At the end of last month, the National Football League (NFL) released its injury data for the 2016 football season. Last year, the NFL recorded that 244 concussions occurred in practices and games in the 2016 preseason and regular season, down from a five-year high of 275 concussions in 2015.
The impact of concussions on NFL players has been a hot topic in sports over the last few years, with a number of lawsuits stemming from claims linking concussions and degenerative neurological conditions.
Recently, a judge denied a request by the NFL to dismiss one such individual suit Beasley Allen, along with attorneys from Leiff Cabraser and Tom Sinclair of Sinclair Law Firm, filed on behalf of the son of a deceased NFL player who was diagnosed with Chronic Traumatic Encephalopathy (CTE), a degenerative brain disease.
Justice Manuel J. Mendez of the Supreme Court of New York State denied the NFL’s motion to dismiss the complaint filed by deceased NFL player Arthur DeCarlo Sr.’s son, ruling he had sufficiently asserted his claims of fraud, concealment and negligence for the wrongful death suit to move forward.
Art DeCarlo Sr. was drafted by the Bears in the 1953 draft, but began his professional career with the Pittsburgh Steelers. For the next two years, though, he served in the military and returned to play for the Washington Redskins in 1956. Ultimately, he retired from the Colts. While playing for the Colts, DeCarlo played in back-to-back championships in 1958 and 1959, including the game dubbed “The Greatest Game Ever Played.”
According to the complaint, he suffered numerous concussive and sub-concussive blows during his years playing professional football. In his later years, and as a result of what we now know to be stage IV out of IV CTE, DeCarlo suffered a slow decline in his cognitive abilities.
Unfortunately, no way to diagnose CTE exists before a postmortem autopsy can be performed.
That fact, that CTE cannot be diagnosed until after death, is a major part of why Judge Mendez denied the NFL’s motion to dismiss. In making the ruling, Judge Mendez described the disease as being akin to asbestos because “damage caused by both can take up to 20 to 40 years to manifest.”
“If plaintiff was suffering from a latent condition, and the ability to diagnose the condition is not available until the death of the injured party, then under the discovery rule the cause of action arises upon the discovery of the latent disease, i.e., at the time an autopsy is performed,” the judge said.
The discovery rule, combined with the latent nature of CTE and that the rule was designed exactly for these types of injuries, meant the claims were not time-barred.
The denial of the NFL’s motion to dismiss is a win for the DeCarlos and all those with cases involving latent injuries. The DeCarlos’ case will now proceed in New York state court.