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1 MUNGER, TOLLES & OLSON LLP RONALD L. OLSON (State Bar No. 44597) 2 [email protected] JOHN W. SPIEGEL (State Bar No. 78935) 3 [email protected] NICHOLAS C. SOLTMAN (State Bar No. 277418) 4 [email protected] 355 South Grand Avenue, Thirty-Fifth Floor 5 Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 6 Facsimile: (213) 687-3702
7 PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP (Pro hac vice applications to be filed) 8 BRAD S. KARP [email protected] 9 THEODORE V. WELLS, JR. [email protected] 10 BETH A. WILKINSON [email protected] 11 LYNN B. BAYARD [email protected] 12 1285 Avenue of the Americas New York, NY 10019-6064 13 Telephone: (212) 373-3000 Facsimile: (212) 757-3990 14 Attorneys for Defendants 15 NATIONAL FOOTBALL LEAGUE and NFL PROPERTIES LLC 16 UNITED STATES DISTRICT COURT 17 SOUTHERN DISTRICT OF CALIFORNIA 18 TYLER SEAU, an individual; SYDNEY SEAU, an CASE NO. '13CV0478 W RBB 19 individual; JAKE SEAU, a minor, and HUNTER SEAU, a minor, by and through their Guardian ad NOTICE OF REMOVAL 20 Litem Gina Seau; and BETTE HOFFMAN, as OF CIVIL ACTION trustee of the Tiaina B. Seau, Jr. 2002 Trust, UNDER 28 U.S.C. § 1441 21 Plaintiffs, 22 COMPLAINT FILED: v. San Diego Superior Court 23 Case No. 37-2013-00031265- NATIONAL FOOTBALL LEAGUE; NFL CU-PO-CTL 24 PROPERTIES LLC; RIDDELL, INC.; ALL January 23, 2013 AMERICAN SPORTS CORP.; RIDDELL 25 SPORTS GROUP, INC.; EASTON-BELL SPORTS, INC.; EASTON-BELL SPORTS, LLC; 26 EB SPORTS CORP.; and RBG HOLDINGS CORP., 27 28 Defendants.
NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. § 1441
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1 TO THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE 2 SOUTHERN DISTRICT OF CALIFORNIA: 3 PLEASE TAKE NOTICE that, for the reasons set forth below, 4 Defendants National Football League (“NFL”) and NFL Properties LLC (“NFLP,” 5 and together with the NFL, the “NFL Defendants”), by their undersigned attorneys, 6 file this Notice of Removal to remove the claims against them in this action from 7 the Superior Court of the State of California, San Diego County, to the United 8 States District Court for the Southern District of California pursuant to 28 U.S.C. 9 §§ 1367, 1441 and 1446. Removal is made pursuant to 28 U.S.C. § 1331 on the 10 basis of federal question jurisdiction. The grounds for removal are as follows: 11 I. INTRODUCTION AND BACKGROUND 12 1. On February 5 and 6, 2013, the NFL Defendants were served 13 by Plaintiffs, the children and trustee of the trust of former NFL player Tiaina B. 14 Seau, Jr. (“Junior Seau”), who is deceased, with a Summons and Complaint (the 15 “Complaint”) filed in the Superior Court of the State of California, San Diego 16 County, No. 37-2013-00031265-CU-PO-CTL. On February 4, 2013, Plaintiffs 17 filed an amended complaint (the “Amended Complaint”) in the Superior Court of 18 the State of California, San Diego County. Copies of these papers and other 19 documents filed in the action are annexed as Exhibit A. 20 2. The Amended Complaint alleges that decedent Junior Seau 21 played in the NFL from 1990-2009, where he purportedly “sustained injuries 22 leading to his death.” (Am. Comp. ¶ 21.) The Amended Complaint further 23 alleges, among other things, that the NFL fraudulently concealed “the risks of head 24 injuries in NFL games and practices, including the risks associated with returning 25 to physical activity too soon after sustaining a sub-concussive or concussive 26 injury,” failed to enact “return-to-play rules consistent with proper medical 27 management of MTBI,” and “withheld” from NFL players information about “the 28 kind of repetitive traumatic impacts to the head to which [they] were exposed” and
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1 about the risks posed by those impacts. (Am. Compl. ¶¶ 229, 243, 260-61.) The 2 Amended Complaint purports to allege causes of action for fraudulent 3 concealment, fraud, negligent misrepresentation, negligence, negligent hiring, 4 negligent retention and wrongful death against the NFL Defendants. (Am. Compl. 5 ¶¶ 226-321.) The Amended Complaint also alleges a cause of action for wrongful 6 death due to negligence, design defects, and failure to warn against Riddell, Inc.; 7 All American Sports Corp.; Riddell Sports Group, Inc.; Easton-Bell Sports, Inc.; 8 Easton-Bell Sports, LLC; EB Sports Corp.; and RBG Holdings Corp. (collectively, 9 the “Riddell Defendants”). (Am. Compl. ¶¶ 322-47.) Plaintiffs seek recovery of 10 compensatory and punitive damages, prejudgment interest, costs, and attorneys’ 11 fees. (Am. Compl. p. 57.) 12 3. The relationship between the NFL Defendants and Junior Seau 13 was governed by various collective bargaining agreements (“CBAs”) that were 14 executed and operative during his career. The CBAs are the product of exhaustive 15 arm’s-length negotiations between, the NFL Management Council (the exclusive 16 bargaining representative of the NFL), and the NFL Players Association (the 17 exclusive bargaining representative of NFL players), and “represent[] the complete 18 understanding of the parties on all subjects covered [t]herein.” (CBA Art. II § 1 19 (1993-2010).) The CBAs include, among other terms, provisions relating to player 20 medical care and safety, rule-making, and dispute resolution. 21 II. GROUNDS FOR REMOVAL 22 4. This Court has original jurisdiction of this action under 28 23 U.S.C. § 1331 because the action is one that is founded on a claim or right “arising 24 under the Constitution, laws, or treaties of the United States.” A defendant may 25 remove an action to federal court under 28 U.S.C. § 1441 if the complaint presents 26 a federal question, such as a federal claim. See Avco Corp. v. Aero Lodge No. 735, 27 390 U.S. 557, 560, 88 S. Ct. 1235, 1237, 20 L. Ed. 2d 126 (1968). 28 5. Federal question jurisdiction exists in this case based on
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1 complete preemption under section 301 of the Labor Management Relations Act 2 (“LMRA”) of Plaintiffs’ claims. See Young v. Anthony’s Fish Grottos, Inc., 830 3 F.2d 993, 998 (9th Cir. 1987) (“[I]f federal law completely preempts a state law 4 claim and supplants it with a federal claim, the state law claim may be removed to 5 federal court.”). 6 6. To the extent that any of the claims in the Amended Complaint 7 is not preempted, it “form[s] part of the same case or controversy.” 28 U.S.C. 8 § 1367. This Court thus has supplemental jurisdiction over all parties and claims. 9 See Bobadilla-German v. Bear Creek Orchards, Inc., 641 F.3d 391, 394 (9th Cir. 10 2011) (holding that district court “had jurisdiction over [plaintiffs’] state-law 11 claims under 28 U.S.C. § 1367”); Garcia v. Am. Red Cross, No. CV-92 2513, 1992 12 WL 470325, at *1 (C.D. Cal. Aug. 12, 1992) (denying plaintiffs’ motion for 13 remand based on lack of jurisdiction over a pendent party co-defendant); Maxwell 14 v. Nat’l Football League, No. 11-cv-08394 R(MANx), Order at 2 (C.D. Cal. Dec. 15 8, 2011) (“As long as at least one federal claim is present, this Court can exercise 16 supplemental jurisdiction over the remaining claims pursuant to 28 U.S.C. § 17 1367”); Duerson v. Nat’l Football League, No. 12 C 2513, 2012 WL 1658353, at 18 *6 (N.D. Ill. May 11, 2012) (“Federal jurisdiction thus exists over [plaintiff’s 19 negligence] claim, and the court can exercise supplemental jurisdiction over the 20 rest of Duerson’s claims.”). 21 7. Section 301 of the LMRA provides that the federal courts have 22 original jurisdiction over all “[s]uits for violation of contracts between an employer 23 and a labor organization.” 29 U.S.C. § 185(a). The Supreme Court has held that 24 “questions relating to what the parties to a labor agreement agreed, and what legal 25 consequences were intended to flow from breaches of that agreement, must be 26 resolved by reference to uniform federal law, whether such questions arise in the 27 context of a suit for breach of contract or in a suit alleging liability in tort.” Allis- 28 Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985); see also Hubbard v. United
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1 Airlines, Inc., 927 F.2d 1094, 1098-99 (9th Cir. 1991) (holding that plaintiff’s 2 fraud and RICO claims were preempted because allegations “involve[d] violation 3 of a right created by the CBA”). Thus, section 301 preempts tort claims seeking to 4 vindicate “state-law rights and obligations that do not exist independently of 5 [collective bargaining] agreements” and also claims “substantially dependent upon 6 analysis of the terms of [a collective-bargaining] agreement.” Allis-Chalmers, 471 7 U.S. at 213, 220; Young, 830 F.2d at 1001 (holding that plaintiff’s fraud and 8 misrepresentation claims were preempted by section 301). 9 8. Plaintiffs’ claims are preempted because resolution of those 10 claims is “inextricably intertwined with consideration of the terms of [the CBAs]” 11 or “substantially dependent” on an analysis of the relevant provisions of the CBAs. 12 Allis-Chalmers, 471 U.S. at 213, 215, 220; see also Maxwell, Order at 2 13 (concussion-related negligence claim against NFL preempted); Pear v. Nat’l 14 Football League, No. 11-cv-08395 R(MANx), Order at 2 (C.D. Cal. Dec. 8, 2011) 15 (same); Barnes v. Nat’l Football League, No. 11-cv-08395 R(MANx), Order at 2 16 (C.D. Cal. Dec. 8, 2011) (same); Duerson, 2012 WL 1658353, at *4, 6 (same); 17 Stringer v. Nat’l Football League, 474 F. Supp. 2d 894, 909-10 (S.D. Ohio 2007) 18 (wrongful death claim arising out of heat-related illness against the NFL preempted 19 because resolution of the claim was substantially dependent upon an analysis of 20 CBA provisions related to NFL player medical care and treatment). 21 9. For example, resolution of Plaintiffs’ claims will require 22 interpretation of provisions of the CBAs relating to player medical care and rule- 23 making. See, e.g., NFL CBA Art. XLIV § 1 (1993-2010) (requiring physician on 24 staff of Member Clubs to inform a player in writing if he has a physical condition 25 that “could be significantly aggravated by continued performance”); NFL CBA 26 Art. XLIV § 2 (1993-2010) (“[F]ull-time head trainers and assistant trainers . . . 27 [must] be certified by the National Athletic Trainers association.”); NFL 28 Constitution and Bylaws Art. XIX § 19.5 (1990-2010) (requiring that the home
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1 team provide a doctor and ambulance for each game); NFL Constitution and 2 Bylaws Art. Art. XVII § 17.16(E) (1990-2010) (“All determinations of recovery 3 time for major and minor injuries must be by the club’s medical staff and in 4 accordance with the club’s medical standards” for players categorized as 5 “Reserve/Injured” on the Reserve List); NFL CBA Art. XIII § 1(a) (1993-2010) 6 (creating a Joint Committee to study, among other things, player safety issues); 7 NFL CBA Art. XIII § 1(b)-(c) (1993-2010), Art. XIII § 1(d) (2002-10) (mandating 8 procedures for review, investigation and resolution of disputes involving proposed 9 rule changes that “could adversely affect player safety”).1 The Court will be 10 required to interpret these benefits provisions to determine the scope of the NFL’s 11 duty and to determine whether the NFL acted reasonably in light of those 12 provisions. See Maxwell, No. 11-cv-08394 R(MANx), Order at 2. 13 10. Indeed, two separate district courts considering allegations 14 similar to those alleged here have recently determined that the NFL properly 15 removed complaints brought by former NFL players because resolution of their 16 concussion-related negligence claims was substantially dependent on, and 17 inextricably intertwined with, an analysis of CBA provisions concerning medical 18 care and treatment of NFL players. In Maxwell, Pear and Barnes, the Central 19 District of California, finding Stringer “to be persuasive,” held that plaintiffs’ 20 negligence claims—premised, among other things, on allegations that the NFL 21 failed “to ensure accurate diagnosis and recording of concussive brain injury so the 22 condition can be treated in an adequate and timely manner”—were preempted 23 because “[t]he physician provisions of the CBA must be taken into account in 24 determining the degree of care owed by the NFL and how it relates to the NFL’s
25 1 26 See Clarett v. Nat’l Football League, 369 F.3d 124, 142 (2d Cir. 2004) (“In the [CBA], the union agreed to waive any challenge to the Constitution and Bylaws and thereby acquiesced in 27 the continuing operation of the . . . rules contained therein.”); see also Brown v. Nat’l Football League, 219 F. Supp. 2d 372, 386 (S.D.N.Y. 2002) (“[The NFL Constitution and Bylaws were] 28 bargained for and included within the scope of the CBA.”).
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1 alleged failure to establish guidelines or policies to protect the mental health and 2 safety of its players.” Maxwell, Order at 2; Pear, Order at 2; Barnes, Order at 2; 3 Compl. ¶ 3 (alleging that the NFL had a duty “to provide players with rules and 4 information that protect players as much as possible”); see also Duerson, 2012 WL 5 1658353, at *4 (“A court could plausibly interpret those provisions to impose a 6 duty on the NFL’s clubs to monitor a player’s health and fitness to continue to play 7 football . . . . The NFL could then reasonably exercise a lower standard of care in 8 that area itself. Determining the meaning of the CBA provisions is thus necessary 9 to resolve Duerson’s negligence claim.”). Having determined that at least one 10 federal claim was present, the Central District of California exercised supplemental 11 jurisdiction over the remaining claims. Maxwell, Order at 2; Pear, Order at 2; 12 Barnes, Order at 2; see also Duerson, 2012 WL 1658353, at *6. 13 11. Plaintiffs’ claims also are preempted by section 301 because the 14 purported duties Plaintiffs allege the NFL Defendants had and breached were 15 created by the CBAs and are not based on an independent duty “owed to every 16 person in society.” See United Steelworkers of Am. v. Rawson, 495 U.S. 362, 370- 17 71, 110 S. Ct. 1904, 1910, 109 L. Ed. 2d 362 (1990) (holding in the context of a 18 labor dispute involving unionized employees that, absent an independent duty 19 running from defendants “to every person in society,” any such duty to plaintiffs 20 must arise out of the CBA); see also Adkins v. Mireles, 526 F.3d 531, 540-41 (9th 21 Cir. 2008) (holding that plaintiffs’ negligent misrepresentation claim was 22 preempted because plaintiffs “failed to show a separate, independent duty upon 23 which to base this claim”). Plaintiffs’ claims hinge fundamentally on the NFL’s 24 purported failure to implement adequate rules, regulations, and guidelines 25 regarding player health and safety. (See, e.g., Am. Compl. ¶ 4.) The CBAs and 26 NFL Constitution, however, establish the duty of the NFL and its member clubs to 27 implement and enforce rules regarding professional football. See, e.g., NFL CBA 28 Art. XIII § 1(b)-(c) (1993-2010) (mandating procedures for review, investigation
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1 and resolution of disputes involving proposed rule changes that “would adversely 2 affect player safety”); NFL Constitution Art. XI, § 11.2 (1990-2010) (delegating to 3 the NFL, and its member clubs, the obligation to “amend[] or change[]” all 4 “[p]laying rules,” and further requiring that all proposed rule changes be presented 5 to the NFL prior to a vote). 6 III. REMOVAL IS PROCEDURALLY PROPER 7 12. The Southern District of California is the federal district in 8 which the Superior Court of the State of California, County of San Diego—where 9 Plaintiffs filed their Complaint—is located. 10 13. This Notice of Removal is timely under 28 U.S.C. § 1446(b), 11 which states that “notice of removal of a civil action or proceeding shall be filed 12 within thirty days after the receipt by the defendant, through service or otherwise, 13 of a copy of the initial pleading setting forth the claim for relief upon which such 14 action or proceeding is based.” 15 14. Written notice of the filing of this Notice of Removal will be 16 provided to Plaintiffs, and a copy of this Notice will be filed in the appropriate 17 state court, as required by 28 U.S.C. § 1446(d). This Notice of Removal is signed 18 pursuant to Fed. R. Civ. P. 11. See 28 U.S.C. § 1446(a). 19 15. Counsel for the Riddell Defendants has consented to the 20 removal of the action. All defendants thus have consented to removal of the 21 action. See Parrino v. FHP, Inc., 146 F.3d 699, 703 (9th Cir. 1998) (“All 22 defendants must join a notice of removal.”). 23 16. In filing this Notice of Removal, the NFL Defendants do not 24 waive any defenses that may be available to them, including without limitation 25 jurisdiction, venue, standing, or procedures for the disposition of this action in 26 accordance with the terms of the CBA. Nor do the NFL Defendants admit any of 27 the factual allegations in the Complaint; they expressly reserve the right to contest 28 those allegations at the appropriate time.
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1 WHEREFORE, the NFL Defendants remove the above-captioned 2 action brought against them in the Superior Court of the State of California, 3 San Diego County.
4 DATED: February 28, 2013 MUNGER, TOLLES & OLSON LLP 5 -and- PAUL, WEISS, RIFKIND, WHARTON & 6 GARRISON LLP
7 By: s/ Nicholas C. Soltman 8 NICHOLAS C. SOLTMAN [email protected] 9 Attorneys for Defendants 10 NATIONAL FOOTBALL LEAGUE 11 and NFL PROPERTIES LLC 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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EXHIBIT A CaseCase 3:13-cv-00478-W-RBB 2:13-cv-01531-AB Document Document 1-1 1-1 Filed Filed 03/25/13 02/28/13 Page Page 11 2of of 151 139 San Diego Superior Court - Register of Actions Page 1 of 5
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Register of Actions (ROA)
Case Information
Case Number: 37-2013-00031265-CU-PO-CTL Date Filed: 01/23/2013 Case Title: Seau vs. National Football League [IMAGED] Case Status: Pending Case Category: Civil - Unlimited Location: Central Case Type: PI/PD/WD - Other Judicial Officer: William S. Dato Case Age: 30 days Department: C-67
Future Events
Participants
Name Role Representation All American Sports Corp Defendant
Bette Hoffman as trustee of the Tiaina B Casey, David S Jr; Strauss, Plaintiff Seau Jr 2002 Trust Steven M
EB Sports Corp Defendant Easton-Bell Sports Inc Defendant
Easton-Bell Sports LLC Defendant NFL Properties LLC Defendant
National Football League Defendant
RBG Holdings Corp Defendant
Riddell Inc Defendant Riddell Sports Group Inc Defendant
1 2
Representation
Name Address Phone Number CASEYJR, CASEY GERRY SCHENK FRANCAVILLA BLATT & PENFIE (619) 238- DAVID S 110 Laurel Street San Diego CA 92101 1811
STRAUSS, COOLEY LLP 4401 EASTGATE MALL SAN DIEGO CA (858) 550-
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STEVEN M 92121 6000
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Register of Actions
All Entries Filing Entries Minutes Entries Scheduling Entries
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ROA# Entry Date Short/Long Entry Filed By Document Cart Summons 13 02/12/2013 issued. Original Summons filed by Seau, Tyler; Seau, Seau, Sydney; Tyler Seau, Jake; (Plaintiff); Seau, Hunter; Seau, Bette Hoffman as Sydney trustee of the (Plaintiff); Tiaina B Seau Jr Seau, 2002 Jake Trust.\nRefers (Plaintiff); to: National Seau, Football League; Original 12 02/04/2013 Hunter Add to Cart NFL Properties Summons (Plaintiff); LLC; Riddell Inc; Bette All American Hoffman Sports Corp; as trustee Riddell Sports of the Group Inc; Tiaina B Easton-Bell Seau Jr Sports Inc; 2002 Easton-Bell Trust Sports LLC; EB (Plaintiff) Sports Corp; RBG Holdings Corp; Seau, Gina
Amended Complaint (First) filed by Seau, Tyler; Seau, Seau, Sydney; Seau, Tyler Jake; Seau, (Plaintiff); Hunter; Bette Seau, Hoffman as Sydney trustee of the (Plaintiff); Tiaina B Seau Jr Seau, 2002 Jake
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Trust.\nRefers (Plaintiff); to: National Seau, Football League; Hunter NFL Properties (Plaintiff); LLC; Riddell Inc; Bette All American Hoffman Sports Corp; as trustee Riddell Sports of the Amended Add to Cart 11 02/04/2013 Group Inc; Tiaina B Complaint Easton-Bell Seau Jr (First) Sports Inc; 2002 Easton-Bell Trust Sports LLC; EB (Plaintiff) Sports Corp; RBG Holdings Corp; Seau, Gina
Case reassigned from Judge Notice of Trapp, Randa to Case 10 01/28/2013 Add to Cart William Dato Reassignment effective SD 01/28/2013
Miscellaneous 9 01/28/2013 Minute Order Minute Order Add to Cart Finalized.
Summons 8 01/28/2013 issued.
Original Summons filed by Seau, Tyler; Seau, Sydney; Seau, Jake; Seau, Seau, Hunter; Tyler Seau, Gina; (Plaintiff); Bette Hoffman as Seau, trustee of the Sydney Tiaina B Seau Jr (Plaintiff); 2002 Seau, Jake 7 01/25/2013 Trust.\nRefers Add to Cart to: National (Plaintiff); Football League; Seau, NFL Properties Hunter LLC; Riddell Inc; (Plaintiff); All American Seau, Sports Corp; Gina Riddell Sports (Guardian Group Inc; Ad Litem) Easton-Bell Sports Inc; Easton-Bell Sports LLC; EB Sports Corp;
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RBG Holdings Corp
Application and Order Appointing Application Guardian Ad and Order Seau, Litem (Jake Appointing 6 01/25/2013 Jake Add to Cart Seau) filed by Guardian Ad (Plaintiff) Seau, Litem (Jake Jake.\nRefers to: Seau) Seau, Gina
Application and Order Appointing Application Guardian Ad Seau, and Order 5 01/23/2013 Litem filed by Hunter Appointing Add to Cart Seau, (Plaintiff) Guardian Ad Hunter.\nRefers Litem to: Seau, Gina
Notice of Case initiation Case 4 01/24/2013 Add to Cart form printed. Assignment SD
Case initiation 4 01/24/2013 Add to Cart form printed.
Case initiation 4 01/24/2013 Add to Cart form printed.
Case initiation 4 01/24/2013 form printed.
Case assigned to 3 01/23/2013 Judicial Officer Trapp, Randa.
Civil Case Cover Sheet filed by Seau, Tyler; Seau, Seau, Sydney; Tyler Seau, Jake; (Plaintiff); Seau, Hunter; Seau, Bette Hoffman as Sydney trustee of the (Plaintiff); Civil Case 2 01/23/2013 Tiaina B Seau Jr Seau, Add to Cart 2002 Jake Cover Sheet Trust.\nRefers (Plaintiff); to: Seau, Gina; Seau, National Football Hunter League; NFL (Plaintiff); Properties LLC; Bette Riddell Inc; All Hoffman American Sports as trustee Corp; Riddell of the Sports Group Tiaina B
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Inc; Easton-Bell Seau Jr Sports Inc; 2002 Easton-Bell Trust Sports LLC; EB (Plaintiff) Sports Corp; RBG Holdings Corp
Complaint filed by Seau, Tyler; Seau, Sydney; Seau, Seau, Jake; Tyler Seau, Hunter; (Plaintiff); Bette Hoffman as Seau, trustee of the Sydney Tiaina B Seau Jr (Plaintiff); 2002 Seau, Trust.\nRefers Jake to: Seau, Gina; (Plaintiff); National Football Seau, 1 01/23/2013 League; NFL Hunter Complaint Add to Cart Properties LLC; (Plaintiff); Riddell Inc; All Bette American Sports Hoffman Corp; Riddell as trustee Sports Group of the Inc; Easton-Bell Tiaina B Sports Inc; Seau Jr Easton-Bell 2002 Sports LLC; EB Trust Sports Corp; (Plaintiff) RBG Holdings Corp
1
THE INFORMATION IN THIS REGISTER OF ACTIONS IS PROVIDED AS IS, WITHOUT WARRANTY BY THE SAN DIEGO SUPERIOR COURT AS TO CONTENT OR ACCURACY OF THE INFORMATION. The Entry Date on the Register of Actions may not always reflect the actual filing date of a document and not all documents filed with the Court are listed on the Register of Actions. It is recommended that users refer to the case file for confirmation.
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1 COOLEY LLP • 2013 .J-ki 23 Pli 3 : `.20 STEVEN M. STRAUSS (99153) (SMS®COOLEY.COM)
2 4401 Eastgate Mall CLERi' 7 Cf!1.":"::0 ;1.-;;44t\.1 1.0 H.1'r San Diego, CA 92121 SAN DIE:. J 3 Telephone: (858) 550-6000 Facsimile: (858) 550-6420 4 CASEY GERRY SCHENK FRANCAVILLA BLATT & 5 PENFEELD, LLP DAVID S. CASEY, JR. (060768) ([email protected]) 6 FREDERICK SCHENK (086392) ([email protected] ) 110 Laurel Street 7 San Diego, CA 92101 Telephone: (619) 238-1811 8 Facsimile: (619) 544-9232 9 Attomeys for Plaintiffs 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO 12 CENTRAL DIVISION VIA FAX 13 TYLER SEAU, an individual; SYDNEY Case No. 37-2013-00031265-CU-P O-CTL SEAU, an individual; JÀICE SEAU, a minor, 14 and HUNTER SEAU, a minor, by and Plaintiffs' Complaint For Damages and through their Guardian ad Litem Gizia Seau; Demand For Jury Trial 15 ã'nd BETTE HOFFMAN as trustee of the Tiaina B. Seau, Jr. 2002 Trust. 1. Fraudulent Concealment 16 2. Fraud • Plaintiffs, 3. Negligent Misrepresentation 17 4. Negligence 5. Negligent Hiring 18 6. Negligent Retention NATIONAL FOOTBALL LEAGUE; NFL 7. Wrongful Death — NFL Defendants 19 PROPERTIES LLC; RIDDELL, INC.; ALL 8. Wrongful Death — Riddell Defendants AMERICAN SPORTS CORP.; RlDDELL 20 SPORTS GROUP, 1NC.; EASTON-BELL SPORTS, INC.; EASTON-BELL SPORTS, 21 LLC; EB SPORTS CORP.; AND RBG HOLDINGS CORP. 22 Defendants. 23 24 25 TYLER SEAU, an individual; SYDNEY SEAU, an individual; JAKE SEAU, a minor, 26 and HUNTER SEAU, a minor, by and through their Guardian ad Litem Gina Seau; and.BETTE 27 HOFFMAN, trustee of the Tiaina B. Seau, Jr. 2002 Trust hereby file this Complaint for Damages 28 against Defendants, the National Football League ("NFL") and NFL Properties LLC ("NFL CooLzyLLP 1. ATTORNETS AT LAW SAN DIECO
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1 Properties") (collectively "NFL Defendants"), Riddell, Inc. (d/b/a Riddell Sports Group, Inc.), All 2 American Sports Corporation, (d/b/a Riddell/All American), Riddell Sports Group, Inc., Easton- 3 Bell Sports, Inc., Easton-Eial Sports, LLC, EB Sports Corp., and RBG Holdings Corp. 4 (collectively "Riddell Defendants"), and allege as follows:
5 INTRODUCTION s- 6 1. The NFL is America's most successful sports organization, generating multi- 7 billion dollar profits and legwis of devoted fans. On average, the NFL generates approximately 8 $9,300,000,000.00 per year. As the organizer, marketer and face of professional football, the 9 NFL zealously protects these profits and the game that produces them. 10 2. This success comes at a price for the players who make the game great. For many 11 decades, evidence has linked repetitive mild traumatic brain injury ("MTBI") to long-term 12 neurological problems. -TIO'NFL was aware of the evidence and the risks associated with 13 repetitive traumatic brain djuries for many decades, but deliberately ignored and actively 14 concealed the information frorri the players, including the late Junior Seau. . . 15 3. Since its inception, the NFL has controlled and regulated every aspect of the game _! 16 of professional football, partienlarly with respect to player safety and health. The NFL has used - 17 this authority to compel all .1\1FL players and participants to follow the policies, rules, and 18 regulations the NFL has enactk and imposed. As the goveming body of professional football, 19 the NFL has held itself out a4 the guardian and authority on the issue of player safety and has 20 unilaterally shouldered for itseif a duty to provide players with rules and information that protect 21 players as much as possible froitn short-term and long-term health risks. 22 4. The NFL's roleas the guardian of player health and safety began in the 1930s and 23 continues up through the pres?ent day. The NFL has exercised its supervisory role through its 24 unilateral decisions to issue rules to improve upon NFL football's public acceptance, to make a 25 profit, and to address issueswf player safety. The NFL has also unilaterally and voluntarily 26 chosen how to spend its funrldsto investigate and regulate many different circumstances affecting 27 • layer health and safety, irkluding, but not limited to, requiring players to wear certain 28 equipment, designating som-t player gear as illegal, and ultimately deciding what helmet brand COOLEY LLP 2. ATTORNEYS AT LAW
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1 should be recognized as the official equipment of the NFL. During these decades, the NFL
2 voluntarily provided teams and players with information and regulations that directly affected the
3 short and long terrn health of NFL players, including Junior Seau.
4 5. NFL players and their families, including Irmior Seau, looked to the NFL for 5 guidance on player safety issues.
6 6. Although the NFL voluntarily assumed its role as the unilateral guardian of player 7 safety, the NFL has exacerbated the health risk to players by promoting the game's violence and
8 lauding players for returning to play despite being rendered unconscious and/or disoriented due to 9 their exposure to sub-concussive and concussive forces. Today, the NFL and its agents continue
10 to market the ferocity and brutality of the sport. 11 7. The NFL has long been aware that . violent on-field collisions can lead to latent 12 head injuries which may have debilitating long-term effects on players. Since the 1950s and 13 1960s, a substantial body of medical and scientific evidence has demonstrated neuro-cognitive 14 injuries in the sport of football as a result of MBTI. During these decades, the NFL voluntarily 15 participated in the work of various entities studying the performance and effectiveness of safety 16 gear to reduce the risk of neurological injury. The NFL's participation was a voluntary 17 continuance of the historic duty it had assumed in the first half of the twentieth century. Despite 18 this awareness, the NFL ignored, minimized, disputed, and actively suppressed broader awareness 19 of the link between sub-concussive and concussive injuries in football and the chronic neuro-
20 cognitive damage, illnesses, and decline suffered by former players.
21 8. By the early 1990s, the consensus among experts in the scientific community was
22 that many football players had developed brain injuries as a consequence of multiple "dings," 23 sub-concussive injuries, and concussions.
24 9. In 1994, the NFL created and/or decided to fund the NFL's so-called Mild
25 Traumatic Brain Injury Committee (the "MTBI Committee") ostensibly to research and study
26 MTBI affecting NFL players.
27 10. Through its MTBI Committee, the NFL voluntarily inserted itself into the
28 scientific research and discussion concerning the link between sub-concussive and concussive
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1 impacts sustained by NFL players and short-term and long-term impairment of the brain. By
2 voluntarily inserting itself into the MTBI research and public discourse, the NFL gratuitously
3 undertook a responsibility (a) to make truthful statements; (b) not to wrongfully advance
4 improper, biased,- and falsified industry-generated studies; (c) not to discredit well-researched and 5 credible studies that carne to a conclusion that did not comport with the NFL's financial and
6 political interests; and, (d) to inform all former players, all current players, and the football-
7 playing public, including young people and their families, regarding the risks of MTBI in 8 football.
9 11. Instead of adhering to these duties, the NFL produced industry-funded, biased, and 10 falsified research that claimed that concussive and sub-concussive head impacts in football do not 11 present serious, life-altering risks. The NFL also actively sought to suppress the findings of other 12 members of the medical community that showed the link between on-field sub-concussive and 13 concussive head impacts and post-career neuro-cognitive damage, illness and decline. 14 12. For sixteen years, the NFL actively and continuously denied any link between 15 MTBI sustained by former NFL players in NFL games and practices and the neurological 16 symptoms and problems (such as headaches, dizziness, loss of memory, dementia and ALS) from 17 which they now suffer. The NFL made its biased and falsified position Icnown by way of 18 gratuitous press releases, publications in scientific literature, and other communications.
19 13. The NFL intended for the general public, NFL players, the late Junior Seau, his 20 family and participants at every level of the game to rely on the misinformation it propagated.
21 14. The NFL's active and purposeful concealment and misrepresentation of the severe
22 neurological risks of repetitive MTBI exposed players to dangers they could have avoided had the
23 NFL provided them with truthful and accurate information. Junior Seau sustained numerous and
24 repetitive injuries over his career while in the NFL and has been diagnosed by the National
25 Institutes of Health to have been suffering from Chronic Traumatic Encephalopathy ("CTE") and
26 related neurodegenerative disorders and diseases which were caused by the NFL's acts and/or 27 omissions.
28 15. The NFL concealed and misrepresented these risks by: (a) historically ignoring the COOLEY LLP 4. ATTONNEYS AT LAW
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1 true risks of MTBI in NFL football; (b) failing to disclose the tnie risks of repetitive MTBI to 2 NFL players; and (c) since 1994, deliberately spreading misinfonnation concerning the cause and
3 effect relationship between MTBI in NFL football and latent neurodegenerative disorders and 4 diseases.
5 16. These acts and omissions caused the neurodegenerative diseases, including, the 6 debilitating and latent disease known as CTE, which caused Junior Seau's tragic death.
7 17. On information and belief, the NFL's motive to ignore and misrepresent the link 8 between MTBI sustained in NFL play and neuro-cognitive injury and decline was economic. The 9 NFL Icnew_or suspected that any rule changes that sought to recognize that link and the health risk 10 to NFL players would impose an economic cost that would significantly and adversely change the 11 profit margins enjoyed by the NFL and its teams.
12 18. On information and belief, all NFL policies and decisions relevant to the conduct 13 alleged herein occurred primarily in the NFL corporate offices in New York. 14 JURISDICTION AND VENUE 15 19. Jurisdiction is based upon the California Constitution Article 6, Section I 0. 16 20. Venue is proper in this Court pursuant to Section 395(A) of the California Code of 17 Civil Procedure.
18 IDENTIFICATION OF THE PARTIES
19 PLAINTIFFS
20 21. Tiaina B. Seau, Jr., ("Junior Seau") deceased, was a player in the NFL for 20 21 consecutive seasons, where he sustained injuries leading to his death on May 2, 2012. Junior 22 Seau played for the San Diego Chargers (1990-2002), the Miami Dolphins (2003-2005), and the
23 New England Patriots (2006-2009). At all times decedent was a resident in the State of 24 California.
25 22. Tyler Seau is the son of Junior Seau, and is a resident of and domiciled in the State 26 of California.
27 23. Sydney Seau is the daughter of Junior Seau, and is a resident of and domiciled in 28 the State of California. COOLEY LLP 5. ATTORNEYS AT LAW SAN DIEGO
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1 24. Jake Seau is the son of Junior Seau, and is a resident of and domiciled in the State 2 of California.
3 25. Hunter Seau is the son of Junior Seau, and is a resident of and domiciled in the
4 State of California.
5 26. Gina Seau is the parent and guardian ofJake Seau and Hunter Seau, both of whom
6 are minors, and brings this action as guardian ad litem on their behalf. 7 27. Bette Hoffinan is the trustee of the Tiaina B. Seau, Jr. 2002 Trust, and is a resident
8 of and domiciled in the State of California. As trustee, Ms. Hoffman brings this action as a 9 survival action on behalf of the estate of decedent and all successors-in-interest therein pursuant 10 to Code of Civil Procedure section 377.30. The statement required by Code of Civil Procedure 11 section 377.32 is attached to this Complaint as Exhibit A. 12 28. Plaintiffs Tyler Seau, Sydney Seau, Jake Seau, a minor, and Hunter Seau, a minor, 13 by and through their Guardian ad Litem Gina Seau, bring this action as specified in Section 14 377.60, subd. (b) of the Code of Civil Procedure. • 15 DEFENDANTS
16 29. Defendant NFL, which maintains its offices at 345 Park Avenue, New York, New 17 York, is an unincorporated association consisting of separately owned and independently- 18 operated professional football teams which operate out of many different cities and states within 19 this country. The NFL is engaged in interstate commerce in the business of, among other things, 20 promoting, operating, organizing, and regulating the major professional football league in the
21 United States. The NFL is not, and has not been, the employer of Junior Seau, who was 22 employed during his career in professional football by the independent clubs (hereinafter
23 "Teams" or "Clubs") set forth below. The United States Supreme Court held in American
24 Needle, Inc. v. NFL, 130 S. Ct. 14 2201, 2212-13 (2010), that each team that is a member of the
25 NFL is a legally distinct and separate entity from both the other teams and the NFL itself. The
26 NFL regularly conducts business in California.
27 30. Defendant NFL Properties, LLC is the successor-in-interest to National Football
28 League Properties, Inc. ("NFL Properties") and a limited liability company organized and COOLEY LLP 6. ATTORNEYS AT LAW
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a.
