Concussion, early onset dementia and CTE

No 7&1/2 wrote:Andrew Coombs: Former Wales forward reveals dementia diagnosis - https://www.bbc.co.uk/sport/rugby-union/67607608

Concussion, and the litigation involving former rugby players, has become a huge issue for rugby. The increasing toxicity of the debate over legal liability has reached a point of divisiveness that is doing immense harm.

Some journalists have irrevocably decided that there is liability. Some have taken to alleging that those who disagree are, effectively, commercially conflicted shills for the rugby authorities. On the other ‘side’, there are now allegations of players jumping on the gravy train of litigation, fuelled by no win, no fee lawyers.

Before raising the following points and questions, I feel obliged to set out my credentials in this area so that you can make your own judgement about the weight of what is said. I am a former international rugby player. I was a personal injury lawyer who litigated issues that involved thousands of claimants in both the Court of Appeal and the House of Lords. I also have a Master of Science degree, which involved having to understand research reports and statistical analysis.

I do not know whether there is liability. I accept that it will not be possible to be definitive about this until the medical evidence has been tested under cross-examination. I am not saying the claimants have no case. I am saying there are difficult hurdles for them to establish that case. If there is liability, the claimants deserve damages. Even if there is not, rugby should try to help those severely affected and have sympathy for their travails.

Anyone can have an opinion on this matter but, if they are honest, they should form it by addressing the facts and not just ignoring questions that are inconvenient.

The first point to make is that the NFL litigation over concussion is not directly referable to this case. The tackle techniques and rules about the legality of contacts to the head were, at the relevant times, completely different. Secondly, it is not correct to assert that knowledge imputed to the NFL will, under UK law, be deemed to apply to rugby at the same time.

The central issue to keep in mind is the difference between correlation and causation, and this applies both to the law and science around concussion. It is not possible in this short article to look at every medical and legal point. So, let us focus on two areas, but bear in mind there are communalities throughout the whole topic.

Chronic traumatic encephalopathy (CTE) was first diagnosed by Dr Bennet Omalu in 2005, following his postmortem on Mike Webster of Pittsburgh Steelers. According to Boston University, the world’s leading research faculty on CTE, there is no reliable way of diagnosing CTE before death. Claiming someone has ‘probable CTE’ is going to be problematic before a court.

If a player’s career ended before 2005, there will be the additional difficulty of proving rugby had the requisite knowledge to require it to act over CTE, when it had not been discovered. It is not good enough to claim CTE is the same as the previously diagnosed dementia pugilistica (being punch drunk). The knowledge dates for these conditions are different and it is legitimate to claim that boxing, where you can win by knocking out an opponent, is in a distinct category.

Although several media platforms have stated that concussion-related CTE causes the brain to attack itself, that is not correct and the truth is subtly but significantly different. They have found that in CTE cases there is a high correlation of abnormal patterns of tubulin associated unit (“tau”) proteins. They have not been able to specify what causes these proteins to go awry.

Early-onset dementia is also one of the diagnoses said to apply to some of the claimants, but concussion is only one of 12 identified possible causes. Saying that there is a correlation between early-onset dementia and concussed players is not enough for legal liability.

Establishing concussion as the cause requires evidence that none of the others apply or a definitive reason to conclude concussion is a principal cause.

A further problem is the large body of research that shows that retired athletes, including those from non-contact sports, have a variety of psychological and physiological problems, which mirror those claimed to have been caused by concussion. To establish liability, claimants must prove that such problems are caused by concussion and can be definitively distinguished. In any scientific analysis, they are going to have to pass the statistical significance test of there being a less than 0.05 chance that their results are not the result of coincidence.

The delayed cases are likely to go on for another two years, not least because the claimants have failed to properly comply with procedural stipulations and have had cost orders awarded against them. During this time, some commentators are likely to make further uncorroborated claims while others continue to claim that the game is going soft. None of this is helpful.

The law does not require rugby to be risk-free. It requires every reasonable step to be taken to reduce foreseeable risk and to inform people about that risk. This is why trials of new safety laws must be run and opponents of these steps need to accept this legal duty without whinging. The law does not say that medical procedures, taken at a certain time, are deemed negligent if they are subsequently changed. It only requires them to have been taken in line with a substantial body of similar expert opinion, even if other experts disagreed at the time.

I imagine that people will continue to push their agendas, but the polarisation, misunderstanding and misinformation that is creeping into this issue needs to stop. Get the cases heard, so that we know where liability lies and what we must deal with. In the meantime, would it be too much to ask people to address the above points, to refrain from abusing each other and to wait until the case is decided?

