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Concussions suit against KC Chiefs uses ‘unique opportunity’

Until Jan. 1, victims of occupational diseases may seek redress in court

The Kansas City Chiefs stadium. Photo Courtesy of Creative Commons.

The Kansas City Chiefs stadium. Photo Courtesy of Creative Commons.

Five former Kansas City Chiefs suing the team over brain injuries hope to take advantage of a fast-closing glitch in Missouri’s workers’ compensation law.

In a lawsuit filed Tuesday in Jackson County Circuit Court, the players — Alexander Louis Cooper, Leonard Griffin, Joseph Phillips, Kevin Porter and Christopher Martin, as well as Martin’s wife, Yolanda Thompson-Martin — allege that repeated concussions led them to develop post-concussion syndrome and latent brain disease, including chronic traumatic encephalopathy.

The suit makes claims for a period between Aug. 31, 1987, and March 29, 1993, during which there was no collective bargaining agreement in effect. According to the petition, there is no basis for federal jurisdiction because federal labor law is not applicable to plaintiffs’ claims and there is no collective bargaining agreement to interpret.

The suit alleges that the team was negligent for failing to provide a safe work environment. But more importantly, at least for the plaintiffs’ legal argument, the suit also alleges that the team’s management fraudulently concealed information about the ill effects that repeated head trauma can cause.

Medical literature for decades has observed problems from repeated concussions. An attorney for the players, Dirk Vandever, of the Popham Law Firm in Kansas City, said in an interview that the team was in a much better position to know about those studies than players were.

“The employee — that is, the football player — is caught up obviously in making a living and being macho and a modern gladiator,” Vandever said. “They’re told consistently ‘It’s a little stinger, shake it off, get back in.’ ”

Ted Crews, a spokesman for the Chiefs, said the team was aware of the lawsuit but declined to comment.

If the plaintiffs can prove that the team knew of the risks from repeated concussions but failed to warn players, it might allow those players’ claims — which allege injuries that were incurred more than 20 years ago — to be dealt with under a relatively recent change in Missouri law.

In 2005, lawmakers overhauled the state’s workers’ compensation system. A 2011 appeals court ruling said the overhaul inadvertently did away with precedents that had required victims of occupational diseases to seek redress through the workers’ compensation system, rather than sue their employers in court.

Lawmakers changed the law earlier this year and restored occupational disease coverage to the workers’ compensation system. That law change, however, doesn’t take effect until Jan. 1. Vandever called it a “unique opportunity.”

The lead attorney for the plaintiffs, Ken McClain — who litigated the 2011 case that led to occupational diseases’ exclusion from workers’ compensation — said the team had helped fund research that obscured the link between repeated concussions and lingering brain injuries, so that his clients couldn’t have been diagnosed until recently.

“Until the last seven years, the medical community was in the dark too,” said McClain, of Humphrey, Farrington & McClain in Independence.

The Jackson County suit was filed the same day that two former University of Missouri players made similar claims in a potential class action suit in federal court.

Sharron D. Washington and Tony VanZant are asking for the National Collegiate Athletic Association to pay for medical monitoring to guard against latent brain injuries caused by concussions. The suit, filed in the U.S. District Court for the Eastern District of Missouri, makes claims on behalf of all former college football players in the United States who did not go on to play in the National Football League.

The suit also claims that the NCAA was negligent in its safety rules and that it concealed knowledge of the dangers of repeated concussions.

Stacey Osburn, a spokeswoman for the NCAA, said in an emailed statement that the association had not been served with the complaint yet.

“However, it appears to be patterned after other proposed class action litigation filed recently,” she said. “It is not unusual to see this action from plaintiff’s attorneys trying to secure a lead position in litigation of similar cases.”

According to Bloomberg News, there are about 10 similar class action suits pending in courts across the country that accuse the NCAA of failing to protect athletes from concussions. The suits could be combined into multidistrict litigation for pretrial proceedings.

An attorney for Washington and VanZant, Daniel DeFeo, of The DeFeo Law Firm in Lexington, didn’t return a call seeking comment.

The suits follow a $765 million settlement on similar claims reached in August between the NFL and more than 5,000 former players. The settlement provides compensation for ailments stemming from head injuries and also funds medical monitoring and research.

The Jackson County case is Cooper et al. v. Kansas City Chiefs Football Club Inc., 1316-CV30043. The federal case is Washington v. National Collegiate Athletic Association, 4:13-cv-2434.