Insurers ask for NFL concussion documents

Insurers suing the NFL over concussion claims want four former league-affiliated doctors, and one current one, to turn over documents allegedly in their possession that could show how much the league knew about the risks of playing football. This likely would make them the first individuals to be subject to discovery requests over the NFL’s knowledge going back decades about the dangers of head injuries.

A New York state judge has scheduled a hearing for Tuesday morning requiring the NFL to answer why these five should not have to comply with the requested subpoenas. Thus far the NFL has ignored the requested subpoenas, precipitating the public court hearing, according to a court filing from the insurance companies.

“If this gets out to the public it would be a Pandora’s box, it will be the NFL’s worst nightmare coming true,” said Michael Kaplen, a trial attorney specializing in traumatic brain injury, and who filed briefs several years ago opposing the NFL concussion settlement on behalf of the Brain Injury Association of America. “That’s why they settled the case with the players to begin with because they didn’t want to release this type of documentation.”

Among the documents sought by insurers are any relating to the death of former players such as Mike Webster.Getty Images

The NFL last year settled thousands of head injury claims, an agreement worth likely upward of $2 billion. The league is counting on insurance money to pay a large part of that amount.

The league and former players struck the deal without discovery into what the league knew about the dangers of head injuries. The insurers are suing, contending that if the league did know about the dangers, that would be fraud and invalidate their coverage contracts with the NFL.

The five doctors have served at various points over the last two decades on critical NFL medical committees. Because of that, the insurance companies wrote in a motion last month, they likely possess documents relevant to the claims.

Among the documents sought are all correspondence between the committees and players and the league. Pointedly, the insurers are looking for information from the mid 2000s when the NFL sought to discredit a medical journal article on chronic traumatic encephalopathy in football players from Dr. Bennet Omalu. The league at that time tried to get the journal Neurosurgery to revoke the article (the episode was featured in the movie “Concussion”). CTE has since been found in the brains of more than 100 deceased NFL players.

The editor of Neurosurgery at the time was Michael Apuzzo, who also advised NFL medical committees. He is one of the five the insurers want information from.

The insurers also are seeking all correspondences related to the deaths of former players Mike Webster, Justin Strzelczyk, Terry Long and Andre Waters, as well as the brain injury suffered by former running back Merril Hoge.

While most of the discovery request stretches back to the mid 2000s, the insurers also are seeking information about the NFL’s alleged role in 2015 in pressuring the National Institutes of Health not to award funding to a doctor at Boston University who had been critical of the NFL.

The NFL and the lawyer for the insurers, Mark Hamilton of Kennedys CMK LLP, did not reply for comment.

The brain injury trial attorney, Kaplen, is dubious any of the discovery will occur, much less see the light of day.

“What the insurers are doing … is they are inviting you, the press, to get hold of these discovery demands and trying to force the NFL’s hand in reaching an agreement with them,” he said. “There is no way in the world that the NFL wants this information out; that is why they paid an unlimited settlement to the players.”