BigGee wrote:That is a very impressive article from Brian Moore trying to make some sense of what is an incredibly complicated issues and highlighting some of the pitfalls the complainants will face.

This is certainly not going to be a question of sign here and then collect the cheque!

The game will not be the winner if legal action from players diagnosed with neurological damage ends up in court

Already there is a smack of Tier 1 versus Tier 2 in the contest we might call Rugby versus Its Players. Forget about talent, forget about justice; resources tend to hold sway. Which is not to say there is no hope for the 295 union players who applied for a group litigation order (GLO) on Friday, far from it.

Apart from anything else, they are clearly in need of compensation for their conditions, which somebody is going to have to pay. The defendants in the dock – World Rugby, the Rugby Football Union and the Welsh Rugby Union – would appear the most obvious parties responsible. Where it will become more contentious is whether those conditions are a result of negligence on the part of those defendants – or, as some of the more strident theories contend, a tobacco-style cover-up. Over to the courts.

If we ever get there. The preliminaries suggest that the GLO is likely to be granted, but not before the players’ legal team set their papers in order. Crushingly outnumbered by the rows of lawyers representing the three defendants, they suffered an early lecture from the ref. “It seems to me to be absolutely basic,” said Senior Master Cook of the medical records the players’ legal team were supposed to have supplied by now. Court adjourned for April. Out in time for lunch. Ouch.

Meanwhile, the defendants’ lawyers are already posturing as if they are confident of a win. This should not be seen as good news for those of us who want nothing but for the game to survive. The best-case scenario is a settlement before this case goes to court, which would not be before 2025. But if the defendants feel as if they can win – and as if they cannot afford to fork out for a meaningful settlement anyway – we could indeed be faced with the grisly prospect of Rugby v Its Players coming to a courtroom near you.

The sport’s image already feels as if it has been taking a hammering every bit as relentless as that meted out to its players in the normal course of a match, but wait until its governing bodies send in their lawyers to dismantle the evidence of its fallen heroes. In this case, the evidence is no more or less than their actual lives.

Imagine a ruthless KC interrogating Player X over their alcohol consumption, Player Y over drug use or Player Z over repeated concealment of their brain injuries as they did whatever they could to stay on the field in their playing days. Imagine confused, burly players in the dock reduced to tears by the very governing bodies who are supposed to look after them, whose repeated mantras about player welfare and No 1 priorities have long clanged hollow.

Such scenarios, however hypothetical at this stage, should make any right-thinking citizen seethe with anger just in the imagining of them, even if the almost-inconceivable possibility that the players’ conditions are unrelated to rugby turns out to be true. But the governing bodies would have no choice but to go hard in their pursuit of victory, which by definition means their pursuit of defeat and humiliation for the players.

Rugby very definitely would not be the winner. Any victory in the courts – and victory for the governing bodies is a perfectly plausible outcome – would be pyrrhic, the damage to the sport’s reputation almost as devastating as the very concept of neuro-degenerative conditions arising is to its future viability.

If nothing else, though, such proceedings should underscore the risks involved in playing a collision sport. If players know and understand those, so the defenders of the faith argue, they can decide for themselves if they want to play on. There may be something in that for the grown-ups – so long as best practices are observed in the recognition and treatment of brain injuries. But that line does not work with the kids.

Adult rugby will soldier on, whatever the outcome of this case. It is in the schools where the sport’s future will be decided. Already it feels, certainly in the little corner of the rugby world where I reside, as if there has been a sea change in attitudes, both among those playing and their parents. School rugby bears no comparison to its equivalent in the last years of the amateur era.

Professionalism may be restricted to the adult game, but its ethos pervades. Those not wholly committed must drop out sooner or later, for their own health as much as anything.
In order to play school rugby to any level of proficiency these days, from around the age of 15, one needs to be well-acquainted with the inside of a gym. There are conditioning programmes to be observed by players at even the mid-ranking schools.

Given some at that age are to all intents and purposes adults physically and others still very much children, the prospect for injury, whether to brain or bone, is already alarming. Sprinkle in the concerns of parents and, lest we forget, the demands of public exams, and it should not come as any real surprise the game will soon face a reckoning in the schools.

