- The Washington Times - Monday, April 8, 2013

ANALYSIS/OPINION:

There’s a problem with the concussion litigation that clouds the NFL.

The plaintiffs are dying.

Heavyweight lawyers collide at 10 a.m. Tuesday in federal court in Philadelphia, arguing before Judge Anita Brody about the NFL’s motion to dismiss the litigation by 4,287 former players claiming, among other things, the league concealed the long-term impact of head injuries.

But behind the courtrooms and 227 lawsuits that seem to grow each minute and relentless public relations campaigns and debate over football’s safety and the NFL’s assertion that the litigation is barred by various collective bargaining agreements is a reality as inescapable as it is unyielding.

Death.

Six plaintiffs have already passed in this young year.

Complications from a car wreck claimed Bryan Stoltenberg.

Cancer got Walt Sweeney.

Heart attack for Ken Clark.

Alzheimer’s grabbed Val Joe Walker.

Long illnesses, no more definition given, took Claudis James and John Holt.

They ranged from 40 years old to 83. Played 447 regular-season NFL games over 33 seasons. Made Pro Bowls. Offense and defense. Started games and warmed benches. Now they’re gone. And they’re not alone.

At least 59 former players named in the litigation are dead, according to a review by The Washington Times. Some are wrongful death suits, filed by children and spouses left behind to make sense of what robbed the men they loved. More died after they signed up to sue the NFL.

Who’s next?

The deceased players aren’t an abstract legal argument. They can’t be fixed with a slick 30-second commercial about the NFL’s safety evolution or mandatory thigh and knee pads or moldering collective bargaining agreements. No, the 59 players are a grim accounting of damaged bodies and minds left in the game’s wake.

Initial causes of death were available for 48 of the players. Eight killed themselves or overdosed. The latest, Junior Seau, held a pistol to his chest and pulled the trigger 11 months ago.

Fifteen died from neurodegenerative diseases like Alzheimer’s.

Eight had heart attacks or heart failure. Four suffered from cancer.

Thirteen died from a variety of other causes, from unspecified “long illnesses” to being hit by a car to accidentally shooting themselves.

The legal machinations could distract, even consume. Big-name lawyers: Paul Clement vs. David Frederick! Is this the next $365 billion tobacco case or will the thousands of plaintiffs fade away into a legal footnote? Are the former players’ claims pre-empted by the various collective bargaining agreements? Is this primarily a labor dispute, as the NFL claims? Or, as the plaintiffs will argue, did the league hide the true cost of head injuries?

Denying the motion to dismiss would open the door for the anything-can-happen world of discovery. Depositions and documents, reams and reams and reams that would troll the darkest recesses of the NFL. Upholding the motion would be a body blow to the former players’ efforts to seek medical monitoring, compensation and more.

Complex, high-stakes litigation is a plodding affair measured in years, not months. But months are all that’s left for some plaintiffs. Last April, attorneys for the plaintiffs asked the court for permission to immediately depose former players because of the risk of dementia and worse. The request didn’t go anywhere. There’s no motivation for the NFL to share that urgency. Why would the shield budge?

Eighty-seven more former players joined the litigation-fest in four lawsuits Friday, former All-Pros Deltha O’Neal and Lorenzo Neal among them. They keep coming.

Meanwhile, plaintiffs keep dying. The steady drip is small enough to remain quiet, even out of sight. Four more in December. Jeff Winans. Larry Morris. John Henry Ward. Larry Glen Bowie.

There’s no reason to believe the drip will slow, not when 281 plaintiffs who played in a regular-season NFL game are 70 years or older. Twenty-seven plaintiffs top 80, led by 91-year-old Tom Brown who spent nine games with the Pittsburgh Steelers in 1942.

No reason when you can barely track the number of plaintiffs fighting dementia or early-onset Alzheimer’s, men confined to nursing homes or cared for by their wives. All held hostage by studies like the grim tidings from the National Institute for Occupational Safety and Health that NFL veterans with five or more years of experience are four times as likely to die of a neurodegenerative disease as the general population.

No reason when amyotrophic lateral sclerosis, better known as Lou Gehrig’s disease, ravages Kevin Turner and has Steven Smith connected to a ventilator to breathe as the litigation grinds on.

Who will be the seventh death this year. The eighth? The ninth?

The drips continue one after the other and, next thing you know, the room is flooded.