Does MLB Have a Concussion Lawsuit in Its Future? by Sheryl Ring March 29, 2018 The new baseball season is upon us. But even before the Cubs and Marlins began play today, indications from this spring have suggested that a dangerous trend, apparent last year, has continued into the present one — namely, an increased incidence of concussions. Before I address that, though, first a brief primer on what concussions can do to a baseball player. In 2010, first baseman Justin Morneau was running a 183 wRC+ and had established himself as one of the best hitters in baseball. After suffering a concussion that knocked him out for the remainder of the season, he was never the same, failing to play a full season until 2012 or to cross the 120 wRC+ threshold against until 2014. Third baseman Corey Koskie was a borderline star before suffering a concussion with Milwaukee; he never played again. The way he describes the effects are frightening: “I remember walking up to the plate, thinking OK which way do I run again?” Joe Mauer‘s career was derailed by a concussion that gave him blurry vision for two years; he was hitting .324 with a 143 wRC+ when he suffered the injury in 2013 and didn’t eclipse a .300 batting average, a .350 OBP, or a 110 wRC+ again until 2017. Last year, Brandon Belt’s season was put on hold by a concussion, as well; he experienced feelings of depression and lethargy. In perhaps the most tragic case, Cincinnati utilityman extraordinaire Ryan Freel committed suicide in December 2012. Freel had suffered 10 concussions during his career and was posthumously diagnosed with Chronic Traumatic Encephalopathy. CTE is a disease caused by repeated concussions or traumatic brain injuries and which was most famously diagnosed in the late Patriots football player Aaron Hernandez. Suicide and aggression are two symptoms of CTE. There’s even research to suggest Lou Gehrig didn’t suffer from ALS, but instead had CTE. Back in 2011, Jeff Zimmerman examined concussions in baseball for this very site, prompted by career-threatening concussions to Jason Bay and Morneau. He found 50 reported cases over the previous nine years, dating back to 2002. A couple of months later, MLB adopted a new concussion policy, which included a seven-day disabled list and neurocognitive testing. Seven years later, however, there’s some question as to how well the policy is actually working. There’s no doubt that concussions — at least reported ones — have been steadily rising since the advent of the policy. There were nine reported concussions throughout all of major-league baseball in 2010. In 2017, eleven catchers alone suffered concussions, leading CBS Sports to dub 2017 as “The Year of the Concussed Catcher.” A 2014 study found that 12% of concussed major leaguers never returned to play (althoughthat study admitted that data was sparse and more research was required). It’s also a lot easier than you might imagine to suffer a concussion. In one study of concussions suffered by batters hit by pitches, “the average pitch velocity that resulted in a concussion was 91.6 mph (compared to 90.8 mph for pitches that did not result in a concussion upon impact), no players observed loss of consciousness and the average days missed for concussed players was 14.2.” It could be argued that the rising rate of concussions actually represents good news, with more players reporting them and getting treatment under MLB’s policy. But a University of Rochester study in 2014, which included two years of post-policy data, concluded that MLB players “may not be fully recovered” when medically cleared to play. The Principal Investigator on the study, Dr. Jeffrey Bazarian, concluded that “[a]lthough players who sustain a concussion may be symptom-free and cleared by MLB protocol to return to play, the residual effects of concussion on the complex motor skills required for batting may still be a problem.” In other words, the number of known concussions is on the rise, and the current methodology for treatment might leave something to be desired. Players aren’t immune even in spring training; Clint Frazier was running after a fly ball this spring when he ran headlong into a wall at the Pirates’ complex in Bradenton, Florida. He suffered a concussion from the impact. He still hasn’t recovered. “I can’t even sit in my living room without feeling like s—,” he told ESPN. “My head hurts, and it’s just the headaches. I can’t shake the headache all day.” According to Corey Dawkins of Baseball Injury Consultants, a plurality of concussions are suffered by catchers, especially on foul tips. That’s led some catchers to eschew their newer, one-piece catchers’ masks in favor of the older two-piece design, which may better protect against concussions. Eno Sarris wrote about this in 2016. Now, to be fair, MLB’s concussion problem isn’t anything like that on the levels seen in other sports, like the NHL or NFL. But with pitchers throwing harder than ever before, the risk of concussions to catchers on foul tips has actually never been greater, even with our increased knowledge. And that’s why MLB might have a problem — because, as we’ve seen, the data suggests that the concussion problem in MLB might not be getting better, and in fact might be getting worse. Such developments can have consequences. Under the terms of