The Kansas City Chiefs are in hot water. They had a sizable lead over the Colts for much of their first-round playoff game, and were still handed a loss. Their star player Jamaal Charles left the game injured. Moreover, the organization’s troubles are not limited to the field. The family of former Chiefs linebacker Jovan Belcher — who killed his girlfriend and then committed suicide in the Arrowhead Stadium parking lot in 2012 — has filed a wrongful death suit against the Chiefs, contending that “repetitive brain trauma” and negligence by the team’s staff caused the ensuing tragedies. A number of former Chiefs have also sued the organization on the basis that it hid the risks of permanent head and brain injuries from concussions occurring between 1987-1993, some of which is attributed to the hard artificial surface of Arrowhead Stadium at the time.
The various lawsuits have been filed in the Circuit Court of Jackson County, Missouri. On the forefront of concussion litigation, and a Missouri attorney himself, is Paul D. Anderson. Mr. Anderson (@PaulD_Anderson) graduated summa cum laude from the University of Missouri-Kansas City School of Law and now practices at The Klamann Law Firm in Kansas City, MO. The former judicial clerk now runs NFLconcussionlitigation.com to provide up-to-date coverage and legal analysis of the lawsuits filed by former NFL players against the NFL regarding its alleged concealment of the risks associated with concussions. You may recall that we caught up with him back in September 2012 when the NFL players’ lawsuit in Philadelphia was still underway.
What is the extent of your involvement in each of the lawsuits involving the Kansas City Chiefs organization?
I’m co-counsel with a formidable team of legal heavy weights. Kenneth McClain serves as our lead trial lawyer and Dirk Vandever serves as our medical-legal expert. There are also several other members of our team that will play an instrumental role throughout this litigation. This is the same group I assembled to represent the family of the late Derek Sheely in a wrongful death lawsuit against the NCAA, et al. Our team is nationally recognized for pioneering several areas of the law, and we are highly regarded for obtaining substantial verdicts on behalf of our clients.
Our legal team represents 22 former Kansas City Chiefs players in two separate lawsuits against the Kansas City Chiefs. See, Albert Lewis, et al v. Kansas City Chiefs and Neil Smith, et al v. Kansas City Chiefs. In addition, our team was appointed by the Court to represent Zoey Belcher’s interests in a wrongful death lawsuit against the Kansas City Chiefs, which we filed on December 31st.
Let’s focus on the Lewis lawsuit. Many readers are interested in how it got off the ground. What can you tell us about the process of getting these clients together and also the addition of other players/teammates that later joined?
As you know, I’ve closely followed the NFL Concussion Litigation from the sidelines during the past two years. I served as a legal commentator and refrained from taking an active, adversarial role. To my surprise, before any discovery, a proposed settlement was announced prior to the start of the 2013 NFL season.
After the principal terms of the deal were publicly announced, it became clear that most injured players would not be adequately compensated. Former players started to contact me expressing their discontent with the proposed deal. They asked if I’d be willing to continue the fight to expose the NFL’s and the clubs’ wrongful conduct. I felt that I had an obligation to the players and the public to leave my role as a commentator and enter the ring of litigator to uncover exactly what the Chiefs knew and when they knew it. To that end, I assembled my legal team and we created a strategy that distinguishes our lawsuit from the NFL litigation.
In 2005 the Missouri General Assembly amended the Workers’ Compensation Law basically excluding employees from filing occupational disease claims. In effect, employees that were suffering from occupational diseases had no recourse. My colleagues, John Klamann, Andy Schermerhorn and Ken McClain successfully petitioned the Western District Court of Appeals and argued that the amendment does not provide the exclusive remedy for occupational diseases. The Missouri Court of Appeals agreed, as set forth in State ex rel. KCP & L Greater Mo. Operations Co. v. Cook, 353 S.W.3d 14 (Mo. App. W.D. 2011). This was a landmark case in the state of Missouri and a huge win for injured employees suffering from occupational diseases. The net effect is a former employee can bring a lawsuit against their employer in civil court for occupational injuries. We took this approach and applied it in our case against the Chiefs. In virtually every other jurisdiction, an employee is limited to seeking workers’ compensation where recovery is significantly limited.
As set forth in our Petition, we believe the Chiefs were acutely aware of the short-term and long-term effects of concussive and sub-concussive blows. Indeed, certain members of the Chiefs’ organization were involved in shaping the NFL’s flawed policies on concussions. As an employer, like every employer in society, the Chiefs owed certain duties to our clients. Chief among those duties, inter alia, are (1) an obligation to maintain a safe working environment and (2) to warn about latent risks. We believe the Chiefs failed to live up to their obligations to the detriment of our clients’ health and safety. On multiple occasions, when the players were suffering from a concussion, they were provided with smelling salts and sent right back into the game, substantially increasing the risk of devastating brain injuries. What’s more, the Chiefs misrepresented to the players that concussions are not serious injuries and that there are no long-term effects from repetitive head trauma, despite a substantial body of medical literature that evidenced this link since the 1920s.
How is this action against the Chiefs organization impacted by the $700M+ concussion-related settlement that the NFL reached with certain players last year?
Our lawsuit asserts claims against the Kansas City Chiefs and not the NFL. We believe that the proposed settlement—as recently confirmed by Judge Brody—is entirely inadequate, and it fails to compensate our clients. Regardless of what occurs in the proposed settlement, we plan to continue our fight against the Kansas City Chiefs.
Is this type of lawsuit against an individual team, rather than the league as a whole, something that you believe will pop up against all franchises in contact sports?
Since Missouri’s law is unique, in that it allows employees to sue their employers directly in civil court, it is unlikely that similar lawsuits will be filed. In most states, an employee is barred from suing their employer in civil court, and instead their exclusive remedy is workers’ compensation. However, in cases where the employer engages in egregious misconduct—such as recklessly returning a player/employee to play while suffering from a concussion—it is possible that an injured employee could overcome the exclusive remedy bar.
What recourse will current NFL players have in 20/30 years, whether against the league or any of the teams each for which each may have played?
Our hope is that our lawsuit forces the Kansas City Chiefs, and other organizations, to start placing the players’ health and safety over profit. The civil justice system is often the best vehicle by which wrongful conduct can be changed and new policies can be shaped so that employees can thrive in a safe working environment. In order to ensure the litigation ends, the NFL and the clubs need to admit their wrongdoing, compensate the victims and start presenting the truth to the public that repetitive head trauma can lead to permanent brain damage. Until this happens, litigation will likely continue.