1 existing under the laws of the state of Delaware with its headquarters in the state of New York.
2 NFL Properties is engaged in, among other activities, approving, licensing, and promoting 3 equipment used by all the NFL teams. NFL Properties regularly conducts business in Califomia. 4 Together with the NFL, Defendant NFL Properties is referred to herein as the "NFL Defendants."
5 31. .Defendant Riddell, Inc. (d/b/a Riddell Sports Group, Inc.) is a corporation 6 organized and existing under the laws of the state of Illinois and whose principal place of 7 business is in the State of Illinois. Riddell is engaged in the business of designing, 8 manufacturing, selling and distributing football equipment, including helmets, to the NFL and 9 since 1989 has been the official helmet of the NFL. Riddell, Inc., regularly conducts business in 10 the state of California. 11 32. Defendant All American Sports Corporation, (d/b/a Riddell/All American), is a 12 corporation organized and existing under the laws of the State of Delaware and is engaged in the 13 business of designing, manufacturing, selling and distributing football equipment including 14 helmets, to the NFL and since 1989 has been the official helmet of the NFL. All American Sports 15 Corporation regularly conducts business in the state of California. 16 33. Defendant Riddell Sports Group, Inc. is a Delaware corporation with its principal 17 place of business at 6255 N. State Highway, #300, Irving, Texas 76038. Riddell Sports Group,
18 Inc., regularly conducts business in the state of California.
19 34. Defendant Easton-Bell Sports, Inc. is a Delaware corporation with a principal 20 place of business at 7855 Haskell Avenue, Suite 200, Van Nuys, California 91406 and is a parent 21 corporation of Riddell Sports Group, Inc. Easton-Bell Sports, Inc. designs, develops, and markets 22 branded athletic equipment and accessories, including marketing and licensing products, under
23 the Riddell brand. Easton-Bell Sports regularly conducts business in the state of California.
24 35. Defendant Easton-Bell Sports, LLC is the parent corporation of Easton-Bell
25 Sports, Inc. and is incorporated in Delaware, with a principal place of business at 152 West 57th
26 Street, New York, New York 10019. Easton-Bell Sports, LLC regularly conducts business in the
27 state of California.
28 36. Defendant EB Sports Corp. is a Delaware corporation with its principal place of
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1 business at 7855 Haskell Avenue, Van Nuys, California 91406.
2 37. Defendant RBG Holdings Corp. is a Delaware corporation with its principal place 3 of business at 7855 Haskell Avenue, Suite 350, Van Nuys, California 91406.
4 38. Defendants Riddell, Inc., Riddell Sports Group Inc., All American Sports 5 Corporation, Easton-Bell Sports, Inc., EB Sports Corp., Easton-Bell Sports, LLC, and RBG 6 Holdings Corp., shall hereinafter be referred to collectively as the "Riddell Defendants."
7 GENERAL ALLEGATIONS APPLICABLE TO ALL COUNTS AGAINST THE NFL DEFENDANTS 8
9 39. The NFL oversees America's most popular spectator sport, acting as a trade 10 association for the benefit of the thirty-two independently operated Teams. 11 40. The NFL has, since its inception in the first half of the twentieth century, governed 12 and promoted the game of football, by acting as the governing body, establishing rules related to 13 player health and safety, League policies, and Team ownership. 14 41. The NFL generates revenue mostly through marketing sponsorships, licensing 15 merchandise, and by selling national broadcasting rights to the games. The Teams share a 16 percentage of the League's overall revenue.
17 42. Annually, the NFL redistributes approximately $4 billion in radio, television, and 18 digital earnings to the Teams or approximately $125 million per Team. Those revenue numbers 19 have increased since 2009.
20 43. The NFL enjoys partial monopoly power through an anti-trust exemption granted 21 via the Federal Sports Broadcasting Act that allows the NFL to sell television rights for all 32 22 Teams as a single unit.
23 The NFL Uses Its Influence To Encourage Violent Play
24 44. The NFL Defendants have had enormous influence over the game of football at all
25 levels of the game because of their financial power, monopoly status, and high visibility.
26 45. This influence has been expanded over many decades through their use of the
27 media. Through NFL films, the NFL Network, and www.NFL.com, the NFL Defendants have
28 promoted NFL football via every mass communication medium available. ComEr LLP 8. ATTORNEYS AT LAW
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1 46. Part of the NFL Defendants' strategy to promote NFL football is to glorify the
2 brutality and ferocity of NFL football, in part by lauding and mythologizing the most brutal and
3 ferocious players and collisions, and simultaneously propagating the fraudulent representation 4 that "getting your bell rung," "being dinged," and putting big hits on others is a badge of courage 5 which does not seriously threaten one's health.
6 47. As a result of this strategy, the NFL Defendants have propagated the false myth 7 that collisions of all kinds, including brutal and ferocious collisions, many of which lead to short- 8 term and long-term neurological damage to players, are an acceptable, desired, and natural 9 consequence of the game, and a measure of the courage and heroism of players involved at every 10 level of the game.
11 48. As a result of this strategy, and the overwhelming influence of the NFL 12 Defendants at every level of the game, the NFL Defendants have also generated for themselves 13 and others billions of dollars every year by promoting a product of brutality and ferocity and 14 inculcating in players at every level of the game the false and life-threatening ideas that (a) brutal, 15 ferocious, and debilitating collisions are a required and desired outcome in the game of football; _ 16 and (b) playing despite repetitive head impacts is a laudable and desirable goal.
17 49. NFL Films is an agent and instrumentality of the NFL Defendants devoted to 18 producing promotional films for the NFL. To propagate the NFL's image of the game as brutal
19 and violent, NFL Films has created numerous highlight features that focus solely on the hardest- 20 hits in pro football. These featured videos are marketed and sold to advance the NFL's culture of 21 violence as entertainment.
22 50. The list of videos created by NFL Films glorifying violent plays includes, but is
23 not limited to, the following titles: "NFL: Moment of Impact" (2007); "NFL's 100 Greatest
24 Tackles" (1995); "Big Blocks and King Size Hits" (1990); "The Best of Thunder and Destruction
25 — NFL's Hardest Hits"; "NFL Films Video: Strike Force" (1989); "The NFL's Greatest Hits"
26 (1989); "Crunch Course"; "Crunch Course ll" (1988); "Crunch Masters"; "In the Crunch"
27 (1987); "NFL Rocks";"NFL Rocks: Extreme Football" (1993).
28 51. These videos contain numerous explicit examples of how the NFL Defendants CooLEY LLP 9. ATTORNEYS AT LAW
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1 market and glorify the violent nature of the NFL. For instance, the back cover of 2007 film
2 "Moment of Impact" advertises the film as follows: "First you hear the breathing, then you feel
3 the wind coming through your helmet's eax hole. Suddenly you're down, and you're looking
4 through your helmet's ear hole. Pain? That's for tomorrow morning. Right now you've gotta 5 focus — focus on the play and try not to focus on the next moment of impact."
6 52. These films deemphasize the acute and chronic risks associated with head impacts. 7 Moreover, they utilize players, including Junior Seau, to spread the fraudulent message that brutal
8 violence is a necessary part of the sport. In 1993's "NFL Rocks," Junior Seau offered his opinion 9 on the measure of a punishing hit: "If I can feel some dizziness, I Icnow that guy is feeling double 10 [that]." In a segment of the same film, former Hous_ton Oilers receiver Ernest Givens is quoted as 11 saying: "I get knocked out a lot, I get concussions, I get broken noses, that is part of being a 12 receiver, that's what separates you from being a typical receiver than a great receiver." Former 13 Dallas Cowboys receiver Michael Irvin recites a similar unawareness of the risks of concussions: 14 "Before the game, I go to the [defensive backs] and tell them, `Hey, you lcnow trade a 15 concussion for a reception!"
16 53. NFL Films, therefore, advances the NFL Defendants' agenda to promote the most 17 violent aspects of NFL football and to urge players at every level of the game to disregard the 18 results of violent head impacts. This promotes a culture in which playing hurt or with an injury, 19 including MTBI, is both expected and acclaimed. Moreover, failure to play through such an
20 injury creates the risk that the NFL player will lose playing time, a starting position, and possibly
21 a career. 22 54. This attitude within the League and its players continued in the decades of the
23 1980s, 1990s and 2000s, with players lauded for their "head hunting" skills. As recently as
24 October 2010, the NFL fined some players for what it characterized as "illegal and dangerous
25 hits", and yet the NFL Defendants sought to profit by selling photos of the illegal hits on its
26 website for between $54.95 and $249.95.
27 55. Within this culture, the NFL Defendants purposefully profit from the violence they
28 promote. CooLet LLP 10. ATTORNEYS AT LAW
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1 Iniuries Resulting From This Violence
2 56. Medical science has known for many decades that repetitive and violent jarring of 3 the head or impact to the head can cause MTBI with a heightened risk of long term, chronic 4 neuro-cognitive injury.
5 57. The American Association of Neurological Surgeons (the "AANS") has defined a 6 concussion as "a clinical syndrome characterized by an immediate and transient alteration in brain 7 function, including an alteration of mental status and level of consciousness, resulting from 8 mechanical force or trauma." The AANS defines traumatic brain injury ("TBI") as:
9 a blow or jolt to the head, or a penetrating head injury that disrupts the normal function of the brain. TBI can result when the head 10 suddenly and violently hits an object, or when an object pierces the slcull and enters brain tissue. Symptoms of a TBI can be mild, 11 moderate or severe, depending on the extent of damage to the brain. Mild cases may result in a brief change in mental state or 12 consciousness, while severe cases may result in extended periods of unconsciousness, coma or even death. 13
14 58. MTBI generally occurs when the head either accelerates rapidly and then is 15 stopped, or is rotated rapidly. The results frequently include, among other things, confusion, 16 blurred vision, memory loss, nausea, and sometimes unconsciousness.
17 59. Medical evidence has shown that symptoms of MTBI can appear hours or .days 18 after the injury. •
19 60. Once a person suffers an MTBI, he is up to four times more likely to sustain a 20 second one. Additionally, after suffering even a single sub-concussive or concussive blow, a
21 lesser blow may cause MTBI, and the injured person requires more time to recover. 22 61. Clinical and neuro-pathological studies by some of the nation's foremost experts
23 demonstrate that multiple head injuries, concussions, or repeated traumatic head impacts
24 (including sub-concussive and concussive blows) sustained during an NFL player's career can
25 cause severe neuro-cognitive problems such as depression and early-onset of dementia.
26 62. Studies on many former football players, including former NFL players, have
27 established that football players who sustain repetitive head impacts while playing the game have
28 suffered and continue to suffer brain injuries that result in any one or more of the following COOLEY LLP 11. ATTORNEYS AT LAW SAN DIECO
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1 conditions: early-onset of Alzheimer's Disease, dementia, depression, deficits in cognitive
2 functioning, reduced processing speed, attention and reasoning, loss of memory, sleeplessness, 3 mood swings, personality changes, neurological deficits impacting judgment, and the debilitating
4 and latent disease known as CTE. The latter condition involves the slow build-up of the Tau
5. protein within the brain tissue that causes diminished brain function, progressive cognitive
6 decline, and many of the symptoms listed above. CTE is also associated with an increased risk of 7 suicide. •
8 63. CTE is found in athletes, including football players and boxers, with a history of
9 repetitive head trauma. The changes in the brain caused by repetitive trauma are thought to begin 10 when the brain is subjected to that repetitive trauma, but symptoms may not appear until months,
11 years, or even decades after the last traumatic impact or the end of active athletic involvement. 12 64. Papers and studies documenting autopsies on over thirty former NFL players show 13 that over ninety percent of the players suffered from CTE. 14 65. As a result, published peer reviewed scientific studies have shown that concussive 15 and sub-concussive head impacts while playing professional football are linked to a significant 16 risk of permanent brain injury. 17 66. Published peer reviewed scientific studies have shown that 28% of the NFL 18 retirees studied suffered from depression, whereas the prevalence of depression in the general 19 population is 9.5%. 20 67. Published peer reviewed scientific studies have shown that 36% of NFL retirees,
21 age 65-75, who were studied suffered from dementia, whereas the prevalence of dementia in the 22 general population for the same age group is merely 2.2-6.5%.
23 68. Published peer reviewed scientific studies have shown that retired players with
24 three or more reported concussions had a fivefold prevalence of mild cognitive impairment (MCI)
25 and a threefold prevalence of significant memory problems, compared to other retirees.
26 69. In a study of NFL retirees, 11.1% of all respondents reported having a diagnosis of
27 clinical depression.
28 70. At all times, the NFL's unique position afforded it unparalleled access to the
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1 readily accessible data above relating the effect of head impacts on football players. The NFL
2 Defendants have Icnow or should have Icnown about the risks for MTBI, the scientific studies
3 linking repeated concussive and sub-concussive head impacts with a significant risk for
4 permanent brain injury, including CTE, and about the increased incidence of depression, 5 dementia, cognitive impairment and memory problems in retired NFL players.
6 The NFL Was in a Superior Position of Knowledge and Authority and Owed a Duty to Players Like Junior Seau 7
8 71. At all times, the NFL's unique historical vantage point at the apex of the sport of 9 football, paired with its unmatched resources as the most well-funded organization devoted to the 10 business of the game, has afforded it unparalleled access to data relating to the effect of head 11 impacts on football players and made it an institutional repository of accumulated Ic.nowledge 12 about head injuries to players. 13 72. The NFL is the organizer, marketer and public face of professional football in the 14 United States. The NFL govems each of the individual teams, collects and distributes revenue 15 among the teams, and authorizes the sport's rules. 16 73. From its inception, the NFL adopted the role of protecting players, informing 17 players of safety concerns, and imposing unilaterally a wide variety of rules to protect players
18 from injuries that were costly to the player, the game, and profits. For instance, the NFL recently
19 stated that "[s]ince its earliest days, the league has continuously taken steps to ensure that the 20 gatne is played as fairly as possible without unnecessary risk to its participants, including making
21 changes and enhancements to game safety rules."
22 (www.nflhealthsasfety.com/commitment/regulations) (2011-2012).
23 74. On information and .belief, the NFL has continuously received and paid for
24 professional advice regarding health risks associated with playing football. This advice and
25 knowledge placed the NFL in a position of ongoing superior knowledge to the players regarding
26 the health risks associated with concussive and sub-concussive injuries. Combined with the
27 NFL's unilateral power to set rules and policies, the NFL at all relevant times was in a position to
28 dictate how the game would be played and to define the risks to players.
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1 75. For these reasons, players and their families have rehed on the NFL to: 1)
2 intervene in matters of player safety, 2) to recognize issues of player safety, and 3) to be truthful
3 on the issue of player safety.
4 76. By its position, representations and actions to set rules and policies, the NFL 5 assumed a duty to adhere to these goals. 6 77. The NFL's historical actions in connection with an assumed common law duty to 7_ make the game safer and inform players of necessary safety information include, but are not
8 limited to, the following: adding a field judge (1929); establishing hash-marks at 10 yards from
9 the sidelines (1933); establishing the penalty of unnecessary roughness for a deliberate rough 10 contact on the passer after the pass is made (1938); making helmets mandatory (1943); adding a 11 back field judge (1947); establishing a rule that the ball is dead when a runner touches the ground 12 with any part of his body except his hands while in the gjasp of an opponent (1955); establishing 13 a rule that the ball is dead immediately if the runner touches the ground with . any part of his body 14 except his hands after being contacted by a defensive player (1956); establishing a penalty for 15 grabbing the face mask of any opponent except a runner (1956); establishing a penalty of 16 gabbing the face mask of any opponent (1962); requiring that goal posts be offset from the goal
17 line (1966); establishing a rule that a player who signals for a fair catch cannot block or initiate 18 contact with one of the kicking team's players until the ball touches a player (1967); establishing
19 a rule that a defensive player who jumps or stands on a teammate or who is picked up by a 20 teammate cannot attempt to block an opponent's kick (1973); establishing a rule that no receiver 21 can be blocked below the waist after moving beyond the line of scrimmage (1974); establishing a 22 rule that eligible receivers who take a position more than two yards from the tackle cannot be
23 blocked below the waist (1974); establishing a rule that a defender is not permitted to run or dive
24 into a ball carrier who has fallen to the ground untouched (1976); establishing a rule that it is
25 illegal for a defensive lineman to strike an opponent above the shoulders during his initial charge
26 (1977) (previously the NFL made this illegal only during the first step); establishing that it is
27 illegal for a wide receiver to clip an opponent anywhere (1977); establishing rules as to
28 mandatory equipment (1979); establishing that it is illegal for a player in the backfield to-chop an •CooLer LLP 14. ATTORNETS AT LAW
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1 outside rusher on a pass play (1979); establishing that it is illegal to throw a punch or forearm or
2 to kick an opponent (1979); and establishing that it is illegal to strike, swing, or club an opponent 3 in the head, neck or face (1980). 4 78. As the sport's goveming entity (with monopolistic power), the NFL has made it 5 known to players and teams alike that the NFL actively and pervasively governs player conduct
6 and health and safety both on and off the field. In public statements since its inception, the NFL 7 has stated that its goals include talcing necessary steps for the safety, health and well-being of 8 players and their families.
9 79. Thus, since its inception, and continuing into the present, the NFL has been in a 10 position that affords it a special relationship to NFL players as the guardian of their health and 11 safety. For that reason, from its inception and continuing into the present, the NFL owed a duty 12 of reasonable care to keep NFL players informed of safety risks, to inform NFL players truthfully,
13 and not to mislead NFL players about the risks of permanent neurological damage that can occur 14 fi-om MTBI incurred while playing football. 15 80. On infon-nation and belief, over the past two decades, the NFL continued to 16 exercise this common law duty and its unilateral authority to investigate and advise NFL players 17 on many diverse and important topics, and that should have included the recognition of 18 circumstances that can precipitate MTBI, the long-tenn potential consequences of MTBI to NFL
19 players, and solutions for players who have sustained MTBI.
20 81. Moreover, from 1994 until 2010, the NFL publicly conducted head injury research 21 and openly disputed that any short-term or long-term harmful effects arose from football-related 22 sub-concussive and concussive injuries. The NFL propagated its own falsified research to 23 • support its position, despite its historic role as the guardian of player safety, and despite the fact
24 that independent medical scientists had already come to the opposite conclusion.
25 82. As such, the NFL continued its existing common law duty to provide truthful
26 scientific research and information about the risks of concussive and sub-concussive injuries to
27 NFL players, including Junior Seau, who relied on the NFL's research and pronouncements on
28 that subject. COOLEY LLP 15. ATTORNEYS AT LAW
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1 The NFL Knew the Dangers and Risks Associated with Repetitive Head Impacts and Concussions 2
3 83. For decades, the NFL has been aware that multiple blows to the head can lead to 4 long-term brain injury, including but not limited to memory loss, dementia, depression, and CTE 5 and its related symptoms. 6 84. For instance, between 1952 and 1994, numerous studies were published in medical 7 journals including the Journal of the American Medical Association, Neurology, the New England 8 Journal of Medicine, and Lancet warning of the dangers of single concussions, multiple
9 concussions, and/or football-related head trauma from multiple concussions. These studies 10 collectively established that: 11 • repetitive head trauma in contact sports, including boxing and football, has potential dangerous long-term effects on brain function; 12 • encephalopathy (dementia pugilistica) is caused in boxers by repeated 13 sub-concussive and concussive blows to the head; 14 • acceleration and rapid deceleration of the head that results in brief loss of consciousness in primates also results in a tearing of the axons (brain 15 cells) within the brainstem;
16 • with respect to mild head injury in athletes who play contact sports, there is a relationship between neurologic pathology and length of the 17 athlete's career; immediate retrograde memory issues occur following concussions; mild head injury requires recovery time without risk of 18 subjection to further injury;
19 • head trauma is linked to dementia; 20 • a football player who suffers a concussion requires significant rest before being subjected to further contact; and, 21 • minor head trauma can lead to neuropathological and 22 neurophysiological alterations, including neuronal damage, reduced cerebral blood flow, altered brainstem evoked potentials and reduced 23 speed of information processing.
24 85. In fact, as early as 1928, pathologist Harrison Martland described the clinical 25 spectrum of abnormalities found in "almost 50 percent of fighters [boxers] . . . if they ke[pt] at the
26 game long enough" (the "Martland study"). The article was published in the Journal of the
27 American Medical Association. The Martland study was the first to link sub-concussive blows
28 and "mild concussions" to degenerative brain disease.
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86. In 1937, the American Football Coaches Association published a report waming
2 that players who suffer a concussion should be removed from sports demanding personal contact. 3 87. In 1962, Drs. Serel & Jaros looked at the heightened incidence of chronic
4 encephalopathy in boxers and characterized the disease as a "Parlcinsonian" pattern of progressive 5 decline. 6 88. A 1963 study by Drs. Mawdsley & Ferguson published in Lancet found that some 7 boxers sustain chronic neurological damages as a result of repeated head injuries. This damage
8 manifested in the form of dementia and impairtnent of motor function. 9 89. In the 1960s and 70s, the development of the protective face mask in football • 10 allowed the helmeted head to be used as a battering ram. By 1975 the number of head and neck 11 injuries from football that resulted in permanent quadriplegias in Pennsylvania and New Jersey 12 lead to the creation of the National Football Head and Neck Registry, which was sponsored by the 13 National Athletic Trainers Association and the Sports Medicine Center at the University of 14 Pennsylvania. 15 90. In the early 1980s, the Department of Neurosurgery at the University of Virginia 16 published studies on patients who sustained MTBI and observed long-term damage in the form of 17 unexpected cognitive impairment. The studies were published in neurological journals and
18 treatises within the United States. 19 91. In 1982, the University of Virginia and other institutions conducted studies on
20 college football teams that showed that football players who suffered MTBI suffered pathological 21 short-term and long-term damage. With respect to concussions, the sasne studies showed that a
22 person who sustained one concussion was more likely to sustain a second, particularly if that 23 person was not properly treated and removed from activity so that the concussion symptoms were
24 allowed to resolve.
25 92. The same studies showed that two or more concussions close in time could have
26 serious short-term and long-term consequences in both football players and other victims of brain
27 trauma.
28 93. By 1991, three distinct medical professionals/entities, all independent from the CooLzyLLP 17. ATTORNEYS AT LAW
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1 NFL—Dr. Robert Cantu of the American College of Sports Medicine, the American Academy of
2 Neurology, and the Colorado Medical Society—developed retum-to-play criteria for football 3 players suspected of having sustained head injuries.
4 94. On information and belief, by 1991, the NCAA football conferences and 5 individual college teams' medical staffs, along with many lower-level football groups had
6 disseminated information and adopted criteria to protect football players even remotely suspected 7 of having sustained concussions.
8 95. In 1999, the National Center for Catastrophic Sport Injury Research at the 9 University of North Carolina conducted a study involving eighteen thousand (18,000) collegiate
10 and high school football players. The research showed that once a player suffered one 11 concussion, he was three tirnes more likely to sustain a second in the same season. 12 96. In 1999, former Pittsburgh Steeler and Hall of Fame inductee Mike Webster filed 13 with the NFL a request that he receive complete disability benefits based on the fact that he had sustained repeated and disabling head impacts while a player for the Steelers. In 1999, Webster
15 submitted extensive medical reports and testimony that stated that Webster suffered from 16 "traumatic or punch drunk encephalopathy [brain disease]" sustained from playing football that . 17 left Webster totally and permanently disabled as of 1991.
18 97. The NFL's own physician independently examined Webster and concluded that 19 Webster was mentally "completely and totally disabled as of the date of his retirement and was 20 certainly disabled when he stopped playing football sometime in 1990."
21 98. Webster died in 2002 at the age of fifty. 1n December 2006, his estate received an
22 unpublished opinion from the United States Court of Appeals for the Fourth Circuit which stated 23 that the NFL Plan had acicnowledged that the multiple head injuries Webster sustained during his
24 playing career (1974-1990) ". . . had caused Webster eventually to suffer total and permanent
25 mental disability. . . . ."
26 99. Thus, the NFL, through its own expert medical testimony and the expert testimony
27 submitted by Webster knew and accepted that repetitive traumatic brain injuries sustained by a
28 Hall of Fame player led to long-term encephalopathy and permanent mental disability. COOLEY LLP 18. ATIORNEYS AT LAW SAN DIECO
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1 100. A 2000 study, which surveyed 1,090 former NFL players, found that more than
2 sixty (60) percent had suffered at least one concussion, and twenty-six (26) percent had suffered
3 three (3) or more, during their careers. Those who had sustained concussions reported more
4 problems with memory, concentration, speech impediments, headaches, and other neurological 5 problems than those who had not been concussed.
6 101. Also in 2000, a study presented at the American Academy of Neurology's 52nd 7 Annual Meeting and authored by Dr. Barry Jordan, Director of the Brain Injury Program at Burke
8 Rehabilitation Hospital in White Plains, New York, and Dr. Julian Bailes, surveyed 1,094 former
9 NFL players between the ages of 27 and 86 and found that: (a) more than 60% had suffered at 10 least one concussion in their careers, with 26% of the players having three or more and 15% 11 having five or more; (b) 51% had been knocked unconscious more than once; (c) 73% of those 12 injured said they were not required to sit on the sidelines after their head trauma; (d) 49% of the 13 former players had numbness or tingling; 28% had neck or cervical spine arthritis; 31% had 14 difficulty with memory; 16% were unable to dress themselves; 11% were unable to feed 15 themselves; and (e) eight suffered from Alzheimer's disease. 16 102. In 2004, a convention of neurological experts in Prague met with the aim of 17 providing recommendations for the improvement of safety and health of athletes who suffer 18 concussive injuries in ice hockey, rugby, football, and other sports based on the most up-to-date 19 research. These experts recommended that a player never be returned to play while symptomatic,
20 and coined the phrase, "when in doubt, sit them out."
21 103. This echoed similar medical protocol established at a Vienna conference in 2001. 22 104. These two conventions were attended by predominately American doctors who
23 were experts and leaders in the neurological field.
24 105. The University of North Carolina's Center for the Study of Retired Athletes
25 published survey-based papers in 2005 through 2007 that found a strong correlation between
26 depression, dementia, and other cognitive impairment in NFL players and the number of
27 concussions those players had received.
28 106. An article in 2010 in the New England Journal of Medicine entitled "Traumatic
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1 Brain Injury—Football, Warfare, and Long-Term Effects," demonstrated that even mild
2 "traumatic brain injury" ("TBI") can have lasting consequences that are manifest later in the
3 football player's life.
4 107. Indeed, while the NFL knew for decades of the harmful effects of sub-concussive 5 and concussive injuries on a player's brain, it actively concealed these facts from players and the
6 public. 7 108. While other sports were making changes to play safer, the NFL consistently and
8 publicly denied that football-related impacts had any connection to long-term brain injury. As 9 recently as 2009, the league's medical committee continued to assert that there were no long-term
10 negative health risks associated with concussions or other football-related head impacts. 11 109. The NFL deliberately concealed the fact that playing in the NFL could lead to 12 permanent irreversible brain damage from players. Instead of being honest about the dangers and 13 working with both players and the medical community to minimize them, the league repeatedly 14 asserted that professional football players were at no greater risk of brain or neurological injury 15 than the public at large.
16 110. On information and belief during every decade referenced above, the NFL was 17 advised by physicians of all kinds regarding the risks associated with playing the game of
18 football, including the risks associated with head impacts and MTBI. 19 111. As described above, the NFL has known for decades that MTBI can and does lead 20 to long-term brain injury, including, but not limited to, memory loss, dementia, depression, and
21 CTE and its related symptoms.
22 112. Rather than take immediate measures to protect NFL players from these known 23 dangers, between the 1950s and 1994, the NFL failed to disseminate to then-current and forrner
24 NFL players relevant health information it possessed regarding the significant risks associated
25 with MTBI.
26 The NFL Voluntarily Undertook the Responsibility of Studying Head Impacts In Football, Yet Fraudulently Concealed Their Long-Term Effects. 27
28 113. In 1994, then NFL commissioner Paul Tagliabue agreed to fund a committee to
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1 study the issue of head injury in the NFL. The NFL voluntarily and unilaterally formed the MTBI
2 Committee to study the effects of concussions and sub-concussive injury on NFL players.
3 114. By the time of the MTBI Corrunittee's formation in 1994 independent scientists
4 and neurologists alike were already convinced that all concussions—even seemingly mild ones-
5 were serious injuries that can permanently damage the brain, impair thinking ability and memory, 6 and hasten the onset of mental decay and senility, especially when they are inflicted frequently 7 and without time to properly heal.
8 115. With the MTBI Committee, the NFL voluntarily inserted itself into the private and 9 public discussion and research on the effects of repetitive head impacts in football. Through its 10 voluntary creation of the MTBI Committee, the NFL affirmatively assumed a duty to use 11 reasonable care in the study of concussions and post-concussion syndrome in NFL players; the 12 study of any kind of brain trauma relevant to the sport of football; the use of information 13 developed; and the publication of data and/or pronouncements from the MTBI Committee. 14 116. Rather than exercising reasonable care in these duties, the NFL immediately 15 engaged in a course of fraudulent and negligent conduct, which included dissemination of 16 disinformation designed to (a) dispute accepted and valid neuroscience regarding the connection 17 between repetitive traumatic brain injuries and concussions and degenerative brain disease such 18 as CTE; and (b) to create a falsified body of research which the NFL could cite as proof that
19 truthful and accepted neuroscience on the subject was inconclusive and subject to doubt. 20 117. The NFL's status in football gave the MTBI Committee's pronouncements on
21 concussions authority and validity. The MTBI Committee was purportedly geared toward 22 "improv[ing] player safety" and for the purpose of instituting "rule changes aimed at reducing
23 head injuries." Players like Junior Seau, therefore, reasonably relied on the NFL's
24 pronouncements and/or silence on this vital health issue.
25 118. The NFL did not appoint any neuropathologist to the MTBI Committee.
26 119. The MTBI Committee was publicized by the NFL as independent from the NFL,
27 consisting of a combination of doctors and researchers.
28 120. The MTBI Committee, however, was not independent. It consisted of at least five
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1 (5) persons who were already affiliated with the NFL. 2 121. Instead of naming a noted neurologist or a physician trained to treat head injuries
3 to chair the MTBI Committee, Commissioner Tagliabue appointed Dr. Elliot Pellman, a 4 rheumatologist who lacked any specialized training or education relating to concussions, and who
5 was a paid physician and trainer for the New York Jets. Dr. Pellman had reportedly been fired by
6 Major League Baseball for 1ying to Congress regarding his resume. At no time was Dr. Pellman
7 independent of the NFL, because he was paid on an ongoing basis by an NFL Team.
8 122. Dr. Pellman would chair the MTBI Committee from 1994-2007, and his leadership 9 of the Committee came under frequent and harsh criticism related to his deficient medical 10 training, hackground, and experience. 11 123. Dr. Pellman and two other MTBI Conunittee members, Dr. Ira Casson, a 12 neurologist, and Dr. David Viano, a biomedical engineer, worked to discredit scientific studies 13 that linked head impacts and concussions received by NFL players to neuro-cognitive disorders 14 and disabilities. 15 124. The MTBI Committee did not publish its first findings on active players until 16 2003. In that publication, the MTBI Conunittee stated, contrary to years of (independent) 17 findings, that there was no long term negative health consequence associated with concussions.
18 125. The MTBI Committee published its subsequent findings in a series of sixteen (16) 19 papers between 2003 and 2009. According to the MTBI Committee, all of their findings
20 supported a conclusion that there was no long term negative health consequence associated with 21 concussions or sub-concussive injuries sustained by NFL players. These findings regularly
22 contradicted the research and experiences of neurologists who treat sports concussions and the 23 players who endured them.
24 126. For example, in 2004 the MTBI Committee published a conclusion in which it
25 claimed that its research found no risk of repeated concussions in players with previous
26 concussions and that there was no "7-to-10 day window of increased susceptibility to sustaining
27 another concussion."
28 127. In a comment to this publication, one independent doctor wrote that "[t]he article
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1 sends a message that it is acceptable to return players while still symptomatic, which contradicts 2 literature published over the past twenty years suggesting that athletes be returned to play only 3 after they are asymptomatic, and in some cases for seven days."
4 128. As a further example, an MTBI Committee conclusion in 2005 stated that 5 "[p]layers who are concussed and_ . return to the same game have fewer initial signs and symptoms 6 than those removed from play. Return to play does not involve a significant risk of a second 7 injury either in the same game or during the season." "These data suggest," the MTBI Committee
8 reported, "that these players were at no increased risk" of subsequent concussions or prolonged 9 symptoms such as memory loss, headaches, and disorientation. 10 129. Yet, a 2003 NCAA study of 2,905 college football players found just the opposite: 11 "Those who have suffered concussions are more susceptible to further head trauma for seven to 12 10 days after the injury."
13 130. Support for this same conclusion was developed as early as 1982 in studies 14 conducted at the University of Virginia. 15 131. Dr. Pellman and his group stated repeatedly that the NFL study showed "no 16 evidence of worsening injury or chronic cumulative effects of multiple [MTBI] in NFL players." 17 132. Yet, the 2003 report by the Center for the Study of Retired Athletes at the 18 University of North Carolina found a link between multiple concussions and depression among 19 former professional players with histories of concussions. A 2005 follow-up study by the Center 20 showed a connection between concussions and both brain impairment and Alzheimer's disease
21 among retired NFL players.
22 133. Other contrary conclusions that the MTBI Committee published at the behest,
23 urging, and sponsorship of NFL over several years include, but are not limited to, the following: 24 Drs. Pellman and Viano stated that because a "significant percentage of players returned to play
25 in the same game [as they suffered a concussion] and the overwhelming majority of players with
26 concussions were kept out of football-related activities for less than 1 week, it can be concluded
27 that mild [TBIs] in professional football are not serious injuries"; that NFL players did not show a
28 decline in brain function after a concussion, that there were no ill effects among those who had
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1 three (3) or more concussions or who took hits to the head that sidelined them for a week or more;
2 that "no NFL player experienced the second-impact syndrome or cumulative encephalopathy
3 from repeat concussions"; and that NFL players' brains responded and healed faster than those of 4 high school or college athletes with the same injuries.
5 134. The MTBI Committee's papers and conclusions were against the weight of the 6 scientific evidence and based on biased data-collection techniques. They received significant
7 criticism in the scientific and medical media from independent doctors and researchers and were 8 met with skepticism in peer review segments following each article's publication. 9 135. Moreover, the conclusions of the MTBI Committee completely contradicted the 10 testimony of the NFL's own paid expert submitted in connection with Mike Webster's permanent 11 disability application.
12 136. Renowned experts Dr. Robert Cantu and Dr. Julian Bailes wrote harshly critical 13 reviews of the studies' conclusions. 14 137. Dr. Cantu observed that the extremely small sample size and voluntary 15 participation in the MTBI Committee's study suggested there was bias in choosing the sample. 16 According to Dr. Cantu, no conclusions should be drawn from the NFL study. 17 138. A different scientist who reviewed the MTBI Committee's work further stated that 18 the NFL appeared to be primarily preparing a defense for when injured players eventually sued, 19 and that it seemed to be promoting a flawed scientific study to justify its conclusion that 20 concussions do not have adverse effects on players.
21 139. Also, the MTBI Committee failed to include hundreds of neuropsychological tests 22 done on NFL players in the results of the Committee's studies on the effects of concussions and
23 was selective in its use of injury reports.
24 140. For instance, the results reported by Dr. Pellman and the MTBI Committee
25 selectively excluded at least 850 baseline tests. In a paper published in Neurosurgery in
26 December 2004, Dr. Pellman and the other MTBI Committee members reported on the baseline
27 data for 655 players and the results for 95 pIayers who had undergone both baseline testing and
28 post-concussion testing. They concluded that NFL players did not show a decline in brain COOLEY LLP 24. ATTORNETS AT LAW
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1 function after suffering concussions. Their further analysis purportedly found no ill effects
2 among those who had three or more concussions or who took hits to the head that kept them out
3 for a week or more. The paper did not explain where the players in the study goups came from 4 specifically or why certain player data was included and that data from hundreds of other players 5 was not.