If in a couple of years’ time we must also watch the guardians of the sport eviscerate its former players, their lives in ruins as it is, in a court of law, we might as well switch off rugby’s lights now. This case is incredibly important for the players concerned and those to come and incredibly dangerous for the sport. Let us hope the protagonists on both sides know what they are doing.

dummy_half wrote:

BigGee wrote:That is a very impressive article from Brian Moore trying to make some sense of what is an incredibly complicated issues and highlighting some of the pitfalls the complainants will face.

This is certainly not going to be a question of sign here and then collect the cheque!

I can think of very few, if any, other people better positioned to write such an article for a lay reader. My experience with the Law (as an Expert Witness) is that it is much more nuanced than simply finding the truth of a situation. Indeed, the law, truth and morality only intersect some of the time and usually only by accident.
There is one weakness in the article though, and that is that Moore doesn't explain that as a civil claim rather than a criminal case, the burden of proof is 'more likely than not' rather than 'beyond reasonable doubt', and as such the claimants have a lower bar to get over than proving criminal negligence.

Poorfour wrote:I'm also not sure I agree with [Aylwin] about a date in court being a disaster. It certainly won't be pretty, for either side, but it is probably the only route to provide any level of legal certainty around the outcome.

Poorfour wrote:Isn't that exactly the sort of article that Moore is warning against?  Aylwin makes it clear that he already thinks it's an "almost-inconceivable possibility that the players’ conditions are unrelated to rugby".

CANBERRA, Australia -- A legendary rugby player has cited the fear and anxiety that has come into his life among the reasons for urging the Australian government to fund support services and education about chronic traumatic encephalopathy (CTE).

Wally Lewis, dubbed “The King” when he played rugby league for Queensland state and Australia in the 1980s, made an appeal on behalf of the Concussion and CTE Coalition for millions of dollars in funding during a National Press Club address Tuesday.

The 64-year-old Lewis said he’s living with probable CTE, which he described as a type of dementia associated with repeated concussive and sub-concussive blows to the head.

Lewis, who worked for decades as a television sports anchor after retiring as a player in the early 1990s, relayed his own experience to get his message across.

“The fear is real. I don’t want anyone to have to live with the fear and anxiety that I live with every day, worried about what I’ve forgotten ... the fear of what my future will look like,” Lewis said. “And living with the constant fear and anxiety that I’ll let people down – the people who all my life have been able to rely on me and looked to me for my strength and leadership.”

Lewis led Australia’s Kangaroos in 24 international matches, was among the original players to popularize the annual State-of-Origin series, and was included in Australia’s Rugby League Team of the Century in 2008.

The National Rugby League has honored him as a so-called “Immortal” of the game.

Yet his memories of it aren’t clear. He started playing rugby league as a young boy and also played rugby union at an elite level before embarking on a professional career in rugby league.

“It’s a journey marked by the twin shadows of fear and embarrassment, a journey through the fog of dementia and the erosion of my memory,” he said. “I once had the confidence in myself to succeed, lead a team to victory, captain my country, remember the strengths and weaknesses of opposition teams, organize myself each and every day and feel well and truly in control of my life.

“Now, much of that confidence has been taken away from me by the effects of probable CTE dementia.”

Lewis said better community awareness on concussion was needed and prevention programs, including a sharper focus on tackling techniques from young players through to professionals.

Awareness of CTE and concussion has grown since players in contact football sports, including the National Football League in the United States and rugby union in Britain, launched concussion lawsuits.

The Rugby World Cup took place last year against the backdrop of a concussion lawsuit in Britain that had similarities to one settled by the NFL in 2013 at a likely cost of more than $1 billion.

CTE, a degenerative brain disease known to cause violent moods, depression, dementia and other cognitive difficulties, can only be diagnosed posthumously. It has been linked to repeated hits to the head endured by football, rugby and hockey players, boxers and members of the military.

“As Wally Lewis I have influence – I have a platform – and I intend to use it at every opportunity to bring about change for all Australians like me who are impacted by CTE,” Lewis said, “and to do whatever I can to protect the brains of Australian children from CTE.”

Rugby League Immortal Wally Lewis has implored NRL officials to install broader safeguards against concussion, calling for a blanket ban on contact and tackling for children and amateur players during training.

In his address to the National Press Club in Canberra, the man known as 'The King', now an ambassador for Dementia Australia, warned the code's administrators the game was at risk of dying out if broader regulation of players' health does not become a a priority.

Pressure is mounting on the NRL to deal with head trauma in the game as Lewis warned young players are turning away from contact sports "at an alarming rate" as the heroes of yesteryear reveal the personal toll they've had to bear as a result of the concussions they've suffered.

