NFL families demand justice without exhumations for CTE diagnoses

PHILADELPHIA (CN) — The Third Circuit heard arguments Friday from the families of deceased NFL players who argued they should not be forced to exhume their loved ones’ remains to receive compensation from the national concussion settlement.

“Remember that in this case, we’re talking about family members who lost a loved one — who was dead at the time that this settlement agreement was approved,” attorney David Campbell told the appeals court.

The Morrison & Foerster lawyer spoke on behalf of Yvonne Sagapolutele — widow of Pio Sagapolutele, a former NFL defensive tackle who died in 2009 from a brain aneurysm after retiring from the league — and other NFL family members Friday.

He argued his clients are entitled to their share of the NFL’s concussion settlement agreement, which has sparked more than $1.3 billion in claims so far, because the biggest determining factor of whether someone had chronic traumatic encephalopathy, or CTE, is whether they played in the NFL.

NFL attorney Paul Weiss argued the players’ representatives must put the bodies of their deceased loved ones through required neuropathological examinations — tests that would necessitate exhuming players’ bodies — to determine eligibility for concussion settlement awards.

“There was no ambiguity in the relevant provisions of the NFL concussion settlement agreement. In order to recover for death with CTE a claimant was required to come forward with a postmortem diagnosis by a certified pathologist — that is, a diagnosis through a postmortem pathological examination of the decedent’s brain tissue,” the Rifkind, Wharton & Garrison lawyer said.

Campbell argued a neuropathologist would be able to offer a proper postmortem diagnosis of his clients’ loved ones based on their careers alone — and that digging up their remains should not be necessary for them to file a claim. He conceded that while it’s undisputed that the only way to 100% conclusively, definitively diagnose CTE is to cut open a brain and look for the top proteins, a confident diagnosis could also be offered on other merits.

“We now know that over 99% of the brains that have been examined of NFL football players have demonstrated that they have CTE,” Campbell said. “And so I can’t see how that would be insignificant to a board certified neuropathologist even if their preference might be to get to 100%.”

More than 20,000 retired players have brought successful claims in the larger case with the NFL over which Philadelphia federal court Judge Anita Brody has been presiding for more than a decade.

She recently ruled that a postmortem exhumation and examination was needed for members of the class whose NFL player loved ones’ died before receiving a CTE diagnosis — the ruling at issue in Friday’s Third Circuit hearing.

U.S. Circuit Judge Peter Phipps, a Donald Trump appointee, seemed to agree, noting the NFL settlement language did use the phrase “postmortem diagnosis of CTE made by a board-certified neuropathologist.”

U.S. Circuit Judge Arianna Freeman, a Joe Biden appointee, meanwhile questioned the NFL’s attorney about whether he was aware of any NFL class members who opted out of the class because they had perceived they were unable to satisfy the diagnostic criteria by getting a postmortem diagnosis.

“I’m not aware of any plaintiffs who opted out specifically on that ground,” Weiss said.

In 2011, 75 football players sued the NFL for failing to protect them against head injuries from concussions. The players said the NFL “attacked” legitimate science for years and set up its own Brain Injury Committee to dismiss the devastating effects of repeated concussions, though the league knew of the medical risks as early as the 1920s.

The players said that for decades, the NFL had been aware that repeated head trauma can result in lasting brain injuries, such as memory loss, dementia, depression, and CTE.

From 2002 to 2005, independent researchers and doctors conducted a series of studies that revealed NFL-related concussions could lead to cognitive issues like depression, early-onset dementia, and CTE, along with its associated symptoms.

U.S. Circuit Judge Cindy Chung, another Biden appointee, rounded out the panel. They did not indicate when or how they would rule.