6 141. Dr. Kevin Guskiewicz has stated that the "data that hasn't shown up makes their 7 work questionable industry-funded research."
8 142. Pellman subsequently fired William Barr, a neuropsychologist for the New York 9 Jets, after Dr. Barr presented at a conference some NCAA study findings that contradicted NFL 10 practices.
11 143. As described in the following paragraphs, when faced with studies which tended to 12 show a causal link between MTBI and cognitive degeneration, the NFL, through the MTBI 13 Committee, produced contrary findings that were false, distorted, and deceptive to NFL players, 14 participants in football nationwide, and the public at large. 15 144. Between 2002 and 2007, Dr. Bennet Omalu examined the brain tissue of deceased 16 NFL players, including Mike Webster, Terry Long, Andre Waters, and Justin Strzelczyk. Dr. 17 Omalu concluded that the players suffered from CTE. These individuals suffered multiple 18 concussions during their NFL careers, and later in life exhibited symptoms of deteriorated
19 cognitive functions, paranoia, panic attacks, and depression. Dr. Omalu's findings were
20 published in Neurosurgery, where he concluded that Webster's and Long's respective deaths
21 were partially caused by CTE and were related to multiple concussions suffered during their
22 activity in the NFL.
23 145. In response to Dr. Omalu's articles, the MTBI Committee wrote a letter to the
24 editor ofNeurosurgery asking that Dr. Omalu's article be retracted.
25 146. 1n another Neurosurgely article published in 2007, Dr. Cantu reached a similar 26 conclusion regarding Andre Waters as Dr. Omalu had reached regarding Mike Webster and Terry
27 Long.
28 147. A 2003 study, partially authored by Dr. Kevin Guskiewicz, analyzed data from
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1 almost 2,500 retired NFL players and found that 263 of the retired players suffered from
2 depression. The study found that having three or four concussions meant twice the risk of 3 depression and five or more concussions meant a nearly three-fold risk.
4 148. The NFL's MTBI Committee attacked these studies.
5 149. In November 2003, Dr. Guskiewicz was scheduled to appear on HBO's "Inside the
6 NFL" to discuss his research. Dr. Pellman called Dr. Guskiewicz in advance and questioned 7 whether it was in the best interest of Dr. Guslciewicz to appear on the program. On the program,
8 Dr. Pellman stated unequivocally that he did not believe the results of the study led by Dr. 9 Guski ewicz.
10 150. In 2005, Dr. Guskiewicz performed a clinical follow-up study, and found that
11 retired players who sustained three or more concussions in the NFL had a five-fold prevalence of 12 mild cognitive impairment in comparison to NFL retirees without a history of concussions. In 13 doing this research, Dr. Guskiewicz conducted a survey of over 2,550 former NFL athletes. 14 151. The MTBI Committee attacked and sought to undermine the study, stating: "We 15 want to apply scientific rigor to this issue to malce sure that we're really getting at the underlying 16 cause of what's happening. . . . You cannot tell that fi-om a survey."
17 152. In August 2007, the NFL issued a concussion pamphlet to players which stated: 18 Current research with professional athletes has not shown that having more than one or two
19 concussions leads to permanent problems if each injury is managed properly. It is important to . 20 understand that there is no magic number for how many concussions is too many. Research is
21 currently underway to determine if there are any long-term effects of concussion[s] in NFL 22 athletes.
23 153. At the same time, NFL Commissioner Roger Goodell said, "We want to make sure 24 all NFL players . . . are fully informed and take advantage of the most up to date information
25 and resources as we continue to study the long-term impact of concussions." Yet, the "most up to 26 date information" included the various independent studies indicating a causal link between
27 multiple concussions and cognitive decline in later life, information which the NFL did not share 28 with players. Comer LLP 26. ATTORNEYS AT LAW SAN DIECO
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1 154. Goodell also stated, "[b]ecause of the unique and complex nature of the brain, our
2 goal is to continue to have concussions managed conservatively by outstanding medical personnel 3 in a way that clearly emphasizes player safety over competitive concerns." 4 155. Players like Junior Seau relied to their detriment on the NFL's disinformation, all 5 of which was contrary to the findings of the independent scientists who had studied the issue, 6 including Drs. Guskiewicz, Cantu, Omalu, and Bailes, regarding the causal link between multiple 7 head injuries and concussions and cognitive decline.
8 156. In February 2007, Dr. Pellman resigned as chair of the Committee, following 9 increasing media scrutiny over the MTBI Committee's studies. He was replaced as chair by Dr.
10 Ira Casson and Dr. David Viano, but remained a member of the Committee. 11 157. Dr. Guskiewicz, research director of the University of North Carolina's Center for 12 the Study of Retired Athletes, said at the time that Dr. Pellman was "the wrong person to chair the 13 committee from a scientific perspective and the right person from the league's perspective." 14 158. Regarding Dr. Pellman's work, Dr. Guskiewicz stated, "[w]e found this at the high 15 school level, the college level and the professional level, that once you had a concussion or two 16 you are at increased risk for future concussions," but "[Dr. Pellman] continued to say on the
17 record that's not what they find and there's no truth to it."
18 159. Drs. Casson and Viano continued to dismiss outside studies and overwhelming 19 evidence linking dementia and other cognitive decline to brain injuries. In 2007, in a televised 20 interview on HBO's Real Sports, Dr. Casson unequivocally stated that there was no link between 21 concussions and depression, dementia, Alzheimer's disease, or "anything like [that] whatsoever."
22 160. In June 2007, the NFL convened a concussion summit for team doctors and
23 trainers. Independent scientists, including Drs. Cantu, and Guskiewicz, presented their research 24 to the NFL. 25 161. Dr. Julian Bailes, a neurosurgeon from West Virginia University, briefed the
26 MTBI Committee on the findings of Dr. Omalu and other independent studies linking multiple
27 NFL head injuries with cognitive decline. Dr. Bailes recalled that the MTBI's Committee's
28 reaction to his presentation was adversarial: "The Committee got mad . . . we got into it. And
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1 I'm thinking, `This is a . . . disease in America's most popular sport and how are its leaders 2 responding? Alienate the scientist who found it? Refuse to accept the science coming from
3 him?"
4 162. At the summit, Dr. Casson told team doctors and trainers that CTE has never been 5 scientifically documented in football players.
6 163. In 2008, Boston University's Dr. Ann McKee found CTE in the brains of two 7 more deceased NFL players, John Grimsley and Tom McHale. Dr. McKee stated, "the easiest
8 way to decrease the incidence of CTE [in contact sport athletes] is to decrease the number of 9 concussions." Dr. McKee further noted that "[t]here is overwhelming evidence that [CTE] is the 10 result of repeated sublethal brain trauma." 11 164. A MTBI Committee representative characterized each study as an "isolated 12 incident" from which no conclusion could be drawn, and said he would wait to comment further 13 until Dr. McKee's research was published in a peer-reviewed journal. When Dr. McKee's 14 research was published in 2009, Dr. Casson asserted that "there is not enough valid, reliable or 15 objective scientific evidence at present to determine whether . repeat head impacts in
16 professional football result in long[-]term brain damage." 17 165. In 2008, under increasing pressure, the NFL commissioned the University of
18 Michigan's Institute for Social Research to conduct a study on the health of retired players. Over
19 1,000 former NFL players took part in the study. The results of the study, released in 2009, 20 reported that "Alzheimer's disease or similar memory-related diseases appear to have been 21 diagnosed in the league's former players vastly more often than in the national population---
22 including a rate of 19 times the normal rate for men ages 30 through 49."
23 166. The NFL responded to these results by claiming that the study was incomplete, 24 and that firther findings would be needed. NFL spokesperson Greg Aiello stated that the study
25 was subject to shortcomings and did not formally diagnose dementia. Dr. Casson implied that the
26 Michigan study was inconclusive and stated that further work was required. Other experts in the
27 field found the NFL's reaction to be "bizan-e," noting that "they paid for the study, yet they tried
28 to distance themselves from it."
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1 167. At a Congressional hearing in October 2009, NFL Commissioner Roger Goodell
2 acknowledged that the NFL owes a duty to the public at large to educate them as to the risks of
3 concussions due to the League's unique position of influence: "In addition to our millions of fans,
4 more than three million youngsters aged 6-14 play tackle football each year; more than one
5 million high school players also do so and nearly seventy five thousand collegiate players as well. 6 We must act in their best interests even if these young men never play professional football."
7 168. In January 2010, the House Judiciary Committee held further hearings on football 8 player head injuries. Representative Conyers observed that "until recently, the NFL had 9 minimized and disputed evidence linking head injuries to mental impairment in the future."
10 169. In the 2010 Congressional hearings, Dr. Casson gave testimony that denied the 11 validity of other non-NFL studies and stated that "[t]here is not enough valid, reliable or objective 12 scientific evidence at present to determine whether or not repeat head impacts in professional 13 football result in long term brain damage." 14 170. The members of the MTBI Committee, however, Icnew of the decades-old studies 15 linking MTBI to long-term neurological problems. Casson, a MTBI Committee member since its 16 inception, stated before Congress on January 4, 2010, that he was "the lead author of a landmark 17 paper on brain damage in modern boxers that was published in the [Journal of the American 18 Medical Association] in 1984." That paper, which referenced the many studies documenting
19 CTE in boxers, studied eighteen former and active boxers and found that eighty-seven percent of 20 the professional boxers had definite evidence of brain damage. Specifically, the study determined
21 that the subjects performed particularly poorly on neuropsychological tests measuring short-term 22 memory.
23 171. In his written statement to Congress, Casson stated that he has "been concerned
24 about the possibility of long term effects on the brain related to football for close to thirty years."
25 Dr. Casson offered that one of the reasons he "was asked to be on the NFL MTBI committee was
26 because of [his] knowledge of and experience treating boxers with chronic traumatic
27 encephalopathy (CTE)."
28 172. This testimony contradicted Casson's testimony that "there is not enough valid, COOLEY LLP 29. ATTORNETS AT LAW
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1 reliable or objective scientific evidence at present to determine whether or not repeat head
2 impacts in professional football result in long term brain damage." 3 The NFL's New Committee 4 173. In 2010, the NFL re-named the MTBI Committee the "Head, Neck, and Spine 5 Medical Committee" (the "Medical Committee") and announced that Dr. Pellman would no 6 longer be a member of the panel. Drs. H. Hunt Batjer and Richard G. Ellenbogen were selected 7 to replace Casson and Viano. The two new co-chairmen selected Dr. Mitchel S. Berger to serve 8 on the new Medical Conunittee.
9 174. The new Committee admitted that the data collected by the NFL's former 10 appointed brain-injury leadership was "infected," and that there was an "inherent conflict of 11 interest that was there in many areas, that was not acceptable by any modern standards or not 12 acceptable to us." 13 175. In June 2010, scientific evidence linked multiple concussions to yet another 14 degenerative brain disease--Amyotrophic Lateral Sclerosis ("ALS"), commonly referred to as 15 "Lou Gehrig's Disease." 16 176. In June 2010 the NFL finally informed players about the risk of repeated brain 17 injury. It issued a warning poster and pamphlet, which warned active players of the long term 18 risks associated with multiple concussions, including dementia, memory loss, and CTE. It quoted
19 the Center for Disease Control's conclusions that, "traumatic brain injury can cause a wide range 20 of short or long term changes affecting thinking, sensation, language or emotions." The NFL also 21 informed players, "Whese changes may lead to problems with memory or communication,
22 personality changes, as well as depression and early onset dementia. Concussions and conditions 23 resulting from repeated brain injury can change your life and your family's life forever."
24 177. On February 17, 2011, former Chicago Bears and New York Giants player Dave
25 Duerson committed suicide at age 50. Duerson had suffered months of headaches, blurred vision,
26 and faltering memory. After his death, Dr. Cantu determined that Duerson was suffering from
27 CTE.
28 178. In October 2011, Dr. Mitchel Berger of the NFL's new Head, Neck, and Spine COOLEY LLP 30. ATTORNEYS AT LAW
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1 Medical Committee announced that a new study was in the planning process. He admitted that
2 the MTBI Committee's previous long-range study was useless because "[t]here was no science in
3 that." Dr. Berger further stated that data from the previous study would not be used. "We're
4 really moving on from that data. There's really nothing we can do with that data in terms of how 5 it was collected and assessed."
6 179. Why in 1994 (and far earlier) the NFL (and its MTBI Committee) failed to share 7 accurate information and take appropriate actions is difficult to comprehend in light of the fact
8 that the NFL has known for decades that multiple blows to the head can lead to long-term brain 9 injury, including memory loss, dementia, depression, and CTE and its related symptoms. Instead,
10 the NFL misled players, coaches, trainers, and the public, and actively spread disinformation. 11 180. It took decades for the NFL to admit that there was a problem and sixteen years to 12 admit that its information was false and inaccurate. The NFL's conduct in this regard is willful 13 and wanton and exhibits a reckless disregard for the safety of its players and the public at large. 14 At a minimum, the NFL acted with callous indifference to the duty it voluntarily assumed to 15 Junior Seau and players at every level of the game. 16 181. As a direct result of the fraudulent concealment and misrepresentations by the
17 NFL, former players, including junior Seau, had for many decades been led to believe that the 18 symptoms of early-onset dementia, loss of memory, headaches, confusion, insomnia, depression
19 and the inability to function were not caused by their play in the NFL. And, as a result of this 20 willful and malicious conduct, these former players were deprived of medical treatment, incurred
21 expenses, lost employment, suffered humiliation, and sustained other damages to be specified.
22 GENERAL ALLEGATIONS APPLICABLE TO ALL COUNTS AGAINST THE RIDDELL DEFENDANTS 23
24 182. The Riddell Defendants have operated as a business through designing,
25 developing, manufacturing, selling, and distributing football equipment, including helmets, in one
26 form or another, since 1922.
27 183. As early as the 1930s, players began using helmets during football games. These
28 early helmets were constructed from pieces of cobbled leather. COOLEy LIP 31. ATTORNEYS AT LAW SAN DIEGO
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1 184. In the early 1940s, John T. Riddell, who later formed John T. Riddell
2 Incorporated, invented the first plastic suspension helmet. In 1949, plastic helmets became 3 legalized.
4 185. Throughout the latter half of the 20th century and continuing to present day, the 5 Riddell Defendants have designed, developed, manufactured, sold, and distributed equipment
6 used in the NFL, including equipment used by Junior Seau, including, but not limited to, the 7 following:
8 (a) In the 1950s, the Riddell Defendants manufactured a face-mask component for its 9 helmets, which was eventually patented.
10 (b) In 1962, the Riddell Defendants used a "U" shaped nose protector with a shell 11 (known as the TI(2) molded out of polycarbonate. The Riddell Defendants also designed an 12 open/closed cell foam and composite liner system for this model to increase the efficiency of the 13 webbed suspension. 14 (c) In 1963, the Riddell Defendants developed the TAK-29 helmet, which was the 15 first to use air inflation for fitting the helmet snug to the head. The TAK-29 shell, like the TI(2, 16 displayed the protective polycarbonate plastic, in addition to including tough shock and cut- 17 resistant face-mask attachment straps.
18 (d) In 1969, recognizing that head protection was a key factor in helmet design 19 requiring durable head protection, the Riddell Defendants constructed a micro-fit helmet model
20 with injection molding technology to create a one piece shell to improve the structural integrity of 21 the entire helmet.
22 (e) In 1973, the Riddell Defendants developed, designed, manufactured, sold, and/or 23 distributed an air cushion helmet whose interior system consisted of individual vinyl air cushions
24 with layers of fitting and energy absorbing foam. When a blow was struck, the air in the cushion
25 was expelled through a single vent, greatly reducing the initial impact. With the exhausting of the
26 air cushion, the compressed fitting foam was further compressed, reducing impact.
27 (f) In 1977, the Riddell Defendants developed, designed, manufactured, sold, and/or
28 distributed a stainless steel face-mask which offered greater bend resistance that prevented helmet
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1 breakage at the drill holes.
2 (g) In 1981, the Riddell Defendants developed, designed, manufactured, sold, and/or 3 distributed an Air Cushion Engineered helmet.
4 (h) In 1982, the Riddell Defendants developed, designed, manufactured, sold, and/or 5 distributed a M155 helmet model with a combination of foam and liquid-filled cells used for 6 padding. On impact, the liquid would be throttled from one cell to the next, resulting in energy 7 attenuation. The M155 helmet model included one-piece injection-molded face-masks which 8 were mar and rust-resistant, in addition to polyurethane face mask straps and universal jaw pads.
9 (i) In 2002, the Riddell Defendants developed, designed, manufactured, sold, and/or 10 distributed the Riddell Revolution helmet designed with the intent of reducing the risk of 11 concussion.
12 (j) In 2003, the Riddell Defendants developed, designed, manufactured, sold, and/or 13 distributed a real-time, Head Impact Telemetry System (HITS) to monitor and record significant 14 incidences of head impact sustained during a football game or practice. The system measured the 15 location, magnitude, duration, and direction of head acceleration and transmitted that information 16 wirelessly to the sideline.
17 (k) In 2006, the Riddell Defendants provided a research grant to the University of 18 Pittsburgh Medical Center for head injury research. The study compared rates of high school 19 athletes who wore the Riddell Revolution helmet with those who wore traditional helmets.
20 (1) 1n 2007, the Riddell Defendants developed, designed, manufactured, sold, and/or 21 distributed an individual helmet system, Revolution IQ HitsTM, allowing players to monitor the
22 number and severity of impacts received during games and practices. On-board electronics 23 record every impact, allowing players to upload and evaluate each occurrence on their home • 24 computers.
25 (m) In 2011, the Riddell Defendants developed, designed, manufactured, sold, and/or
26 distributed the 360 helmet which uses energy-managing materials and a face mask attachment
27 system to disperse the energy of frontal impacts. According to Riddell, it developed this helmet
28 using over 1.4 million impacts collected through Riddell's HITS technology.
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1 186. The Riddell Defendants' helmets are currently the official helmets of the NFL. As
2 the official helmets for the NFL, the Riddell logo is the only helmet logo the NFL allows to be
3 displayed on helmets worn by players during NFL games. Upon information and belief, Junior 4 Seau wore Riddell helmets at times while playing and/or practicing during his NFL career.
5 187. The Riddell Defendants at all times herein mentioned engaged in the business of 6 selling, manufacturing, designing, testing, engineering, marketing, modifying, assembling, 7 inspecting, distributing, and controlling the helmets and other similar equipment for use by Junior
8 Seau and within the NFL. 9 188. Players did not Icnow the long-term effects of concussions and relied on the NFL
10 and Riddell to protect them.
11 The Riddell Defendants' Duty to Protect Against the Long-Term Risk of Concussions 12 13 189. Despite years of science and medicine linking the risk of long term brain injury 14 from repeat concussions, it was not u.ntil the release of the Revolution Helmet wherein a 15 notification reminding players to "sit out" if they suffer a concussion was placed on •the 16 Revolution helmet. • 17 190. Around the same time period, the Riddell Defendants developed the HITS system
18 to monitor the severity and incident of impacts that a player receives.
19 191. Based on a 2003 University of Pittsburgh Medical Center study fiinded by a gant
20 from the Riddell Defendants, the Riddell Defendants began to market the Revolution helmet as 21 reducing concussions by 31%.
22 192. However, both the HITS system and the Revolution helmet, both created by the
23 Riddell Defendants and their employees have been criticized by experts for their inaccurate
24 marketing as being safer in reducing the risk of concussion.
25 193. A study published in the Journal of Neurosurgery showed that the study by UPMC
26 was flawed in that is discounted low impact hits and in turn proved that the Revolution did not
27 reduce the risk of concussions.
28 194. Even to this day the Riddell Defendants do not acicnowledge a lin.k between repeat COOLEY LLP 34. ATTONNEYS AT LAW SAN DIECO
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1 concussions and later life cognitive problems.
2 195. In fact, the Riddell Defendants have never warned any player or retired player of 3 the long-term health effects of concussions.
4 ALLEGATIONS REGARDING JUNIOR SEAU
5 Junior Seau's Rise as an NFL Superstar
6 196. Junior Seau joined the NFL in 1990 as a member of the San Diego Chargers. 7 197. For the next twenty seasons, he was one of the league's best linebackers, a position 8 which caused him to suffer repeated subconcussions and concussions. 9 198. Recognized as a powerful, positive, and versatile force on the football field, Junior 10 Seau was named to the Pro Football Hall of Fame's All-Decade Team of the 1990s and for 12 11 consecutive years was selected to play in the NFL's all-star Pro Bowl. In 2000, he became the 12 highest paid linebacker in the NFL. 13 199. Junior Seau was also known for his work off of the field improving the lives of 14 others. In 1992, he founded the Junior Seau Foundation. The Foundation provided more than $4 15 million of funding for San Diego community services for children and young adults, including
16 hundreds of scholarships to college-bound students through the Scholars of Excellence program. 17 200. From his own childhood, Junior Seau knew how the holidays could be particularly 18 painful for low-income families. He annually played Santa Claus, taking 250 children to buy 19 gifts for friends and family through his Shop with a Jock Program and funded Thanksgiving 20 dinner in his restaurant for 700 homeless shelter residents, victims of domestic violence, and
21 military families.
22 201. During his life, Junior Seau's years of philanthropic spirit and work were
23 celebrated both by the San Diego community and nationally. His charisma as a celebrity player 24 inspired his fellow athletes to make contributions to their own communities. As a result of these
25 efforts, he was selected as the NFL's Man of the Year in 1994 and honored by President George
26 W. Bush with the Volunteer Service Award in 2005.
27 202. The Junior Seau revered by his fans and community also had a family. Seau's
28 family life was a loving and warm haven. Junior Seau had four children whom he loved and
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1 adored, sons Tyler, Jake, and Hunter and a daughter Sydney. At the beginning of his career, Seau
2 was a loving parent and husband, regarded as a "teddy bear" by his children.
3 The NFL's Failures and Misrepresentations Expose Junior Seau to Long-Term Brain Injury 4
5 203. During his professional career, Junior Seau led his teams to two Super Bowls and 6 was Icnown by teammates for his focus, discipline, and intensity as a teammate and a player.
7 204. Nicknamed the "Tasmanian Devil", Seau was extolled by the NFL, the fans, and 8 his peers for his on-field aggression and zeal. He was Icnown as a warrior, the invincible patriarch 9 who could be depended on to play through injuries.
10 205. His body received countless blows which caused injuries over the years. The 11 impacts that his body routinely absorbed caused subconcussions and concussions due to the 12 significant force of the impacts.
13 206. Junior Seau suffered from extensive injuries throughout his NFL career, including, 14 among many others, a chronic torn rotator cuff, shattered bones in his forearm, chronic ankle, 15 knee, shoulder, toe injuries, back pain, and severe bruising all over his body on a regular basis. 16 Yet he rarely missed games for these injuries or even complained about pain or injuries. Instead, 17 he received injections for pain and inflammation to play through his ever-present injuries. 18 207. As alleged above, the NFL engaged in a deliberate and systematic campaign to 19 ignore, conceal and fraudulently misrepresent the facts about football-related impacts and long- 20 term brain injury. As a result, Junior Seau was not armed with critical information necessa-ry for
21 his own safety.
22 208. He suffered innumerable blows directly to his head during his NFL career, both
23 sub-concussive and concussive. • Several times he was hit in the head so hard that he sustained
24 facial lacerations.
25 209. Seau also suffered from and reported symptoms of head injuries from playing in
26 NFL games, including dizziness during and after playing, dizziness when he turned his head, and
27 becoming dazed after being hit during games.
28 210. On numerous occasions, Seau left the field because he was dazed. He would sit on
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1 the sidelines until he regained his bearings and he would then return to the game.
2 211. Seau often related that he had suffered concussions from playing and had 3 headaches from those concussions. He would regularly ask for pain medications, such as aspirin,
4 Motrin, Tylenol, Excedrin, from his family and friends and took them in to help ease the 5 headache pain.
6 212. By retuming to games while he was still suffering the symptoms of 7 subconcussions or concussions, Junior Seau was exposed to the risk of greater trauma to his brain.
8 As shown by a recent study by the National Institutes of Health, Junior Seau suffered significant 9 long term brain damage, including CTE. Junior Seau reasonably relied on the NFL's fraudulent
10 concealment and affirmative misrepresentations regarding the danger of subconcussions and 11 concussions and related symptoms and the danger of returning to play, which proximately caused 12 his injuries, including CTE.
13 Junior Seau Shows Symptoms of Injury 14 213. During the mid-1990's, around the time of Junior Seau's reports of dizziness and
15 other symptoms_ of concussion and secondary to repetitive hits, there was a noted change in his 16 behavior and fimctioning.
17 214. Junior Seau's behavior became erratic. The man who was once the comerstone of 18 his team and his family began exhibiting emotional instability.
19 215. During this time, Seau developed severe insomnia which plagued him until his 20 death. He would awake at 1:00-2:00 a.m. and not be able to retum to sleep. 21 216. Seau always dreaded the "dumb jock" stereotype and cultivated his mind in
22 addition to his body. Always striving to improve his memory, concentration, problem-solving
23 skills, logical thinking and forethought, he was an avid student of chess. Those around him were 24 used to him being sharp, disciplined, ready to pounce not only physically but cognitively. But as
25 the seasons of abuse to his brain set in, others found that he became forgetful and unable to
26 concentrate or focus. Both at work and at home, people noticed that he could not remember their
27 discussions, he misplaced things and forgot appointments.
28 217. Unfortunately, Junior Seau's spiral extended far beyond forgetfulness. His COOLEY LLP 37. ATTORNEYS AT LAW SAN DIECO
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1 increasing emotional instability resulted in uncharacteristically self-destructive, aggressive and
2 violent behavior. He began to suffer extreme depression and became withdrawn from his family,
3 including his children. The changes in his behavior impacted his ability to relate to others. He
4 became unable to maintain meaningful relationships with those whom he loved or to form any 5 new meaning-ful relationships with others.
6 218. His children had to adapt to a new version of their father. When he was lost in 7 periods of depression he became irrational and unreachable. They would look into his eyes and 8 not recognize the person with whom they were now dealing.
9 219. In his business ventures, for many years, Junior Seau was responsible and 10 thorough. In the areas where he lacked experience or knowledge, he educated himself. He was 11 involved in his businesses, and the success of his businesses reflected such involvement. 12 220. As his brain disintegrated from repeated trauma, tasks and decisions that Seau 13 previously undertook became impossible for him. He made impulsive, ill-advised business 14 decisions that he formerly had been too savvy and thoughtful to make. He no longer listened to 15 his qualified advisors, could no longer discuss business figures and no longer possessed reasoned 16 business judgment.
17 Junior Seau Spirals Downward, Culminating In His Tragic Suicide 18 221. The once warm and gentle Junior became extremely irritable and short tempered. 19 He lashed out both verbally and physically at his staff, friends, and family. As a result, his 20 businesses and investments began to deteriorate and lose value.
21 222. The disciplined, heath conscious Junior Seau also disappeared. He previously had 22 been lcnown for preaching good health through healthy eating and exercise. He had always been
23 - careful about drinking in moderation and rarely drank during the football season. As his life 24 began to spiral and he became unable to cope, alcohol became a method of self-medicating for
25 Seau. He entered a devastating cycle of depression and alcohol abuse. 26 223. This cycle of depression magnified other vices which Seau had previously enjoyed
27 in moderation. He became a compulsive, manic gambler. Seau's impulsivity and inability to
28 soundly reason threw him into gambling binges, where against the pleading of those close to him,
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1 he lost significant amounts of money in an attempt to make back business losses.
2 224. The above mentioned problems, including insomnia, depression, alcohol abuse,
3 inability to relate to friends and family, irrational decisions, diminished cognitive function, and
4 gambling problems are all well established effects of neuro-degenerative injuries, including CTE.
5 Tragically, on May 2, 2012, these injuries and the problems which were proximately caused by
6 them, caused Junior Seau to take a gun and shoot himself in the chest, committing suicide. The 7 circumstances under which he committed suicide allowed his brain to be preserved and tested by
8 the National Institutes of Health. As part of the National Institutes of Health study, three different 9 doctors in a triple blind study concluded that Junior Seau's brain evidenced "multi-focal 10 tauopathy consistent with a diagnosis of chronic traumatic encepholapathy." 11 FIRST CAUSE OF ACTION 12 FRAUDULENT CONCEALMENT 13 (Against the NFL) 14 225. Plaintiffs incorporate by-reference all of the preceding allegations set forth above 15 as if fully set forth herein. 16 226. Plaintiff Bette Hoffinan brings this survival cause of action on behalf of the estate 17 of decedent and all successors-in-interest therein pursuant to Code of Civil Procedure section 18 377.30. 19 227. The NFL has been aware of and understood the significance of the published
20 medical literature dating from as early as the 1950s that there is a serious risk of short-term and 21 long-term brain injury associated with repetitive traumatic impacts to the head to which NFL
22 players are exposed.
23 228. During that time period, the NFL knowingly and fraudulently concealed from 24 then-current NFL players and former NFL players the risks of head injuries in NFL games and
25 practices, including the risks associated with returning to physical activity too soon after
26 sustaining a sub-concussive or concussive injury.
27 229. From 1994 through June of 2010, the NFL's fraudulent concealment continued.
28 During that time period, the NFL voluntarily funded and produced its own purported scientific
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1 research and through that research repeatedly misrepresented to then-current and former NFL
2 players, the United States Congress, and the general public that there is no link (or an insufficient
3 scientific link) between MTBI in NFL activities and later-in-life cognitive/brain injury, including
4 CTE and its related symptoms. 5 230. Given the NFL's superior and unique vantage point, Junior Seau reasonably
6 looked to the NFL for guidance on head injuries and concussions. 7 231. The NFL's MTBI Committee published articles and the August 2007 concussion 8 pamphlet referenced above, all of which concealed and minimized the risks of repetitive brain 9 impacts the NFL Icnew existed for its then-current players and for its former players, who 10 reasonably relied on the NFL's pronouncements and/or silence on this health issue. 11 232. The NFL's concussion pamphlet created an atmosphere of trust that the NFL had 12 carefully undertaken its voluntary responsibility to research, test, study, and report accurate 13 findings to the players and former players. The NFL stated that "[w]e want to make sure all NFL 14 players are fully informed and take advantage of the most up to date information and resources 15 as we continue to study the long-term impact of concussions." 16 233. The concealment was ongoing. Dr. Casson provided oral and written testimony at 17 the 2010 congressional hearings in which he continued to deny the validity of other studies. Dr. 18 Casson also denied the link between repetitive brain impacts and short- and long-term brain
19 damage in public interviews. 20 234. The NFL, therefore, concealed material facts and information with the intent to
21 deceive and defraud, which caused Junior Seau to suffer the harm referenced above. Further, for
22 the time period prior to June 2010, the NFL's concerted concealment of the risks to which players
23 had been exposed delayed Junior Seau's ability to plan for the future and to seek appropriate
24 treatment of latent neurodegenerative conditions.
25 235. The NFL Icnew and expected that Junior Seau would rely on the inaccurate
26 information provided by the NFL, and Junior Seau did in fact reasonably rely on the inaccurate
27 information provided by the NFL during and after his NFL career.
28 236. As a direct and proximate result of the NFL's fraudulent conduct, Junior Seau
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1 suffered physical injury, including, but not limited to, existing and latent cognitive conditions. that 2 created diminished cognitive function, non-economic losses, and economic losses including but 3 not limited to lost and/or reduced income during his life. 4 237. The despicable conduct of the NFL outlined above was fraudulent, malicious, and 5 oppressive and was done with the intent to defraud team coaches past and present NFL players, 6 and the general public. In addition, the despicable conduct of the NFL outlined above was done 7 with a conscious disregard for the rights and safety of Junior Seau and other NFL players. 8 Accordingly, Plaintiffs seek punitive damages as allowed under Civil Code section 3294 and any 9 other applicable provisions of law.
10 238. As a result of the NFL's misconduct as alleged herein, the NFL is liable to 11 Plaintiffs for, and Plaintiffs seek, the full measure of damages allowed under applicable law. 12 SECOND CAUSE OF ACTION 13 FRAUD 14 (Against the NFL) 15 239. Plaintiffs incorporate by reference all of the preceding allegations set forth above 16 as if fully set forth herein.
17 240. Plaintiff Bette Hoffman brings this survival cause of action on behalf of the estate 18 of decedent and all successors-in-interest therein pursuant to Code of Civil Procedure section
19 377.30.
20 241. At least since the early 1950s the NFL Icnew that repetitive head impacts in 21 football games and full-contact practices created a risk of harm to NFL players that was similar or
22 identical to the risk of harm to boxers who receive the same or similar repetitive impacts to the 23 head during boxing practices and matches.
24 242. The NFL Icnew that the risks of brain injury could be reduced by implementing
25 changes to the game, akin to the ones the NFL belatedly adopted in 2011, such as (1) the baseline
26 cognitive testing of players for comparison purposes during and after contact play, (2) the active
27 monitoring of players for signs of MTBI, (3) the employment of a neurologist on the sidelines,
28 and (4) return-to-play rules consistent with proper medical management of MTBI. CooLer LLP 41. ATTORNEYS AT LAW SAN DIEGO
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1 243. The NFL, however, withheld the information it knew about the risks of head
2 injuries in the game from then-current NFL players and former NFL players and ignored the 3 known risks to all NFL players.
4 244. On information and belief, the NFL deliberately delayed implementing the 5 changes to the game it knew could reduce players' exposure to the risk of life-altering head
6 injuries because those changes would be expensive and would reduce the profitability of the 7 League.
8 245. The NFL has been aware of and understood the significance of the published 9 medical literature dating from as early as the 1950s that there is a serious risk of short-term and 10 long-term brain injury, associated with repetitive traumatic impacts to the head to which NFL 11 players are exposed. 12 246. The NFL and its agents employed to formulate the MTBI committee and 13 populate the published scientific literature with "studies" intent on disputing the conclusions of 14 independent researchers regarding the long-term chronic disabilities and injuries associated with 15 head injury made these material misrepresentations with the intent to defraud players like 16 Junior Seau. 17 247. Given the NFL's superior and . unique vantage point, Junior Seau reasonably
18 looked to the NFL for guidance on head injuries and concussions. 19 248. During that time period, the NFL Icnowingly and fraudulently concealed from then 20 current NFL players of the risks of head injuries in NFL games and practices, including the risks
21 associated with returning to physical activity too soon after sustaining a sub-concussive or 22 concussive injury.
23 249. Beginning in 1994, the NFL and its agents funded and created a falsified body of
24 purported scientific research that misrepresented to then-current NFL players, all former NFL 25 players, the United States Congress, and the general public that there was no scientifically proven
26 link between repetitive sub-concussive and concussive injuries sustained during football and brain
27 injury, including but not limited to CTE and its related symptoms.
28 250. The NFL and its agents employed to populate the published scientific literature
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1 •with "studies" intent on disputing the conclusions of independent researchers regarding the long-
2 term chronic disabilities and injuries associated with head injury made these material 3 misrepresentations with the intent to defraud the decedent Junior Seau. 4 251. During his career and after retirement from the NFL, Junior Seau justifiably and 5 reasonably relied on the NFL's omissions and misrepresentations to his detriment. 6 252. As a direct and proximate result of the NFL's fraudulent conduct, Junior Seau 7 suffered physical injury, including, but not limited to, existing and latent cognitive conditions that
8 created diminished cognitive function, non-economic losses, and economic losses including but 9 not limited to lost and/or reduced income during his life.
10 253. The despicable conduct of the NFL outlined above was fraudulent, malicious, and 11 oppressive and was done with the intent to defraud team coaches past and present NFL players, 12 and the general public. In addition, the despicable conduct of the NFL outlined above was done 13 with a conscious disregard for the rights and safety of Junior Seau and other NFL players. 14 Accordingly, Plaintiffs seek punitive damages as allowed under Civil Code section 3294 and any • 15 other applicable provisions of law. 16 254. As a result of the NFL's misconduct as alleged herein, the NFL is liable to 17 Plaintiffs for, and Plaintiffs seek, the full measure of damages allowed under applicable law. 18 THIRD CAUSE OF ACTION 19 NEGLIGENT MISREPRESENTATION
20 (Against the NFL) 21 255. Plaintiffs incorporate by reference all of the preceding allegations set forth above
22 as if fully set forth herein.
23 256. Plaintiff Bette Hoffman brings this survival cause of action on behalf of the estate
24 of decedent and all successors-in-interest therein pursuant to Code of Civil Procedure section
25 377.30.
26 257. A special relationship exists between the NFL and players like Junior Seau
27 sufficient to impose a duty on the NFL to disclose accurate information to the players.
28 258. Prior to 1994, the NFL knew that repetitive head impacts in football games and
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1 practices created a risk of harm to NFL players that was similar or identical to the risk of harm to 2 boxers who receive repetitive impacts to the head during boxing practices and matches.
