Another ImPACT Case Shows Where Litigation Is Going to Cripple the Football System. (Hint: It Won’t Be at the NFL Level.)

With the indictment today of former Penn State president Graham Spanier, and with the Jimmy Saville/BBC scandal exploding across the pond, it’s a matter of time before there is big-media synergy for the USA Swimming coach abuse cover-up — at Rick Curl’s Washington, D.C., club, at Murray Stephens’ Baltimore club, and wherever one of the 12,000 coaches under our Olympic banner has preyed with impunity on one of 300,000 youth athletes.

But right now let’s turn back to an important development in the traumatic brain injury story. I have commented on how the wrongful death lawsuit in New Jersey by the family of teen football player Ryne Dougherty affords the first glimpse of the flood of litigation about to wash over the sport’s kid and public high school programs which use the hyped medical-technological fig leaf known as the “ImPACT concussion management system.” Another case in Texas continues the trend.

Since 2008, Oscar Cordova III has been disabled after surgery for a fractured skull and brain clot sustained in a junior varsity game. The family sued not just the Mission Consolidated Independent School District, but also Pittsburgh-based ImPACT Applications, Inc., for the software that allegedly informed a school athletic trainer’s decision to clear Cordova to resume exercise.

Like the Dougherty suit, the Cordova case does not appear to include slam-dunk evidence of a premature ImPACT-based return-to-play recommendation following a concussion. The New Jersey facts are ambiguous on the ImPACT-based part of the equation: the extent to which those who authorized return to play in fact relied on this new school district tool. The Texas facts leave open questions on the return-to-play part of the equation: it appears the youngster might not have gone back into a game, where a second collision episode ensued. (Possibly, “return to exercise” will prove to have included hard drills and hitting in team practices.)

Though this factor could end up being a hurdle for the Cordova plaintiffs, their scenario does mark another step in the growing exposure of ImPACT and those who point to it as a solution. The most recent amended petition in Hildalgo County district court calls ImPACT’s marketing, I believe accurately, “fraudulent and misleading” because it “claims, suggests, or implies its product can detect traumatic brain injury without proper medical diagnosis, lulling consumers into a false sense of security.”

The full 10-page brief is viewable at http://muchnick.net/impactfraudclaim.pdf. Thanks to Nate Rau of Nashville’s Tennessean for reporting on the existence of the Cordova case and for passing along the document.

Irv Muchnick