Lewis said amateur players should not engage in full body contact during training sessions and teaching children how to tackle safely should be top priority for clubs, including using soft pads during training.

"If we love rugby league enough … our number one priority will be the health and wellbeing, the long-term effect and safety for players, and the game lasting," Lewis said.

"If it's being seen as too dangerous by the parents of the kids that possibly could play the game, then it's a matter of time before it's the end, the end is coming.

"You have got to take it to every level possible to be able to encourage people firstly to play, to encourage parents their kids are okay to be playing that sport.

"It's certainly a situation where the numbers in sport … contact sports, really do appear to be dropping at an alarming rate."

mountain man wrote:This looks interesting regards treatment for concussion and is being trialled on rugby players :

https://www.bbc.co.uk/sport/rugby-union/articles/cy0lknlv2ylo#:~:text='PolarCap'%20works%20by%20delivering%20targeted,reduce%20long%2Dterm%20concussion%20absence.

Rugby Fan wrote:A player of the stature of Wally Lewis talking about concussion is significant. He was known as a hard, nuggety player, so it would be a bit like Shaun Edwards speaking out here.

Some Union supporters bemoan the code's concern about concussion, by highlighting the way Rugby League celebrates big hits in its TV marketing. The implication seems to be that League doesn't care about high contact and safe tackling, so Union shouldn't.

It's a good reminder that Union isn't a pioneer among contact sports in looking at these health issues. The reason Union has particular challenges is that, unlike the NFL and NRL, it has thriving international competion, alongside domestic competitions. Top players in union play more than their counterparts in other codes, and that's still being managed poorly.

Any treatment like that PolarCap should be welcomed. Ultimately, though, the sport needs to find a better-paced season for players, and then figure out how to make money out of it.

A trial date in the concussion lawsuit involving dozens of players including World Cup winners Steve Thompson, Phil Vickery and Mark Regan against rugby union’s authorities will not be set until 2025 at the earliest.

On Monday at the Royal Courts of Justice, Senior Master Cook rejected an application for a group litigation order (GLO) as he admonished both sides for the slow exchange of information that is preventing a trial date being set. Senior Master Cook warned both the claimants, represented by Rylands Garth, and the defendants including World Rugby, the Rugby Football Union and the Welsh Rugby Union, that it would be “untenable” to find themselves in the same position early next year.

In December, Rylands Garth revealed it was representing 295 rugby players who it claims are suffering from a range of symptoms related to brain injuries they sustained during their careers. It must now supply medical records, including MRI scans and neuropsychologist reports, for all its claimants by Oct 31.

Rugby’s authorities, meanwhile, must assist Rylands in pursuing medical records from individual clubs all over the world relating to the players involved in the case by July. Senior Master Cook noted both sides face a “herculean task” to provide and analyse such information but is adamant progress has to be made after the third case management hearing, which is supposed to set the parameters for what can be disputed at trial, ended in more gridlock.

“I don’t want to find ourselves in January next year with everyone arguing that they have not received the necessary disclosures,” Senior Master Cook said. Separate hearings will be heard for an application for a cohort of players to remain anonymous in the process as well as for the cost sharing by both sides.

GLOs are commonly associated with industrial disease claims such as respiratory problems suffered by coal miners. This would allow Rylands to bunch all the individual claims into a single group action based on a group of selected players. While it has offered a cohort of 45 players as test cases, Senior Master Cook ruled that rugby authorities could not know if they are a representative sample until they have seen all the relevant medical records. “You cannot choose lead cases until there’s been a proper exchange of information rather than relying upon a self-selecting cohort,” he said.

Previewing a potential trial, Senior Master Cook noted that causation “is going to be fiendishly difficult” to prove and urged both sides to be inventive and creative in the legal mechanism they deploy with Rylands Garth also taking a separate action against rugby league’s authorities.

A joint statement from World Rugby, the RFU and WRU read: “We welcome the progress made today. The Court’s clear direction, that the players’ legal representatives must provide full details of the claims being made against us, including medical screening test results they are yet to share, enables everyone to move forward. As Senior Master Cook noted, there is ‘no way’ further progress can be made without the players’ legal representatives sharing this important information.

“The parties will now work towards sharing the information necessary to move this case forwards. Player welfare continues to be rugby’s number one priority and although we cannot contact the players involved in this case directly we want them to know that we continue to listen, we continue to care and we will continue to act.”

TJ wrote:I am very suspicious of this being a ploy by the defendants to create doubt.  Maybe I am overly cynical but thats what it looks like to me