3 259. Prior to 1994, the NFL was aware of and understood the significance of the 4 published medical literature demonstrating the serious risk of both short-term and long-term 5 adverse consequences from the Icind of repetitive traumatic impacts to the head to which NFL
6 players were exposed. 7 260. The NFL, however, withheld this information from team coaches, physicians, 8 trainers, and other personnel, and NFL players and ignored the risks to NFL players.
9 261. Before June of 2010, the NFL made material misrepresentations to its players, 10 former players, the United States Congress, and the public at large that there was no scientifically 11 proven link between repetitive traumatic head impacts and later-in-life cognitive/brain injury, 12 including CTE and its related symptoms. 13 262. Defendant NFL, therefore, misrepresented the dangers players faced in .returning 14 to action after sustaining a head injury and the long-term effects of continuing to play football
•11. 15 after a head injury.
16 263. The NFL's MTBI Committee made public statements, published articles, and
17 issued the concussion pamphlet to its players, which the NFL Icnew or should have known were 18 misleading, downplaying and obfuscating to NFL players the true and serious risks of repetitive
19 traumatic head impacts. 20 264. The MTBI Committee made material misrepresentations on multiple occasions,
21 including but not limited to testimony at congressional hearings and other information issued to 22 current and former NFL Players.
23 265. •Junior Seau's reliance on the NFL's misrepresentations was reasonable, given the
24 NFL's superior and unique vantage point on these issues.
25 266. The Defendant's misrepresentations included the false statement that present NFL
26 players were not at an increased risk of short-term and long-term adverse consequences if they
27 returned too soon to an NFL games or practices after suffering head trauma and, therefore, that
28 former players had not been expOsed to such increased risk during their time in the NFL. Comer LLP 44. ATTORNEYS AT LAW
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1 267. The NFL's misrepresentations included ongoing and baseless criticism of 2 legitimate scientific studies that set forth the dangers and risks of head impacts which NFL 3 players regularly sustained.
4 268. The NFL made these misrepresentations and actively concealed true information at 5 a time when it Icnew, or should have Imown, because of its superior position of Icnowledge, that 6 players faced serious health problems if they returned to a game too soon after sustaining a 7 concussion.
8 269. The NFL knew or should have known the misleading nature of its statements when 9 they were made.
10 270. The NFL made the misrepresentations and actively concealed information 11 knowing that Junior Seau would and did rely on the misrepresentations or omissions in, among 12 other things, how the players addressed the concussive and sub-concussive injuries they 13 sustained. For the time period prior to June 2010, the NFL's concerted concealment of the risks 14 to which present and former players had been exposed on the playing field delayed Junior Seau's 15 ability to plan for the future and to seek appropriate treatment of his latent neurodegenerative 16 conditions.
17 271. As a direct and proximate result of the NFL's negligent misrepresentations, Junior 18 Seau suffered physical injury, including, but not limited to, existing and latent cognitive 19 conditions that created diminished cognitive function, non-economic losses, and economic losses 20 including but not limited to lost and/or reduced income during his life.
21 272. As a result of the NFL's misconduct as alleged herein, the NFL is liable to
22 Plaintiffs for, and Plaintiffs seek, the full measure of damages allowed under applicable law.
23 FOURTH CAUSE OF ACTION 24 NEGLIGENCE
25 (Against the NFL)
26 273. Plaintiffs incorporate by reference all of the preceding allegations set forth above 27 as if fully set forth herein.
28 274. Plaintiff Bette Hoffman brings this survival cause of action on behalf of the estate COOLEY LLP 45. , ATTORNEYS AT LAW SAN DIECO
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1 of decedent and all successors-in-interest therein pursuant to Code of Civil Procedure section 2 377.30.
3 275. Between 1933 and 1968, the NFL assumed and carried out a duty to inform and 4 advise players and teams of the foreseeable harm that can arise from such things as the use of 5 leather helmets, the need to wear hard plastic helmets to reduce head wounds and internal injury
6 and the grabbing of an opponent's facemask—to minimize or avoid head and neck injuries.
7 These warnings and imposed safety rules were furnished by the NFL because it had assumed a
8 duty to provide a safe environment for players and because of its superior knowledge of the risks 9 of injury to players.
10 276. Based on information and belief, the NFL voluntarily inserted itself into the tasks 11 assumed by others to develop helmet safety standards and to reduce the risk of head injury while 12 playing football. Despite its voluntary participation in these activities, the NFL negligently failed 13 to adopt these standards for a considerable period of time after others had done so. 14 277. During this time period, the NFL Icnew or should have known of medical or 15 scientific literature regarding the risks of short- and long-term neuro-cognitive disabilities and 16 deficits to athletes exposed to MTBI.
17 278. During this time period, the NFL Icnew or should have Icnown that it was the 18 practice in the NFL to compel or cajole players to play with injuries, including sub-concussive 19 injuries, concussive injuries and injuries involving a loss of consciousness.
20 279. During this time period, the NFL had superior knowledge (as compared to the
21 NFL players themselves) that athletic sporting events causing sub-concussive and concussive 22 injuries posed a serious risk of short-term and long-term cognitive disabilities.
-23 • 280. Increasingly, during the 1970s, 1980s and 1990s, the NFL (and the marketing arm
24 of the NFL) marketed the game of football as acceptably violent, and it rewarded its most violent
25 players. This marketing technique was directed to the general public and organized football
26 players everywhere. In pursuing these concerted marketing techniques, the NFL Icnew or should
27 have known that its conflation of concussive-inducing violence with heroism would induce NFL
28 players and those who aspired to play in the NFL to play with reckless violence. COOLEY LLP 46. ATTORNETS AT LAW SAN DIECO
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1 281. In its marketing scheme, the defendant NFL developed print and film packages 2 that were widely distributed throughout the United States to media outlets and organized football 3 programs as a powerful methOd to convince current players and those in college and high school 4 football that the greater the hit the bigger the accolades.
5 282. During this time period, the failure of the NFL to publicize within the League, and 6 to the public at large, the mounting evidence in the scientific literature of the evolving and 7 chronic neuro-cognitive problems amongst former players caused then-current players and retired 8 players to believe that their physical and psychological problems (as described herein) were 9 neither serious nor related to football. Instead, the NFL increasingly promoted the brutality and 10 ferocity of NFL play. These commissions or omissions caused players to ignore the need for 11 necessary treatment. Likewise, these omissions and commissions had the institutional effect of 12 reducing the interest in helmet safety research, avoiding changes in rule-playing to minimize head 13 injury, avoiding the need to promulgate rules affecting the return-to-play rules when concussive 14 events are detected, and avoiding establishing programs to educate players about the long-term 15 health risks of sub-concussive and concussive impacts.
16 283. In the early 1990s, the NFL voluntarily undertook to study the issue of neuro- 17 cognitive injuries in former NFL players.
18 284. In 1994, in connection with that voluntary undertaking, the NFL created the 19 aforementioned MTBI Committee.
20 285. By voluntarily undertaking to study and report on the issue of the neuro-cognitive 21 effects of head impacts in professional football, the NFL assumed a duty to exercise reasonable
22 care in the MTBI Committee's work and the NFL and its agents' public statements about the 23 substance of the Committee's work.
24 286. However, .the MTBI Committee negligently performed the NFL's voluntarily 25 undertaken research mission.
26 287. In addition, from 1994 through June of 2010, the NFL and its MTBI Committee
27 made material misrepresentations to players, former players, the United States Congess, and the
28 public at large that there was no scientifically valid link between repetitive traumatic head Comer LLP 47. ATTORNEYS AT LAW SAN DIECO
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1 impacts and later-in-life cognitive/brain injury, including CTE and its related symptoms.
2 288. Given the NFL's superior and unique vantage point on the issue of head injuries 3 and concussions, the Plaintiffs reasonably relied to their detriment on the NFL's actions and 4 omissions on the subject.
5 289. Junior Seau reasonably relied to his detriment on the NFL's actions and omissions 6 on the subject.
7 290. The NFL's failure to exercise reasonable care in its voluntarily assumed duty 8 increased the risk that players like Junior Seau would suffer long-term neuro-cognitive injuries. 9 291. Under all of the above circumstances, it was foreseeable that the NFL's failure to
10 exercise reasonable care in the execution of its voluntarily undertaken duties would cause or 11 substantially contribute to the personal injuries suffered by Junior Seau. 12 292. The NFL's failure to exercise reasonable care in the execution of its voluntarily 13 undertaken duties proximately caused or contributed to Junior Seau's injuries, and ultimately his 14 death. 15 293. As a direct and proximate result of the NFL's negligence, Junior Seau suffered 16 physical injury, including, but not limited to, existing and latent cognitive conditions that created 17 diminished cognitive function, non-economic losses, and economic losses including but not 18 limited to lost and/or reduced income during his life. 19 294. As a result of the NFL's misconduct as alleged herein, the NFL is liable to
20 Plaintiffs for, and Plaintiffs seek, the full measure of damages allowed under applicable law. 21 FIFTH CAUSE OF ACTION 22 NEGLIGENT HIRING
23 (Against the NFL)
24 295. Plaintiffs incorporate by reference all of the preceding allegations set forth above
25 as if fully set forth herein.
26 296. Plaintiff Bette Hoffman brings this survival cause of action on behalf of the estate
27 of decedent and all successors-in-interest therein pursuant to Code of Civil Procedure section
28 377.30. CooLEY LLP 48. ATTORNEYS AT LAW
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1 297. The NFL voluntarily and gratuitously inserted itself into the business of studying 2 (and subsequently rendering expert opinions about) the relationship between repetitive head 3 impacts in football and brain injury.
4 298. In doing so, the NFL assumed a duty to players like Junior Seau to retain and 5 employ persons within the MTBI Committee who were professionally competent to study and 6 render opinions on the relationship between repetitive head impacts in football and brain injury 7 and to ensure that those whom it hired had no conflict of interest and that each had the 8 professional and personal qualifications to conduct those studies and render opinions that were 9 scientifically rigorous, valid, defensible, and honest.
10 299. The NFL breached its duty to Junior Seau by hiring persons who: a. were unqualified; 12 b. were not competent to engage in rigorous and defensible scientific 13 research; 14 c. were not competent to render valid and defensible opinions; 15 d. created fraudulent industry-funded research; and/or 16 e. attacked as not credible the valid and defensible research and opinions 17 generated by neuro-scientists who were unconnected to and not paid by the NFL.
18 300. The NFL's negligence in this regard resulted in a body of falsified industry-funded 19 research that purposefully and/or negligently contested and suppressed valid and truthful 20 biomedical science. The NFL's negligence allowed the MTBI Committee to use falsified
21 industry-funded research to mislead Junior Seau, other former NFL players, and the general 22 public regarding the risks associated with repetitive head impacts in the game of football.
23 • 301. As a result of the NFL's negligence, Junior Seau sustained brain injuries that were
24 progressive and latent and did not take protective measures or seek the diagnosis and treatment he
25 would have sought had he been told the truth.
26 302. As a direct and proximate result of the NFL's negligent hiring, Junior Seau
27 suffered physical injury, including, but not limited to, existing and latent cognitive conditions that
28 created diminished cognitive function, non-economic losses, and economic losses including but
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1 not limited to lost anclior reduced income during his life.
2 303. As a result of the NFL's misconduct as alleged herein, the NFL is liable to 3 Plaintiffs for, and Plaintiffs seek, the full measure of damages allowed under applicable law. 4 SIXTH CAUSE OF ACTION 5 NEGLIGENT RETENTION 6 (Against the NFL) 7 304. Plaintiffs incorporate by reference all of the preceding allegations set forth above
8 as if fully set forth herein. 9 305. Plaintiff Bette Hoffman brings this survival cause of action on behalf of the estate 10 of decedent and all successors-in-interest therein pursuant to Code of Civil Procedure section 11 377.30. 12 306. The NFL knew or should have Icnown that the controlling members of the MTBI 13 Committee demonstrated an ongoing lack of competence, objectivity and inadequate judgment to 14 study and render expert opinions on the issue of the relationship between repetitive head impacts 15 in football and brain injury. 16 307. The NFL voluntarily assumed a duty to Junior Seau not to allow those 17 incompetent persons it had hired within the MTBI Committee to continue to conduct incompetent 18 and falsified studies and render incompetent opinions on the relationship between repetitive head
19 impacts in football and brain injury.
20 308. During the time period when the MTBI Committee was conducting its purported 21 research and rendering its purported opinions, the NFL knew or should have known that the 22 purported research and opinions of the MTBI Committee were false and indefensible.
23 309. The NFL breached its duty to Junior Seau by allowing these incompetent and 24 unqualified persons, under the auspices and with the imprimatur of the NFL:
25 a. to continue to create incompetent and indefensible research,
26 b. to continue to render invalid and indefensible opinions, and
27 c. to continue to attack the credible and defensible research and opinions of
28 neuro-scientists not connected to or paid by the NFL.
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1 310. The NFL's negligence allowed the incompetent members of the MTBI Committee
2 to continue to advance their false and incompetent research and opinions in an attempt to suppress
3 valid bio-medical science. The NFL's negligence allowed the MTBI Committee members to
4 mislead Junior Seau, other former NFL players, and the general public regarding the permanent
5 brain injury risks associated with repetitive head impacts in the game of football. 6 311. As a result of the NFL's failure, Junior Seau sustained brain injuries that were
7 progressive and latent and did not take protective measures or seek the diagnosis and treatment he 8 would have sought had they been told the truth. 9 312. As a direct and proximate result of the NFL's negligent retention, Junior Seau 10 suffered physical injury, including, but not limited to, existing and latent cognitive conditions that 11 created diminished cognitive function, non-economic losses, and economic losses including but 12 not limited to lost and/or reduced income during his life. 13 313. As a result of the NFL's misconduct as alleged herein, the NFL is liable to 14 Plaintiffs for, and Plaintiffs seek, the full measure of damages allowed under applicable law. 15
16 SEVENTH CAUSE OF ACTION 17 WRONGFUL DEATH 18 (Against the NFL Defendants)
19 314. Plaintiffs incorporate by reference all of the preceding allegations set forth above 20 as if fully set forth herein. 21 315. Plaintiffs Tyler Seau, Sydney Seau, Jake Seau and Hunter Seau are Junior Seau's 22 natural children and therefore are entitled to bring this wrongful death action pursuant to
23 California Code of Civil Procedure section 377.60.
24 316. As a direct and proximate cause of the conduct alleged herein, the NFL
25 Defendants caused Junior Seau to develop neuro-cognitive brain diseases, including CTE.
26 317. As a result of these neuro-cognitive brain diseases, Junior Seau suffered from
27 insomnia, depression, anxiety, and other injuries.
28 318. Junior Seau's untimely death on May 2, 2012 was a direct and proximate result of
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1 having suffered multiple past traumatic brain injuries while playing professional football for the
2 NFL from 1990-2009. 3 319. As a direct and proximate result of the untimely death of Junior Seau, his
4 respective survivors have been deprived of the earnings, maintenance, guidance, support and
5 comfort that they would have received for the rest of their natural lives, and have suffered
6 commensurate pecuniary and non-pecuniary losses because of Junior Seau's wrongful death.
7 320. As a result of the NFL Defendants' misconduct as alleged herein, Defendants are
8 liable to Plaintiffs for, and Plaintiffs seek, the full measure of damages allowed under applicable 9 law.
10 EIGHTH CAUSE OF ACTION 11 WRONGFUL DEATH
12 (AGAINST THE RIDDELL DEFENDANTS) 13 14 321. Plaintiffs incorporate by reference all of the preceding allegations set forth above 15 as if fully set forth herein. 16 322. Plaintiffs Tyler Seau, Sydney Seau, Jake Seau and Hunter Seau are Junior Seau's 17 natural children and therefore are entitled to bring this wrongful death action pursuant to 18 California Code of Civil Procedure section 377.60.
19 Negligence Supporting Wrongful Death 20 323. The Riddell Defendants were negligent in their design, testing, assembly, 21 manufacture, marketing, and engineering of the helmets as described herein.
22 324. The Riddell Defendants owed a duty of care to the players in their design, testing,
23 manufacture, assembly, marketing and sale of the helmets and all components and sub-assemblies
24, of the helmets.
25 325. The Riddell Defendants should have been well aware that since 1928 repeated
26 blows to the head can lead to CTE, commonly known as "punch-drunk syndrome".
27 326. The Riddell Defendants breached their duty of reasonable care by failing to
28 provide necessary and adequate safety and instructional materials and warnings of the risk and COOLEY LLP 52. ATTORNEYS AT LAW SAN DIECO
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1 means available to reduce and/or minimize the risk of concussive brain injuries while playing 2 football using their helmets.
3 327. At the time the helmets were designed, manufactured, sold and distributed by the
4 Riddell Defendants, the helmets were defective in their manufacturing and unreasonably
5 dangerous and unsafe for their intended purpose because they did not provide adequate protection 6 against the foreseeable risk of concussive brain injury. The Riddell Defendants' failure to design
7 the helmets to design and manufacturing specifications resulted in, among other things, the 8 following:
9 (a) Negligently failing to manufacture the subject helmet with a safe means of 10 attenuating and absorbing the foreseeable forces of impact in order to minimize and/or reduce the • 11 forces and energy directed to the player's head; 12 (b) Negligently manufacturing the subject helmet with a shock attenuating system 13 which was not safely configured; 14 (c) Negligently failing to properly and adequately inspect and/or test the helmet 15 model;
16 (d) Other acts of negligence that may be discovered during the course of this matter; 17 and
18 (e) Failure to warn players that its helmets wouldn't protect against concussive brain 19 injury.
20 Design Defect Supporting Wrongful Death
21 328. Also, at the time the helmets used by Junior Seau were designed, manufactured, . 22 sold, and distributed by the Riddell Defendants, the helmets were defective in design,
23 unreason:ably dangerous, and unsafe for their intended purpose because they did not provide
24 adequate protection against the foreseeable risk of concussive brain injury. The design defects
25 include, but are not limited to the following:
26 (a) The lack of a safe means of attenuating and absorbing the foreseeable forces of
27 .impact in order to minimize and/or reduce the forces and energy directed to the player's head;
28 (b) An unsafe shock attenuating system; and COOLEY LLP 53. ATTORNETS AT LAW
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1 (c) Insufficient protection against concussive injuries.
2 329. The defective design and unreasonably dangerous condition were a proximate and
3 producing cause of the personal injuries suffered by Junior Seau and other damages, including but 4 not limited to, economic damages and non-economic damages.
5 330. The Riddell helmets did not perform in the manner that would be expected by a 6 reasonable consumer in that they did not adequately protect players from the risks of concussive 7 and sub-concussive injuries.
8 331. Additionally, the benefits, if any, of the design of the Riddell helmets were
9 outweighed by the risks to players using those helmets as the helmets did not adequately prolect 10 players from the risks of concussive and sub-concussive injuries. 11 332. A safer alternative design was economically and technologically feasible at the 12 time the product left the control of the Riddell Defendants. 13 333. At all times, the helmets were being used for the purpose for which they were 14 intended or in a manner that was reasonably foreseeable to the Riddell Defendants. 15 Failure to Warn Supporting Wrongful Death
16 334. Also, the Riddell Defendants knew or should have known of the substantial 17 dangers involved in the reasonably foreseeable use of the helmets. 18 335. The Riddell Defendants failed to provide necessary and adequate safety and 19 instructional materials and warnings of the risk and means available to reduce and/or minimize
20 the risk of concussive brain injuries while playing football.
21 336. The Riddell Defendants failed to provide necessary and adequate information,
22 warnings, and/or instructional materials regarding the fact that other model helmets provided - 23 greater shock attenuation from blows to the head area.
24 337. The Riddell Defendants ignored 18 years of published literature, read by their
25 general counsel Richard Lester, warning of the dangers of concussive injuries until 2002, when a
26 warning involving return to play after a concussion was placed on all Riddell helmets. The
27 warning was still defective and inadequate and remains today defective and inadequate because it
28 does not warn about the later life cognitive effects of concussive injury. COOLEY LLP 54. ATTORNEYS AT LAW SAN DIECO
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338. The Riddell Defendants knew that these substantial dangers were not readily
2 recognizable to an ordinary consumer or user and that such person would use these products
3 without inspection for defects.
4 339. Junior Seau neither Icnew, nor had reason to lcnow of the existence of the
5 aforementioned defects, or increased risks of harm.
6 • 340. Junior Seau was using the helmets in a reasonably foreseeable manner at all times. 7 • 341. Riddell Defendants failure to warn players of the risks of substantial han-n
8 associated with the foreseeable use of their products was a substantial factor in causing Junior 9 Seau's harm. 10 Riddell's Wrongful Death Liability 11 342. Riddell Defendant's negligence, design defect and failure to wam were a 12 proximate and legal cause of the wrongful death ofJunior Seau as alleged herein. 13 343. As a direct and proximate cause of the conduct alleged herein, the Riddell 14 Defendants caused Junior Seau to develop neuro-cognitive brain diseases, including CTE. 15 344. As a result of these neuro-cognitive brain diseases, Junior Seau suffered from
16 insomnia, depression, anxiety, and other injuries. 17 345. Junior Seau's untimely death on May 2, 2012 was a direct and proximate result of 18 having suffered multiple past traumatic brain injuries while using equipment designed, developed, 19 manufactured, sold and distributed by the Riddell Defendants.
20 346. As a direct and proximate .result of the untimely death of Junior Seau, his
21 respective survivors have been deprived of the earnings, maintenance, guidance, support and 22 comfort that they would have received for the rest of their natural lives, and have suffered
23 commensurate pecuniary and non-pecuniary losses because ofJunior Seau's wrongful death.
24 As a result of the Riddell Defendants' misconduct as alleged herein, Defendants are liable to
25 Plaintiffs for, and Plaintiffs seek, the full measure of damages allowed under applicable law.
26 / / /
27
28
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1 PRAYER FOR RELIEF
2 WHEREFORE, the Plaintiffs pray for judgment as follows: 3 A. Against the NFL Defendants as follows:
4 As to the First, Second, Third, Fourth, Fifth, Sixth, and Seventh Causes of Action
5 an award of all compensatory damages allowed under law against the NFL Defendants;
6 As to the First and Second Causes of Action an award of punitive damages as to 7 the NFL defendants;
8 B. Against the Riddell Defendants as follows:
9 As to the Eighth Cause of Action an award of all compensatory damages allowed 10 under law against the Riddell Defendants;
11 C. An award of prejudgment interest, costs and attorneys fees; and 12 D. An award of such other and further relief as may be appropriate; and 13
14 JURY DEMAND 15 Plaintiffs hereby demand a trial by jury on all matters so triable. 16
17 Dated: January 22, 2013
18 COOLEY LLP STEVEN M. STRAUSS (99153) 19 20 By: A74,,J—Le\ IA4 21 Steven M. Strauss 22 Attorney for Plaintiffs 23
24
25
26
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EXHIBIT A
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4
COOLEY LLP STEVEN M. STRAUSS (99153) ([email protected] ) 2 4401 Eastgate Mall San Diego, CA 92121-1909 Telephone: (858) 550-6000 Facsimile: (858) 550-6420 4 CASEY GERRY SCHENK FRANCAVILLA BLATT & PENFIELD, LLP 5 DAVID S. CASEY, JR. (060768) ([email protected] ) FREDERICK SCHENK (086392) ([email protected] ) 6 110 Laurel Street San Diego, CA 92101 7 Telephone: (619) 238-1811 Facsimile: (619) 544-9232 8 Attomeys for Plaintiffs 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO 11 CENT'RAL DIVISION 12 13 TYLER SEAU, an individual; SYDNEY Case No. 14 SEAU, an individual; JAKE SEAU, a minor, and HUNTER SEAU, a minor, by and through Declaration of Bette Hoffinan 1n Support 15 their Guardian ad Litem Gina Seau; and of Complaint Commencing Survival BETTE HOFFMAN as trustee of the Tiaina B. Action by Bette Hoffman on Behalf of the 16 Seau, Jr. 2002 Trust. TIAINA B. SEAU, JR., 2002 TR-UST 17 Plaintiffs,
18 V. 19 NATIONAL FOOTBALL LEAGUE; NFL PROPERTIES LLC; RIDDELL, INC.; ALL 20 AMERICAN SPORTS CORP.; RIDDELL SPORTS GROUP, 1NC.; EASTON-BELL 21 SPORTS, INC.; EASTON-BELL SPORTS, LLC; EB SPORTS CORP.; AND RBG 22 HOLDINGS CORP. 23 Defendants. 24 25 26 27 28
CCXXEYLLP ArTorNr ys AT LAVI SAN DILGO DECL. OF BETTE HOFFMAN I/S/0 COMPLA.1NT
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I, Bette Hoffinan, hereby declare as follows: 2 1. I am a plaintiff in the above entitled action. I have personal knowledge of the facts 3 set forth below, and if called as a witness to testify, I could and would competently testify thereto. 4 2. The decedent, Tiaina B. Seau, Jr., died on May 2, 2012 in San Diego County, 5 California. A true and correct copy of his death certificate is attached. 6 3. No proceeding is now pending in Califomia for the administration of the 7 decedent's estate. 8 4. I am the presently serving sole trustee of the TIAINA B. SEAU, JR., 2002 9 TRUST, also known as the TIAINA B. SEAU TRUST, dated October 18, 2002. The trust is in 10 full force and effect. 11 S. As sole trustee, I am authorized to commence litigation with respect any property 12 of the trust. Therefore, I am authorized to act on behalf of the decedent's successors in interest 13 (as defined in Section 377.11 of the Califomia Code of Civil Procedure) with respect to the 14 decedent's interest in the action or proceeding. 15 6. No other person has a superior right to commence the action or proceeding or to be • • 16 substituted for the decedent in the pending action or proceeding.- - • 17 I declare under penalty of perjury under the laws of the State of California that the 18 foregoing is true and correct. 19 Executed on January d2012 at San Diego, Califomia. 20 21 22 23 779963/SD 24 25 26 27 28
COOLEYLLP 2. A11011.f. AT LAV SAN 011.0 DECL OF BETTE HOFFMAN I/S/0 COMPLAINT
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ATTORNEY OR PARTY WITHOUT ATTORNEY (Namo Stale Etar nornttor, and addross): FOR COURT USE ONLY . — Cooley LLP Casey derry Schenk Francavilla Blatt ic Penfield Steven M. Struass (99153) David Casey (060768) 2013 ui:1;423 4401 Eastgate Mall 110 Laurel Street Pti 3: 2g San Diego CA 92121 San Diego CA 92101 TELEPHONE NO.: FAX NO.: 858550-6000 CL E P, 1..; ..o,,z, ..--••=.1g4;'-C• , ,• • p .c Ay •. Llu...1.tte- ATTORNEY FOR (Nome): TYLER SEAU, et al. C.,1 T S A N 0 I L:tdq.7 ,,, tliifff T.` C'A - SUPERIOR COURT OF CALIFORNIA, CoUNTYOF San Diego STREET ADDRESS: 330 West Broadway MAILING ADDRESS: CITY AND ZIP CODE: San Diego 92101 BRANCH NAME: Central , CASE NAME: VIA FAX
CIVIL CASE COVER SHEET Complex Case DesignatIon CASE NUMBER: i Unlimited El Limited 37-2013-00031265-CU-PO-CTL (Amount (Amount Counter El Joinder demanded demanded is Filed with first appearance by defendant JUDGE: exceeds $25,000) $25,000 or less) (Cal. Rules of Court, rule 3.402) DEPT: ltems 1-6 below must be completed (see instructions on page 2). 1. Check one box below for the case type that best describes thls case: Auto Tort Contract Provistonally Complex Civil UtIgation = Auto (22) = Breach of contractlwarranty (06) (Cal. Rutes of Court, ruIes 3A00-3A03) 1-1 Uninsured motorist (46) . = Rule 3.740 collections (09) = AntitrustrTrade regutation (03) Other PI/PDAND (Personal Injury/Property = Other collectIons (09) = Construction defect (10) Damage:pdruoctnigfia ubilliDtye(a2t4h: Tort Insurance coverage 418) = Mass tort (40) = Asbestos (04) = Other contract (37) = Securities litigation (28) El Real Property = Environmentalfroxic tort (30) 1-1 Medical malpractice (45) E minent domainfinverse El Insurance coverage claims arlsing from the 12 Other PI/PD/WO (23) condemnation (14) above listed provIsionally complex case types (41) No'n-PI/PD/WD (Other) Tort El W rongful evicllon (33) = Business tort/unfair busIness practIce (07) 1-1 Other real property (26) Enforcement of Judgment = Civil rights (08) Unlawful Detatner = Enforcement of judgment (20) = Defamallon (13) El Commercial (31) Mlscellaneous CivIl ComplaInt EJ Fraud (16) = Restdential (32) = RICO (27) = Intellectual property (19) El Drugs (38) 1-1 Other complaint (not specified above)(42) = Professlonal negligence (25) Judtclal RevIew Mlscellaneous Clvil Petition = Other non-PI/PD/WO tort (35) El Asset forfeiture (05) P artnership and corporate governance (21) Empthyment El PetItton re: arbitratIon award (11) O ther petitIon (not specified above) (43) W rongful termlnation (36) Writ of mandate (02) ri Other emptoyment (15) O ther judicial review (39) 7. This case I I I is 1 1 is not complex under rule 3.400 of the Califomia Rules of Court. If the case is complex, mark the factors requiring exceptional judicial management: a. = Large number of separately represented parties d. = Large number of witnesses b. 1-1 Extensive motion practIce raising difficult or novel e. Coordination with related actions pending in one or more courts issues that will be time-consuming to resolve in other counties, states, or countries, or in a federal court c. = Substantial amount of documentary evidence f. El Substantial postjudgment judicial supervislon
3. Remedies sought (check all that apply): arTil monetary b.= nonmonetary; declaratory or injunctive relief C. punitive 4. Number of causes of action (specify): Eight 5. This case = is 151 is not a dass action suit. 6. If there are any known related cases, file and serve a notice of related case. (You may use form CM-015.) Date: 9/22/2013 Steven M. Strauss (TYPEOR PRINT NAME) NOTICE • Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small daims cases or cases filed under the Probate Code, Family .Code, or Welfare and Institutions Code). (Cal, Rules of Court, rule 3.220.) Failure to file may result in sanctions. • File this cover sheet in addition to any cover sheet required by local court rule. • • If this case is complex under rule 3.400 et seq. of the Califomia Rules of Court, you must serve a copy of this cover sheet on all other parties to the action or proceeding. • Unless this Is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only. Pag e 1 of 2 CaL Rules of Court, rules 2.30. 3220. 3.400-3.403, 3.740: Forrn Adopted for Mandatory US0 . JudIclaI Coundl of Callfemla CIVIL CASE COVER SHEET Cal. Standards of Judlelal AdmIntstratIon, std. 3.10 CM-010 [Rev. July 1, 2007J onvw.cauttinfo.ca.goy
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO STREET ADDRESS: 330 West Broadway MAILING ADDRESS: 330 West Broadway CITY AND ZIP CODE: San Diego, CA 92101 BRANCH NAME: Central TELEPHONE NUMBER: (619) 450-7070
PLAINTIFF(S) / PETITIONER(S): Tyler Seau et.al.
DEFENDANT(S) / RESPONDENT(S): National Football League et.al .
SEAU VS. NATIONAL FOOTBALL LEAGUE NOTICE OF CASE ASSIGNMENT AND CASE NUMBER: CASE MANAGEMENT CONFERENCE 37-2013-00031265-CU-PO-CTL
CASE ASSIGNMENT Judge: Randa Trapp Department: C-70
COMPLAINT/PETITION FILED: 01/23/2013
TYPE OF HEARING SCHEDULED DATE TIME DEPT JUDGE
A case management statement must be completed by counsel for all parties or self-represented litigants and timely filed with the court at least 15 days prior to the initial case management conference. (San Diego Local Rules, Division II, CRC Rule 3.725). All counsel of record or parties in pro per shall appear at the Case Management Conference, be familiar with the case, and be fully prepared to participate effectively in the hearing, including discussions of ADR options.
IT IS THE DUTY OF EACH PLAINTIFF (AND CROSS-COMPLAINANT) TO SERVE A COPY OF THIS NOTICE WITH THE COMPLAINT (AND CROSS-COMPLAINT), THE ALTERNATIVE DISPUTE RESOLUTION (ADR) INFORMATION FORM (SDSC FORM #CIV-730), A STIPULATION TO USE ALTERNATIVE DISPUTE RESOLUTION (ADR) (SDSC FORM #CIV-359), AND OTHER DOCUMENTS AS SET OUT IN SDSC LOCAL RULE 2.1.5.
ALL COUNSEL WILL BE EXPECTED TO BE FAMILIAR WITH SUPERIOR COURT RULES WHICH HAVE BEEN PUBLISHED AS DIVISION II, AND WILL BE STRICTLY ENFORCED.
TIME STANDARDS: The following timeframes apply to general civil cases and must be adhered to unless you have requested and been granted an extension of time. General civil cases consist of all civil cases except: small claims proceedings, civil petitions, unlawful detainer proceedings, probate, guardianship, conservatorship, juvenile, parking citation appeals, and family law proceedings.
COMPLAINTS: Complaints and all other documents listed in SDSC Local Rule 2.1.5 must be served on all named defendants, and a Certificate of Service (SDSC form #CIV-345) filed within 60 days of filing.
DEFENDANT S APPEARANCE: Defendant must generally appear within 30 days of service of the complaint. (Plaintiff may stipulate to no more than 15 day extension which must be in writing and filed with the Court.) (SDSC Local Rule 2.1.6) JURY FEES: In order to preserve the right to a jury trial, each party demanding a jury trial shall pay an advance jury fee in the amount of one hundred fifty dollars ($150) for each party on or before the date scheduled for the initial case management conference in the action.
ALTERNATIVE DISPUTE RESOLUTION (ADR): THE COURT ENCOURAGES YOU TO CONSIDER UTILIZING VARIOUS ALTERNATIVES TO TRIAL, INCLUDING MEDIATION AND ARBITRATION, PRIOR TO THE CASE MANAGEMENT CONFERENCE. PARTIES MAY FILE THE ATTACHED STIPULATION TO USE ALTERNATIVE DISPUTE RESOLUTION (SDSC FORM #CIV-359).
SDSC CIV-721 (Rev. 08-12) Page: 1 NOTICE OF CASE ASSIGNMENT
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO
ALTERNATIVE DISPUTE RESOLUTION (ADR) INFORMATION
CASE NUMBER: 37-2013-00031265-CU-PO-CTL CASE TITLE: Seau vs. National Football League
NOTICE: All plaintiffs/cross-complainants in a general civil case are required to serve a copy of the following three forms on each defendant/cross-defendant, together with the complaint/cross-complaint: (1) this Alternative Dispute Resolution (ADR) Information form (SDSC form #CIV-730), (2) the Stipulation to Use Alternative Dispute Resolution (ADR) form (SDSC form #CIV-359), and (3) the Notice of Case Assignment form (SDSC form #CIV-721).
Most civil disputes are resolved without filing a lawsuit, and most civil lawsuits are resolved without a trial. The courts, community organizations, and private providers offer a variety of Alternative Dispute Resolution (ADR) processes to help people resolve disputes without a trial. The San Diego Superior Court expects that litigants will utilize some form of ADR as a mechanism for case settlement before trial, and it may be beneficial to do this early in the case.
Below is some information about the potential advantages and disadvantages of ADR, the most common types of ADR, and how to find a local ADR program or neutral. A form for agreeing to use ADR is attached (SDSC form #CIV-359).
Potential Advantaqes and Disadvantages of ADR ADR may have a variety of advantages or disadvantages over a trial, depending on the type of ADR process used and the particular case:
Potential Advantages Potential Disadvantages • Saves time • May take more time and money if ADR does not • Saves money resolve the dispute • Gives parties more control over the dispute • Procedures to learn about the other side s case (discovery), resolution process and outcome jury trial, appeal, and other court protections may be limited • Preserves or improves relationships or unavailable
Most Common Types of ADR You can read more information about these ADR processes and watch videos that demonstrate them on the court s ADR webpage at htto://www.sdcourt.ca.gov/adr.
Mediation: A neutral person called a "mediator" helps the parties communicate in an effective and constructive manner so they can try to settle their dispute. The mediator does not decide the outcome, but helps the parties to do so. Mediation is usually confidential, and may be particularly useful when parties want or need to have an ongoing relationship, such as in disputes between family members, neighbors, co-workers, or business partners, or when parties want to discuss non-legal concerns or creative resolutions that could not be ordered at a trial.
