Mediation/Settlement Lessons From An NBA Trade

basketballI’m not a huge NBA fan, but over the last few days, I have been listening to a variety of talk show hosts discuss the trade of former NBA MVP Derrick Rose from the Chicago Bulls to the New York Knicks in exchange for a few of the Knicks’ players.

Normally, that wouldn’t be all that news-worthy, especially in the lawsuit context.  But one of the commentators made a point that was familiar to me.

When this commentator was asked who got the better part of the trade, the Bulls or the Knicks, the commentator laughed and said, “You know, both of the fan bases are pretty unhappy with the trade, which tells me that it was probably a pretty fair trade.”

I laughed to myself when I heard that because that’s advice I find myself giving a lot of clients.  In most settlements, the plaintiff settled for less than they really wanted, and the defendant paid more than they really wanted.  And I usually tell clients that when that happens, it’s a pretty good indication that the settlement is a fair settlement.

Now, that’s not to say that we never have a negotiation or settlement where we feel like we’ve been overly-compensated, but it’s rare — insurance companies aren’t in the business of just handing out money.  And in NBA or NFL or MLB trades, there are some trades where you can look at the deal and know that one side was really coming out much better than the other.

But more often than not, in most trades and in most settlement negotiations, both sides usually end up walking away a little disappointed, and that’s usually a signal that it was probably a pretty fair result.

 

Posted on: June 24, 2016 | Tagged

Head Injuries, Concussions and ImPACT

The human brainI’ve had the pleasure of helping those who have suffered from head injuries for almost twenty years now.

But my perspective on these things changed about six weeks ago.  At that time, my son was playing baseball, fell and hit his head, and he sustained a concussion.

Naturally, because of my experience in head injury cases, I panicked and feared the worst.

Once we took him to the hospital and had him undergo a CT scan to rule out a hidden brain bleed, my fears were reduced.  At that time, he had some headaches, a little bit of dizziness when standing up, and a little bit of nausea.  I knew from my experience that, once the brain bleed was ruled out, he’d likely be fine with a little (or a lot) of rest and time as long as he didn’t sustain a second concussion before his brain healed (second-impact syndrome – problems caused when a person has a second concussion before being healed from an initial concussion – can be catastrophic).

But then, we were faced with the harder question, “How do we know when he’s better?  When is it okay to let him start participating in activities again?  He looks fine, he isn’t having symptoms, but how do we know his brain is actually healed?”

Going through his treatment, we learned about ImPACT testing.  ImPACT (Immediate Post-Concussion Assessment and Cognitive Testing) is a widely-used and scientifically validated computerized concussion evaluation system.  This test measures cognitive abilities and  cognitive processing of participants.  When people take the test after a concussion, it can help medical providers make a determination of when the injured brain is healed.

But the key is having a baseline —- knowing what your cognitive abilities and processing are BEFORE you sustain a concussion.  That way, doctors know whether you’re scoring as well as you did before you had the brain injury.

In our case, we didn’t know about the test before my son’s accident, and we didn’t have a baseline.  My son’s medical providers were able to take his test scores and compare them to averages, but they weren’t able to definitively tell us if his brain was able to think and process as well as it did before the concussion.

But that’s a problem.  And it’s why the NFL, MLB, NHL, NASCAR and many universities and school districts require their athletes to have a baseline ImPACT test and score before the athletes are allowed to participate in those sports.

Having gone through this, I think more parents need to know about it.  If you or your child participate in sports, dance, cheer or other athletic activities, I urge you to have your child take the baseline test sooner rather than later.  The baseline test is relatively inexpensive.  I know that the specialist who treated my son offer the pre-concussion testing for $20.  This testing cane be done online, at home.  This is a small price to pay to help protect your kids.

If you want to learn more or find someone in your area who can administer a baseline test,  visit the ImPACT website at  www.impacttest.com.

Derek Boogaard’s wrongful death lawsuit may open a big can of litigational worms

More than 4,500 sports figures suffering from traumatic brain injuries each get a small portion of the $756 million paid out by the National Football League (NFL). The settlement keeps relevant documentation out of court.

The NFL was mostly known for the caliber of its players. Now, it is known for hiding the risks of athletes sustaining multiple head injuries while scrimmaging on the field, head injuries that resulted in traumatic brain injury (TBI), also referred to as chronic traumatic encephalopathy (CTE).

It was a large settlement, and one that was hailed as progress for those who sued the NFL for negligently withholding information about the risks of multiple head traumas. However, this is not the end of the issue. While the out-of-court settlement did pay out a large sum, it also managed to keep exculpatory documentation out of court. It also meant no one heard what witnesses had to say.

Down the line, every sport that involves full-body contact of some kind, will, without a doubt, face the same or similar concussion litigation. It is not beyond reason to anticipate that the NHL, NBA, MLB, and the NCAA may face such lawsuits. In fact, the NCAA is already facing down a massive TBI lawsuit.

TBI litigation began with the NFL. It is now making its presence felt with lawsuits filed by survivors of hockey players who took their own lives as a result of CTE. A case in point is that of 28-year-old Derek Boogaard’s family launching a wrongful death lawsuit alleging the NHL is responsible for his brain trauma and addiction to pain drugs. The defendants in that suit are the NHL, its Board of Governors and well-known league commissioner, Gary Bettman.
If the attorney handling that case is able to prove that the NHL was negligent in the way they treated Boogaard in relation to handing out painkillers and encouraging him to fight, sustaining multiple head injuries, the case stands a chance of opening the floodgates of litigation for other similar lawsuits. There is also the possibility of an extremely large award for damages.

What may tell the tale of success is the evidence in the complaint that includes, but is not limited to, the fact that NHL staff and doctors allegedly wrote him prescriptions for 432 pills of hydrocodone in one month, injected him 13 times with a pain masking drug, wrote him further prescriptions for 1,021 pain pills and encouraged him, in his role of enforcer, to instigate 66 fights over 277 games, sustaining multiple head injuries. His autopsy showed he had Stage II CTE.

The CTE revelation and Boogaard’s treatment are strikingly similar to how many of the NFL players were treated. Should Boogaard’s wrongful death lawsuit be successful, watch for more lawsuits of a similar nature filed against other leagues.

Posted on: November 27, 2013 | Tagged

Perlmutter & Schuelke, PLLC maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke


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