BOYD et al v. NATIONAL FOOTBALL LEAGUE et al

Filing 1

COMPLAINT against NATIONAL FOOTBALL LEAGUE, NFL PROPERTIES LLC ( Filing fee $ 350 receipt number 055871.), filed by MACARTHUR LANE, MARK COOPER, BRAD JACKSON, ROBERT BELL, CHARLES ANTHONY, CLIFF HARRIS, MARVIN WOODSON, PAUL KRAUSE, NOEL JENKE, CHARLES MYRTLE, CEDRICK HARDMAN, BRUCE LAIRD, JOE DELAMIELLEURE, DON HORN, DENNIS HARRAH, JAMES WILLIAMS, MARK KONAR, TOMMY NOBIS, JAMES JONES, CALVIN JACKSON, TROY JOHNSON, MICHAEL MORTON, PETER LAZETICH, CALEB MILLER, JOSEPH KAPP, MICHAEL WEDDINGTON, HARVEY ARMSTRONG, DERLAND MOORE, MICHAEL MERRIWEATHER, JAMES HARRELL, AARON JONES, II, KENNETH EASLEY, JR, ESTATE OF GREGORY LENS, RICK SANFORD, WILLIAM "BILLY&quo SHIELDS, GARY PADJEN, CHARLES KRUEGER, PHIL VILLAPIANO, KEN FANTETTI, DONNIE GREEN, LEON "RAY" JARVIS, EDWARD WHITE, JOE FERGUSON, JR, LARRY WOODS, DONALD MACEK, JEFF BARNES, CHARLIE SMITH, LEE FOLKINS, DERRICK GAFFNEY, AUGUST "GUS" OTTO, PHILLIP FREEMAN, III, OLRICK JOHNSON, JR, WILLIE GREEN, JAMES HOUGH, CHARLEY HARRAWAY, THOMAS BEER, JAMES GARCIA, FRED FORSBERG, TERRANCE "TERRY&quo METCALF, BOBBY HARDEN, JR, DENNIS MCKNIGHT, ALFRED GROSS, GENE LANG, LEMUEL BARNEY, BRENT BOYD, DELLES HOWELL, JERRY ROBINSON, WILLIAM "BILL" CODY, VICTOR HICKS, ARTHUR STILL, REGINALD CLARK, CRAIG CURRY, DONALD MANOUKIAN, MARK NICHOLS, JEFF MCINTYRE, DAVID RECHER, LEONARD "BUBBA&quo MCDOWELL, JR, MIKE WOOD, TERRY OWENS, CLARENCE VERDIN, BRYAN STOLENBERG, ROD MARTIN, ROBERT KROLL, KEITH NORD, MICHAEL "TONY" DAVIS, CONRAD DOBLER, MELVIN CARVER, MIKE AUGUSTYNIAK, TRUMAINE JOHNSON, FRED SMERLAS, RANDY RAGON, MARGENE ADKINS, NEAL CRAIG, WILLIAM "BILLY&quo TRUAX, KORY MINOR, J. BRUCE JARVIS, LIONEL ANTOINE, STEVE JONES, PETER CRONAN, IRA MATTHEWS, III, MARK COTNEY, JEFFREY WALKER, MERVIN KRAKAU, JON MELANDER, LARRY WEBSTER, FRED ANDERSON. (Attachments: # 1 complaint, # 2 complaint, # 3 complaint, # 4 complaint, # 5 complaint, # 6 complaint, # 7 complaint, # 8 complaint, # 9 complaint, # 10 complaint, # 11 complaint, # 12 complaint, # 13 complaint, # 14 complaint, # 15 complaint, # 16 complaint, # 17 complaint, # 18 complaint, # 19 Civil Cover Sheet)(mima, )

neuropsychologist at Long Island Jewish
Hospital], for example, conducted2lT baseline tests from
1996 to 200I. Periodically, he forwarded results to the
league, but at the time Barr learned the committee was
planning to publish its results, he had sent only l49.Barr
remembers finding Pellman in the Jets' training room in
2003 and saying, "Elliot, I haven't sent data for a year."
According to Barr, Pellman didn't want the
additional tests. "I don't want the data to be biased
because I'm with the Jets," Bar recalls him saying,
suggesting that additional results would skew the data
because the Jets would be overrepresented in the sample.
That made no sense to Barr. A scientifÏc study should
include, or at least address, all available data.