Settlement Conference: A judge or another neutral person called a "settlement officer" helps the parties to understand the strengths and weaknesses of their case and to discuss settlement. The judge or settlement officer does not make a decision in the case but helps the parties to negotiate a settlement. Settlement conferences may be particularly helpful when the parties have very different ideas about the likely outcome of a trial and would like an experienced neutral to help guide them toward a resolution.
Arbitration: A neutral person called an "arbitrator" considers arguments and evidence presented by each side and then decides the outcome of the dispute. Arbitration is less formal than a trial, and the rules of evidence are usually relaxed. If the parties agree to binding arbitration, they waive their right to a trial and agree to accept the arbitrator s decision as final. With nonbinding arbitration, any party may reject the arbitrator s decision and request a trial. Arbitration may be appropriate when the parties want another person to decide the outcome of their dispute but would like to avoid the formality, time, and expense of a trial.
SDSC CIV-730 (Rev 12-10) ALTERNATIVE DISPUTE RESOLUTION (ADR) INFORMATION Page: 1 EX A, PAGE 76 CaseCase 3:13-cv-00478-W-RBB 2:13-cv-01531-AB Document Document 1-1 1-1 Filed Filed 03/25/13 02/28/13 Page Page 78 69 of of151 139
A, Other ADR Processes: There are several other types of ADR which are not offered through the court but which may be obtained privately, including neutral evaluation, conciliation, fact finding, mini-trials, and summary jury trials. Sometimes parties will try a combination of ADR processes. The important thing is to try to find the type or types of ADR that are most likely to resolve your dispute. Be sure to learn about the rules of any ADR program and the qualifications of any neutral you are considering, and about their fees.
Local ADR Programs for Civil Cases
Mediation: The San Diego Superior Court maintains a Civil Mediation Panel of approved mediators who have met certain minimum qualifications and have agreed to charge $150 per hour for each of the first two (2) hours of mediation and their regular hourly rate thereafter in court-referred mediations.
On-line mediator search and selection: Go to the court s ADR webpage at www.sdcourt.ca.gov/adr and click on the "Mediator Search" to review individual mediator profiles containing detailed information about each mediator including their dispute resolution training, relevant experience, ADR specialty, education and employment history, mediation style, and fees and to submit an on-line Mediator Selection Form (SDSC form #CIV-005). The Civil Mediation Panel List, the Available Mediator List, individual Mediator Profiles, and Mediator Selection Form (CIV-005) can also be printed from the court s ADR webpage and are available at the Mediation Program Office or Civil Business Office at each court location.
Seftlement Conference: The judge may order your case to a mandatory settlement conference, or voluntary settlement conferences may be requested from the court if the parties certify that: (1) settlement negotiations between the parties have been pursued, demands and offers have been tendered in good faith, and resolution has failed; (2) a judicially supervised settlement conference presents a substantial opportunity for settlement; and (3) the case has developed to a point where all parties are legally and factually prepared to present the issues for settlement consideration and further discovery for settlement purposes is not required. Refer to SDSC Local Rule 2.2.1 for more inforrnation. To schedule a settlement conference, contact the department to which your case is assigned.
Arbitration: The San Diego Superior Court maintains a panel of approved judicial arbitrators who have practiced law for a minimum of five years and who have a certain amount of trial and/or arbitration experience. Refer to SDSC Local Rules Division II, Chapter III and Code Civ. Proc. 1141.10 et seq or contact the Arbitration Program Office at (619) 450-7300 for more information.
More information about court-connected ADR: Visit the court s ADR webpage at www.sdcourt.ca.gov/adr or contact the court s Mediation/Arbitration Office at (619) 450-7300.
Dispute Resolution Programs Act (DRPA) funded ADR Programs: The following community dispute resolution programs are funded under DRPA (Bus. and Prof. Code 465 et seq.): • In Central, East, and South San Diego County, contact the National Conflict Resolution Center (NCRC) at www.ncrconline.com or (619) 238-2400. ln North San Diego County, contact North County Lifeline, Inc. at www.nclifeline.org or (760) 726-4900.
Private ADR: To find a private ADR program or neutral, search the Internet, your local telephone or business directory, or legal newspaper for dispute resolution, mediation, settlement, or arbitration services.
Legal Representation and Advice
To participate effectively in ADR, it is generally important to understand your legal rights and responsibilities and the likely outcomes if you went to trial. ADR neutrals are not allowed to represent or to give legal advice to the participants in the ADR process. If you do not already have an attorney, the California State Bar or your local County Bar Association can assist you in finding an attorney. Information about obtaining free and low cost legal assistance is also available on the California courts website at www.courtinfo.ca.qoviselfhelp/lowcost.
SDSC CIV-730 (Rev 12-10) ALTERNATIVE DISPUTE RESOLUTION (ADR) INFORMATION Page: 2 EX A, PAGE 77 CaseCase 3:13-cv-00478-W-RBB 2:13-cv-01531-AB Document Document 1-1 1-1 Filed Filed 03/25/13 02/28/13 Page Page 79 70 of of151 139
INPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO FOR COURT USE ONLY STREET ADDRESS: 330 West Broadway
MAILING ADDRESS: 330 West Broadway
crrY. STATE, & ZIP CODE: San Diego, CA 92101-3827
BRANCH NAME: Central
PLAINTIFF(S): Tyler Seau et.al.
DEFENDANT(S): National Football League et.al .
SHORT TITLE: SEAU VS. NATIONAL FOOTBALL LEAGUE STIPULATION TO USE ALTERNATIVE CASE NUMBER: DISPUTE RESOLUTION (ADR) 37-2013-00031265-CU-PO-CTL
Judge: Randa Trapp Department: C-70 The parties and their attorneys stipulate that the matter is at issue and the claims in this action shall be submitted to the following alternative dispute resolution (ADR) process. Selection of any of these options will not delay any case management timelines. O Mediation (court-connected) LI Non-binding private arbitration
O Mediation (private) Binding private arbitration
1=1 Voluntary settlement conference (private) 0 Non-binding judicial arbitration (discovery until 15 days before trial)
1:1 Neutral evaluation (private) 0 Non-binding judicial arbitration (discovery until 30 days before trial)
LI Other (specify e.g., pn vate mini-trial, private judge, etc.):
It is also stipulated that the following shall serve as arbitrator, mediator or other neutral: (Name)
Altemate neutral (for court Civil Mediation Program and arbitration only):
Date: Date:
Name of Plaintiff Name of Defendant
Signature Signature
Name of Plaintiff's Attomey Name of Defendant's Attomey
Signature Signature If there are more parties and/or attomeys, please attach additional completed and fully executed sheets. It is the duty of the parties to notify the court of any settlement pursuant to Cal. Rules of Court, rule 3.1385. Upon notification of the settlement, the court will place this matter on a 45-day dismissal calendar. No new parties may be added without leave of court. IT IS SO ORDERED.
Dated: 01/24/2013 JUDGE OF THE SUPERIOR COURT SDSC CIV-359 (Rev 12-10) STIPULATION TO USE OF ALTERNATIVE DISPUTE RESOLUTION Page: 1
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Superior Court of California County of San Diego
NOTICE OF ASSIGNMENT TO IMAGING DEPARTMENT
This case has been assigned to an Imaging Department and original documents attached to pleadings filed with the court will be imaged and destroyed. Original documents should not be filed with pleadings. If necessary, they should be lodged with the court under California Rules of Court, rule 3.1302(b).
On August 1, 2011 the San Diego Superior Court began the Electronic Filing and Imaging Pilot Program ("Program"). As of August 1, 2011 in all new cases assigned to an Imaging Department all filings will be imaged electronically and the electronic version of the document will be the official court file. The official court file will be electronic and accessible at one of the Iciosks located in the Civil Business Office and on the Internet through the court's website. This Program will be expanding to other civil courtrooms over time.
You should be aware that the electronic copy of the filed document(s) will be the official court record pursuant to Govenunent Code section 68150. The paper filing will be imaged and held for 30 days. After that time it will be destroyed and recycled. Thus, you should not attach any original documents to pleadings filed with the San Diego Superior Court. Original documents filed vvith the court will be imaged and destroyed except those documents specified in California Rules of Court, rule 3.1806. Any oniginal documents necessary for a motion hearing or trial shall be lodged in advance of the hearing pursuant to California Rules of Court, mle 3.1302(b).
It is the duty of each plaintiff, cross-complainant or petitioner to serve a copy of this notice with the complaint, cross-complaint or petition on all parties in the action.
On all pleadings filed after the initial case originating filing, all parties must, to the extent it is feasible to do so, place the words "IMAGED FILE" in all caps immediately under the title of the pleading on all subsequent pleadings filed in the action.
Please refer to the General Order - Imaging located on the San Diego Superior Court website at:
http://www.sdcourt.ca.gov/CivillmagingGeneralOrder
Page: 2
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p.
—.. — .... ATTORNEY (Name, State 8w numter, and address): FOR COURT USE ONLY Cooley LLP Casey Gerry Schenk Francavilla Blatt & Penfield — Steven M. Strauss (99153) David Casey (060768) L 4401 Eastgate Mall 110 Laurel Street F 1 E D San Diego CA 92121 San Diego CA 92101 Vork of the Superior Court TELEPHONE NO.' 858550-6000 FAX NO. (Optional): E-MAIL ADDRESS (Option:3a ATTORNEY FOR (Name) TYLER SEAU, et al. JAN- 2 2 7013 SUPERIOR COURT OF CALIFORNIA, COUNTY OF San Diego By: K. HILL, Deputy STREET ADDRESS: 330 West Broadway MAILING ADDRESS: CITY AND ZIP CODE: San Diego 92101 BRANCH NAME Central PLAINTIFF/PETITIONER: TYLER SEAU et al.
DEFENDANT/RESPONDENT: NATIONAL FOOTBALL LEAGUE, et al.
APPLICATION AND ORDER FOR APPOINTMENT CASE NUMBER OF GUARDIAN AD LITEM—CIVIL 37 n13 00031265-CU-P0-CTL [ 1 1 EX PARTE
NOTE: This form is for use in civil proceedings in which a party is a minor, an incapacitated person, or a person for whom a conservator has been appointed. A party who seeks me appointment of a guardian ad lit em in a family law or juvenile proceeding should use form FL-935. A party who seeks the appointment of a guardian ad litem in a probate proceeding should use form DE-350/GC-100. An individual cannot act as a guardian ad litem unless he or she is represented by an attorney or is an attorney.
1. Applicant (name): Gina Seau is a I / I the parent of (name): Hunter Seau b 1 the guardian of (name): the conservator of (name): d. I a party to the suit. e I the minor to be represented (lithe minor is 14 years of age or older). f I another interested person (specify capacity):
2. This application seeks the appointment of the following person as guardian ad litem (state name, address, and telephone number): Gina Seau 4110 Rancho Las Brisas Trail San Diego, CA 92130
3. The otiardian ad litem is to renresent the interests of the followino nerson (state name address and telephone numher)- • Hunter Seau 4110 Rancho Las Brisas Trail San Diego, CA 92130 4 I he person to be represented is: a I/1a minor (date of birth): 09/11/00 b I I an incompetent person. 1 I a person for whom a conservator has been appointed. 5. The court should appoint a guardian ad litem because: a. I 1 I the person named in item 3 has a cause or causes of action on which suit should be brought (describe): Hunter Seau is a minor and requires the appointment of a Guardian ad Litem to commence and litigate a wrongful death case relating to his father's death.
Continued on Attachment 5a.
Page 1 of 2 Form Adopted for Mandalay Use Code of Civil Procedure, Judicial Council of Catfomla APPLICATION AND ORDER FOR APPOINTMENT CIV-010 [Rev. January 1, 2008] OF GUARDIAN AD LITEM—CIVIL § 372 et seg.
EX A, PAGE 80
CaseCase 3:13-cv-00478-W-RBB 2:13-cv-01531-AB Document Document 1-1 1-1 Filed Filed 03/25/13 02/28/13 Page Page 82 73 of of151 139
CIV-010 PLAINTIFF/PETITIONER: TYLER SEAU et al. CASE N1l,8F_R: hDEFENDANT/RESPONDENT: NATIONAL FOOTBALL LEAGUE, et al. 37-2013-00031265-CU-PO-CTL 5 b = more than 10 days have elapsed since the summons in the above-entitled matter was served on the person named in item 3, and no application for the appointment of a guardian ad litem has been made by the person identified in item 3 or any other person. c VA the person named in item 3 has no guardian or conservator of his or her estate.
d VA the appointment of a guardian ad litem is necessary for the following reasons (specify): Hunter Seau is a minor and requires the appointment of a Guardian ad Litem to commence and litigate a wrongful death case relating to his father's death.
= Continued on Attachment 5d.
6. The proposed guardian ad litem's relationship to the person he or she will be representing is: a. I I I related (state relationship): Mother b. = not related (specify capacity): •
7. The proposed guardian ad litem is fully competent and qualified to understand and protect the rights of the person he or she will represent and has no interests adverse to the interests of that person. (If there are any issues of competency or qualification or any possible adverse interests, describe and explain why the proposed guardian should nevertheless be appointed):
Continued on Attachment 7. Steven M. Strauss
(TYPE OR PRINT NAME) (SIGNATURE OF ATTORNEY)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: Gina Seau na Jui (TYPE OR PRINT NAME) (SIGNATURE OF AP ANT)
CONSENT TO ACT AS GUARDIAN AD LITEM I consent to the appointment as guardian ad litem under the above petition. Date: / - -1 3 l9A.:1 Gina Seau
(TYPE OR PRINT NAME) (SIGNATLCIF PROPOS& GU IAN AD LITEM)
ORDER E=1 EX PARTE THE COURT FINDS that it is reasonable and necessary to appoint a guardian ad litem for the person named in item 3 of the application, as requested.
THE COURT ORDERS that (name): Ci (-\ 2)(2C ■ uk is hereby appointed as the guardian ad litem for (name): •V 0,z for the reasons set forth in item 5 of the application. . Date: rAgird‘w, JAN 2 2 2013 JUDICIAL OFFICER F-1 SIGNATURE FOLLOWS LAST ATTACHMENTHOE3ERT J. TRENTACOSTA
CIV-010 (Rev. January 1, 2008) APPLICATION AND ORDER FOR APPOINTMENT Page 2 of 2 OF GUARDIAN AD LITEM—CIVIL
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ATTORNEY (Name, State Bar number, and address): FOR COURT USE ONLY Cooley LLP Casey Gerry Schenk Francavilla Blatt & Penfield — Steven M. Strauss (99153) David Casey (060768) 4401 Eastgate Mall 110 Laurel Street San Diego CA 92121 San Diego CA 92101 TELEPHONE NO.: 858550-6000 FAX NO. (Optional). '-' .0 2R • 1 ;m'i ..3t, — E-MAIL ADDRESS (Optional): F I I- e z) ATTORNEY FOR (Name). TYLER SEA U, et al. Clerk c ' SUPERIOR COURT OF CALIFORNIA, COUNTY OF San Diego STREET ADDRESS: 330 West Broadway 2 5 2013 MAILING ADDRESS: JAN CITY AND ZIP CODE: San Diego 92101 BRANCH NAME: Central _ PLAINTIFF/PETITIONER: TYLER SEAU et al.
DEFENDANT/RESPONDENT: NATIONAL FOOTBALL LEAGUE, et al.
APPLICATION AND ORDER FOR APPOINTMENT CASE NUMBER: OF GUARDIAN AD LITEM—CIVIL I 1 I EX PARTE 37-2013-00031265-CU-PO-CTL . NOTE: This form is for use in civil proceedings in which a party is a minor, an incapacitated person, or a person for whom a conservator has been appointed. A party who seeks the appointment of a guardian ad litem in a family law or juvenile proceeding should use form FL-935. A party who seeks the appointment of a guardian ad Htem in a probate proceeding should use form DE-350/GC-100. An individual cannot act as a guardian ad litem unless he or she is represented by an attorney or is an attorney.
1. Applicant (name): Gina Seau is a. I the parent of (name): Jake Seau - b I the guardian of (name): C. the conservator of (name): a party to the suit. e the minor to be represented (if the minor is 14 years of age or older). f. another interested person (specify capacity):
2. This application seeks the appointment of the following person as guardian ad litem (state name, address, and telephone number): Gina Seau 4110 Rancho Las Brisas Trail San Diego, CA 92130 3. The oiiardian ad litem is to renresent the interests of the followina nerson /state name address and telephone number): Jake Seau 4110 Rancho Las Brisas Trail San Diego, CA 92130 4. I he person to be represented is: a a minor (date of birth): 110/18/95 an incompetent person. a person for whom a conservator has been appointed. 5. The court should appoint a guardian ad litem because: a. MI the person named in item 3 has a cause or causes of action on which suit should be brought (describe): Jake Seau is a minor and requires the appointment of a Guardian ad Litem to commence and litigate a wrongful death case relating to his father's death.
Continued on Attachment 5a.
Page 1 of 2 Form Adopted for Mandatory Use Code of Civil Procedure, Judicial Council of California APPLICATION AND ORDER FOR APPOINTMENT CIV-010 [Rev. January 1, 2008] OF GUARDIAN AD LITEM—CIVIL § 372 at seq.
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PLAIRMFRPETTTIONER: TYLER SEAU et CASZt4vneut a 0)3- 066 3/ 2(,,5 ut/cki. DF_FENDANT/RESPONDEW: NATIONAL FOOTBALL LEAGUE, et al. 131- _ . E 5. b. more than 10 days have elapsed since the summons in the above-entitied matter was served on the Person named in item 3, and no application for the appointment of a guardian ad !Item has been made by the person Identified In item 3 or any other person.
C. 1...E.3 the person named in item 3 has no guardian or conservator of his or her estate.
d m the appointment of a guardian ad litem is necessary for the following reasons (specify): Jake Sean is a minor and requires the appointment of a Guardian ad Litem to commence and litigate a wrongful death r.acte relating to his father's death.
1 1 Continued on Attachment 5d.
6. The proposed guardian ad litern's relationship to the person he or she will be representing is: I vi related (state retabonship): Mother b rai not related (specify capacity):
7. The proposed guardian ad item is fully competent and qualified to understand and protect the rights of the person he or she will represent and has no interests adverse to the interests of that person. (If there are Boy iSStieS of competency or qualification or any possible adverse interests, describe and explain why the proposed guardian should nevertheless be appointed):
En continued on Atta.ahment 7. Steven M. Strauss - a /7H/Ltir?A-e, (TYPE .OP PRINT NAM7-) (SIGNATURE OF ATTORNEY)
declare under penalty of perjury under the taws of the State of Catiforna that the foregoing is true and correct. Data:
Jake Beau
CONSENT TO ACT AS GUARDIAN AD LITEM
I consentt the appol tment as guardian ad !item under the above petition.
!Gina S ei _ (TYPE OR PRINT NA ME) GUARDIAN AD LtrE0/0
ORDER I 1 EX PARTE
THE COURT FINDS that it is reasonable and necessary to appoint a guardian ad litem for the person named in i tem 3 of the oi3hcattort, as requested.
THE COURT ORDERS that (name): • . e ' a. IA-
is hereby appointed as the guardian ad [item for (name); 4 7 - 7 I In - - 5-e CI (A—. for the reasons set forth in item 5 of the application. 0.11"'4, 1 Date: JAN 2 pni3 NTvroll.rwrIlltellrArTKIA CIV-010 Rev. January 1, 2000) APPUCATION AND ORDER FOR APPOINTMENT P.oe 2 of 2 OF GUARDIAN AD LITEM—CIVIL
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• SUM-100
FOR COURT USE ONLY (SOLO PARA USO DE LA CORTE) (CITACION JUDICIAL) NOTICE TO DEFENDANT: (AVISO AL DEMANDADO): NATIONAL FOOTBALL LEAGUE; NFL PROPERTIES LLC; RIDDELL, INC.; ALL AMERICAN SPORTS CORP.; RIDDELL SPORTS GROUP, INC.; JV 25 '1.7iPml. 36 [Additional Parties Attachment Form is Attached] Cierk t!,fr YOU ARE BEING SUED BY PLAINTIFF: (LO ESTA DEMANDANDO EL DEMANDANTE): TYLER SEAU, an individual; SYDNEY SEAU, an individual; JAKE SEAU,a JAN 25 2013 minor,and HUNTER SEAU,a minor, by and through their Guardian ad Litem Gina Seau;and BETTE HOFFMAN as trustee of the Tiaina B. Seau,Jr.2002 trust NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information below. You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts Online Self-Help Center (www.courtinfo.ca .govlseffhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate these nonprofit groups at the California Legal Services Web site (www.lawhelpcalifomia.org ), the California Courts Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case. ;AV/SO! Lo han demanded°. Si no responde dentro de 30 dies, la corte puede decidir en su contra sin escuchar su versiOn. Lea la informaciOn a continuaciOn. Tiene 30 BIAS DE CALENDARIO despues de que le entreguen esta citaciOn y papeles legates para presentar una respuesta por escrito en esta code y hacer que se entregue una copia al demandante. Una carte o una liamada telefOnica no lo protegen. Su respuesta por escrito tiene que estar en formato legal correct° Si desea que procesen su caso en la corte. Es posible que haya un formulario que usted puede usar para so respuesta. Puede encontrar estos formularios de la corte y mas informaciOn en el Centro de Ayuda de las Cortes de California (www.sucorte.ca.gov), en la biblioteca de leyes de su condado o en la corte que le quede mas cerca. Si no puede pagar la cuota de presentacion, pida al secret ario de la code que le de on formulario de exenciOn de pago de cuotas. Si no presenta su respuesta a tiempo, puede perder el caso por incumplimiento y la corte le podra guitar su sue/do, dinero y bienes sin mas advertencia. Hay otros requisitos legates. Es recomendable que flame a un abogado inmediatamente. Si no conoce a un abogado, puede llamar a un servicio de remision a abogados. Si no puede pagar a on abogado, es posible que cum pie con los requisitos para obtener servicios legates gratuitos de un pro grama de servicios legates sin fines de lucro. Puede encontrar estos grupos sin fines de lucro en el sitio web de California Legal Services, (www.lawhelpcalifornia.org), en el Centro de Ayuda de las Codes de California, (www.sucorte.ca.gov) o poniendose en contacto con la code o el colegio de abogados locales. AVISO: Par ley, la code tiene derecho a reclamar las cuotas y los costos exentos par imponer un gravamen sobre cualquier recuperacion de $10,000 6 mas de valor recibida mediante on acuerdo o una concesiOn de arbitraje en un caso de derecho civil. Tiene que pager el gravamen de la code antes de que la carte pueda desechar el caso.
The name and address of the court is: CASE NUMBER: (El nombre y direcciOn de la carte es): (NOmero del Case). Superior Court of the State of California, County of San Diego 37 -0z/3'0 00 3 1/4,3----Cu-pu c Central Division 330 West Broadway, San Diego, CA 92101
The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is: (El nombre, la direcciOn y e/ nOmero de telefono del abogado del demandante, o del demandante que no tiene abogado, es): Steven M. Strauss, COOLEY LLP, 4401 Eastgate Mall, San Diego, CA 92121; (858) 550 -6000
DATE: Clerk, by , Deputy (Fecha) (Secretario) (Adjunto) JAN 2 8 2013 C. pa (For proof of service of this summons, use Proof of Service of Summons (form POS-010).) (Para prueba de entrega de este citatiOn use el formulario Proof of Service of Summons, (POS-010)). NOTICE TO THE PERSON SERVED: You are served 1. fl as an individual defendant. 2. 0 as the person sued under the fictitious name of (specify):
3. 0 on behalf of (specify): under: 0 CCP 416.10 (corporation) fl CCP 416.60 (minor) O CCP 416.20 (defunct corporation) O CCP 416.70 (conservatee) 0 CCP 416.40 (association or partnership) O CCP 416.90 (authorized person) O other (specify): 4. cl by personal delivery on (date):
Page 1 of 1 Form Adopted for Mandatory Use Code of Civil Procedure §§412.20. 465 SUMMONS American LegalNet, Inc. Judicial Council of California www.courenle.ca.gov SUM-100 [Rev. July 1, 20091 www.FormsWorkfrow.com
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SUM-200(A) SHORT TITLE: CASE NUMBER; TYLER SEAU, et al. v. NATIONAL FOOTBALL LEAGUE, et el. k 37-2013-00031265-CU-PO-CTL INSTRUCTIONSIOR USE 4 This form may be used as an attachment to any summons if space does not permit the listing of all parties on the summons. 4 If this attachment is used, insert the following statement in the plaintiff or defendant box on the summons: "Additional Parties Attachment form is attached."
List additional parties (Check only one box. Use a separate page for each type of party.):
0 Plaintiff Defendant 0 Cross-Complainant 0 Cross-Defendant EASTON-BELL SPORTS, INC.; EASTON-BELL SPORTS, LLC; ER SPORTS CORP.; AND RBG HOLDINGS CORP.
Page 1 of 1
Page I of 1 Form Adopted for Mandatory Use Judidal Council of California ADDITIONAL PARTIES ATTACHMENT SUM-200(A) (Rev. January 1. 2007) Attachment to Summons American Legalteet. Inc www.FormsWorkflow.00m
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• SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO CENTRAL MINUTE ORDER DATE: 01/28/2013 TIME: 01:24:00 PM DEPT: C-70 JUDICIAL OFFICER PRESIDING: Randa Trapp CLERK: Anthony Shirley REPORTER/ERM: Not Reported BAILIFF/COURT ATTENDANT: CASE NO: 37-2013-00031265-CU-PO-CTL CASE INIT.DATE: 01/23/2013 CASE TITLE: Seau vs. National FootbaIl League [IMAGED] CASE CATEGORY: Civil - Unlimited CASE TYPE: PI/PDNVD - Other
APPEARANCES
The Court on its own motion herby recuses itself under CCP §170.1 (a)(6)(A)(Iii). This case Is referred to the Presiding / Supetvising Department for reassignment and a notice will be mailed to counsel.
d-LY1-
Judge Randa Trapp
DATE: 01/28/2013 Page 1 MINUTE ORDER DEPT: C-70 Calendar No.
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO FOR COURT USE ONLY STREET ADDRESS: 330 West Broadway MAILING ADDRESS: 330 Wes-t Broadway CITY AND ZIP CODE: San Diego, CA 92101 BRANCH NAME: Central TELEPHONE NUMBEIR: (619) 450-7067 PLAINTIFF: Tyler Seau et.al . DEFENDANT: National FootbalI League etal. Short Title: Seau vs. National Football League [IMAGED]
. CASE NUMBER: NOTICE OF CASE REASSIGNMENT 37-2013-00031265-CU-PO-CTL
Filed : 01/23/2013
EFFECTIVE IMMEDIATELY, THE ABOVE-ENTITLED CASE HAS BEEN REASSIGNED to Judge VVilliam S. Dato, in Department C-67 due to the following reason: Recusal
All subsequent documents ffled in this case must include the name of the new judge and the department number on the first page immediately below the number of the case. All counsel and seIf-represented litigants are advised that Divislon 11 of the Superior Court Rules is strictly enforced. lt is the duty of each plaintiff (and cross-complainant) to serve a copy of this notice with the complaint (and cross-complaint).
ANY NEW HEARINGS ON THIS CASE WILL BE SCHEDULED BEFORE THE NEW JUD1CIAL OFFICER
Pagol 1 (Rev 8.06) NOTICE OF CASE REASSIGNMENT
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SUPER1OR COURT OF CALIFORNIA, COUNTY OF SAN DiEGO Central 330 West Broadway San Diego, CA 92101
SHORT TITLE: Seau vs. National FootbalI League [IMAGED]
CASE NUMBER: CLERK'S CERTIFICATE OF SERVICE BY MA1L 37-2013-00031265-C U-PO-CTL
I certify that I am not a party to this cause. I certify that a true copy of NOTICE OF CASE REASSIGNMENT was mailed following standard court practices in a sealed envelope with postage fully prepald, addressed as indicated below. The certification occurred at San Diego, California on 01/28/2013. The mailing occurred at Sacramento on 01/29/2013.
Clerk of the Court, by: T. Estrada , Deputy
STEVEN M STRAUSS DAVID S CASEY COOLEY LLP CASEY GERRY SCHENK FRANCAVILLA BLATT & 4401 EASTGATE MALL PENFIE SAN DIEGO, CA 92121 110 LAUREL STREET SAN DIEGO, CA 92101
CLERK'S CERTIFICATE OF SERVICE BY MAIL
Pago: 2
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F:,,FEB:c4 713 MI PI 2 OFFICE 2& tV1310:1 COOLEY LLP 2013 FEB -4 STEVEN M. STRAUSS (99153) (SMS®COOLEY.COM ) PH 2: it 2 4401 Eastgate Mall CLERK - SL:1.11012 San Diego, CA 92121 CQJ 3 Telephone: (858) 550-6000 SAN DIEGO GOUTY, Cr-V,ZZ: Facsimile: (858) 550-6420 4 CASEY GERRY SCHENK FRANCAV1LLA BLATT & 5 PENFIELD, LLP DAVID S. CASEY, JR. (060768) ([email protected] ) 6 FREDERICK SCHENK (086392) ([email protected] ) 110 Laurel Street 7 San Diego, CA 92101 Telephone: (619) 238-1811 8 Facsimile: (619) 544-9232 9 Attorneys for Plaintiffs 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO 12 CENTRAL DIVISION IMAGED FILE 13 TYLER SEAU, an individual; SYDNEY Case No.37-2013-00031265-CU-PO-CTL SEAU, an individual; JAKE SEAU, a minor, 14 and HUNTER SEAU, a minor, by and Plaintiffs' First Amended Complaint For through their Guardian ad Litem Gina Seau; Damages and Demand For Jury Trial 15 and BETTE HOFFMAN as trustee of the Tiaina B. Seau, Jr. 2002 Trust. 1. Fraudulent Concealment 16 2. Fraud Plaintiffs, 3. Negligent Misrepresentation 17 4. Negligence V. 5. Negligent Hiring 18 6. Negligent Retention NATIONAL FOOTBALL LEAGUE; NFL 7. Wrongful Death —NFL Defendants 19 PROPERTIES LLC; RIDDELL, INC.; ALL 8. Wrongful Death — Riddell Defendants AMERICAN SPORTS CORP.; RIDDELL 20 SPORTS GROUP, INC.; EASTON-BELL SPORTS, INC.; EASTON-BELL SPORTS, 21 LLC; EB SPORTS CORP.; RBG HOLDINGS CORP., and DOES I through 22 100, inclusive, 23 Defendants. 24 25 26 TYLER SEAU, an individual; SYDNEY SEAU, an individual; JAKE SEAU, a minor, 27 and HUNTER SEAU, a minor, by and through their Guardian ad Litem Gina Seau; and BETTE 28 HOFFMAN, trustee of the Tiaina B. Seau, Jr. 2002 Trust hereby file this Complaint for Damages COOLEY LLP 1. Arromews AT LAW SAN MEC°
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against Defendants, the National Football League and DOES 1 through 50 ("NFL"), NFL 2 Properties LLC ("NFL Properties") (collectively "NFL Defendants"), Riddell, Inc. (d/b/a Riddell 3 Sports Group, Inc.), All American Sports Corporation, (d/b/a Riddell/All American), Riddell 4 Sports Group, Inc., Easton-Bell Sports, Inc., Easton-Bell Sports, LLC, EB Sports Corp., RBG 5 Holdings Corp., and DOES 51 through 100 (collectively "Riddell Defendants"), and allege as 6 follows: 7 INTRODUCTION 8 1. The NFL is America's most successful sports organization, generating multi- 9 billion dollar profits and legions of devoted fans. On average, the NFL generates approximately 10 $9,300,000,000.00 per year. As the organizer, marketer and face of professional football, the 11 NFL zealously protects these profits and the game that produces them. 12 2. This success comes at a price for the players who make the game great. For many 13 decades, evidence has linked repetitive mild traumatic brain injury ("MTBI") to long-term 14 neurological problems. The NFL was aware of the evidence and the risks associated with 15 repetitive traumatic brain injuries for many decades, but deliberately ignored and actively 16 concealed the information from the players, including the late Junior Seau 17 3. Since its inception, the NFL has controlled and regulated every aspect of the game 18 of professional football, particularly with respect to player safety and health. The NFL has used 19 this authority to compel all NFL players and participants to follow the policies, rules, and 20 regulations the NFL has enacted and imposed. As the governing body of professional football, 21 the NFL has held itself out as the guardian and authority on the issue of player safety and has 22 unilaterally shouldered for itself a duty to provide players with rules and information that protect 23 players as much as possible from short-term and long-term health risks. 24 4. The NFL's role as the guardian of player health and safety began in the 1930s and 25 continues up through the present day. The NFL has exercised its supervisory role through its 26 unilateral decisions to issue rules to improve upon NFL football's public acceptance, to make a 27 profit, and to address issues of player safety. The NFL has also unilaterally and voluntarily 28 chosen how to spend its funds to investigate and regulate many different circumstances affecting Comet LLP 2. ATTORNEYS AT LAW SAN theca
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player health and safety, including, but not limited to, requiring players to wear certain 2 equipment, designating some player gear as illegal, and ultimately deciding what helmet brand 3 should be recognized as the official equipment of the NFL. During these decades, the NFL 4 voluntarily provided teams and players with information and regulations that directly affected the 5 short and long term health of NFL players, including Junior Seau. 6 5. NFL players and their families, including Junior Seau, looked to the NFL for 7 guidance on player safety issues. 8 6. Although the NFL voluntarily assumed its role as the unilateral guardian of player 9 safety, the NFL has exacerbated the health risk to players by promoting the game's violence and 10 lauding players for returning to play despite being rendered unconscious and/or disoriented due to 11 their exposure to sub-concussive and concussive forces. Today, the NFL and its agents continue 12 to market the ferocity and brutality of the sport. 13 7. The NFL has long been aware that violent on-field collisions can lead to latent 14 head injuries which may have debilitating long-term effects on players. Since the 1950s and 15 1960s, a substantial body of medical and scientific evidence has demonstrated neuro-cognitive 16 injuries in the sport of football as a result of MBTI. During these decades, the NFL voluntarily 17 participated in the work of various entities studying the performance and effectiveness of safety 18 gear to reduce the risk of neurological injury. The NFL's participation was a voluntary 19 continuance of the historic duty it had assumed in the first half of the twentieth century. Despite 20 this awareness, the NFL ignored, minimized, disputed, and actively suppressed broader awareness 21 of the link between sub-concussive and concussive injuries in football and the chronic neuro- 22 cognitive damage, illnesses, and decline suffered by former players. 23 8. By the early 1990s, the consensus among experts in the scientific community was 24 that many football players had developed brain injuries as a consequence of multiple "dings," 25 sub-concussive injuries, and concussions. 26 9. In 1994, the NFL created and/or decided to fund the NFL's so-called Mild 27 Traumatic Brain Injury Committee (the "MTBI Committee") ostensibly to research and study 28 MTBI affecting NFL players. Copal' LLP 3. ATIORNEYS AT LAW SAN Dieco
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10. Through its MTBI Committee, the NFL voluntarily inserted itself into the 2 scientific research and discussion concerning the link between sub-concussive and concussive 3 impacts sustained by NFL players and short-term and long-term impairment of the brain. By 4 voluntarily inserting itself into the MTBI research and public discourse, the NFL gratuitously 5 undertook a responsibility (a) to make truthful statements; (b) not to wrongfully advance 6 improper, biased, and falsified industry-generated studies; (c) not to discredit well-researched and 7 credible studies that came to a conclusion that did not comport with the NFL's financial and 8 political interests; and, (d) to inform all former players, all current players, and the football- 9 playing public, including young people and their families, regarding the risks of MTBI in 10 football. 11 11. Instead of adhering to these duties, the NFL produced industry-funded, biased, and 12 falsified research that claimed that concussive and sub-concussive head impacts in football do not 13 present serious, life-altering risks. The NFL also actively sought to suppress the findings of other 14 members of the medical community that showed the link between on-field sub-concussive and 15 concussive head impacts and post-career neuro-cognitive damage, illness and decline. 16 12. For sixteen years, the NFL actively and continuously denied any link between 17 MTBI sustained by former NFL players in NFL games and practices and the neurological 18 symptoms and problems (such as headaches, dizziness, loss of memory, dementia and ALS) from 19 which they now suffer. The NFL made its biased and falsified position known by way of 20 gratuitous press releases, publications in scientific literature, and other communications. 21 13. The NFL intended for the general public, NFL players, the late Junior Sean, his 22 family and participants at every level of the game to rely on the misinformation it propagated. 23 14. The NFL's active and purposeful concealment and misrepresentation of the severe 24 neurological risks of repetitive MTBI exposed players to dangers they could have avoided had the 25 NFL provided them with truthful and accurate information. Junior Seau sustained numerous and 26 repetitive injuries over his career while in the NFL and has been diagnosed by the National 27 Institutes of Health to have been suffering from Chronic Traumatic Encephalopathy ("CTE") and 28 related neurodegenerative disorders and diseases which were caused by the NFL's acts and/or Comet LLP 4. ATTORN8YE AT LAW SAN DIEGO
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omissions. 2 15. The NFL concealed and misrepresented these risks by: (a) historically ignoring the 3 true risks of MTBI in NFL football; (b) failing to disclose the true risks of repetitive MTBI to 4 NFL players; and (c) since 1994, deliberately spreading misinformation concerning the cause and 5 effect relationship between MTBI in NFL football and latent neurodegenerative disorders and 6 diseases. 7 16. These acts and omissions caused the neurodegenerative diseases, including, the 8 debilitating and latent disease known as CTE, which caused Junior Seau's tragic death. 9 17. On information and belief, the NFL's motive to ignore and misrepresent the link 10 between MTBI sustained in NFL play and neuro-cognitive injury and decline was economic. The
11 NFL knew or suspected that any rule changes that sought to recognize that link and the health risk 12 to NFL players would impose an economic cost that would significantly and adversely change the 13 profit margins enjoyed by the NFL and its teams. 14 18. On information and belief, all NFL policies and decisions relevant to the conduct 15 alleged herein occurred primarily in the NFL corporate offices in New York. 16 JURISDICTION AND VENUE 17 19. Jurisdiction is based upon the California Constitution Article 6, Section I O. 18 20. Venue is proper in this Court pursuant to Section 395(A) of the California Code of 19 Civil Procedure. 20 IDENTIFICATION OF THE PARTIES 21 PLAINTIFFS 22 21. Tiaina B. Seau, Jr., ("Junior Seau") deceased, was a player in the NFL for 20 23 consecutive seasons, where he sustained injuries leading to his death on May 2, 2012. Junior 24 Seau played for the San Diego Chargers (1990-2002), the Miami Dolphins (2003-2005), and the 25 New England Patriots (2006-2009). At all times decedent was a resident in the State of 26 California. 27 22. Tyler Seau is the son of Junior Seau, and is a resident of and domiciled in the State 28 of California. Corny LLP 5. AnORNETS AT LAW SAN Disco
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23. Sydney Seau is the daughter of Junior Seau, and is a resident of and domiciled in 2 the State of California. 3 24. Jake Seau is the son of Junior Seau, and is a resident of and domiciled in the State 4 of California. 5 25. Hunter Seau is the son of Junior Seau, and is a resident of and domiciled in the 6 State of California. 7 26. Gina Seau is the parent and guardian of Jake Seau and Hunter Seau, both of whom 8 are minors, and brings this action as guardian ad litem on their behalf. 9 27. Bette Hoffman is the trustee of the Tiaina B. Seau, Jr. 2002 Trust, and is a resident 10 of and domiciled in the State of California. As trustee, Ms. Hoffman brings this action as a 11 survival action on behalf of the estate of decedent and all successors-in-interest therein pursuant 12 to Code of Civil Procedure section 377.30. The statement required by Code of Civil Procedure 13 section 377.32 is attached to this Complaint as Exhibit A. 14 28. Plaintiffs Tyler Seau, Sydney Seau, Jake Seau, a minor, and Hunter Seau, a minor, 15 by and through their Guardian ad Litem Gina Seau, bring this action as specified in Section 16 377.60, subd. (b) of the Code of Civil Procedure. 17 DEFENDANTS 18 29. Defendant NFL, which maintains its offices at 345 Park Avenue, New York, New 19 York, is an unincorporated association consisting of separately owned and independently- 20 operated professional football teams which operate out of many different cities and states within 21 this country. The NFL is engaged in interstate commerce in the business of, among other things, 22 promoting, operating, organizing, and regulating the major professional football league in the 23 United States. The NFL is not, and has not been, the employer of Junior Seau, who was 24 employed during his career in professional football by the independent clubs (hereinafter 25 "Teams" or "Clubs") set forth below. The United States Supreme Court held in American 26 Needle, Inc. v. NFL, 130 S. Ct. 14 2201, 2212-13 (2010), that each team that is a member of the 27 NFL is a legally distinct and separate entity from both the other teams and the NFL itself. The 28 NFL regularly conducts business in California. COOLEY LLP 6. ATTORNEYS AT LAW SAN DIEGO
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30. Defendant NFL Properties, LLC is the successor-in-interest to National Football 2 League Properties, Inc. ("NFL Properties") and a limited liability company organized and 3 existing under the laws of the state of Delaware with its headquarters in the state of New York. 4 NFL Properties is engaged in, among other activities, approving, licensing, and promoting 5 equipment used by all the NFL teams. NFL Properties regularly conducts business in California. 6 Together with the NFL, Defendant NFL Properties is referred to herein as the "NFL Defendants." 7 31. Defendant Riddell, Inc. (d/b/a Riddell Sports Group, Inc.) is a corporation 8 organized and existing under the laws of the state of Illinois and whose principal place of 9 business is in the State of Illinois. Riddell is engaged in the business of designing, 10 manufacturing, selling and distributing football equipment, including helmets, to the NFL and 11 since 1989 has been the official helmet of the NFL. Riddell, Inc., regularly conducts business in 12 the state of California.
