along, we’re not going to get into a public debate on this.”

He is seemingly determined to get into a courtroom debate. While the NFL settled its case after two years for $765 million, the NHL is two years in and shows no signs of making a deal.

“The NHL decision-makers are taking a tougher line and are not entering into negotiations to resolve the case as quickly or with the same intended desires to resolve the case as the NFL did,” said attorney Charles “Bucky” Zimmerman, who represents the hockey and football plaintiffs. “There’s no end in sight.”

The players’ primary allegation is the NHL knew or should have known that brain trauma leads to long-term neurological problems but never warned them. There is evidence to back them.

In 1928, Harrison Martland, a pathologist and medical examiner, coined the term “punch drunk” when he published a study about boxers. He noted that subconcussive impacts could lead to slowed movement, tremors, confusion and speech problems. Follow-up studies conducted during the next 50 years found further evidence of a connection. Lawyers for the plaintiffs believe the NHL and its affiliated doctors should have been aware of the results.

Although hockey is different than boxing, it involves bare-knuckle fighting and repetitive blows to the head. The league has long embraced and glorified that physicality, especially with Philadelphia’s “Broad Street Bullies” during the 1970s.

The plaintiffs say playing in that culture led to their present-day problems. Their maladies range from headaches to memory loss to Parkinson’s disease, and they worry about dementia and chronic traumatic encephalopathy. CTE is the successor to punch-drunk syndrome, and it was found in late Buffalo Sabres defenseman Steve Montador. He suffered 15 documented concussions and died at age 35.

“The NHL continues to ignore the lasting problems caused by multiple head traumas suffered by its players,” said Montador’s father, Paul, who joined the lawsuit on behalf of his son. “Tragedies like that of my son Steven will continue until the problem is addressed. The NHL knows but denies that years of repeated head injuries cause long-term brain problems.”

The league is adamant that evidence does not exist linking head trauma to degenerative brain disease. While the two have a clear anecdotal connection, specifically shown through studies by the CTE Center in Boston, Bettman has a point scientifically.

“Based upon postmortem examinations in a case series of deceased NFL and NHL players, there’s certainly enough suspicion to warrant future study, and that’s what’s happening now,” said Dr. John J. Leddy, a clinical professor and concussion specialist at the University at Buffalo. “But there is no scientifically established causal link between playing football in the past or hockey or repetitive head injuries and CTE right now.

“There’s a lot more we don’t know about concussions or repetitive injury and CTE than we do know. I think the current publicity about CTE is good in a way that it’s raised awareness, and it’s an issue that merits further study. But the answers as to whether repetitive contact in sports causes CTE is not known right now. It has not been established in a proper scientific series of studies. I think in 10 years we may have the answer, but it’s going to take awhile.”

Leddy, whose myriad research projects have included a small grant from the Buffalo Sabres Foundation, also casts doubt on whether the NHL should have known about concussions during the 1970s, ’80s and ’90s, as the players allege.

“People routinely went back to play in the same game after a concussion,” Leddy said of all sports at that time. “That was the standard of care back then. In my opinion, you can’t hold anybody responsible for following the standard of care at the time they were involved in the sport.

“Nobody knew that concussions were potentially serious in 1976, and probably not for the remainder of the ’80s and part of the ’90s. It was thought to be a temporary and mild disruption of brain function that you recovered from and you could get back in there. They called it a ‘bell ringer,’ a ‘ding.’ They didn’t even call it a concussion. Not even neurologists thought they were any kind of a significant injury back then. Doctors didn’t. Scientists didn’t, and that just was the level of knowledge at that time.”

A haphazard approach

In addition to the medical debate about concussions, there is a legal dispute regarding the NHL’s seriousness in dealing with head trauma. Once again, points can be made by both sides.

In 1997, the league created an injury analysis panel. The group worked with trainers from every team to compile data about the circumstances and severity of injuries. It used the information to create injury-prevention strategies. Its biggest success was showing that seamless glass – the hard, unforgiving boards that teams installed to improve fans’ sightlines – was causing major physical damage. The NHL responded and forced clubs to use more flexible acrylic shielding.

But the league discontinued the panel prior to the 2005-06 season, partly because of concerns by the NHL Players’ Association. The union worried the injury data, which included players’ names, could be used negatively in contract or personnel decisions. (The NHLPA, which is not named in the lawsuit, declined to comment regarding the ongoing litigation.)

A primary data collector for the group was Calgary-based orthopedic physiotherapist Terry Kane. During his time on the panel, he felt the NHL had a sincere interest in player safety. Looking back, he’s not as certain.

