Could brain tissue from the exhumed body of an NFL linebacker who died more than a year ago help his family win a legal case – and presumably a pile of money -- from his former team? That’s one of the questions raised by a recent lawsuit filed by the mother of a former player, a case that may be a sign of what’s to come.
Last year the National Football League agreed to pay out $765 million to settle a lawsuit filed by more than 4,500 former players alleging that the league hid what it knew about the dangers of concussions. Given the cost of long-term care for dementia and other problems some players are facing, some observers thought the league got off easy. Last week, a federal judge agreed, deciding not to approve the proposed settlement because it might not be enough to cover all of the retirees' claims.
It’s not surprising then that some players and their families are deciding to opt out of the group settlement and seek compensation from the league on their own. One of the first cases to come to light since the settlement is a wrongful death lawsuit filed on New Year's Eve by Cheryl Shepherd, the mother of former Kansas City Chiefs linebacker Jovan Belcher.
The suit alleges that Belcher experienced "repetitive brain trauma" from multiple blows to the head in the course of his four-year NFL career and contends that those blows, along with the team's alleged failure to provide adequate medical care, contributed to Belcher’s death by suicide in December 2012. (Belcher shot and killed his girlfriend at their home before shooting himself in the head in the parking lot of the Chiefs' stadium).
The lawsuit does not name an amount, saying only that Shepherd is seeking “in excess of” $15,000.
Last month, the Kansas City Star reported that Belcher's body had been exhumed at his family's request in order to have his brain tested for chronic traumatic encephalopathy (CTE), a degenerative brain condition that's been linked to dementia and erratic behavior in dozens of former athletes with a history of concussion.
Showing that Belcher had CTE would probably help his mother's case, says Francis Shen, a legal scholar at the University of Minnesota who specializes in neuroscience in the law. “Something concrete like that might play really well with a jury (and might scare the defendants into a settlement),” Shen wrote in an email.
But it won't be easy to prove.
Although researchers are working hard to develop a way to test for CTE in living people, right now a definitive diagnosis can only be made post mortem. Under ideal circumstances, the brain would be preserved with formaldehyde or other chemicals within a day or two of death, says Daniel Perl, a neuropathologist at the Uniformed Services University of the Health Sciences. (Perl is looking for signs of CTE in military veterans and has no involvement in the Belcher case).
After the brain is fixed, pathologists make thin slices and treat them with stains to make the signature protein tangles of CTE visible under a microscope. “They have to be in certain locations in the brain, in certain patterns,” Perl said.
The situation with Belcher's brain is far less than ideal, however. After being buried for a year, the tissue is probably too degraded make a CTE diagnosis, Perl says. "Depending on the circumstances you might be able to go a week after death and still do this,” Perl said, meaning that the brain would have to be preserved within that time. If the body were embalmed, that might help, but even then Perl is skeptical. “A year later it’s going to be very difficult to make this diagnosis, if you can make it at all.”
(It is, however, possible to make a CTE diagnosis in someone who died from a gunshot wound to the head, Perl says, assuming the brain is well preserved soon after death and if certain regions – particularly the frontal lobes, where the protein tangles tend to aggregate – are intact.)
With or without evidence of CTE, the lawsuit still faces an uphill battle. Lawyers would have to convince a jury that negligence on the team’s part led to Belcher’s suicide. That is, they will have to make a compelling case that playing football harmed his brain (here’s where a CTE diagnosis would help), and that this harm to his brain caused the behavior that led to his death (here there will be little but speculation), AND that the team knew (or should have known) about these injuries and was so negligent in dealing with them that their actions contributed to his death.
"It is fair to say that even if the law and facts are on one’s side, you can still expect a long, expensive court battle that is not guaranteed to come out your way," Shen said. “It’s difficult for an individual to bear those costs, which is one of the reasons class action lawsuits are used.”
And therein lies the dilemma for players and their families who feel they’ve been harmed: Accept a settlement that may seem like inadequate compensation, or go it alone in hopes of getting more, at the risk of getting nothing – nothing aside from a giant bill from their lawyers.