13 32. Defendant All American ,Sports Corporation, (cUb/a Riddell/All American), is a 14 corporation organized and existing under the laws of the State of Delaware and is engaged in the 15 business of designing, manufacturing, selling and distributing football equipment including 16 helmets, to the NFL and since 1989 has been the official helmet of the NFL. All American Sports 17 Corporation regularly conducts business in the state of California. 18 33. Defendant Riddell Sports Group, Inc. is a Delaware corporation with its principal 19 place of business at 6255 N. State Highway, #300, Irving, Texas 76038. Riddell Sports Group, 20 Inc., regularly conducts business in the state of California. 21 34. Defendant Easton-Bell Sports, Inc. is a Delaware corporation with a principal 22 place of business at 7855 Haskell Avenue, Suite 200, Van Nuys, California 91406 and is a parent 23 corporation of Riddell Sports Group, Inc. Easton-Bell Sports, Inc. designs, develops, and markets 24 branded athletic equipment and accessories, including marketing and licensing products, under 25 the Riddell brand. Easton-Bell Sports regularly conducts business in the state of California. 26 35. Defendant Easton-Bell Sports, LLC is the parent corporation of Easton-Bell 27 Sports, Inc. and is incorporated in Delaware, with a principal place of business at 152 West 57th 28 Street, New York, New York 10019. Easton-Bell Sports, LLC regularly conducts business in the COOLEY LLP 7. ATTORNEYS AT LAW SAN MECO
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state of California. 2 36. Defendant EB Sports Corp. is a Delaware corporation with its principal place of 3 business at 7855 Haskell Avenue, Van Nuys, California 91406. 4 37. Defendant RBG Holdings Corp. is a Delaware corporation with its principal place 5 of business at 7855 Haskell Avenue, Suite 350, Van Nuys, California 91406. 6 38. Defendants Riddell, Inc., Riddell Sports Group Inc., All American Sports 7 Corporation, Easton-Bell Sports, Inc., EB Sports Corp., Easton-Bell Sports, LLC, and RBG 8 Holdings Corp., shall hereinafter be referred to collectively as the "Riddell Defendants." 9 39. The true names and capacities, whether individual, corporate, associate, or 10 otherwise, of defendants DOES 1 through 100, inclusive, are unknown to Plaintiffs, who therefore sue said defendants by such fictitious names pursuant to Code of Civil Procedure § 474. 12 Plaintiffs are informed and believe, and thereon allege, that each of the defendants designated 13 herein as a DOE defendant is responsible in some manner for the events and happenings herein 14 referred to and legally caused the injuries hereinafter alleged.
15 GENERAL ALLEGATIONS APPLICABLE TO ALL COUNTS AGAINST THE NFL DEFENDANTS 16
17 40. The NFL oversees America's most popular spectator sport, acting as a trade 18 association for the benefit of the thirty-two independently operated Teams. 19 41. The NFL has, since its inception in the first half of the twentieth century, governed 20 and promoted the game of football, by acting as the governing body, establishing rules related to 21 player health and safety, League policies, and Team ownership. 22 42. The NFL generates revenue mostly through marketing sponsorships, licensing 23 merchandise, and by selling national broadcasting rights to the games. The Teams share a 24 percentage of the League's overall revenue. 25 43. Annually, the NFL redistributes approximately $4 billion in radio, television, and 26 digital earnings to the Teams or approximately $125 million per Team. Those revenue numbers 27 have increased since 2009.
28 44. The NFL enjoys partial monopoly power through an anti-trust exemption granted Comm LLP 8. ATTORNEYS AT LAW SAN DIEGO
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via the Federal Sports Broadcasting Act that allows the NFL to sell television rights for all 32 2 Teams as a single unit.
3 The NFL Uses Its Influence To Encourage Violent Play 4 45. The NFL Defendants have had enormous influence over the game of football at all 5 levels of the game because of their financial power, monopoly status, and high visibility. 6 46. This influence has been expanded over many decades through their use of the 7 media. Through NFL films, the NFL Network, and www.NFL.com , the NFL Defendants have 8 promoted NFL football via every mass communication medium available. 9 47. Part of the NFL Defendants' strategy to promote NFL football is to glorify the 10 brutality and ferocity of NFL football, in part by lauding and mythologizing the most brutal and 11 ferocious players and collisions, and simultaneously propagating the fraudulent representation 12 that "getting your bell rung," "being dinged," and putting big hits on others is a badge of courage 13 which does not seriously threaten one's health. 14 48. As a result of this strategy, the NFL Defendants have propagated the false myth 15 that collisions of all kinds, including brutal and ferocious collisions, many of which lead to short- 16 term and long-term neurological damage to players, are an acceptable, desired, and natural 17 consequence of the game, and a measure of the courage and heroism of players involved at every 18 level of the game. 19 49. As a result of this strategy, and the overwhelming influence of the NFL 20 Defendants at every level of the game, the NFL Defendants have also generated for themselves 21 and others billions of dollars every year by promoting a product of brutality and ferocity and 22 inculcating in players at every level of the game the false and life-threatening ideas that (a) brutal, 23 ferocious, and debilitating collisions are a required and desired outcome in the game of football; 24 and (b) playing despite repetitive head impacts is a laudable and desirable goal. 25 50. NFL Films is an agent and instrumentality of the NFL Defendants devoted to 26 producing promotional films for the NFL. To propagate the NFL's image of the game as brutal 27 and violent, NFL Films has created numerous highlight features that focus solely on the hardest- 28 hits in pro football. These featured videos are marketed and sold to advance the NFL's culture of Cooriv LLP 9. ATTORNEYS AT LAW SAN Dieco
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violence as entertainment. 2 51. The list of videos created by NFL Films glorifying violent plays includes, but is 3 not limited to, the following titles: "NFL: Moment of Impact" (2007); "NFL's 100 Greatest 4 Tackles" (1995); "Big Blocks and King Size Hits" (1990); "The Best of Thunder and Destruction 5 — NFL's Hardest Hits"; "NFL Films Video: Strike Force" (1989); "The NFL's Greatest Hits" 6 (1989); "Crunch Course"; "Crunch Course IP (1988); "Crunch Masters"; "In the Crunch" 7 (1987); "NFL Rocks"; "NFL Rocks: Extreme Football" (1993). 8 52. These videos contain numerous explicit examples of how the NFL Defendants 9 market and glorify the violent nature of the NFL. For instance, the back cover of 2007 film 10 "Moment of Impact" advertises the film as follows: "First you hear the breathing, then you feel 11 the wind coming through your helmet's ear hole. Suddenly you're down, and you're looking 12 through your helmet's ear hole. Pain? That's for tomorrow morning. Right now you've gotta 13 focus — focus on the play and try not to focus on the next moment of impact." 14 53. These films deemphasize the acute and chronic risks associated with head impacts. 15 Moreover, they utilize players, including Junior Seau, to spread the fraudulent message that brutal 16 violence is a necessary part of the sport. In 1993's "NFL Rocks," Junior Seau offered his opinion 17 on the measure of a punishing hit: "If I can feel some dizziness, I know that guy is feeling double 18 [that]." In a segment of the same film, former Houston Oilers receiver Ernest Givens is quoted as 19 saying: "I get knocked out a lot, I get concussions, I get broken noses, that is part of being a 20 receiver, that's what separates you from being a typical receiver than a great receiver." Former 21 Dallas Cowboys receiver Michael Irvin recites a similar unawareness of the risks of concussions: 22 "Before the game, I go to the [defensive backs] and tell them, 'Hey, you know I'll trade a 23 concussion for a reception!"
24 654. NFL Films, therefore, advances the NFL Defendants' agenda to promote the most 25 violent aspects of NFL football and to urge players at every level of the game to disregard the 26 results of violent head impacts. This promotes a culture in which playing hurt or with an injury, 27 including MTBI, is both expected and acclaimed. Moreover, failure to play through such an 28 injury creates the risk that the NFL player will lose playing time, a starting position, and possibly COOLEY LLP 10. Arrapannes AT LAW SAN DIEGO
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a career.
2 55. This attitude within the League and its players continued in the decades of the 3 1980s, 1990s and 2000s, with players lauded for their "head hunting" skills. As recently as 4 October 2010, the NFL fined some players for what it characterized as "illegal and dangerous 5 hits", and yet the NFL Defendants sought to profit by selling photos of the illegal hits on its 6 website for between $54.95 and $249.95. 7 56. Within this culture, the NFL Defendants purposefully profit from the violence they 8 promote.
9 Injuries Resulting From This Violence 10 57. Medical science has known for many decades that repetitive and violent jarring of 11 the head or impact to the head can cause MTBI with a heightened risk of long term, chronic 12 neuro-cognitive injury. 13 58. The American Association of Neurological Surgeons (the "AANS") has defined a 14 concussion as "a clinical syndrome characterized by an immediate and transient alteration in brain 15 function, including an alteration of mental status and level of consciousness, resulting from 16 mechanical force or trauma." The AANS defines traumatic brain injury ("TBI") as:
17 a blow or jolt to the head, or a penetrating head injury that disrupts the normal function of the brain. TBI can result when the head 18 suddenly and violently hits an object, or when an object pierces the skull and enters brain tissue. Symptoms of a TBI can be mild, 19 moderate or severe, depending on the extent of damage to the brain. Mild cases may result in a brief change in mental state or 20 consciousness, while severe cases may result in extended periods of unconsciousness, coma or even death. 21 22 59. MTBI generally occurs when the head either accelerates rapidly and then is 23 stopped, or is rotated rapidly. The results frequently include, among other things, confusion, 24 blurred vision, memory loss, nausea, and sometimes unconsciousness. 25 60. Medical evidence has shown that symptoms of MTBI can appear hours or days 26 after the injury. 27 61. Once a person suffers an MTBI, he is up to four times more likely to sustain a 28 second one. Additionally, after suffering even a single sub-concussive or concussive blow, a CCOLEY LLP 11. ATTORNEYS AT LAW SAN MECO
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lesser blow may cause MTBI, and the injured person requires more time to recover. 2 62. Clinical and neuro-pathological studies by some of the nation's foremost experts 3 demonstrate that multiple head injuries, concussions, or repeated traumatic head impacts 4 (including sub-concussive and concussive blows) sustained during an NFL player's career can 5 cause severe neuro-cognitive problems such as depression and early-onset of dementia. 6 63. Studies on many former football players, including former NFL players, have 7 established that football players who sustain repetitive head impacts while playing the game have 8 suffered and continue to suffer brain injuries that result in any one or more of the following 9 conditions: early-onset of Alzheimer's Disease, dementia, depression, deficits in cognitive 10 functioning, reduced processing speed, attention and reasoning, loss of memory, sleeplessness, 11 mood swings, personality changes, neurological deficits impacting judgment, and the debilitating 12 and latent disease known as CTE. The latter condition involves the slow build-up of the Tau 13 protein within the brain tissue that causes diminished brain function, progressive cognitive 14 decline, and many of the symptoms listed above. CTE is also associated with an increased risk of 15 suicide. 16 64. CTE is found in athletes, including football players and boxers, with a history of 17 repetitive head trauma. The changes in the brain caused by repetitive trauma are thought to begin 18 when the brain is subjected to that repetitive trauma, but symptoms may not appear until months, 19 years, or even decades after the last traumatic impact or the end of active athletic involvement. 20 65. Papers and studies documenting autopsies on over thirty former NFL players show 21 that over ninety percent of the players suffered from CTE. 22 66. As a result, published peer reviewed scientific studies have shown that concussive 23 and sub-concussive head impacts while playing professional football are linked to a significant 24 risk of permanent brain injury. 25 67. Published peer reviewed scientific studies have shown that 28% of the NFL 26 retirees studied suffered from depression, whereas the prevalence of depression in the general 27 population is 9.5%. 28 68. Published peer reviewed scientific studies have shown that 36% of NFL retirees, COOLEY LLP 12. ATTORNEYS AT LAW SAN DECO
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age 65-75, who were studied suffered from dementia, whereas the prevalence of dementia in the 2 general population for the same age group is merely 2.2-6.5%. 3 69. Published peer reviewed scientific studies have shown that retired players with 4 three or more reported concussions had a fivefold prevalence of mild cognitive impairment (MCI) 5 and a threefold prevalence of significant memory problems, compared to other retirees. 6 70. In a study of NFL retirees, 11.1% of all respondents reported having a diagnosis of 7 clinical depression. 8 71. At all times, the NFL's unique position afforded it unparalleled access to the 9 readily accessible data above relating the effect of head impacts on football players. The NFL 10 Defendants have know or should have known about the risks for MTBI, the scientific studies 11 linking repeated concussive and sub-concussive head impacts with a significant risk for 12 permanent brain injury, including CTE, and about the increased incidence of depression, 13 dementia, cognitive impairment and memory problems in retired NFL players.
14 The NFL Was in a Superior Position of Knowledge and Authority and Owed a Duty to Players Like Junior Sean 15 16 72. At all times, the NFL's unique historical vantage point at the apex of the sport of 17 football, paired with its unmatched resources as the most well-funded organization devoted to the 18 business of the game, has afforded it unparalleled access to data relating to the effect of head 19 impacts on football players and made it an institutional repository of accumulated knowledge 20 about head injuries to players. 21 73. The NFL is the organizer, marketer and public face of professional football in the 22 United States. The NFL governs each of the individual teams, collects and distributes revenue 23 among the teams, and authorizes the sport's rules. 24 74. From its inception, the NFL adopted the role of protecting players, informing 25 players of safety concerns, and imposing unilaterally a wide variety of rules to protect players 26 from injuries that were costly to the player, the game, and profits. For instance, the NFL recently 27 stated that "[s]ince its earliest days, the league has continuously taken steps to ensure that the 28 game is played as fairly as possible without unnecessary risk to its participants, including making Comet LLP 13. ATTORNEYS AT LAW SAN DIEGO
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changes and enhancements to game safety rules." 2 (www.nflhealthsasfety.com/commitment/regulations) (2011-2012). 3 75. On information and belief, the NFL has continuously received and paid for 4 professional advice regarding health risks associated with playing football. This advice and 5 knowledge placed the NFL in a position of ongoing superior knowledge to the players regarding 6 the health risks associated with concussive and sub-concussive injuries. Combined with the 7 NFL's unilateral power to set rules and policies, the NFL at all relevant times was in a position to 8 dictate how the game would be played and to define the risks to players. 9 76. For these reasons, players and their families have relied on the NFL to: 1) 10 intervene in matters of player safety, 2) to recognize issues of player safety, and 3) to be truthful 11 on the issue of player safety. 12 77. By its position, representations and actions to set rules and policies, the NFL 13 assumed a duty to adhere to these goals. 14 78. The NFL's historical actions in connection with an assumed common law duty to 15 make the game safer and inform players of necessary safety information include, but are not 16 limited to, the following: adding a field judge (1929); establishing hash-marks at 10 yards from 17 the sidelines (1933); establishing the penalty of unnecessary roughness for a deliberate rough 18 contact on the passer after the pass is made (1938); making helmets mandatory (1943); adding a 19 back field judge (1947); establishing a rule that the ball is dead when a runner touches the ground 20 with any part of his body except his hands while in the grasp of an opponent (1955); establishing 21 a rule that the ball is dead immediately if the runner touches the ground with any part of his body 22 except his hands after being contacted by a defensive player (1956); establishing a penalty for 23 grabbing the face mask of any opponent except a runner (1956); establishing a penalty of 24 grabbing the face mask of any opponent (1962); requiring that goal posts be offset from the goal 25 line (1966); establishing a rule that a player who signals for a fair catch cannot block or initiate 26 contact with one of the kicking team's players until the ball touches a player (1967); establishing 27 a rule that a defensive player who jumps or stands on a teammate or who is picked up by a 28 teammate cannot attempt to block an opponent's kick (1973); establishing a rule that no receiver
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can be blocked below the waist after moving beyond the line of scrimmage (1974); establishing a 2 rule that eligible receivers who take a position more than two yards from the tackle cannot be 3 blocked below the waist (1974); establishing a rule that a defender is not permitted to run or dive 4 into a ball carrier who has fallen to the ground untouched (1976); establishing a rule that it is 5 illegal for a defensive lineman to strike an opponent above the shoulders during his initial charge 6 (1977) (previously the NFL made this illegal only during the first step); establishing that it is 7 illegal for a wide receiver to clip an opponent anywhere (1977); establishing rules as to
8 mandatory equipment (1979); establishing that it is illegal for a player in the backfield to chop an 9 outside rusher on a pass play (1979); establishing that it is illegal to throw a punch or forearm or 10 to kick an opponent (1979); and establishing that it is illegal to strike, swing, or club an opponent 11 in the head, neck or face (1980). 12 79. As the sport's governing entity (with monopolistic power), the NFL has made it 13 known to players and teams alike that the NFL actively and pervasively governs player conduct 14 and health and safety both on and off the field. In public statements since its inception, the NFL 15 has stated that its goals include taking necessary steps for the safety, health and well-being of 16 players and their families. 17 80. Thus, since its inception, and continuing into the present, the NFL has been in a 18 position that affords it a special relationship to NFL players as the guardian of their health and 19 safety. For that reason, from its inception and continuing into the present, the NFL owed a duty 20 of reasonable care to keep NFL players informed of safety risks, to inform NFL players truthfully, 21 and not to mislead NFL players about the risks of permanent neurological damage that can occur 22 from MTBI incurred while playing football. 23 81. On information and belief, over the past two decades, the NFL continued to 24 exercise this common law duty and its unilateral authority to investigate and advise NFL players 25 on many diverse and important topics, and that should have included the recognition of 26 circumstances that can precipitate MTBI, the long-term potential consequences of MTBI to NFL 27 players, and solutions for players who have sustained MTBI. 28 82. Moreover, from 1994 until 2010, the NFL publicly conducted head injury research Como' LLP 15. ATTORNEYS AT LAW SAN Dim°
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and openly disputed that any short-term or long-term harmful effects arose from football-related 2 sub-concussive and concussive injuries. The NFL propagated its own falsified research to 3 support its position, despite its historic role as the guardian of player safety, and despite the fact 4 that independent medical scientists had already come to the opposite conclusion. 5 83. As such, the NFL continued its existing common law duty to provide truthful 6 scientific research and information about the risks of concussive and sub-concussive injuries to 7 NFL players, including Junior Seau, who relied on the NFL's research and pronouncements on 8 that subject.
9 The NFL Knew the Dangers and Risks Associated with Repetitive Head Impacts and Concussions 10 11 84. For decades, the NFL has been aware that multiple blows to the head can lead to 12 long-term brain injury, including but not limited to memory loss, dementia, depression, and CTE 13 and its related symptoms. 14 85. For instance, between 1952 and 1994, numerous studies were published in medical 15 journals including the Journal of the American Medical Association, Neurology, the New England 16 Journal of Medicine, and Lancet warning of the dangers of single concussions, multiple 17 concussions, and/or football-related head trauma from multiple concussions. These studies 18 collectively established that:
19 • repetitive head trauma in contact sports, including boxing and football, has potential dangerous long-term effects on brain function; 20 • encephalopathy (dementia pugilistica) is caused in boxers by repeated 21 sub-concussive and concussive blows to the head; 22 • acceleration and rapid deceleration of the head that results in brief loss of consciousness in primates also results in a tearing of the axons (brain 23 cells) within the brainstem; 24 • with respect to mild head injury in athletes who play contact sports, there is a relationship between neurologic pathology and length of the 25 athlete's career; immediate retrograde memory issues occur following concussions; mild head injury requires recovery time without risk of 26 subjection to further injury; 27 • head trauma is linked to dementia; 28 • a football player who suffers a concussion requires significant rest COOLEY LLP 16. ATTORNEYS AT LAW SAN DIEGO
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before being subjected to further contact; and, 2 • minor head trauma can lead to neuropathological and neurophysiological alterations, including neuronal damage, reduced 3 cerebral blood flow, altered brainstem evoked potentials and reduced speed of information processing. 4 86. In fact, as early as 1928, pathologist Harrison Martland described the clinical 5 spectrum of abnormalities found in "almost 50 percent of fighters [boxers] ... if they ke[pt] at the 6 game long enough" (the "Martland study"). The article was published in the Journal of the 7 American Medical Association. The Martland study was the first to link sub-concussive blows 8 and "mild concussions" to degenerative brain disease. 9 87. In 1937, the American Football Coaches Association published a report warning 10 that players who suffer a concussion should be removed from sports demanding personal contact. 11 88. In 1962, Drs. Serel & Jaros looked at the heightened incidence of chronic 12 encephalopathy in boxers and characterized the disease as a "Parkinsonian" pattern of progressive 13 decline. 14 89. A 1963 study by Drs. Mawdsley & Ferguson published in Lancet found that some 15 boxers sustain chronic neurological damages as a result of repeated head injuries. This damage 16 manifested in the form of dementia and impairment of motor function. 17 90. In the 1960s and 70s, the development of the protective face mask in football 18 allowed the helmeted head to be used as a battering ram. By 1975 the number of head and neck 19 injuries from football that resulted in permanent quadriplegias in Pennsylvania and New Jersey 20 lead to the creation of the National Football Head and Neck Registry, which was sponsored by the 21 National Athletic Trainers Association and the Sports Medicine Center at the University of 22 Pennsylvania. 23 91. In the early 1980s, the Department of Neurosurgery at the University of Virginia 24 published studies on patients who sustained MTBI and observed long-term damage in the form of 25 unexpected cognitive impairment. The studies were published in neurological journals and 26 treatises within the United States. 27 92. In 1982, the University of Virginia and other institutions conducted studies on 28 Come% LLP 17. ATTORNEYS AT LAW SAN DEG°
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college football teams that showed that football players who suffered MTB1 suffered pathological 2 short-term and long-term damage. With respect to concussions, the same studies showed that a 3 person who sustained one concussion was more likely to sustain a second, particularly if that 4 person was not properly treated and removed from activity so that the concussion symptoms were 5 allowed to resolve. 6 93. The same studies showed that two or more concussions close in time could have 7 serious short-term and long-term consequences in both football players and other victims of brain 8 trauma. 9 94. By 1991, three distinct medical professionals/entities, all independent from the 10 NFL—Dr. Robert Cantu of the American College of Sports Medicine, the American Academy of 11 Neurology, and the Colorado Medical Society—developed return-to-play criteria for football 12 players suspected of having sustained head injuries. 13 95. On information and belief, by 1991, the NCAA football conferences and 14 individual college teams' medical staffs, along with many lower-level football groups had 15 disseminated information and adopted criteria to protect football players even remotely suspected 16 of having sustained concussions. 17 96. In 1999, the National Center for Catastrophic Sport Injury Research at the 18 University of North Carolina conducted a study involving eighteen thousand (18,000) collegiate 19 and high school football players. - The research showed that once a player suffered one 20 concussion, he was three times more likely to sustain a second in the same season. 21 97. In 1999, former Pittsburgh Steeler and Hall of Fame inductee Mike Webster filed 22 with the NFL a request that he receive complete disability benefits based on the fact that he had 23 sustained repeated and disabling head impacts while a player for the Steelers. In 1999, Webster 24 submitted extensive medical reports and testimony that stated that Webster suffered from 25 "traumatic or punch drunk encephalopathy [brain disease]" sustained from playing football that 26 left Webster totally and permanently disabled as of 1991. 27 98. The NFL's own physician independently examined Webster and concluded that 28 Webster was mentally "completely and totally disabled as of the date of his retirement and was COOLS? LLP 18. ATTORNEYS AT LAW SAN DIEGO
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certainly disabled when he stopped playing football sometime in 1990." 2 99. Webster died in 2002 at the age of fifty. In December 2006, his estate received an 3 unpublished opinion from the United States Court of Appeals for the Fourth Circuit which stated 4 that the NFL Plan had acknowledged that the multiple head injuries Webster sustained during his 5 playing career (1974-1990) ". . . had caused Webster eventually to suffer total and permanent 6 mental disability. . . ." 7 100. Thus, the NFL, through its own expert medical testimony and the expert testimony 8 submitted by Webster knew and accepted that repetitive traumatic brain injuries sustained by a 9 Hall of Fame player led to long-term encephalopathy and permanent mental disability. 10 101. A 2000 study, which surveyed 1,090 former NFL players, found that more than 11 sixty (60) percent had suffered at least one concussion, and twenty-six (26) percent had suffered 12 three (3) or more, during their careers. Those who had sustained concussions reported more 13 problems with memory, concentration, speech impediments, headaches, and other neurological 14 problems than those who had not been concussed. 15 102. Also in 2000, a study presented at the American Academy of Neurology's 52nd 16 Annual Meeting and authored by Dr. Barry Jordan, Director of the Brain Injury Program at Burke
17 Rehabilitation Hospital in White Plains, New York, and Dr. Julian Bailes, surveyed 1,094 former . 18 NFL players between the ages of 27 and 86 and found that: (a) more than 60% had suffered at 19 least one concussion in their careers, with 26% of the players having three or more and 15% 20 having five or more; (b) 51% had been knocked unconscious more than once; (c) 73% of those 21 injured said they were not required to sit on the sidelines after their head trauma; (d) 49% of the 22 former players had numbness or tingling; 28% had neck or cervical spine arthritis; 31% had 23 difficulty with memory; 16% were unable to dress themselves; 11% were unable to feed 24 themselves; and (e) eight suffered from Alzheimer's disease. 25 103. In 2004, a convention of neurological experts in Prague met with the aim of 26 providing recommendations for the improvement of safety and health of athletes who suffer 27 concussive injuries in ice hockey, rugby, football, and other sports based on the most up-to-date 28 research. These experts recommended that a player never be returned to play while symptomatic, COOLS? LLP 19. Arrouvers AT LAW SAN DIEGO
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and coined the phrase, "when in doubt, sit them out." 2 104. This echoed similar medical protocol established at a Vienna conference in 2001. 3 105. These two conventions were attended by predominately American doctors who 4 were experts and leaders in the neurological field. 5 106. The University of North Carolina's Center for the Study of Retired Athletes 6 published survey-based papers in 2005 through 2007 that found a strong correlation between 7 depression, dementia, and other cognitive impairment in NFL players and the number of 8 concussions those players had received. 9 107. An article in 2010 in the New England Journal of Medicine entitled "Traumatic 10 Brain Injury—Football, Warfare, and Long-Term Effects," demonstrated that even mild 11 "traumatic brain injury" ("TBI") can have lasting consequences that are manifest later in the 12 football player's life. 13 108. Indeed, while the NFL knew for decades of the harmful effects of sub-concussive 14 and concussive injuries on a player's brain, it actively concealed these facts from players and the 15 public. 16 109. While other sports were making changes to play safer, the NFL consistently and 17 publicly denied that football-related impacts had any connection to long-term brain injury. As 18 recently as 2009, the league's medical committee continued to assert that there were no long-term 19 negative health risks associated with concussions or other football-related head impacts. 20 110. The NFL deliberately concealed the fact that playing in the NFL could lead to 21 permanent irreversible brain damage from players. Instead of being honest about the dangers and 22 working with both players and the medical community to minimize them, the league repeatedly 23 asserted that professional football players were at no greater risk of brain or neurological injury 24 than the public at large. 25 111. On information and belief during every decade referenced above, the NFL was 26 advised by physicians of all kinds regarding the risks associated with playing the game of 27 football, including the risks associated with head impacts and MTBI. 28 112. As described above, the NFL has known for decades that MTBI can and does lead COOLEY LLP 20. ATTORNEYS AT LAW SAN DiEGo
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to long-term brain injury, including, but not limited to, memory loss, dementia, depression, and 2 CTE and its related symptoms. 3 113. Rather than take immediate measures to protect NFL players from these known 4 dangers, between the 1950s and 1994, the NFL failed to disseminate to then-current and former 5 NFL players relevant health information it possessed regarding the significant risks associated 6 with MTBI.