“It’s hard to believe that getting rid of a panel like the injury analysis panel actually improves player safety,” Kane said by phone. “Getting rid of programs, cosmetically and optically it actually looks like you’re doing the opposite. The commitment wasn’t as earnest as we would have liked to have thought.

“There was never any open discussion about the long-term consequences of a concussion because I think at that time they were more focused narrowly on this data issue. The problem became they never issued the merging of the data.”

After the NHL disbanded the panel, it formed a concussion study group to analyze the data collected by Kane and others. It failed to publish a report and ceased in 2007.

Why didn’t the group accomplish its goals? The league wasn’t paying the researchers, according to Julie Grand, the NHL’s deputy general counsel and a member of the concussion group.

“Since we don’t pay the people we are asking to do the analysis,” Grand emailed Bettman, “it’s really not surprising that they have not dedicated the necessary time to completing the analysis.”

“Should we have been paying for something this important?” Bettman replied during the June 2007 exchange.

“The ‘study’ has been dragging a bit for years,” Grand wrote in response. “There has not been great leadership on it. Is it important? Obviously the topic of concussions is important but it’s been a big unknown whether the study/collection of data will reveal anything relevant, interesting or useful.”

Finally, in 2011, a revised concussion group issued a report. The document suggested more precautionary measures should be taken during the immediate post-concussion period, particularly when an athlete displays symptoms or has an abnormal neurological exam.

Meanwhile, during the years spanning the data collection and report, there were hundreds of concussions. NHL teams handled them poorly.

“Of the 86 regular season concussions this season, in 31 the player continued playing or returned to play same game,” Grand wrote to Bettman, Deputy Commissioner Bill Daly and a doctor in March 2011, one month before the league’s study was published. “In 13/31 the player had visible signs of potential concussion (wobbly, holding head, etc.).

“While our current protocol allows for same game return to play, it says it should be ‘uncommon’ and only if the player has complete resolution of and is neurocognitively normal as determined from a SCAT2 type assessment. Same game” return to play “in 30% seems like more than ‘uncommon’ circumstances.”

Owners concerned

The NHL and its owners will be united during the lawsuit, but there has long been an internal debate about the league’s sincerity regarding head shots. Former Sabres owner B. Thomas Golisano went public with his concerns in February 2007 after Ottawa forward Chris Neil dropped Buffalo co-captain Chris Drury with a high hit but failed to receive supplemental discipline.

“I am deeply concerned with the standard the NHL has adopted that seems to allow violent hits to the head,” Golisano wrote to Bettman. “I am calling on you to address this issue immediately before another player is seriously injured or worse.”

The NHL introduced Rule 48 to penalize targeted, blindside head shots in 2010, and the league amended it one year later to include all intentional head shots. However, the NHL’s inconsistent application of the rule has led to more conversations.

“As I have tried to get across, ANY hit to the head MUST be a Major penalty and result in a suspension,” Nashville Predators Chairman Tom Cigarran wrote to Bettman in October 2011. “We would be the last league to take this position so this is not a RADICAL concept. The cost of our delay is huge in financial terms and in terms of damage to player careers as well.”

The damage to players was indeed mounting, especially to enforcers. Fighters Bob Probert, age 45, Derek Boogaard, 28, Rick Rypien, 27, Wade Belak, 35, and Todd Ewen, 49, died or committed suicide. All suffered concussions and repeated head trauma. Probert and Boogaard were found to have CTE, while Ewen did not.

The players suing the NHL are worried about joining that haunting list. They want medical monitoring to help prevent it. Even if they win the lawsuit, it could take awhile.

The next major decision in the case, being heard in U.S. District Court in Minnesota, is a motion for class certification in September. Attorneys are in the discovery phase of the lawsuit, which is how the previously confidential emails became public. Many league memos have put NHL personnel in an embarrassing light.

“It’s going to get more interesting because each day we learn more,” Zimmerman said. “We’ve taken depositions of the owners. We’ve taken depositions of the general managers. We’ve looked at millions of pages of notes and documents and minutes of meetings, so from the filing of the complaint to today, we’ve just learned a lot more.”

Class-action lawsuits typically take two to three years, so it could be another 12 months before the NHL case is over. The 104 former players who are part of it hope it doesn’t take that long.

“I certainly don’t want it to be one of these ugly affairs,” said retired Sabres defenseman Grant Ledyard, who has sat through collective bargaining talks with the NHL. “I’ve always been a common-sense guy and trusting and loyal, and I’m trusting of both sides of this. I’ve always trusted the NHL to do the best of their abilities.

“I think it can be handled in a respectful manner from both sides.”

Next: Concussed Sabres have felt the pain and know the long-term risks, but the game keeps calling them back.

email: jvogl@buffnews.com

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