9th Circuit Rules in Favor of Concussion-Prone Athletes

(CN) – In an opinion that could reverberate well beyond USA Water Polo, the Ninth Circuit ruled Wednesday that the governing body for water polo in the U.S. should have done more to protect young athletes from concussions.

The three-judge panel found USA Water Polo “was well-aware of the severe risk of repeat concussions and of the need to implement a policy to remove players from play after suffering a head injury,” according to a majority decision authored by Circuit Judge William Fletcher.

He added, “USA Water Polo’s inaction in the face of substantial evidence of risk of harm, constitutes ‘an extreme departure from the ordinary standard of conduct,’ and amounts to gross negligence under California law.”

The appellate court’s decision could extend to other sports, like soccer, where it’s not uncommon for players to ram the ball with their heads, or even football, where the NFL has agreed to pay out an estimated $1 billion to settle concussion-based lawsuits from former players.

The case was originally brought by Alice Mayall, a mom from Livermore, California on behalf of her then 16 year-old daughter, identified only by her initials H.C.

In an email to Courthouse News, her attorney Elizabeth Anne Fagen with the Chicago firm Hagens Berman Sobol Shapiro applauded the ruling.

“The Ninth Circuit’s decision is a landmark opinion that will require all kinds of sports organizations to protect athletes against secondary head injuries,” she said. “No more turning a blind eye to head injuries or their symptoms in the name of winning.”

H.C. played water polo for the Livermore Area Parks and Recreation Department’s Lazers Water Polo Club, one of roughly 500 such clubs throughout the United States.

In her lawsuit, Mayall said that before she played for the Lazers, her daughter was a healthy, high-achieving honors student. But after several tournament games beginning in February 2014 in which she sustained several blows to the head, H.C. began to experience debilitating headaches, dizziness, nausea, extreme sensitivity to light and could not concentrate on her schoolwork.

By April 2014, H.C. could not return to school and lost the ability to retain information.

Mayall claimed USA Water Polo did not adopt a formal concussion protocol despite repeated complaints from parents and teachers going back to 2011. When H.C. was hit in the face by a shot, the game was not stopped by the referee or coach, and she was not taken out of the game.

“No one from the team or USA Water Polo provided her with any treatment nor was any athletic trainer or medical personnel present to provide treatment,” Mayall’s complaint says, a pattern that continued throughout tournament play that February, as H.C. took additional hits to the head.

In its ruling Wednesday, the court found USA Water Polo’s concussion policy for its national team’s athletic trainers, which it did not require or even recommend that its other teams follow, insufficient to satisfy its duty of care.

Fletcher was joined by Circuit Judges Paul Watford and John Owens.

Attorney Steven Renick with Manning & Kass Ellrod Ramirez Trester in Los Angeles did not respond to an email seeking comment Wednesday.

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