Terry Ott: Canadian Concussion Law Suit Begins Its Slow Crawl To Resolution


In July this blog broke the news that Canada was facing its first law suit based on concussions in their professional football league.  Since that time there has been plenty of information, misinformation and general commentary about this issue in Canada.  The fact remains that this is a long way from getting settled, if you remember correctly the concussion issue in America took over a year to get “settled” and even now it is not completely final/finished.  Although there has been coverage in Canada (which has limited this blogs need to post/present about it) Terry Ott continues to beat the trail and get information to  present in his unique way.  With that backdrop I give you Mr. Ott’s latest filing…
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DEE-FENCE!
“Absence Of CTE” Doctor Files Defense in CFL Arland Bruce Concussion Lawsuit, But Claims to be “Outside The Knowledge Of” On Many Relevant Concussion Issues
HAMILTON
September 23, 2014

Just as it was a long way to Tipperary, it is surely a long way to go before the Arland Bruce III concussion lawsuit against the CFL, its member clubs, CFL Alumni director Leo Ezerins and Dr. Charles Tator and Krembil Neurosciences Center (KNC) ever comes close to a courtroom, or even any kind of resolution.

However, the legal equivalent of a punt has begun, and court documents obtained for this story provide for a very interesting if limited insight as to what can be expected in this first of its kind case in Canada.

On Sept. 10, the Vancouver BC firm of Harper Grey LLP, and attorney Nigel Trevethan filed a defense on behalf of Dr. Charles Tator,  denying or described as “outside the knowledge of the defendant” all but three parts of Bruce’s claim, only excepting that:  1. Tator is affiliated with Krimbil, 2. the KNC is based in Toronto,Ont. and 3. that Dr. Tator is the director of the Canadian Sports Concussion Project; these are the only facts that “are admitted” in Bruce’s 47 page statement of claim.

And while much of the above is pro-forma legal to-and-fro tiddlywinks, some of the “denied” and “outside the knowledge of the defendant” defenses as described in the Tator response to the civil claim are, ah, questionable to this reporter. (See attachments provided below.)

For instance, according to the filed document of defense Dr. Tator denies that he knew or should have known that: 
  • concussive and sub-concussive blows to the head can cause long-term brain injury
  • that during a concussion summit held in Vienna in 2001 he and others had created a protocol that included, “when in doubt, sit them out”
  • that Dr. Tator had been aware of the Riddell helmets “HITS” application
  • that Dr. Tator co-authored the “The Absence of CTE In Retired Football Players With Multiple Concussions and Neurological Symptomatolgy” study
  • that Bruce even suffered a concussion on Sept. 12, 2012.

Perhaps even more baffling are the areas that the Tator defense claims are outside the defendant’s knowledge despite Tator’s close association with TBI research, and the CFL, which has provided some funding for some of Tator’s research.

Here’s a real head-scratcher: Dr. Tator, who was described recently in an “CFL, Neurologist Fights Back” article on the TSN Canada website as a “renown neurosurgeon,” claims  that the Canadian Medical Association’s definition of concussion is outside of his knowledge as is the generally world-wide accepted fact that multiple blows to the head causes damage to the brain.  The defendant also claims that papers on head trauma published over the last 40 years by the American Journal of Medicine, The New England Journal of Medicine and the British Lancet on concussion trauma are also “outside the knowledge of the defendant.” Renown, indeed, it would appear.

Also under the heading of, “pardon me” is Tator’s defense that the well publicized activities of Dr. Bennet Omalu – League of Denial shown last year on PBS, and the first doctor to identify CTE and his continued research, etc. – are once again, “outside the knowledge of the defendant.” Perhaps Dr. Tator does not watch TV? Nor, according to the defense response, does Tator appear have inside knowledge of Dr. Ann McKee of Boston University who has performed 80 odd autopsies on former footballers and found almost a one hundred percent finding of CTE. I can’t think of an outside answer for that one, regarding the defense position.

Nor, does Dr. Tator, in his filed defense and his “knowledge” appear to know nowt about the photograph of CTE pathology which was included in the Bruce pleadings despite the fact that Tator himself found 3 cases of CTE in 6 of the former CFL players that he investigated for his study entitled partly, “Absence Of CTE.” Possibly an oversight?

But enough of that nit-picking, effete nattering – on to the defense!

Besides employing a jurisdictional defense, alternatively, Tator’s lawyer states again that Bruce had not “suffered any injury, loss, or damage” and finally, that the plaintiff – even if he did suffer any injuries – “has failed to mitigate his losses by failing to take all reasonable steps to minimize, or avoid such injury, loss, damage, or expense.”

And of course Dr. Tator denies any alleged negligence as described in the Bruce lawsuit and since he is innocent unless found liable based on a doctrine of law and evidence, then the presumed defenses provided by Tatorand his legal team should be afforded what they are worth legally, if not necessarily afforded how they appear to the layman, or woman.