7 The NFL Voluntarily Undertook the Responsibility of Studying Head Impacts In Football, Yet Fraudulently Concealed Their Long-Term Effects. 8
9 114. In 1994, then NFL commissioner Paul Tagliabue agreed to fund a committee to 10 study the issue of head injury in the NFL. The NFL voluntarily and unilaterally formed the MTBI 11 Committee to study the effects of concussions and sub-concussive injury on NFL players. 12 115. By the time of the MTBI Committee's formation in 1994 independent scientists 13 and neurologists alike were already convinced that all concussions—even seemingly mild ones— 14 were serious injuries that can permanently damage the brain, impair thinking ability and memory, 15 and hasten the onset of mental decay and senility, especially when they are inflicted frequently 16 and without time to properly heal. 17 116. With the MTBI Committee, the NFL voluntarily inserted itself into the private and 18 public discussion and research on the effects of repetitive head impacts in football. Through its 19 voluntary creation of the MTBI Committee, the NFL affirmatively assumed a duty to use 20 reasonable care in the study of concussions and post-concussion syndrome in NFL players; the 21 study of any kind of brain trauma relevant to the sport of football; the use of information 22 developed; and the publication of data and/or pronouncements from the MTBI Committee. 23 117. Rather than exercising reasonable care in these duties, the NFL immediately 24 engaged in a course of fraudulent and negligent conduct, which included dissemination of 25 disinformation designed to (a) dispute accepted and valid neuroscience regarding the connection 26 between repetitive traumatic brain injuries and concussions and degenerative brain disease such 27 as CTE; and (b) to create a falsified body of research which the NFL could cite as proof that 28 truthful and accepted neuroscience on the subject was inconclusive and subject to doubt. COOLS? LLP 21. ATTORNEYS AT LAW SAN MELO
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118. The NFL's status in football gave the MTBI Committee's pronouncements on 2 concussions authority and validity. The MTBI Committee was purportedly geared toward 3 "improv[ing] player safety" and for the purpose of instituting "rule changes aimed at reducing 4 head injuries." Players like Junior Seau, therefore, reasonably relied on the NFL's 5 pronouncements and/or silence on this vital health issue. 6 119. The NFL did not appoint any neuropathologist to the MTBI Committee. 7 120. The MTBI Committee was publicized by the NFL as independent from the NFL, 8 consisting of a combination of doctors and researchers. 9 121. The MTBI Committee, however, was not independent. It consisted of at least five 10 (5) persons who were already affiliated with the NFL. 11 122. Instead of naming a noted neurologist or a physician trained to treat head injuries 12 to chair the MTBI Committee, Commissioner Tagliabue appointed Dr. Elliot Pellman, a 13 rheumatologist who lacked any specialized training or education relating to concussions, and who 14 was a paid physician and trainer for the New York Jets. Dr. Pellman had reportedly been fired by 15 Major League Baseball for lying to Congress regarding his resume. At no time was Dr. Pellman 16 independent of the NFL, because he was paid on an ongoing basis by an NFL Team. 17 123. Dr. Pellman would chair the MTBI Committee from 1994-2007, and his leadership 18 of the Committee came under frequent and harsh criticism related to his deficient medical 19 training, background, and experience. 20 124. Dr. Pellman and two other MTBI Committee members, Dr. Ira Casson, a 21 neurologist, and Dr. David Viano, a biomedical engineer, worked to discredit scientific studies 22 that linked head impacts and concussions received by NFL players to neuro-cognitive disorders 23 and disabilities. 24 125. The MTBI Committee did not publish its first findings on active players until 25 2003. In that publication, the MTBI Committee stated, contrary to years of (independent) 26 findings, that there was no long term negative health consequence associated with concussions. 27 126. The MTBI Committee published its subsequent findings in a series of sixteen (16) 28 papers between 2003 and 2009. According to the MTBI Committee, all of their findings
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supported a conclusion that there was no long term negative health consequence associated with 2 concussions or sub-concussive injuries sustained by NFL players. These findings regularly 3 contradicted the research and experiences of neurologists who treat sports concussions and the 4 players who endured them. 5 127. For example, in 2004 the MTBI Committee published a conclusion in which it 6 claimed that its research found no risk of repeated concussions in players with previous 7 concussions and that there was no "7-to-10 day window of increased susceptibility to sustaining 8 another concussion." 9 128. In a comment to this publication, one independent doctor wrote that "[t]he article 10 sends a message that it is acceptable to return players while still symptomatic, which contradicts 11 literature published over the past twenty years suggesting that athletes be returned to play only 12 after they are asymptomatic, and in some cases for seven days." 13 129. As a further example, an MTBI Committee conclusion in 2005 stated that 14 "[p]layers who are concussed and return to the same game have fewer initial signs and symptoms 15 than those removed from play. Return to play does not involve a significant risk of a second 16 injury either in the same game or during the season." "These data suggest," the MTBI Committee 17 reported, "that these players were at no increased risk" of subsequent concussions or prolonged 18 symptoms such as memory loss, headaches, and disorientation. 19 130. Yet, a 2003 NCAA study of 2,905 college football players found just the opposite: 20 "Those who have suffered concussions are more susceptible to further head trauma for seven to 21 10 days after the injury." 22 131. Support for this same conclusion was developed as early as 1982 in studies 23 conducted at the University of Virginia. 24 132. Dr. Pellman and his group stated repeatedly that the NFL study showed "no 25 evidence of worsening injury or chronic cumulative effects of multiple [MTBI] in NFL players." 26 133. Yet, the 2003 report by the Center for the Study of Retired Athletes at the 27 University of North Carolina found a link between multiple concussions and depression among 28 former professional players with histories of concussions. A 2005 follow-up study by the Center Corr LLP 23. ATTORNEYS AT LAW SAN DIEGO
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showed a connection between concussions and both brain impairment and Alzheimer's disease 2 among retired NFL players. 3 134. Other contrary conclusions that the MTBI Committee published at the behest, 4 urging, and sponsorship of NFL over several years include, but are not limited to, the following: 5 Drs. Pellman and Viano stated that because a "significant percentage of players returned to play 6 in the same game [as they suffered a concussion] and the overwhelming majority of players with 7 concussions were kept out of football-related activities for less than 1 week, it can be concluded 8 that mild [TBIs] in professional football are not serious injuries"; that NFL players did not show a 9 decline in brain function after a concussion; that there were no ill effects among those who had 10 three (3) or more concussions or who took hits to the head that sidelined them for a week or more; 11 that "no NFL player experienced the second-impact syndrome or cumulative encephalopathy 12 from repeat concussions"; and that NFL players' brains responded and healed faster than those of 13 high school or college athletes with the same injuries. 14 135. The MTBI Committee's papers and conclusions were against the weight of the 15 scientific evidence and based on biased data-collection techniques. They received significant 16 criticism in the scientific and medical media from independent doctors and researchers and were 17 met with skepticism in peer review segments following each article's publication. 18 136. Moreover, the conclusions of the MTB1 Committee completely contradicted the 19 testimony of the NFL's own paid expert submitted in connection with Mike Webster's permanent 20 disability application. 21 137. Renowned experts Dr. Robert Cantu and Dr. Julian Bailes wrote harshly critical 22 reviews of the studies' conclusions. 23 138. Dr. Cantu observed that the extremely small sample size and voluntary 24 participation in the MTBI Committee's study suggested there was bias in choosing the sample. 25 According to Dr. Cantu, no conclusions should be drawn from the NFL study. 26 139. A different scientist who reviewed the MTBI Committee's work further stated that 27 the NFL appeared to be primarily preparing a defense for when injured players eventually sued, 28 and that it seemed to be promoting a flawed scientific study to justify its conclusion that COOLEY LLP 24. ATTORNEYS AT LAW SAN DIEGO
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concussions do not have adverse effects on players. 2 140. Also, the MTBI Committee failed to include hundreds of neuropsychological tests 3 done on NFL players in the results of the Committee's studies on the effects of concussions and 4 was selective in its use of injury reports. 5 141. For instance, the results reported by Dr. Pellman and the MTBI Committee 6 selectively excluded at least 850 baseline tests. In a paper published in Neurosurgery in 7 December 2004, Dr. Pellman and the other MTBI Committee members reported on the baseline 8 data for 655 players and the results for 95 players who had undergone both baseline testing and 9 post-concussion testing. They concluded that NFL players did not show a decline in brain 10 function after suffering concussions. Their further analysis purportedly found no ill effects 11 among those who had three or more concussions or who took hits to the head that kept them out 12 for a week or more. The paper did not explain where the players in the study groups came from 13 specifically or why certain player data was included and that data from hundreds of other players 14 was not. 15 142. Dr. Kevin Guskiewicz has stated that the "data that hasn't shown up makes their 16 work questionable industry-funded research." 17 143. Pellman subsequently fired William Barr, a neuropsychologist for the New York 18 Jets, after Dr. Barr presented at a conference some NCAA study findings that contradicted NFL 19 practices. 20 144. As described in the following paragraphs, when faced with studies which tended to 21 show a causal link between MTBI and cognitive degeneration, the NFL, through the MTBI 22 Committee, produced contrary findings that were false, distorted, and deceptive to NFL players, 23 participants in football nationwide, and the public at large. 24 145. Between 2002 and 2007, Dr. Bennet Omalu examined the brain tissue of deceased 25 NFL players, including Mike Webster, Terry Long, Andre Waters, and Justin Strzelczyk. Dr. 26 Omalu concluded that the players suffered from CTE. These individuals suffered multiple 27 concussions during their NFL careers, and later in life exhibited symptoms of deteriorated 28 cognitive functions, paranoia, panic attacks, and depression. Dr. Omalu's findings were Comet LIP 25. ATTORNEYS AT LAW SAN DIEGO
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published in Neurosurgery, where he concluded that Webster's and Long's respective deaths 2 were partially caused by CTE and were related to multiple concussions suffered during their 3 activity in the NFL. 4 146. In response to Dr. Omalu's articles, the MTBI Committee wrote a letter to the 5 editor of Neurosurgery asking that Dr. Omalu's article be retracted. 6 147. In another Neurosurgery article published in 2007, Dr. Cantu reached a similar 7 conclusion regarding Andre Waters as Dr. Omalu had reached regarding Mike Webster and Terry 8 Long. 9 148. A 2003 study, partially authored by Dr. Kevin Guskiewicz, analyzed data from 10 almost 2,500 retired NFL players and found that 263 of the retired players suffered from 11 depression. The study found that having three or four concussions meant twice the risk of 12 depression and five or more concussions meant a nearly three-fold risk. 13 149. The NFL's MTBI Committee attacked these studies. 14 150. In November 2003, Dr. Guskiewicz was scheduled to appear on HBO's "Inside the 15 NFL" to discuss his research. Dr. Pellman called Dr. Guskiewicz in advance and questioned 16 whether it was in the best interest of Dr. Guskiewicz to appear on the program. On the program, 17 Dr. Pellman stated unequivocally that he did not believe the results of the study led by Dr. 18 Guskiewicz. 19 151. In 2005, Dr. Guskiewicz performed a clinical follow-up study, and found that 20 retired players who sustained three or more concussions in the NFL had a five-fold prevalence of 21 mild cognitive impairment in comparison to NFL retirees without a history of concussions. In 22 doing this research, Dr. Guskiewicz conducted a survey of over 2,550 former NFL athletes. 23 152. The MTBI Committee attacked and sought to undermine the study, stating: "We 24 want to apply scientific rigor to this issue to make sure that we're really getting at the underlying 25 cause of what's happening. . . . You cannot tell that from a survey." 26 153. In August 2007, the NFL issued a concussion pamphlet to players which stated: 27 Current research with professional athletes has not shown that having more than one or two 28 concussions leads to permanent problems if each injury is managed properly. It is important to Comm' LLP 26. ATTORNEYS AT LAW SAN Dm°
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understand that there is no magic number for how many concussions is too many. Research is
2 currently underway to determine if there are any long-term effects of concussion[s] in NFL
3 athletes.
4 154. At the same time, NFL Commissioner Roger Goodell said, "We want to make sure
5 all NFL players . . . are fully informed and take advantage of the most up to date information
6 and resources as we continue to study the long-term impact of concussions." Yet, the "most up to
7 date information" included the various independent studies indicating a causal link between
8 multiple concussions and cognitive decline in later life, information which the NFL did not share 9 with players.
10 155. Goodell also stated, "[b]ecause of the unique and complex nature of the brain, our
11 goal is to continue to have concussions managed conservatively by outstanding medical personnel
12 in a way that clearly emphasizes player safety over competitive concerns."
13 156. Players like Junior Seau relied to their detriment on the NFL's disinformation, all
14 of which was contrary to the findings of the independent scientists who had studied the issue,
15 including Drs. Guslciewicz, Cantu, Omalu, and Bailes, regarding the causal link between multiple
16 head injuries and concussions and cognitive decline.
17 157. In February 2007, Dr. Pellman resigned as chair of the Committee, following
18 increasing media scrutiny over the MTB1 Committee's studies. He was replaced as chair by Dr.
19 Ira Casson and Dr. David Viano, but remained a member of the Committee.
20 158. Dr. Guskiewicz, research director of the University of North Carolina's Center for
21 the Study of Retired Athletes, said at the time that Dr. Pellman was "the wrong person to chair the
22 committee from a scientific perspective and the right person from the league's perspective."
23 159. Regarding Dr. Pellman's work, Dr. Guskiewicz stated, "[w]e found this at the high
24 school level, the college level and the professional level, that once you had a concussion or two
25 you are at increased risk for future concussions," but "[Dr. Pellman] continued to say on the
26 record that's not what they find and there's no truth to it."
27 160. Drs. Casson and Viano continued to dismiss outside studies and overwhelming
28 evidence linking dementia and other cognitive decline to brain injuries. In 2007, in a televised Costar LLP 27. ATTORNEYS AT LAW SAN DIEGO
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interview on HBO's Real Sports, Dr. Casson unequivocally stated that there was no link between 2 concussions and depression, dementia, Alzheimer's disease, or "anything like [that] whatsoever." 3 161. In June 2007, the NFL convened a concussion summit for team doctors and 4 trainers. Independent scientists, including Drs. Cantu, and Guskiewicz, presented their research 5 to the NFL. 6 162. Dr. Julian Bailes, a neurosurgeon from West Virginia University, briefed the 7 MTBI Committee on the findings of Dr. Omalu and other independent studies linking multiple 8 NFL head injuries with cognitive decline. Dr. Bailes recalled that the MTBI's Committee's 9 reaction to his presentation was adversarial: "The Committee got mad . . we got into it. And 10 I'm thinking, 'This is a . . . disease in America's most popular sport and how are its leaders 11 responding? Alienate the scientist who found it? Refuse to accept the science coming from 12 him?" 13 163. At the summit, Dr. Casson told team doctors and trainers that CTE has never been 14 scientifically documented in football players. 15 164. In 2008, Boston University's Dr. Ann McKee found CTE in the brains of two 16 more deceased NFL players, John Grimsley and Tom McHale. Dr. McKee stated, "the easiest 17 way to decrease the incidence of CTE [in contact sport athletes] is to decrease the number of 18 concussions." Dr. McKee further noted that "[t]here is overwhelming evidence that [CTE] is the 19 result of repeated sublethal brain trauma." 20 165. A m-rm Committee representative characterized each study as an "isolated 21 incident" from which no conclusion could be drawn, and said he would wait to comment further 22 until Dr. McKee's research was published in a peer-reviewed journal. When Dr. McKee's 23 research was published in 2009, Dr. Casson asserted that "there is not enough valid, reliable or 24 objective scientific evidence at present to determine whether . . . repeat head impacts in 25 professional football result in long[-]term brain damage." 26 166. In 2008, under increasing pressure, the NFL commissioned the University of 27 Michigan's Institute for Social Research to conduct a study on the health of retired players. Over 28 1,000 former NFL players took part in the study. The results of the study, released in 2009, CCOLEY LLP 28. ATTORNEYS AT LAW SAN DISCO
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reported that "Alzheimer's disease or similar memory-related diseases appear to have been 2 diagnosed in the league's former players vastly more often than in the national population--- 3 including a rate of 19 times the normal rate for men ages 30 through 49." 4 167. The NFL responded to these results by claiming that the study was incomplete, 5 and that further findings would be needed. NFL spokesperson Greg Aiello stated that the study 6 was subject to shortcomings and did not formally diagnose dementia. Dr. Casson implied that the 7 Michigan study was inconclusive and stated that further work was required. Other experts in the 8 field found the NFL's reaction to be "bizarre," noting that "they paid for the study, yet they tried 9 to distance themselves from it." 10 168. At a Congressional hearing in October 2009, NFL Commissioner Roger Goodell 11 acknowledged that the NFL owes a duty to the public at large to educate them as to the risks of 12 concussions due to the League's unique position of influence: "In addition to our millions of fans, 13 more than three million youngsters aged 6-14 play tackle football each year; more than one 14 million high school players also do so and nearly seventy five thousand collegiate players as well. 15 We must act in their best interests even if these young men never play professional football." 16 169. In January 2010, the House Judiciary Committee held further hearings on football 17 player head injuries. Representative Conyers observed that "until recently, the NFL had 18 minimized and disputed evidence linking head injuries to mental impairment in the future." 19 170. In the 2010 Congressional hearings, Dr. Casson gave testimony that denied the 20 validity of other non-NFL studies and stated that "Where is not enough valid, reliable or objective 21 scientific evidence at present to determine whether or not repeat head impacts in professional 22 football result in long term brain damage." 23 171. The members of the MTBI Committee, however, knew of the decades-old studies 24 linking MTBI to long-term neurological problems. Casson, a MTBI Committee member since its 25 inception, stated before Congress on January 4, 2010, that he was "the lead author of a landmark 26 paper on brain damage in modem boxers that was published in the [Journal of the American 27 Medical Association] in 1984." That paper, which referenced the many studies documenting 28 CTE in boxers, studied eighteen former and active boxers and found that eighty-seven percent of COOLEY LLP 29. AITOINEYS AT LAW SAN DIEGO
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the professional boxers had definite evidence of brain damage. Specifically, the study determined 2 that the subjects performed particularly poorly on neuropsychological tests measuring short-term 3 memory. 4 172. In his written statement to Congress, Casson stated that he has "been concerned 5 about the possibility of long term effects on the brain related to football for close to thirty years." 6 Dr. Casson offered that one of the reasons he "was asked to be on the NFL MTBI committee was 7 because of [his] knowledge of and experience treating boxers with chronic traumatic 8 encephalopathy (CM)." 9 173. This testimony contradicted Casson's testimony that "there is not enough valid, 10 reliable or objective scientific evidence at present to determine whether or not repeat head 11 impacts in professional football result in long term brain damage."
12 The NFL's New Committee 13 174. In 2010, the NFL re-named the MTBI Committee the "Head, Neck, and Spine 14 Medical Committee" (the "Medical Committee") and announced that Dr. Pellman would no 15 longer be a member of the panel. Drs. H. Hunt Batjer and Richard G. Ellenbogen were selected 16 to replace Casson and Viano. The two new co-chairmen selected Dr. Mitchel S. Berger to serve 17 on the new Medical Committee. 18 175. The new Committee admitted that the data collected by the NFL's former 19 appointed brain-injury leadership was "infected," and that there was an "inherent conflict of 20 interest that was there in many areas, that was not acceptable by any modem standards or not 21 acceptable to us." 22 176. In June 2010, scientific evidence linked multiple concussions to yet another 23 degenerative brain disease—Amyotrophic Lateral Sclerosis ("ALS"), commonly referred to as 24 "Lou Gehrig's Disease." 25 177. In June 2010 the NFL finally informed players about the risk of repeated brain 26 injury. It issued a warning poster and pamphlet, which warned active players of the long term 27 risks associated with multiple concussions, including dementia, memory loss, and CTE. It quoted 28 the Center for Disease Control's conclusions that, "traumatic brain injury can cause a wide range Comn LLP 30. ATTORNEYS AT LAW SAN DISCO
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of short or long term changes affecting thinking, sensation, language or emotions." The NFL also 2 informed players, "[t]lhese changes may lead to problems with memory or communication, 3 personality changes, as well as depression and early onset dementia. Concussions and conditions 4 resulting from repeated brain injury can change your life and your family's life forever." 5 178. On February 17, 2011, former Chicago Bears and New York Giants player Dave 6 Duerson committed suicide at age 50. Duerson had suffered months of headaches, blurred vision, 7 and faltering memory. After his death, Dr. Cantu determined that Duerson was suffering from 8 CTE. 9 179. In October 2011, Dr. Mitchel Berger of the NFL's new Head, Neck, and Spine 10 Medical Committee announced that a new study was in the planning process. He admitted that 11 the MTBI Committee's previous long-range study was useless because "Nhere was no science in 12 that." Dr. Berger further stated that data from the previous study would not be used. "We're 13 really moving on from that data. There's really nothing we can do with that data in terms of how 14 it was collected and assessed." 15 180. Why in 1994 (and far earlier) the NFL (and its MTBI Committee) failed to share 16 accurate information and take appropriate actions is difficult to comprehend in light of the fact 17 that the NFL has known for decades that multiple blows to the head can lead to long-term brain 18 injury, including memory loss, dementia, depression, and CTE and its related symptoms. Instead, 19 the NFL misled players, coaches, trainers, and the public, and actively spread disinformation. 20 181. It took decades for the NFL to admit that there was a problem and sixteen years to 21 admit that its information was false and inaccurate. The NFL's conduct in this regard is willful 22 and wanton and exhibits a reckless disregard for the safety of its players and the public at large. 23 At a minimum, the NFL acted with callous indifference to the duty it voluntarily assumed to 24 Junior Seau and players at every level of the game. 25 182. As a direct result of the fraudulent concealment and misrepresentations by the 26 NFL, former players, including Junior Seau, had for many decades been led to believe that the 27 symptoms of early-onset dementia, loss of memory, headaches, confusion, insomnia, depression 28 and the inability to function were not caused by their play in the NFL. And, as a result of this Coorn LLP 31. ATTORNEYS AT LAW SAN DIEGO
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willful and malicious conduct, these former players were deprived of medical treatment, incurred
2 expenses, lost employment, suffered humiliation, and sustained other damages to be specified.
3 GENERAL ALLEGATIONS APPLICABLE TO ALL COUNTS AGAINST THE RIDDELL DEFENDANTS 4
5 183. The Riddell Defendants have operated as a business through designing,
6 developing, manufacturing, selling, and distributing football equipment, including helmets, in one
7 form or another, since 1922.
8 184. As early as the 1930s, players began using helmets during football games. These 9 early helmets were constructed from pieces of cobbled leather.
10 185. In the early 1940s, John T. Riddell, who later formed John T. Riddell 11 Incorporated, invented the first plastic suspension helmet. In 1949, plastic helmets became
12 legalized.
13 186. Throughout the latter half of the 20th century and continuing to present day, the
14 Riddell Defendants have designed, developed, manufactured, sold, and distributed equipment
15 used in the NFL, including equipment used by Junior Seau, including, but not limited to, the
16 following:
17 (a) In the 1950s, the Riddell Defendants manufactured a face-mask component for its
18 helmets, which was eventually patented.
19 (b) In 1962, the Riddell Defendants used a "U" shaped nose protector with a shell
20 (known as the TK2) molded out of polycarbonate. The Riddell Defendants also designed an
21 open/closed cell foam and composite liner system for this model to increase the efficiency of the
22 webbed suspension.
23 (c) In 1963, the Riddell Defendants developed the TAK-29 helmet, which was the
24 first to use air inflation for fitting the helmet snug to the head. The TAK-29 shell, like the TIC,
25 displayed the protective polycarbonate plastic, in addition to including tough shock and cut-
26 resistant face-mask attachment straps.
27 (d) In 1969, recognizing that head protection was a key factor in helmet design
28 requiring durable head protection, the Riddell Defendants constructed a micro-fit helmet model COOLEY LLP 32. ATTORNEYS AT LAW SAN DIEGo
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with injection molding technology to create a one piece shell to improve the structural integrity of
2 the entire helmet.
3 (e) In 1973, the Riddell Defendants developed, designed, manufactured, sold, and/or
4 distributed an air cushion helmet whose interior system consisted of individual vinyl air cushions
5 with layers of fitting and energy absorbing foam. When a blow was struck, the air in the cushion
6 was expelled through a single vent, greatly reducing the initial impact. With the exhausting of the
7 air cushion, the compressed fitting foam was further compressed, reducing impact.
8 (f) In 1977, the Riddell Defendants developed, designed, manufactured, sold, and/or
9 distributed a stainless steel face-mask which offered greater bend resistance that prevented helmet
10 breakage at the drill holes.
11 (g) In 1981, the Riddell Defendants developed, designed, manufactured, sold, and/or
12 distributed an Air Cushion Engineered helmet.
13 (h) In 1982, the Riddell Defendants developed, designed, manufactured, sold, and/or
14 distributed a M155 helmet model with a combination of foam and liquid-filled cells used for
15 padding. On impact, the liquid would be throttled from one cell to the next, resulting in energy
16 attenuation. The M155 helmet model included one-piece injection-molded face-masks which
17 were mar and rust-resistant, in addition to polyurethane face mask straps and universal jaw pads.
18 (i) In 2002, the Riddell Defendants developed, designed, manufactured, sold, and/or
19 distributed the Riddell Revolution helmet designed with the intent of reducing the risk of
20 concussion.
21 (j) In 2003, the Riddell Defendants developed, designed, manufactured, sold, and/or 22 distributed a real-time, Head Impact Telemetry System (BITS) to monitor and record significant
23 incidences of head impact sustained during a football game or practice. The system measured the
24 location, magnitude, duration, and direction of head acceleration and transmitted that information 25 wirelessly to the sideline.
26 (k) In 2006, the Riddell Defendants provided a research grant to the University of
27 Pittsburgh Medical Center for head injury research. The study compared rates of high school
28 athletes who wore the Riddell Revolution helmet with those who wore traditional helmets. CCOLET LLP 33. ATTORNEYS AT LAW SAN DIEGO
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In 2007, the Riddell Defendants developed, designed, manufactured, sold, and/or 2 distributed an individual helmet system, Revolution IQ HitsTM, allowing players to monitor the 3 number and severity of impacts received during games and practices. On-board electronics 4 record every impact, allowing players to upload and evaluate each occurrence on their home 5 computers. 6 (m) In 2011, the Riddell Defendants developed, designed, manufactured, sold, and/or 7 distributed the 360 helmet which uses energy-managing materials and a face mask attachment 8 system to disperse the energy of frontal impacts. According to Riddell, it developed this helmet 9 using over 1.4 million impacts collected through Riddell's HITS technology. 10 187. The Riddell Defendants' helmets are currently the official helmets of the NFL. As 11 the official helmets for the NFL, the Riddell logo is the only helmet logo the NFL allows to be 12 displayed on helmets worn by players during NFL games. Upon information and belief, Junior 13 Seau wore Riddell helmets at times while playing and/or practicing during his NFL career. 14 188. The Riddell Defendants at all times herein mentioned engaged in the business of 15 selling, manufacturing, designing, testing, engineering, marketing, modifying, assembling, 16 inspecting, distributing, and controlling the helmets and other similar equipment for use by Junior 17 Seau and within the NFL. 18 189. Players did not know the long-term effects of concussions and relied on the NFL 19 and Riddell to protect them.
20 The Riddell Defendants' Duty to Protect Against the Long-Term Risk of Concussions 21 22 190. Despite years of science and medicine linking the risk of long term brain injury 23 from repeat concussions, it was not until the release of the Revolution Helmet wherein a 24 notification reminding players to "sit out" if they suffer a concussion was placed on the 25 Revolution helmet. 26 191. Around the same time period, the Riddell Defendants developed the HITS system 27 to monitor the severity and incident of impacts that a player receives. 28 192. Based on a 2003 University of Pittsburgh Medical Center study funded by a grant Cam LLP 34. AnORNETT AT LAW SAN Disco
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from the Riddell Defendants, the Riddell Defendants began to market the Revolution helmet as 2 reducing concussions by 31%. 3 193. However, both the HITS system and the Revolution helmet, both created by the 4 Riddell Defendants and their employees have been criticized by experts for their inaccurate 5 marketing as being safer in reducing the risk of concussion. 6 194. A study published in the Journal of Neurosurgery showed that the study by UPMC 7 was flawed in that is discounted low impact hits and in turn proved that the Revolution did not 8 reduce the risk of concussions. 9 195. Even to this day the Riddell Defendants do not acknowledge a link between repeat 10 concussions and later life cognitive problems. 11 196. In fact, the Riddell Defendants have never warned any player or retired player of 12 the long-term health effects of concussions.
13 ALLEGATIONS REGARDING JUNIOR SEAU 14 Junior Seau's Rise as an NFL Superstar 15 197. Junior Seau joined the NFL in 1990 as a member of the San Diego Chargers. 16 198. For the next twenty seasons, he was one of the league's best linebackers, a position 17 which caused him to suffer repeated subconcussions and concussions. 18 199. Recognized as a powerful, positive, and versatile force on the football field, Junior 19 Seau was named to the Pro Football Hall of Fame's All-Decade Team of the 1990s and for 12 20 consecutive years was selected to play in the NFL's all-star Pro Bowl. In 2000, he became the 21 highest paid linebacker in the NFL. 22 200. Junior Seau was also known for his work off of the field improving the lives of 23 others. In 1992, he founded the Junior Seau Foundation. The Foundation provided more than $4 24 million of funding for San Diego community services for children and young adults, including 25 hundreds of scholarships to college-bound students through the Scholars of Excellence program 26 201. From his own childhood, Junior Seau knew how the holidays could be particularly 27 painful for low-income families. He annually played Santa Claus, taking 250 children to buy 28 gifts for friends and family through his Shop with a Jock Program and funded Thanksgiving Comet LLP 35. ATTORNEYS AT LAW SAN MEG°
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dinner in his restaurant for 700 homeless shelter residents, victims of domestic violence, and 2 military families. 3 202. During his life, Junior Seau's years of philanthropic spirit and work were 4 celebrated both by the San Diego community and nationally. His charisma as a celebrity player 5 inspired his fellow athletes to make contributions to their own communities. As a result of these 6 efforts, he was selected as the NFL's Man of the Year in 1994 and honored by President George 7 W. Bush with the Volunteer Service Award in 2005. 8 203. The Junior Seau revered by his fans and community also had a family. Seau's 9 family life was a loving and warm haven. Junior Seau had four children whom he loved and 10 adored, sons Tyler, Jake, and Hunter and a daughter Sydney. At the beginning of his career, Seau 11 was a loving parent and husband, regarded as a "teddy bear" by his children.
12 The NFL's Failures and Misrepresentations Expose Junior Seau to Long-Term Brain Iniurv 13 14 204. During his professional career, Junior Seau led his teams to two Super Bowls and 15 was known by teammates for his focus, discipline, and intensity as a teammate and a player. 16 205. Nicknamed the "Tasmanian Devil", Seau was extolled by the NFL, the fans, and 17 his peers for his on-field aggression and zeal. He was known as a warrior, the invincible patriarch 18 who could be depended on to play through injuries. 19 206. His body received countless blows which caused injuries over the years. The 20 impacts that his body routinely absorbed caused subconcussions and concussions due to the 21 significant force of the impacts.
22 207. Junior Seau suffered from extensive injuries throughout his NFL career, including, 23 among many others, a chronic torn rotator cuff, shattered bones in his forearm, chronic ankle, 24 knee, shoulder, toe injuries, back pain, and severe bruising all over his body on a regular basis. 25 Yet he rarely missed games for these injuries or even complained about pain or injuries. Instead, 26 he received injections for pain and inflammation to play through his ever-present injuries. 27 208. As alleged above, the NFL engaged in a deliberate and systematic campaign to 28 ignore, conceal and fraudulently misrepresent the facts about football-related impacts and long- CooLEy LLP 36. ATTORNEYS AT LAW SAN MECO
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term brain injury. As a result, Junior Seau was not armed with critical information necessary for 2 his own safety. 3 209. He suffered innumerable blows directly to his head during his NFL career, both 4 sub-concussive and concussive. Several times he was hit in the head so hard that he sustained 5 facial lacerations. 6 210. Seau also suffered from and reported symptoms of head injuries from playing in 7 NFL games, including dizziness during and after playing, dizziness when he turned his head, and 8 becoming dazed after being hit during games. 9 211. On numerous occasions, Seau left the field because he was dazed. He would sit on 10 the sidelines until he regained his bearings and he would then return to the game. 11 212. Seau often related that he had suffered concussions from playing and had 12 headaches from those concussions. He would regularly ask for pain medications, such as aspirin, 13 Motrin, Tylenol, Excedrin, from his family and friends and took them in to help ease the 14 headache pain. 15 213. By returning to games while he was still suffering the symptoms of 16 subconcussions or concussions, Junior Seau was exposed to the risk of greater trauma to his brain. 17 As shown by a recent study by the National Institutes of Health, Junior Seau suffered significant 18 long term brain damage, including CTE. Junior Seau reasonably relied on the NFL's fraudulent 19 concealment and affirmative misrepresentations regarding the danger of subconcussions and 20 concussions and related symptoms and the danger of returning to play, which proximately caused 21 his injuries, including CTE.
22 Junior Seau Shows Symptoms of Iniurv 23 214. During the mid-1990's, around the time of Junior Seau's reports of dizziness and 24 other symptoms of concussion and secondary to repetitive hits, there was a noted change in his 25 behavior and functioning. 26 215. Junior Seau's behavior became erratic. The man who was once the cornerstone of 27 his team and his family began exhibiting emotional instability. 28 216. During this time, Seau developed severe insomnia which plagued him until his COOLEY LLP 37. Arroefuns Ar LAW SAN DIECo
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death. He would awake at 1:00-2:00 a.m. and not be able to return to sleep. 2 217. Seau always dreaded the "dumb jock" stereotype and cultivated his mind in 3 addition to his body. Always striving to improve his memory, concentration, problem-solving 4 skills, logical thinking and forethought, he was an avid student of chess. Those around him were 5 used to him being sharp, disciplined, ready to pounce not only physically but cognitively. But as 6 the seasons of abuse to his brain set in, others found that he became forgetful and unable to 7 concentrate or focus. Both at work and at home, people noticed that he could not remember their 8 discussions, he misplaced things and forgot appointments. 9 218. Unfortunately, Junior Seau's spiral extended far beyond forgetfulness. His 10 increasing emotional instability resulted in uncharacteristically self-destructive, aggressive and 11 violent behavior. He began to suffer extreme depression and became withdrawn from his family, 12 including his children. The changes in his behavior impacted his ability to relate to others. He 13 became unable to maintain meaningful relationships with those whom he loved or to form any 14 new meaningful relationships with others. 15 219. His children had to adapt to a new version of their father. When he was lost in 16 periods of depression he became irrational and unreachable. They would look into his eyes and 17 not recognize the person with whom they were now dealing. 18 220. In his business ventures, for many years, Junior Seau was responsible and 19 thorough. In the areas where he lacked experience or knowledge, he educated himself. He was 20 involved in his businesses, and the success of his businesses reflected such involvement. 21 221. As his brain disintegrated from repeated trauma, tasks and decisions that Seau 22 previously undertook became impossible for him. He made impulsive, ill-advised business 23 decisions that he formerly had been too savvy and thoughtful to make. He no longer listened to 24 his qualified advisors, could no longer discuss business figures and no longer possessed reasoned 25 business judgment.
26 Junior Seau Spirals Downward, Culminating In His Tragic Suicide 27 222. The once warm and gentle Junior became extremely irritable and short tempered. 28 He lashed out both verbally and physically at his staff, friends, and family. As a result, his COOLEY LLP 38. ATTORNEYS AT LAW SAN DIEGO
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businesses and investments began to deteriorate and lose value. 2 223. The disciplined, heath conscious Junior Seau also disappeared. He previously had 3 been known for preaching good health through healthy eating and exercise. He had always been 4 careful about drinking in moderation and rarely drank during the football season. As his life 5 began to spiral and he became unable to cope, alcohol became a method of self-medicating for 6 Seau. He entered a devastating cycle of depression and alcohol abuse. 7 224. This cycle of depression magnified other vices which Seau had previously enjoyed 8 in moderation. He became a compulsive, manic gambler. Seau's impulsivity and inability to 9 soundly reason threw him into gambling binges, where against the pleading of those close to him, 10 he lost significant amounts of money in an attempt to make back business losses. 11 225. The above mentioned problems, including insomnia, depression, alcohol abuse, 12 inability to relate to friends and family, irrational decisions, diminished cognitive function, and 13 gambling problems are all well established effects of neuro-degenerative injuries, including Cit. 14 Tragically, on May 2, 2012, these injuries and the problems which were proximately caused by 15 hem, caused Junior Seau to take a gun and shoot himself in the chest, committing suicide. The 16 circumstances under which he committed suicide allowed his brain to be preserved and tested by 17 he National Institutes of Health. As part of the National Institutes of Health study, three different 18 doctors in a triple blind study concluded that Junior Seau's brain evidenced "multi-focal 19 tauopathy consistent with a diagnosis of chronic traumatic encepholapathy." 20 FIRST CAUSE OF ACTION 21 FRAUDULENT CONCEALMENT 22 (Against the NFL) 23 226. Plaintiffs incorporate by reference all of the preceding allegations set forth above 24 as if fully set forth herein. 25 227. Plaintiff Bette Ho nan brings this survival cause of action on behalf of the estate 26 of decedent and all successors-in-interest therein pursuant to Code of Civil Procedure section 27 377.30. 28 228. The NFL has been aware of and understood the significance of the published COOLEY LLP 39. ATTORNEYS AT LAW SAN MECO
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medical literature dating from as early as the 1950s that there is a serious risk of short-term and 2 long-term brain injury associated with repetitive traumatic impacts to the head to which NFL 3 'players are exposed. 4 229. During that time period, the NFL knowingly and fraudulently concealed from 5 then-current NFL players and former NFL players the risks of head injuries in NFL games and 6 practices, including the risks associated with returning to physical activity too soon after 7 sustaining a sub-concussive or concussive injury. 8 230. From 1994 through June of 2010, the NFL's fraudulent concealment continued. 9 During that time period, the NFL voluntarily funded and produced its own purported scientific 10 research and through that research repeatedly misrepresented to then-current and former NFL 11 players, the United States Congress, and the general public that there is no link (or an insufficient 12 scientific link) between MTBI in NFL activities and later-in-life cognitive/brain injury, including 13 CTE and its related symptoms. 14 231. Given the NFL's superior and unique vantage point, Junior Seau reasonably 15 looked to the NFL for guidance on head injuries and concussions. 16 232. The NFL's MTBI Committee published articles and the August 2007 concussion 17 pamphlet referenced above, all of which concealed and minimized the risks of repetitive brain 18 impacts the NFL knew existed for its then-current players and for its former players, who 19 reasonably relied on the NFL's pronouncements and/or silence on this health issue. 20 233. The NFL's concussion pamphlet created an atmosphere of trust that the NFL had 21 carefully undertaken its voluntary responsibility to research, test, study, and report accurate 22 findings to the players and former players. The NFL stated that "[w]e want to make sure all NFL 23 players ... are fully informed and take advantage of the most up to date information and resources 24 as we continue to study the long-term impact of concussions." 25 234. The concealment was ongoing. Dr. Casson provided oral and written testimony at 26 the 2010 congressional hearings in which he continued to deny the validity of other studies. Dr. 27 Casson also denied the link between repetitive brain impacts and short- and long-term brain 28 damage in public interviews. CCOLEY LLP 40. Arraxners Al LAW SAN DIEGO
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235. The NFL, therefore, concealed material facts and information with the intent to 2 deceive and defraud, which caused Junior Seau to suffer the harm referenced above. Further, for 3 the time period prior to June 2010, the NFL's concerted concealment of the risks to which players 4 had been exposed delayed Junior Seau's ability to plan for the future and to seek appropriate 5 treatment of latent neurodegenerative conditions. 6 236. The NFL knew and expected that Junior Seau would rely on the inaccurate 7 information provided by the NFL, and Junior Seau did in fact reasonably rely on the inaccurate 8 information provided by the NFL during and after his NFL career. 9 237. As a direct and proximate result of the NFL's fraudulent conduct, Junior Seau 10 suffered physical injury, including, but not limited to, existing and latent cognitive conditions that 11 created diminished cognitive function, non-economic losses, and economic losses including but 12 not limited to lost and/or reduced income during his life. 13 238. The despicable conduct of the NFL outlined above was fraudulent, malicious, and 14 oppressive and was done with the intent to defraud team coaches past and present NFL players, 15 and the general public. In addition, the despicable conduct of the NFL outlined above was done 16 with a conscious disregard for the rights and safety of Junior Seau and other NFL players. 17 Accordingly, Plaintiffs seek punitive damages as allowed under Civil Code section 3294 and any 18 other applicable provisions of law. 19 239. As a result of the NFL's misconduct as alleged herein, the NFL is liable to 20 Plaintiffs for, and Plaintiffs seek, the full measure of damages allowed under applicable law.