Barr la

Pellman denies this conversation ever took place. "Bill
Barr was a consultant for the Jets who tested individual
players to help us make decisions," he says. "I did not
discuss the committee's research with him." Whoever is
right, the fact is the group didn't have all of Barr's
data for its paper.

Barr's wasn't the only research that didn't make the
cut. Over the period covered by the committee's research,
Christopher Randolph, a Chicago neuropsychologist,
collected baselines for 287 Bears players. He says Lovell
never asked for his data, either.

Nor did the committee seek complete data from John
Woodard, neuropsychologist for the [Atlanta] Falcons
and associate psychology professor at the Rosalind
Franklin University of Medicine and Science in North
Chicago. According to Woodard, in December 2003,
Lovell said the league was pressuring him to compile
team results. "I was asked to provide data on only
concussed players," Woodard says. "I had data for
slightly more than 200 baseline evaluations. I don't
know why I was not asked for them."
In2004, Lovell also asked Richard Naugle, consultant to
the Browns and head neuropsychologist at the Cleveland
Clinic, for data on just the players who had already
suffered concussions, according to an e-mail Naugle
wrote to a colleague in March 2005. Naugle declined to
comment for this story, citing a confidentiality deal
between his medical group and the NFL, but The
50

Magazine has obtained a copy of that message. "I don't
have that sorted out from the results of other testing,"
Naugle wrote of the request. "I explained that and added
that if he could name players, I could send data on those
individuals. I recall sending him data on two or three
players ... I have a few hundred baselines."

This means Pellman, Lovell and their

colleagues

didn't include at least 850 baseline test results in their
research-more than the 655 that ultimately made it
into their 2004 Neurosurgery paper. At best, their
numbers were incomplete. At worst, they were biased.
*<:fi

tl€

*

Pellman, Lovell and their colleagues published their sixth
paper in Neurosurgery in December 2004. It examined
baseline data on 655 players and results for 95 players
who had undergone both baseline testing and
postconcussion testing. It concluded that NFL players did
not show a decline in brain function after suffering
concussions. Further analysis found no ill effects among
those who had three or more concussions or who took
hits to the head that kept them out for a week or more.
The paper didn't explain where the players in the
groups came from specilically or why certain players

were included and hundreds of others were not.
Neither Pellman nor Lovell has provided those details
since. (Emphases added).

147. Scientists concurred with this assessment.

As the ESPN The Magazine

article noted:

The decision to publish the paper was controversial. "I
highly doubt this study would have seen the light of
day at this journal were it not for the subject matter

of NFL players," says Robert Cantú, chief of
neurosurgery and director of sports medicine zt
Emerson Hospital in Concord, Mass.o and a senior
editor at Neurosurgery. "The extremely small sample
size and voluntary participation suggest there was
bias in choosing the sample. The findings are
extremely preliminary at best, and no conclusions
should be drawn from them at this time."
51

One of the scientists who reviewed the committee's work
is equally blunt. "They're basically trying to prepare a
defense for when one of these players suesr" he says.
"They are trying to say that what's done in the NFL is
okay because in their studies, it doesn't look like bad
things are happening from concussions. But the
studies are flawed beyond belief." (Emphases added).

148. Guskiewicz

was also quoted as saying, "[t]he data that hasn't shown up

makes their work questionable industry-funded research." (Emphases added).

149.

Pellman was not the only NFL hired gun peddling disinformation about

head impacts or concussions and brain injuries. Casson and Viano of the

NFL's MTBI

Committee were playing a similar role, assisted by Lovell.

150.

