Hernandez Family Sues NFL and Patriots Over Concussions Suffered By The Former NFL Star and Murderer

100px-New_England_Patriots_logo.svg300px-National_Football_League_logo.svgThere is a new and interesting lawsuit filed by the family of  the late New England Patriots football star and murderer Aaron Hernandez.   Hernandez committed suicide in 2015 and tests of his brain at Boston University came back showing advanced and severe chronic traumatic encephalopathy (CTE).  The family is suing the National Football League and the Patriots for taking no action to protect  Hernandez from such injuries.  The lawsuit will raise some difficult causation questions. Usually violent offenses are viewed as superseding events and rarely attributable to such negligent conduct by third parties. Moreover suicide is generally viewed as the decision of individual with a variety of influences.  However, CTE has been linked to an increased risk of suicide.  The odds against the family are considerable with overlapping defenses ranging from preemption to assumption.

Hernandez stood for two murder trials and fans were shocked by accounts of his illegal drug use and violations.  He was found guilty in 2015 of murdering acquaintance Odin Lloyd in an industrial park near his home.

The BU report indicated that the CTE in Hernandez was the most severe that they had ever seen and was more appropriate for a 67 year old as opposed to a 28 year old.  He was found to have Stage III CTE, which can produce aggressiveness, cognitive issues, suicidal thoughts and dementia.

The finding would seem to answer the questions of many people as to why a football star would continue on such a seemingly uncontrolled path of self-destruction.  However, that could be viewed as highly speculative or insufficient to excuse the murderous conduct of  Hernandez.

The suit seeks damages for loss of parental consortium on behalf of Hernandez’s 4-year-old daughter, Avielle.

The NFL has said that it will vigorously fight the lawsuit.

One of the interesting elements is the fact that the prior conviction on Lloyd’s killing was vacated by Massachusetts Superior Court Judge Susan Garsh after Hernandez’s suicide because he died before exhausting all possible avenues of appeal as required under state law.  Given that decision, the family could seek to keep information on the conviction (or even the murders) out of the trial.

The family however faces a very steep climb on these claims.  The NFL is likely to argue preemption under its collective bargaining agreement where all such health matters are supposed to be arbitrated. There is also a claim that this action is subsumed under the NFL concussion settlement, though Hernandez likely not a party to it.  Additionally, there is a possible defense under the Massachusetts workers’ compensation statute which preempts damage claims against employers outside of the law.

If they get to the merits, there will also be a question of assumption of the risk.  Hernandez starting playing in 2010 when the risks of CTE were already known.  He decided to play despite those risks.  As argued in other concussion-related litigation against the NFL, a workers’ compensation statute might prevent recovery for injuries sustained by Hernandez while in the NFL. The Massachusetts Workers’ Compensation Statute details the state’s system for workers’ compensation. This system requires employers to carry insurance that promptly compensates employees who are injured on the job. In exchange, those employees relinquish their right to sue their employer for negligence related to their workplace injuries.

 

19 thoughts on “Hernandez Family Sues NFL and Patriots Over Concussions Suffered By The Former NFL Star and Murderer

  1. Don’t waste your time on the legal issues. This “case” screams settlement, no matter what the NFL says. It will NEVER get to trial.

  2. I think Hernandez committed suicide because given the life he had known, being a wealthy NFL player and so forth, he couldn’t deal with spending his remaining years in a cage. The risk of suicide for persons in jail is known to be very high, so much so that shoe laces, belts and so forth are confiscated to prevent self-harm. I suppose the real issue here is whether the acts that caused him to be sentenced to prison in the first place were caused by the CTE. It’s difficult to believe that CTE would cause someone to become a drug dealing punk and murderer. Hernandez was enamored of the “thug life” and that’s what led to his demise.

  3. Is the assumption of risk the key element here? I ask because there does not seem to be any attention given to CTE in the sport of boxing or mixed-martial arts where wins by TKO or KO is the prized stat of the fighters.