21 SECOND CAUSE OF ACTION 22 FRAUD
23 (Against the NFL) 24 240. Plaintiffs incorporate by reference all of the preceding allegations set forth above 25 as if fully set forth herein. 26 241. Plaintiff Bette Hoffman brings this survival cause of action on behalf of the estate 27 of decedent and all successors-in-interest therein pursuant to Code of Civil Procedure section 28 377.30. COOLEY LLP 41. ATTORNEYS AT LAW SAN DIEGO
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242. At least since the early 1950s the NFL knew that repetitive head impacts in
2 football games and full-contact practices created a risk of harm to NFL players that was similar or 3 identical to the risk of harm to boxers who receive the same or similar repetitive impacts to the
4 head during boxing practices and matches.
5 243. The NFL knew that the risks of brain injury could be reduced by implementing
6 changes to the game, akin to the ones the NFL belatedly adopted in 2011, such as (1) the baseline
7 cognitive testing of players for comparison purposes during and after contact play, (2) the active
8 monitoring of players for signs of MTBI, (3) the employment of a neurologist on the sidelines,
9 and (4) return-to-play rules consistent with proper medical management of MTBI.
10 244. The NFL, however, withheld the information it knew about the risks of head
11 injuries in the game from then-current NFL players and former NFL players and ignored the
12 known risks to all NFL players.
13 245. On information and belief, the NFL deliberately delayed implementing the
14 changes to the game it knew could reduce players' exposure to the risk of life-altering head
15 injuries because those changes would be expensive and would reduce the profitability of the
16 League.
17 246. The NFL has been aware of and understood the significance of the published
18 medical literature dating from as early as the 1950s that there is a serious risk of short-term and
19 long-term brain injury associated with repetitive traumatic impacts to the head to which NFL
20 players are exposed.
21 247. The NFL and its agents -- employed to formulate the MTBI committee and
22 populate the published scientific literature with "studies" intent on disputing the conclusions of
23 independent researchers regarding the long-term chronic disabilities and injuries associated with
24 head injury -- made these material misrepresentations with the intent to defraud players like
25 Junior Seau. 26 248. Given the NFL's superior and unique vantage point, Junior Seau reasonably
27 looked to the NFL for guidance on head injuries and concussions.
28 249. During that time period, the NFL knowingly and fraudulently concealed from then
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current NFL players of the risks of head injuries in NFL games and practices, including the risks
2 associated with returning to physical activity too soon after sustaining a sub-concussive or
3 concussive injury.
4 250. Beginning in 1994, the NFL and its agents funded and created a falsified body of
5 purported scientific research that misrepresented to then-current NFL players, all former NFL
6 players, the United States Congress, and the general public that there was no scientifically proven
7 link between repetitive sub-concussive and concussive injuries sustained during football and brain
8 injury, including but not limited to CTE and its related symptoms.
9 251. The NFL and its agents -- employed to populate the published scientific literature
10 with "studies" intent on disputing the conclusions of independent researchers regarding the long-
11 term chronic disabilities and injuries associated with head injury -- made these material
12 misrepresentations with the intent to defraud the decedent Junior Seau.
13 252. During his career and after retirement from the NFL, Junior Seau justifiably and
14 reasonably relied on the NFL's omissions and misrepresentations to his detriment.
15 253. As a direct and proximate result of the NFL's fraudulent conduct, Junior Seau
16 suffered physical injury, including, but not limited to, existing and latent cognitive conditions that
17 created diminished cognitive function, non-economic losses, and economic losses including but
18 not limited to lost and/or reduced income during his life.
19 254. The despicable conduct of the NFL outlined above was fraudulent, malicious, and
20 oppressive and was done with the intent to defraud team coaches past and present NFL players,
21 and the general public. In addition, the despicable conduct of the NFL outlined above was done
22 with a conscious disregard for the rights and safety of Junior Seau and other NFL players.
23 Accordingly, Plaintiffs seek punitive damages as allowed under Civil Code section 3294 and any
24 other applicable provisions of law.
25 255. As a result of the NFL's misconduct as alleged herein, the NFL is liable to 26 Plaintiffs for, and Plaintiffs seek, the full measure of damages allowed under applicable law.
27
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THIRD CAUSE OF ACTION 2 NEGLIGENT MISREPRESENTATION 3 (Against the NFL) 4 256. Plaintiffs incorporate by reference all of the preceding allegations set forth above 5 as if fully set forth herein.
6 257. Plaintiff Bette Hoffman brings this survival cause of action on behalf of the estate 7 of decedent and all successors-in-interest therein pursuant to Code of Civil Procedure section 8 377.30. 9 258. A special relationship exists between the NFL and players like Junior Seau 10 sufficient to impose a duty on the NFL to disclose accurate information to the players. 11 259. Prior to 1994, the NFL knew that repetitive head impacts in football games and 12 practices created a risk of harm to NFL players that was similar or identical to the risk of harm to 13 boxers who receive repetitive impacts to the head during boxing practices and matches. 14 260. Prior to 1994, the NFL was aware of and understood the significance of the 15 published medical literature demonstrating the serious risk of both short-term and long-term 16 adverse consequences from the kind of repetitive traumatic impacts to the head to which NFL 17 players were exposed. 18 261. The NFL, however, withheld this information from team coaches, physicians, 19 trainers, and other personnel, and NFL players and ignored the risks to NFL players. 20 262. Before June of 2010, the NFL made material misrepresentations to its players, 21 former players, the United States Congress, and the public at large that there was no scientifically 22 proven link between repetitive traumatic head impacts and later-in-life cognitive/brain injury, 23 including crE and its related symptoms. 24 263. Defendant NFL, therefore, misrepresented the dangers players faced in returning 25 to action after sustaining a head injury and the long-term effects of continuing to play football 26 after a head injury. 27 264. The NFL's MTBI Committee made public statements, published articles, and 28 isSued the concussion pamphlet to its players, which the NFL knew or should have known were Comet LLP 44. ATTORNEYS AT LAW EAR DIEGO
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misleading, downplaying and obfuscating to NFL players the true and serious risks of repetitive 2 traumatic head impacts. 3 265. The MTBI Committee made material misrepresentations on multiple occasions, 4 including but not limited to testimony at congressional hearings and other information issued to 5 current and former NFL Players. 6 266. Junior Seau's reliance on the NFL's misrepresentations was reasonable, given the 7 NFL's superior and unique vantage point on these issues. 8 267. The Defendant's misrepresentations included the false statement that present NFL 9 players were not at an increased risk of short-term and long-term adverse consequences if they 10 returned too soon to an NFL games or practices after suffering head trauma and, therefore, that 11 former players had not been exposed to such increased risk during their time in the NFL. 12 268. The NFL's misrepresentations included ongoing and baseless criticism of 13 legitimate scientific studies that set forth the dangers and risks of head impacts which NFL 14 players regularly sustained. 15 269. The NFL made these misrepresentations and actively concealed true information at 16 a time when it knew, or should have known, because of its superior position of knowledge, that 17 players faced serious health problems if they returned to a game too soon after sustaining a 18 concussion. 19 270. The NFL knew or should have known the misleading nature of its statements when 20 they were made. 21 271. The NFL made the misrepresentations and actively concealed information 22 knowing that Junior Seau would and did rely on the misrepresentations or omissions in, among 23 other things, how the players addressed the concussive and sub-concussive injuries they 24 sustained. For the time period prior to June 2010, the NFL's concerted concealment of the risks 25 to which present and former players had been exposed on the playing field delayed Junior Seau's 26 ability to plan for the future and to seek appropriate treatment of his latent neurodegenerative 27 conditions. 28 272. As a direct and proximate result of the NFL's negligent misrepresentations, Junior COOLEY LLP 45. AITOPNETS AT LAW SA): DIEGO
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Seau suffered physical injury, including, but not limited to, existing and latent cognitive 2 conditions that created diminished cognitive function, non-economic losses, and economic losses 3 including but not limited to lost and/or reduced income during his life. 4 273. As a result of the NFL's misconduct as alleged herein, the NFL is liable to 5 Plaintiffs for, and Plaintiffs seek, the full measure of damages allowed under applicable law.
6 FOURTH CAUSE OF ACTION
7 NEGLIGENCE
8 (Against the NFL) 9 274. Plaintiffs incorporate by reference all of the preceding allegations set forth above 10 as if fully set forth herein. 11 275. Plaintiff Bette Hoffman brings this survival cause of action on behalf of the estate 12 of decedent and all successors-in-interest therein pursuant to Code of Civil Procedure section 13 377.30.
14 276. Between 1933 and 1968, the NFL assumed and carried out a duty to inform and 15 advise players and teams of the foreseeable harm that can arise from such things as the use of 16 leather helmets, the need to wear hard plastic helmets to reduce head wounds and internal injury 17 and the grabbing of an opponent's facemask—to minimize or avoid head and neck injuries. 18 These warnings and imposed safety rules were furnished by the NFL because it had assumed a 19 duty to provide a safe environment for players and because of its superior knowledge of the risks 20 of injury to players. 21 277. Based on information and belief, the NFL voluntarily inserted itself into the tasks 22 assumed by others to develop helmet safety standards and to reduce the risk of head injury while 23 playing football. Despite its voluntary participation in these activities, the NFL negligently failed 24 to adopt these standards for a considerable period of time after others had done so. 25 278. During this time period, the NFL knew or should have known of medical or 26 scientific literature regarding the risks of short- and long-term neuro-cognitive disabilities and 27 deficits to athletes exposed to MTBI. 28 279. During this time period, the NFL knew or should have known that it was the COOLEY LLP 46. ATTORNEYS AT LAW SAN DISCO
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practice in the NFL to compel or cajole players to play with injuries, including sub-concussive 2 injuries, concussive injuries and injuries involving a loss of consciousness. 3 280. During this time period, the NFL had superior knowledge (as compared to the 4 NFL players themselves) that athletic sporting events causing sub-concussive and concussive 5 injuries posed a serious risk of short-term and long-term cognitive disabilities. 6 281. Increasingly, during the 1970s, 1980s and 1990s, the NFL (and the marketing arm 7 of the NFL) marketed the game of football as acceptably violent, and it rewarded its most violent 8 players. This marketing technique was directed to the general public and organized football 9 players everywhere. In pursuing these concerted marketing techniques, the NFL knew or should 10 have known that its conflation of concussive-inducing violence with heroism would induce NFL 11 players and those who aspired to play in the NFL to play with reckless violence. 12 282. In its marketing scheme, the defendant NFL developed print and film packages 13 that were widely distributed throughout the United States to media outlets and organized football 14 programs as a powerful method to convince current players and those in college and high school 15 football that the greater the hit the bigger the accolades. 16 283. During this time period, the failure of the NFL to publicize within the League, and 17 to the public at large, the mounting evidence in the scientific literature of the evolving and 18 chronic neuro-cognitive problems amongst former players caused then-current players and retired 19 playern to believe that their physical and psychological problems (as described herein) were 20 neither serious nor related to football. Instead, the NFL increasingly promoted the brutality and 21 ferocity of NFL play. These commissions or omissions caused players to ignore the need for 22 necessary treatment. Likewise, these omissions and commissions had the institutional effect of 23 reducing the interest in helmet safety research, avoiding changes in rule-playing to minimize head 24 injury, avoiding the need to promulgate rules affecting the return-to-play rules when concussive 25 events are detected, and avoiding establishing programs to educate players about the long-term 26 health risks of sub-concussive and concussive impacts. 27 284. In the early 1990s, the NFL voluntarily undertook to study the issue of neuro- 28 cognitive injuries in former NFL players. Comm, LLP 47. ATTORNEYS ATLA1V SAN DIEGO
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285. In 1994, in connection with that voluntary undertaking, the NFL created the 2 aforementioned MTBI Committee. 3 286. By voluntarily undertaking to study and report on the issue of the neuro-cognitive 4 effects of head impacts in professional football, the NFL assumed a duty to exercise reasonable 5 care in the MTBI Committee's work and the NFL and its agents' public statements about the 6 substance of the Committee's work.
7 287. However, the MTBI Committee negligently performed the NFL's voluntarily 8 undertaken research mission. 9 288. In addition, from 1994 through June of 2010, the NFL and its MTBI Committee 10 made material misrepresentations to players, former players, the United States Congress, and the 11 public at large that there was no scientifically valid link between repetitive traumatic head 12 impacts and later-in-life cognitive/brain injury, including CTE and its related symptoms. 13 289. Given the NFL's superior and unique vantage point on the issue of head injuries 14 and concussions, the Plaintiffs reasonably relied to their detriment on the NFL's actions and 15 omissions on the subject. 16 290. Junior Seau reasonably relied to his detriment on the NFL's actions and omissions 17 on the subject. 18 291. The NFL's failure to exercise reasonable care in its voluntarily assumed duty 19 increased the risk that players like Junior Seau would suffer long-term neuro-cognitive injuries. 20 292. Under all of the above circumstances, it was foreseeable that the NFL's failure to 21 exercise reasonable care in the execution of its voluntarily undertaken duties would cause or 22 substantially contribute to the personal injuries suffered by Junior Seau. 23 293. The NFL's failure to exercise reasonable care in the execution of its voluntarily 24 undertaken duties proximately caused or contributed to Junior Seau's injuries, and ultimately his 25 death.
26 294. As a direct and proximate result of the NFL's negligence, Junior Seau suffered 27 physical injury, including, but not limited to, existing and latent cognitive conditions that created 28 diminished cognitive function, non-economic losses, and economic losses including but not CooLEY LL)' 48. ATTORNM AT LAW SAN MEG°
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limited to lost and/or reduced income during his life. 2 295. As a result of the NFL's misconduct as alleged herein, the NFL is liable to 3 Plaintiffs for, and Plaintiffs seek, the full measure of damages allowed under applicable law. 4 FIFTH CAUSE OF ACTION 5 NEGLIGENT HIRING 6 (Against the NFL) 7 296. Plaintiffs incorporate by reference all of the preceding allegations set forth above 8 as if fully set forth herein. 9 297. Plaintiff Bette Hoffman brings this survival cause of action on behalf of the estate 10 of decedent and all successors-in-interest therein pursuant to Code of Civil Procedure section 11 377.30. 12 298. The NFL voluntarily and gratuitously inserted itself into the business of studying 13 (and subsequently rendering expert opinions about) the relationship between repetitive head 14 impacts in football and brain injury. 15 299. In doing so, the NFL assumed a duty to players like Junior Seau to retain and 16 employ persons within the MTBI Committee who were professionally competent to study and 17 render opinions on the relationship between repetitive head impacts in football and brain injury 18 and to ensure that those whom it hired had no conflict of interest and that each had the 19 professional and personal qualifications to conduct those studies and render opinions that were 20 scientifically rigorous, valid, defensible, and honest. 21 300. The NFL breached its duty to Junior Seau by hiring persons who: 22 a. were unqualified; 23 b. were not competent to engage in rigorous and defensible scientific 24 research; 25 c. were not competent to render valid and defensible opinions; 26 d. created fraudulent industry-funded research; and/or 27 e. attacked as not credible the valid and defensible research and opinions 28 generated by neuro-scientists who were unconnected to and not paid by the NFL. Comm, LLP 49. ATTORNEYS AT LAW SAN DIEGO
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301. The NFL's negligence in this regard resulted in a body of falsified industry-funded
2 research that purposefully and/or negligently contested and suppressed valid and truthful
3 biomedical science. The NFL's negligence allowed the MTBI Committee to use falsified
4 industry-funded research to mislead Junior Seau, other former NFL players, and the general 5 public regarding the risks associated with repetitive head impacts in the game of football.
6 302. As a result of the NFL's negligence, Junior Seau sustained brain injuries that were 7 progressive and latent and did not take protective measures or seek the diagnosis and treatment he
8 would have sought had he been told the truth.
9 303. As a direct and proximate result of the NFL's negligent hiring, Junior Seau
10 suffered physical injury, including, but not limited to, existing and latent cognitive conditions that
11 created diminished cognitive function, non-economic losses, and economic losses including but
12 not limited to lost and/or reduced income during his life.
13 304. As a result of the NFL's misconduct as alleged herein, the NFL is liable to
14 Plaintiffs for, and Plaintiffs seek, the full measure of damages allowed under applicable law. 15 SIXTH CAUSE OF ACTION
16 NEGLIGENT RETENTION 17 (Azainst the NFL)
18 305. Plaintiffs incorporate by reference all of the preceding allegations set forth above
19 as if fully set forth herein.
20 306. Plaintiff Bette Hoffman brings this survival cause of action on behalf of the estate
21 of decedent and all successors-in-interest therein pursuant to Code of Civil Procedure section
22 377.30.
23 307. The NFL knew or should have known that the controlling members of the MTBI
24 Committee demonstrated an ongoing lack of competence, objectivity and inadequate judgment to
25 study and render expert opinions on the issue of the relationship between repetitive head impacts 26 in football and brain injury.
27 308. The NFL voluntarily assumed a duty to Junior Seau not to allow those
28 incompetent persons it had hired within the MTBI Committee to continue to conduct incompetent COOLEY LLP 50. ArfORNAYS AT LAW SAN Meco
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t
and falsified studies and render incompetent opinions on the relationship between repetitive head 2 impacts in football and brain injury. 3 309. During the time period when the MTBI Committee was conducting its purported 4 research and rendering its purported opinions, the NFL knew or should have known that the 5 purported research and opinions of the MTBI Committee were false and indefensible. 6 310. The NFL breached its duty to Junior Seau by allowing these incompetent and 7 unqualified persons, under the auspices and with the imprimatur of the NFL: 8 a. to continue to create incompetent and indefensible research, 9 b. to continue to render invalid and indefensible opinions, and 10 c. to continue to attack the credible and defensible research and opinions of 11 neuro-scientists not connected to or paid by the NFL. 12 311. The NFL's negligence allowed the incompetent members of the MTBI Committee 13 to continue to advance their false and incompetent research and opinions in an attempt to suppress 14 valid bio-medical science. The NFL's negligence allowed the MTBI Committee members to 15 mislead Junior Seau, other former NFL players, and the general public regarding the permanent 16 brain injury risks associated with repetitive head impacts in the game of football. 17 312. As a result of the NFL's failure, Junior Seau sustained brain injuries that were 18 progressive and latent and did not take protective measures or seek the diagnosis and treatment he 19 would have sought had they been told the truth. 20 313. As a direct and proximate result of the NFL's negligent retention, Junior Seau 21 suffered physical injury, including, but not limited to, existing and latent cognitive conditions that 22 created diminished cognitive function, non-economic losses, and economic losses including but 23 not limited to lost and/or reduced income during his life. 24 314. As a result of the NFL's misconduct as alleged herein, the NFL is liable to 25 Plaintiffs for, and Plaintiffs seek, the full measure of damages allowed under applicable law. 26 27 28
COOLEY LLP 51. A1TORNEYS AT LAW SAN Diem,
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(
SEVENTH CAUSE OF ACTION
2 WRONGFUL DEATH
3 (Against the NFL Defendants) 4 315. Plaintiffs incorporate by reference all of the preceding allegations set forth above 5 as if fully set forth herein. 6 316. Plaintiffs Tyler Seau, Sydney Seau, Jake Seau and Hunter Seau are Junior Seau's 7 natural children and therefore are entitled to bring this wrongful death action pursuant to 8 California Code of Civil Procedure section 377.60. 9 317. As a direct and proximate cause of the conduct alleged herein, the NFL 10 Defendants caused Junior Seau to develop neuro-cognitive brain diseases, including CTE. 11 318. As a result of these neuro-cognitive brain diseases, Junior Seau suffered from 12 insomnia, depression, anxiety, and other injuries. 13 319. Junior Seau's untimely death on May 2, 2012 was a direct and proximate result of 14 having suffered multiple past traumatic brain injuries while playing professional football for the 15 NFL from 1990-2009. 16 320. As a direct and proximate result of the untimely death of Junior Seau, his 17 respective survivors have been deprived of the earnings, maintenance, guidance, support and 18 comfort that they would have received for the rest of their natural lives, and have suffered 19 commensurate pecuniary and non-pecuniary losses because of Junior Seau's wrongful death. 20 321. As a result of the NFL Defendants' misconduct as alleged herein, Defendants are 21 liable to Plaintiffs for, and Plaintiffs seek, the full measure of damages allowed under applicable 22 law.
23 EIGHTH CAUSE OF ACTION
24 WRONGFUL DEATH
25 (AGAINST THE RIDDELL DEFENDANTS) 26 27 322. Plaintiffs incorporate by reference all of the preceding allegations set forth above 28 as if fully set forth herein.
COOLEY LLP 52. Arronays Ay LAW SAN MECO
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4. I
323. Plaintiffs Tyler Seau, Sydney Seau, Jake Seau and Hunter Seau are Junior Seau's
2 natural children and therefore are entitled to bring this wrongful death action pursuant to
3 California Code of Civil Procedure section 377.60.
4 Negligence Supporting Wrongful Death
5 324. The Riddell Defendants were negligent in their design, testing, assembly,
6 manufacture, marketing, and engineering of the helmets as described herein.
7 325. The Riddell Defendants owed a duty of care to the players in their design, testing,
8 manufacture, assembly, marketing and sale of the helmets and all components and sub-assemblies 9 of the helmets.
10 326. The Riddell Defendants should have been well aware that since 1928 repeated 11 blows to the head can lead to CTE, commonly known as "punch-drunk syndrome".
12 327. The Riddell Defendants breached their duty of reasonable care by failing to
13 provide necessary and adequate safety and instructional materials and warnings of the risk and
14 means available to reduce and/or minimize the risk of concussive brain injuries while playing 15 football using their helmets.
16 328. At the time the helmets were designed, manufactured, sold and distributed by the
17 Riddell Defendants, the helmets were defective in their manufacturing and unreasonably
18 dangerous and unsafe for their intended purpose because they did not provide adequate protection
19 against the foreseeable risk of concussive brain injury. The Riddell Defendants' failure to design
20 the helmets to design and manufacturing specifications resulted in, among other things, the 21 following:
22 (a) Negligently failing to manufacture the subject helmet with a safe means of
23 attenuating and absorbing the foreseeable forces of impact in order to minimize and/or reduce the 24 forces and energy directed to the player's head;
25 (b) Negligently manufacturing the subject helmet with a shock attenuating system
26 which was not safely configured;
27 (c) Negligently failing to properly and adequately inspect and/or test the helmet 28 model; COOLEY LLP 53. Arromers AT LAW SAN DISCO
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(d) Other acts of negligence that may be discovered during the course of this matter; 2 3 (e) Failure to warn players that its helmets wouldn't protect against concussive brain 4 injury.
5 Design Defect Supporting Wrongful Death 6 329. Also, at the time the helmets used by Junior Seau were designed, manufactured, 7 sold, and distributed by the Riddell Defendants, the helmets were defective in design, 8 unreasonably dangerous, and unsafe for their intended purpose because they did not provide 9 adequate protection against the foreseeable risk of concussive brain injury. The design defects 10 include, but are not limited to the following: 11 (a) The lack of a safe means of attenuating and absorbing the foreseeable forces of 12 impact in order to minimize and/or reduce the forces and energy directed to the player's head; 13 (b) An unsafe shock attenuating system; and 14 (c) Insufficient protection against concussive injuries. 15 330. The defective design and unreasonably dangerous condition were a proximate and 16 producing cause of the personal injuries suffered by Junior Seau and other damages, including but 17 not limited to, economic damages and non-economic damages. 18 331. The Riddell helmets did not perform in the manner that would be expected by a 19 reasonable consumer in that they did not adequately protect players from the risks of concussive 20 and sub-concussive injuries. 21 332. Additionally, the benefits, if any, of the design of the Riddell helmets were 22 outweighed by the risks to players using those helmets as the helmets did not adequately protect 23 players from the risks of concussive and sub-concussive injuries. 24 333. A safer alternative design was economically and technologically feasible at the 25 time the product left the control of the Riddell Defendants. 26 334. At all times, the helmets were being used for the purpose for which they were 27 intended or in a manner that was reasonably foreseeable to the Riddell Defendants. 28 COOLS? LLP 54. ATTORNEYS AT LAW SAN DIEGO
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P I.
Failure to Warn Supporting Wrongful Death 2 335. Also, the Riddell Defendants knew or should have known of the substantial 3 dangers involved in the reasonably foreseeable use of the helmets. 4 336. The Riddell Defendants failed to provide necessary and adequate safety and 5 instructional materials and warnings of the risk and means available to reduce and/or minimize 6 the risk of concussive brain injuries while playing football. 7 337. The Riddell Defendants failed to provide necessary and adequate information, 8 warnings, and/or instructional materials regarding the fact that other model helmets provided 9 greater shock attenuation from blows to the head area. 10 338. The Riddell Defendants ignored 18 years of published literature, read by their 11 general counsel Richard Lester, warning of the dangers of concussive injuries until 2002, when a 12 warning involving return to play after a concussion was placed on all Riddell helmets. The 13 warning was still defective and inadequate and remains today defective and inadequate because it 14 does not warn about the later life cognitive effects of concussive injury. 15 339. The Riddell Defendants knew that these substantial dangers were not readily 16 recognizable to an ordinary consumer or user and that such person would use these products 17 without inspection for defects. 18 340. Junior Seau neither knew, nor had reason to know of the existence of the 19 aforementioned defects, or increased risks of harm. 20 341. Junior Seau was using the helmets in a reasonably foreseeable manner at all times. 21 342. Riddell Defendants failure to warn players of the risks of substantial harm 22 associated with the foreseeable use of their products was a substantial factor in causing Junior 23 Seau's harm.
24 Riddell's Wrongful Death Liability 25 343. Riddell Defendant's negligence, design defect and failure to warn were a 26 proximate and legal cause of the wrongful death of Junior Seau as alleged herein. 27 344. As a direct and proximate cause of the conduct alleged herein, the Riddell 28 Defendants caused Junior Seau to develop neuro-cognitive brain diseases, including CTE.
COOLEY LLP 55. ATTORNEYS AT LAW SAN DECO
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i
345. As a result of these neuro-cognitive brain diseases, Junior Seau suffered from
2 insomnia, depression, anxiety, and other injuries.
3 346. Junior Seau's untimely death on May 2, 2012 was a direct and proximate result of
4 having suffered multiple past traumatic brain injuries while using equipment designed, developed,
5 manufactured, sold and distributed by the Riddell Defendants.
6 347. As a direct and proximate result of the untimely death of Junior Seau, his
7 respective survivors have been deprived of the earnings, maintenance, guidance, support and
8 comfort that they would have received for the rest of their natural lives, and have suffered
9 commensurate pecuniary and non-pecuniary losses because of Junior Seau's wrongful death.
10 As a result of the Riddell Defendants' misconduct as alleged herein, Defendants are liable to
11 Plaintiffs for, and Plaintiffs seek, the full measure of damages allowed under applicable law.
12
13 / / /
14
15 III
16 17 II,
18
19 / / /
20
21 / I / 22
23 / / /
24
25 III 26
27 / / /
28 Comm, LLP 56. AnORNETS AT LAW
SAN MEG°
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PRAYER FOR RELIEF 2 WHEREFORE, the Plaintiffs pray for judgment as follows: 3 A. Against the NFL Defendants as follows: 4 As to the First, Second, Third, Fourth, Fifth, Sixth, and Seventh Causes of Action 5 an award of all compensatory damages allowed under law against the NFL Defendants; 6 As to the First and Second Causes of Action an award of punitive damages as to 7 the NFL defendants; 8 B. Against the Riddell Defendants as follows: 9 As to the Eighth Cause of Action an award of all compensatory damages allowed 10 under law against the Riddell Defendants; 11 C. An award of prejudgment interest, costs and attorneys fees; and 12 D. An award of such other and further relief as may be appropriate; and 13 14 JURY DEMAND. Plaintiffs hereby demand a trial by jury on all matters so triable. 16
17 Dated: February 4, 2013 18 COOLEY LLP STEVEN M. STRAUSS (99153) 19 20 By: 21 Steven M. Strauss Attorney for Plaintiffs 22 23 24 25 26 27 28 COOLEY LLP 57. ATTORNEYS AT Law SAN MEG°
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• 1 • SUM-100
FOR COURT USE ONLY AMENDED SUMMONS (SOLO PARA USO DE LA CORTE) (CITACION JUDICIAL) NOTICE TO DEFENDANT: (AVISO AL DEMANDADO): NATIONAL FOOTBALL LEAGUE; NFL PROPERTIES LLC; RIDDELL, INC.;
ALL AMERICAN SPORTS CORP.; RIDDELL SPORTS GROUP, INC.; rs : tzz i..A I . L .• r [Additional Parties Attachment Form is Attached] YOU ARE BEING SUED BY PLAINTIFF: ‘ j 6faric of the Supei:14O del11 (LO ESTA DEMANDANDO EL DEMANDANTE): TYLER SEAU, an individual; SYDNEY SEAU. an individual; JAKE SEAU,a FEB 0 4 2013 minor,and HUNTER SEAU,a minor, by and through their Guardian ad Litem
Gina Seau;and BETTE HOFFMAN as trustee of the Tiaina B. Seau,Jr.2002 trust Blf• De - tit NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 3Ta -y. -Read the information below. You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate these nonprofit groups at the California Legal Services Web site (www.lawhelpcalifomia.org), the California Courts Online Self-Help Center (www.courtinfo.ca.gov/seffhelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case. iAVISO! Lo han demandado. Si no responde dentro de 30 dias. la corte puede decidir en su contra sin escuchar su version. Lea la informaciOn a continuacion. Tiene 30 DIAS DE CALENDA RIO despues de que le entreguen este citaciOn y papeles legates para presentar una respuesta por escrito en esta corte y hacer que se entregue una copia al demandante. Una carte o una Ilamada telefOnica no lo protegen. Su respuesta por escrito tiene que estar en format° legal correct° Si desea que procesen su caso en la corte. Es posible que haya un fomwlario que usted pueda usar pare su respuesta. Puede encontrar estos fonnularios de la corte y mas informacion en el Centro de Ayuda de las Cortes de California (www.sucorte.ca.gov). en la biblioteca de leyes de su condado o en la corte que le quede mas cerca. Si no puede pagar la cuota de presentaci6n, pida al secretario de la corte que le dé un forrnulario de exenciOn de pago de cuotas. Si no presenta su respuesta a tiempo, puede perder el caso por incumplimiento y la corte le podra guitar su sueldo, dinero y bienes sin mas advertencia. Hay otros requisitos legates. Es recomendable que flame a un abogado inmediatamente. Si no conoce a un abogado. puede Ilamar a un servicio de remisi6n a abogados. Si no puede pagar a un abogado, es posible que cumpla con los requisitos para obtener servicios legates gratuitos de un programa de servicios legates sin fines de lucro. Puede encontrar estos grupos sin fines de lucro en el sitio web de California Legal Services, (vwvw.lawhelpcalifomia.org). en el Centro de Ayuda de las Cortes de California, (www.sucorte.ca.gov) o poniendose en contacto con la cone o el colegio de abogados locales. AVISO: Por ley. la corte tiene derecho a reclamar las cuotas y los costos exentos por imponer un gravamen sobre cualquier recuperaci6n de $10.000 6 más de valor recibida mediante un acuerrlo o una concesi6n de arbitraje en un caso de derecho civil. Tiene que pagar el gravamen de la corte antes de que la corte pueda desechar el caso. The name and address of the court is: CASE NUMBER (El nombre y direccion de la code es): (Numero del Caw) Superior Court of the State of California, County of San Diego 37-2013-00031265-CU-PO-CTL Central Division 330 West Broadway, San Diego, CA 92101 IMAGED FILE
The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is: (El nombre, la direcci6n y el nOmero de telOfono del abogado del demandante, o del demandante quo no tiene abogado, es): Steven M. Strauss, COOLEY LLP, 4401 Eastgate Mall, San Diego, CA 92121; (858) 550-6000
DATE: Clerk, by J. LANCETA , Deputy (Fecha) FEB 12 2013 (Secretano) (Adjunto) (For proof of service of this summons, use Proof of Service of Summons (form POS-010).) (Para prueba de entrega de esta citation use el formulario Proof of Service of Summons, (POS-010)). NOTICE TO THE PERSON SERVED: You are served 1. E as an individual defendant. 2. E as the person sued under the fictitious name of (specify):
3. 0 on behalf of (specify): under: E CCP 416.10 (corporation) E CCP 416.60 (minor) 0 CCP 416.20 (defunct corporation) E CCP 416.70 (conservatee) E CCP 416.40 (association or partnership) O CCP 416.90 (authorized person) O other (specify): 4. 0 by personal delivery on (date): Page 1 of 1 Form Adopted for Mandatory Use Code of Civil Procedure §5412.20, 465 SUMMONS American LegalNet Inc Judicial Council of California www.courtmfo.ca.gov www.FormsWorkflow_com SUM-100 [Rev July 1, 20091
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SUM-200(A) SHORT TITLE: CASE NUMBER: TYLER SEAU, et al. v. NATIONAL FOOTBALL LEAGUE, et al 37-2013-00031265-CU-PO-CTL
INSTRUCTIONS FOR USE 4 This form may be used as an attachment to any summons if space does not permit the listing of all parties on the summons. 4 If this attachment is used, insert the following statement in the plaintiff or defendant box on the summons: "Additional Parties Attachment form is attached."
List additional parties (Check only one box. Use a separate page for each type of party.):
Plaintiff Defendant Q Cross-Complainant U Cross-Defendant EASTON-BELL SPORTS, INC.; EASTON-BELL SPORTS, LLC; EB SPORTS CORP.; RBG HOLDINGS CORP., and DOES 1 through 100, inclusive
Page 1 of 1
Page 1 of 1 Form Adopted for Mandatory Use Judicial Gourd! of Califorria ADDITIONAL PARTIES ATTACHMENT SUM-200(A) [Rey. January 1, 2007] Attachment to Summons American LegalNet, Inc. wvAstFormsWorkflow.00m
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; 29:160 - National Labor Relations Act CaseCase 2:13-cv-01531-AB3:13-cv-00478-W-RBB Document Document 1-1 1-3Filed Filed 03/25/13 02/28/13 Page Page 150 of1 of151 2
Attachment to Civil Cover Sheet for Seau, et al. v. National Football League, et al.
Section I:
PLAINTIFFS DEFENDANTS TYLER SEAU, an individual; SYDNEY NATIONAL FOOTBALL LEAGUE; SEAU, an individual; JAKE SEAU, a minor, NFL PROPERTIES LLC; RIDDELL, and HUNTER SEAU, a minor, by and INC.; ALL AMERICAN SPORTS through their Guardian ad Litem Gina Seau; CORP.; RIDDELL SPORTS GROUP, and BETTE HOFFMAN, as trustee of the INC.; EASTON-BELL SPORTS, INC.; TIAINA B. SEAU, JR. 2002 Trust EASTON-BELL SPORTS, LLC; EB SPORTS CORP.; and RBG HOLDINGS CORP.
Attorneys for Defendants National Attorneys for Plaintiffs: Football League and NFL Properties LLC: COOLEY LLP MUNGER, TOLLES & OLSON LLP STEVEN M. STRAUSS RONALD L. OLSON 4401 Eastgate Mall JOHN W. SPIEGEL San Diego, CA 92121 NICHOLAS C. SOLTMAN Telephone: (858) 550-6000 355 South Grand Avenue, Thirty-Fifth Facsimile: (858) 550-6420 Floor Los Angeles, CA 90071-1560 CASEY GERRY SCHENK Telephone: (213) 683-9100 FRANCAVILLA BLATT & PENFIELD, Facsimile: (213) 687-3702 LLP DAVID S. CASEY, JR. (Pro Hac Vice applications to be filed) FREDERICK SCHENK PAUL, WEISS, RIFKIND, WHARTON 110 Laurel Street & San Diego, CA 92101 GARRISON LLP Telephone: (619) 238-1811 BRAD S. KARP Facsimile: (619) 544-9232 THEODORE V. WELLS, JR. BETH A. WILKINSON LYNN B. BAYARD 1285 Avenue of the Americas New York, NY 10019-6064 Telephone: (212) 373-3000 Facsimile: (212) 757-3990
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Section VI:
Suit for fraudulent concealment, fraud, negligent misrepresentation, negligence, negligent hiring, negligent retention and wrongful death against the National Football League and NFL Properties LLC, arising from and/or substantially dependent on collective bargaining agreements.
20101096.1