Between 2005 and2007, Omalu and Dr. Robert Cantu (ooCantu"), Co-

Director for the Center for the Study of Traumatic Encephalopathy ("CSTE") at the Boston

University School of Medicine ("BUSM"), examined the brain tissue of three deceased NFL
players: (a) Mike Webster ("Webster") of the Pittsburgh Steelers, who died of heart failure at the
age of 50; (b) Terry Long

("Long") of the Pittsburgh Steelers, who died at 45 after drinking

antifreeze; and (c) Andre Waters ('oWaters") of the Philadelphia Eagles and Arizona Cardinals,

who committed suicide at the age of 44. All three of these individuals suffered multiple
concussions during their respective NFL careers. All three exhibited symptoms of sharply
deteriorated cognitive functions, paranoia, panic attacks, and depression. In articles published in
Neurosurgery in 2005 and2006, Omalu found that Webster's and Long's respective deaths were

partially caused by CTE, related to multiple NFL concussions suffered during their professional
playing years. Cantu reached a similar conclusion as to Waters in an article published in
Neurosurgery in2007.

52

151.

The following photographs, available from Brain-Pad Blog, show the

contrast between a normal brain (depicted on the left) and Webster's autopsied brain (depicted
on the right):

response to Omalu's article on Webster, Casson of the NFL's

MTBI Committee wrote a letter in July of 2005 to the editor of Neurosurgery asking that
Omalu's article be retracted.

153.

In 2008, Dr. Ann McKee ("McKee") of the CSTE at BUSM examined the

brain tissue of two other deceased NFL players: (a) John Grimsley ("Grimsley") of the Houston

Oilers, who died of a gunshot wound at the age of 45 and (b) and Tom McHale ("McHale") of
the Tampa Bay Buccaneers, Philadelphia Eagles and Miami Dolphins, who died of a drug
overdose at the age of

45. McKee found that Grimsley

and McHale's brain tissue exhibited

indications of CTE. As she stated, "the easiest way to decrease the incidence of CTE [in
contact sport athletesl is to decrease the number of concussions." (Emphases added). She
further noted that "[t]here is overwhelming evidence that [CTE] is the result of repeated
sublethal brain trauma."

A

LVashington

Po$ afücle published in early 2009 reported the

following comments by McKee with respect to her analysis of McHale's brain:
"Is this something that happened by chance?" asked Ann
McKee, a neuropathologist at Boston University pointing
to pictures of McHale's brain that she said resembled that
of a72-year-old boxer. "I can tell you I've been looking
at brains for 22 years, and this is not a normal part of

aging. This

is not a normal part of the brain."

(Emphases added).
53

154. In response to McKee's

studies, Casson continued his campaign

of

NFl-sponsored disinformation by characterizing each as an isolated incident from which
no conclusion could be drawn and said he would wait to comment further until McKee's
research was published in a peer-reviewed
Casson asserted that 66there is not enough

journal. When it was so published in 2009,

valid, reliable or objective scientific evidence at

present to determine whether...repeat head impacts in professional football result in long[-

Iterm brain damage." (Emphases added).

155. The increasing controversy
2007, hearings on the

drew the attention of Congress. On June 23,

NFL's compensation of retired players were held before the Commercial

and Administrative Law Subcommittee of the Judiciary Committee of the United States House

of

Representatives ("C&A Subcomittee"). Plaintiff Boyd testified about post-retirement health
problems he faced as a result of concussions he received while he played for the Minnesota

Vikings. Goodell was one of those who testified

at this

hearing. In follow-up responses to the

C&A Committee that Goodell sent in November of 2007, he continued to rely on the discredited
survey research being undertaken by the

156.

MTBI Committee.

In response to these hearings and associated media reports, the League

scheduled a Concussion Summit in June of 2007. Independent scientists, including Omalu,
Cantu and Guskiewicz, presented their research to League and to representatives of the National

Football League Players Association ("NFLPA"). As one contemporaneous news article
reported:

"I'm not even sure we athletes know what a concussion
is," said safety Troy Vincent, who also is president of the

54