Plus of course remember, I ain’t no lawyer, but rather just, as they say, presenting the bestavailable version of the facts. Or is that the truth?

 

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5 thoughts on “Terry Ott: Canadian Concussion Law Suit Begins Its Slow Crawl To Resolution

  1. George Visger September 24, 2014 / 12:23

    Dustin,
    Great job as usual, but one small edit. The “American” lawsuit as you reference, took much longer than one year to settle. I was the 23rd plaintiff that Jason Luckasevic of Persky, Goldberg & White spoke to before he filed the first lawsuit against the NFL and Riddell helmets over 3 years ago. There are 77 of us on that original suit, which grew to 4,600 before it was “settled”. Even with the bogus $765 M settlement, which is available to up to 20,000 former players and was to be paid over 20 years, only amounted to $159.38/month IF we’re still alive. (Someone please check my math, 20,000 x 20 yrs x 12 mo, as I’m brain damaged). Judge Brody threw it out, removed the cap and extended it to 65 years.

    Problem is even IF I qualified, which I don’t, I would only receive 20% of what I should get because you need 5 years ACTIVE to be vested in the suit (average career in the NFL is 3.2 years). I’m only credited with one season as my second year during the 81 Super Bowl season I was on Injured Reserve due to developing hydrocephalus and undergoing emergency VP Shunt brain surgery. (Would someone please explain to me why that season doesn’t count in a brain injury lawsuit??????)

    In addition, I was forced to sue and prove in a court of law that my hydrocephalus was a result of playing in the NFL just to get my 2nd and 3rd brain surgeries paid for. Hit the link below to watch my last concussion against the Dallas Cowboys in 1980 where the 49er’s trainers and doctors kept me on the field by use of 20+ smelling salts during the game. I never missed a play or practice. I was lucky it wasn’t a serious injury. I only had my bell rung.

    KRON4 News in San Francisco …Cached – April 18, 2012 … George Visger, author of the ebook “OUT OF MY HEAD: My Life In and Out of Football” (January 2012), was featured in this report on KRON4 … http://www.youtube.com/watch?v=GZpnI6W2-Sg

    In order to be compensated in the lawsuit we “won” (after reading the following YOU tell me who won), you need to be diagnosed, by an NFL approved physician nonetheless, with one of the following to receive any compensation:

    Mild, cognitive impairment (I don’t qualify because I function too high despite my 9
    emergency VP Shunt brain surgeries and 33 years of gran mal seizures).

    CTE – only diagnosable after death

    Dementia

    ALS – Lou Gehrig’s disease.

    Now the payment schedule has been extended to 65 years (so what, we’ll all be dead long before that), with no cap. We have until 10/14/14 to Opt Out and sue individually on our own, thus starting another multi-year battle with no guarantees. All while the NFL grossed $9.5 Billion in 2013 and is expected to gross $23 billion by the end of the 20 payout period 2034. In 2013 Rodger Goodell knocked down $44 M while employing druggy’s, women beaters, child molesters and other dregs of society. As long as they help to sell tickets the NFL turns a blind eye.

    It’s the same Ol NFL game plan.

    Delay, Deny and Hope They Die.

    Call us if anyone is interested in a great, well educated, traumatic brain injury avoidance and recovery seminar, Coaches Concussion Clinic or motivational speaker. It’s the only thing I can do anymore due to major short term memory issues. Have lost my home, my business, my marriage of 19 years and fighting to not completely lose my mind.

    George Visger
    SF 49ers 80 & 81
    Survivor of 9 NFL Caused Emergency VP Shunt Brain Surgeries
    Benefactor of ZERO NFL Benefits

    Biologist/Traumatic Brain Injury Consultant
    The Visger Group – Traumatic Brain Injury Consulting
    http://www.thevisgergroup.org

  2. George Visger October 6, 2014 / 21:13

    Hey,
    It sounds like Dr Patator may have attended the same University our well educated, scholarly brain experts like Dr. Ellio Pellman (University of Guadalajara), or his replacement Dr. Ira “No” Casson, (University of “No”where) attended.

    I hear there’s still room in the rodent hole Pellman and Casson are sharing. Maybe they can squeeze a Tator in.

    • phil colwell October 23, 2014 / 04:52

      i guess serious memory problems in your 50,s is not considered to be CTE until they open and slice your brain ; not much good when you have lost everything in life only to be given the reason after death.

      • phil colwell October 23, 2014 / 05:12

        the doctors mentioned all share one thing in comman; a well rewarded sense of denial.

  3. tbi lawsuits June 22, 2015 / 08:26

    it’s very scary to think about football in this context. so many people have played, even at lower levels. do they all have some sort of tbi coming?

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