  4. Those, like Hernandez, who abuse drugs, do any assortment of damage to their bodies–some, known, some, the medical establishment is still discovering–and the brain does not escape the ravages left behind from the multitude of toxins and poisons, willingly and knowingly, ingested, snorted or shot into the human body. How does one expect a jury to sort out what may have affected this individual and caused his ultimate suicide? Was the CTE exacerbated by his known and verifiable illicit drug usage. . .CTE, a condition which would have never progressed to such an extent without the aid of the additional toxins in his body? I think that the severity of the CTE, which, purportedly, was more appropriate for a 67 year old, indicates that there was something else going on here. I strongly suspect that the toxins and poisons, in which he indulged for years, may have acted to contribute to the rapid progression of this condition. What then? Should the NFL be held accountable for those who, voluntarily, and of their own accord, contribute to and/or exacerbate their own medical condition, perhaps, causing it to progress to such a severe stage through the use of recreational drugs? If so, why shouldn’t the family, of the murdered victim, hold the parents of Hernandez, responsible for raising and nurturing a violent and homicidal adult? Where does the blame game begin. . .and where does it end?

    • I had the same question, and it can be difficult to tease out drug use from the CTE.

      There is kind of a chicken or the egg discussion going on regarding CTE and drug use. Does the poor impulse control of CTE lead to drug addiction? Worsen it? Drug addiction is common among athletes, but it’s also common that they have already used drugs before getting significant brain damage. So it’s hard to prove if CTE would make someone use drugs, or make drug abuse worse, because that would be difficult to control for in a study. (You’d have to do some really unethical things to identical twins.) There is a school of thought that feels that CTE is contributory to drug abuse, and exacerbates inebriation. But that ignores the body of evidence that drug use causes brain injury, as well. Some drugs, like meth, can cause permanent brain damage. That’s different than CTE, but, again, does the drug use worsen its effects? Contribute to poor judgement? Does drug abuse lead to bad judgement, so players keep playing after a doctor tells them to stop?

      We’ve known for a long time that concussions are dangerous. 20 years ago my friend accidentally pulled a young horse over without a helmet, and got a bad concussion. We thought for a moment that she’d showed up drunk, but it was a brain injury. Her doctor told her she absolutely, positively, could NOT get another concussion, because the damage was cumulative. That was 2 decades ago.

      Here’s the problem. Concussions are a risk for bike riding, roller blading, skate boarding, all equestrian sports but especially jumping, bull riding, soccer, baseball, boxing, martial arts, gymnastics, playing on a playground…probably even fencing would count, because you could tip over backwards. My own kid got a concussion running around a playground. Any Mom who signs her kid up for sports in the past 10 years has to sign a concussion disclosure. It’s concerning, because of course no one wants neurological damage. And no one thinks it will happen to them. But unless you want to live in an armchair eating processed food, you’re going to run the risk of broken bones, sprained joints, and God forbid, concussions. The best option, if you like these sports, is to get a doctor’s advice if you ever show signs of a concussion. Every. Time. After a certain number or severity, your doctor will tell you that you’re done, and then you have to listen to that advice or not blame others for the consequences. I don’t see how it’s the NFL’s fault, unless they outlaw football as too dangerous. And if they do that, they would have to do the same for soccer, horseback riding, and all of the above. If players have any concerns, they could always go get an MRI.

      So…we’re basically left with Prancercize:

      https://www.impacttest.com/about/?Concussion-Signs-and-Symptoms-2

      • Karen – nothing is safe. I fell out of a tree and off a garage roof onto my head when I was young. That was before I started school. Neither time was I taken to the doctor or hospital. It was just what boys did. 🙂

  5. “The Centers for Disease Control and Prevention found that farmers, lumberjacks and fishermen kill themselves most often..” …”The lowest rate was in teachers, educators and librarians.”

    Perhaps as egalitarians we require a suicide tax on teachers, educators and librarians. 🙂

    • I could see a 50% tax on college administrators. They get paid huge salaries and don’t produce anything of value. They have a destructive impact on our economy as their obscene salaries are underwritten by college students who will be burdened by debt for decades. Farmers, commercial fishermen and lumberjacks do difficult, often dangerous jobs frought with economic uncertainty, to put food on our tables and produce lumber for building our homes and businesses.

  6. If there were not enough or no warnings greeting the player as he entered the ring, then perhaps those organizing this cage fight called American football are liable. If the player was made aware or could be found to be aware of the dangers, then he is responsible and the money he made should be the target. If you know the snake is a viper and you play with it and get bitten, then????

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