After Eveland Cripple Settlement in California, Dougherty Wrongful-Death Case in New Jersey Tackles High School Football and ImPACT

In a better world, the news media would show a hundredth as much interest in the killing and maiming of kid athletes as they do in whether the New Orleans Saints can still compete for next year’s Super Bowl despite the suspension of their bounty-busted coach, Sean Payton.

Alas, Scott Eveland, the Southern California teenager who was paralyzed for life four years ago – leading to a recent $4.4 million settlement between his family and the San Marcos Unified School District – isn’t on anyone’s fantasy team. The only place Eveland belongs is in the dystopian literary vision of The Hunger Games.

So let’s move the courtroom chains from disability to death, and let’s take the parameters beyond pedestrian ambiguities in medical advice and administrative oversight. The next frontier of football litigation involves specific issues surrounding the ImPACT “concussion management system.”

Call it legal fig leafs and their discontents.

One of the upcoming cases is that of Ryne Dougherty in New Jersey. In September 2008 Dougherty, a linebacker for Montclair High School, suffered concussions in back-to-back games, yet was cleared to return to play. The next month, another hit caused a fatal brain hemorrhage. He was 17. In 2009 the Dougherty family sued both their son’s personal physician and the Montclair school district in state Superior Court. That lawsuit is still in the pre-trial and discovery phases.

Though the Dougherty story touches on ImPACT, it does not neatly fit what I believe may become a classic fact pattern of these cases: an athlete who is explicitly cleared through the use of a second ImPACT neurocognitive test, and goes on to suffer a disabling or fatal further injury.

Of course, even when that happens – I consider it a matter of when, not if – we can be confident that if ImPACT is named as a defendant or if a defendant school district tries to draw it into the case to share liabilities, the company will mount a defense that the software was not to blame, but rather the imperfect way it was applied.

Even so, Dougherty v. Montclair is an interesting opening volley for this coming flurry of multimillion-dollar litigation. I believe “avalanche” is not a hyperbolic predictive word. For all we know, there are many such underreported cases already in the pipeline.

When young Ryne was first concussed, the Montclair High School program was just beginning to use ImPACT, and he was among the first group of football players there to take a “baseline” examination of their cognitive functions. Discovery may clarify some of these facts and whether ImPACT played substantially into the return-to-play recommendation of the Doughertys’ physician, Michelle Nitti.

There are so many open questions here, it’s hard to know where to start. Since Ryne had already suffered two concussions, a baseline test at that point made no sense. Indeed, even those with a kinder assessment than I of ImPACT’s value would be forced to agree that a midseason baseline test for Dougherty’s teammates was oxymoronic, as well. In any case, school officials said Ryne’s particular test was considered invalid at the time because one of the kids in the room during the session was behaving disruptively … whatever that means.

My tentative takeaway is that this episode illustrates not the potential of ImPACT, fully installed and used precisely as designed, but rather the never-ending pitfalls, loopholes, fine print, and literally deadly caveats associated with a product aggressively marketed to high schools as a solution, if not the solution, to prevention of “second concussion syndrome.” Not to mentiom the legal exposure associated therewith.

I further contend that the ultimate lesson of all these cases will be the tail-chasing, bottomless-budget-pit inanity that is “concussion awareness.” You can mandate the staffing of an athletic trainer. You can mandate the purchase of ImPACT. You can mandate contracting all the paraprofessionals and support personnel – real or phony, certified or simply earnest – to interpret the data. But who makes the call to send the kid back out there to get head-banged again?

And when the worst happens – as it inevitably will, time and again, despite layer upon new layer of expensive, unproven, ass-covering measures – who will foot that bill?

The taxpaying public doesn’t yet seem terribly exercised by the ramifications of turning teenagers into human cannon fodder for Friday night lay religious services. But one diligently spotlighted narrative at a time, the rationalizations let loose by “concussion awareness” are destined to send the dollars flowing in a different direction.

Those of you interested in further reading on the Ryne Dougherty case should check out these resources:

“Montclair High School football player’s family sues over fatal brain hemorrhage,” http://www.nj.com/news/index.ssf/2009/10/montclair_high_school_football.html

“N.J. parents file lawsuit for son being cleared after concussion,” http://sportsillustrated.cnn.com/2009/highschool/10/09/ryne.dougherty/index.html

“Concussions and Student-Athletes: Medical-Legal Issues in Concussion Care & Physician and School System Risks,” http://www.nhbar.org/uploads/pdf/BJ-Autumn2011-Vol52-No3-Pg26.pdf

Irv Muchnick