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NFL plans to attack medical foundation of concussion claims if cases aren’t settled

In a move that could magnify the public spotlight on the NFL and player safety, the league will contest the link between concussions and brain diseases if the personal injury cases brought by thousands of retirees are not settled.

In another aggressive move, the league would publicly take issue at trial with a well-publicized Boston University study that found chronic traumatic encephalopathy in the brains of deceased NFL players, a report widely cited in the media as proof of the harms of playing in the NFL.

The moves to attack the medical foundations of concussion claims mean that sponsors, business partners and fans hoping to get past one of the league’s most high-profile public relations challenges may have to wait longer.

The league made those strong assertions in federal court filings before last week’s hearing to determine the fairness of the preliminary settlement of the class action claims brought against the league. At the hearing, the NFL made it clear that if it was forced to go to trial because the settlement did not succeed, it would challenge the science that today is widely thought to have settled the question of whether blows to the head can cause brain injuries.

Chris Seeger, the lead counsel for the settlement, told the court that if the NFL litigated the case, he expected “scorched earth” tactics, suggesting the league might even ask players who suffer from depression about their sexual preferences.

Questioning the tie between hits to the head and diseases like chronic traumatic encephalopathy, Alzheimer’s, dementia and ALS echoes the league’s position from the 1990s and 2000s, before congressional hearings and the lens of media attention helped push the NFL to change playing rules and pay for concussion research.

The league has never explicitly dropped its position that there is no connection between concussions and permanent brain damage, so the federal court filings amount to a dramatic statement that the NFL disagrees with more recent research connecting hits to the head and brain diseases.

While a league lawyer, Bruce Birnbaum, last week during a court hearing questioned the connection between CTE and playing football, the NFL is prepared to go much further.

“Recent research from independent scientists demonstrates considerable uncertainty about the role that concussions play in later-life impairment, the incidence and prevalence of injury in former professional athletes, and the role of other genetic, environmental or lifestyle factors in neurocognitive impairment and neurological disease,” the league stated in a brief filed earlier this month.

The NFL also forcefully challenged the findings of Boston University scientists Robert Stern and Ann McKee, whose work was profiled in the PBS documentary “League of Denial.” In 2010, the NFL gave $1 million to Boston University, which became the preferred brain facility of the league. But that relationship reportedly withered after the CTE studies, although the brain bank is funded by a National Institutes of Health grant that is partly funded by the league.

That 2013 study found CTE in 45 of 46 brains of deceased NFL players. And in September, McKee updated the study and disclosed that the count had now reached 76 of 79 brains of deceased NFL players at the bank showing signs of CTE. She also has said that no one younger than 14 years old should play football.

She declined to comment for this story, and Stern, who provided a free opinion opposing the settlement to the court, said during a break in the hearing that he preferred not to get into a back and forth.

The NFL had never formally responded to McKee’s research until now. Doing so may bring the player safety debate back into the public eye.

The league wrote of the Boston University research in its filing, “The NFL Parties do not accept the research … and reserve the right to contest the research on all fronts in any litigation.”

And attached to the court filings is the declaration of Kristine Yaffe, professor in the departments of psychiatry, neurology and epidemiology at the University of California, San Francisco. Her 31-page opinion, commissioned by the NFL for submission to the court, concluded that there are many epidemiological issues with the Boston University brain studies.

“[L]ess than 200 brains diagnosed with CTE have been examined, and there have been no long term, prospective, or highly-controlled studies,” she wrote. “The McKee study contains many … potential biases. First, the sample involved in the McKee Study was self-selected: the subjects donated their brains to Boston University likely because they suspected they were suffering from CTE. And family members agreed to allow for a pathological review of the subjects’ brains likely for the same reason. This is known as referral bias. Second, the study lacked proper control subjects to compare against the participating subjects. Third, retrospectively interviewing family members who suspected their deceased relatives had CTE and who were being asked to recall alleged symptoms that occurred months or years before the interviews — without any medical training in assessing symptoms — is filled with limitations. This is known as information or recall bias.”

Her opinion about the Boston University study appears to have hit home with U.S. District Judge Anita Brody, who interrupted a lawyer extolling the CTE study to ask whether it indeed relied on family members of the deceased to provide critical information.

Chris Nowinski, who works with Stern and McKee through his Sports Legacy Institute, a concussion awareness advocacy organization tied to Boston University, said of the NFL’s questioning stance last week, “The same stuff was written about tobacco, asbestos and lung cancer.”

By highlighting shortcomings in studies linking concussions to brain injuries, the league is arguing that the retirees’ case would fall apart at trial and they would get nothing.

Birnbaum and another league counsel, Brad Karp, declined to comment further after last week’s hearing other than to say the NFL is pleased with how the proceeding fared.

But highlighting alleged shakiness in the science of concussions could undercut efforts to make the game safer.

Eugene Kublanovsky, who represents the Parents Concussion Coalition, a group that advocates for concussion education and that last week asked the court to reject the settlement, sharply criticized the NFL.

“It does not appear that the NFL concedes — even a little — that there exists a link between [Mild Traumatic Brain Injury] and CTE,” he said. “This position stands in stark contrast to findings by other experts.”

He added, “The NFL’s position is truly disappointing, to say the least.”

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