their 2017 concussion settlement, the NFL agreed to pay hundreds of millions of dollars to current and former NFL players related to claims about concussions. Specifically, [t]he lawsuits [against the NFL] ar[o]se from the alleged effects of mild traumatic brain injury allegedly caused by the concussive and sub-concussive impacts experienced by former NFL Football players. Plaintiffs seek to hold the NFL Parties responsible for their alleged injuries under various theories of liability, including that the NFL Parties allegedly breached a duty to NFL Football players to warn and protect them from the long-term health problems associated with concussions and that the NFL Parties allegedly concealed and misrepresented the connection between concussions and longterm chronic brain injury. That settlement has its own slew of administrative problems, but those are irrelevant here. Suffice to say there’s a disagreement regarding who gets the money. Nor is the NFL the only body having to contend with the issue. There have also been similar lawsuits brought against the NHL, NCAA, and youth sports, which proves that these cases aren’t going away. And so, in light of the data we have, it’s worth asking whether a similar kind of lawsuit could be brought against MLB. Nathaniel Grow asked this question back in 2015, but since then we’ve seen a lot of developments in this area, particularly in the NHL lawsuit. So let’s start by assuming that the claims raised by MLB players would be similar to those raised in the NFL and NHL cases, which are summarized pretty nicely in the NFL settlement and Nathaniel’s piece. The NHL lawsuit is useful here because the arguments are pretty similar to what I imagine we’d see in an MLB case — and, if you’re counsel for MLB, it’s not good news. Nathaniel posited in his 2015 piece that were a lawsuit brought against MLB, the league could respond by moving to dismiss the case, arguing that it was barred by the applicable statute of limitations and that any legal duty owed to the players (and thus, the players’ right to sue) was governed and limited by the collective bargaining agreement. The NHL made pretty much those exact arguments, but the NHL lost its motions to dismiss — and pretty decisively, too. In the NHL case, the court ruled that it was an issue of fact whether the statute of limitations had run, because the injury alleged was an increased risk of brain injury (like CTE) as a result of concussions and not just the brain injury itself. The court went on to find that the players had stated a plausible claim for fraudulent omission and fraudulent concealment; the league, they contended, hadn’t informed players what all of the risks of head injury were related to playing hockey. A year later, in perhaps the biggest blow, the court denied a motion to dismiss based on labor law preemption, saying it was not clear without discovery whether the CBA preempted the plaintiffs’ claims. I won’t go into the full analysis because it would take too long, but the most relevant point is this: all of the traditional defenses — statute of limitations, CBA preemption, and assumption of the risk — failed to achieve dismissal of the case. That doesn’t mean they won’t work at a trial, but it does mean that the NHL is currently slogging through long, expensive litigation, including discovery. And last week, the court held a hearing on whether to certify the case as a class action, which would make this even longer and more expensive for the NHL, and expose the league to potentially hundreds of millions of dollars in liability. (It’s also worth noting that the CBA wouldn’t help MLB with a class action of minor leaguers for concussions, because the agreement doesn’t apply to them, and one study found 266 minor-league concussions over a two-year period.) It’s possible — even likely — that a class action against MLB would proceed similarly to the one against the NHL. So what can MLB do? First, MLB has taken an important step in making mandatory a newer, stronger batting helmet. But with concussions still a problem after the 2011 policy, more can — and should — be done. Making a similar requirement for catchers would be a prudent move, perhaps with the helmets Eno discussed. Perhaps pitchers, too, should wear helmets to prevent episodes like this, which has also happened to Johnny Cueto and Brandon McCarthy, among others. Given the University of Rochester study — as well as similar research, which gives a normal concussion recovery time for most people at seven to 10 days — the seven-day DL might be conservative; it might be worth bringing back the 15-day DL, just for concussions. At the very least, it’s worth having some qualified medical and neurological professionals do some research into the problem, as Bazarian told Reuters. As for whether taking those steps would be tantamount to an admission of fault by MLB, legally it probably wouldn’t be; the vast majority of jurisdictions have a variation on this Rule which says that subsequent remedial measures aren’t admissible to prove negligence or other culpable conduct. So there’s really very little downside here and potentially a lot of upside. The average professional baseball playing career is just 5.6 years, which means there’s a lot for that player’s brain to do when it’s done timing fastballs.