New Concussion Warning Label Is Not A Big Score For NFL Players Suing Helmet Manufacturer Riddell

New Concussion Warning Label Is Not A Big Score For NFL Players Suing Helmet Manufacturer Riddell

Some retired NFL players are suing helmet company Riddell for their helmets not protecting against concussions and, more importantly, for not warning about the long-term risks of concussions on the helmet itself. A new warning label on Riddell's helmets is not as big of a change as these NFL players hoped.

Riddell, the official helmet manufacturer of the NFL, is being sued by many retired football players for failing to effectively protect them against the long-term risk of concussions and lying about the company’s ability to reduce the risk of head trauma. Since being named as a defendant, Riddell appears to have taken measures to provide better information to consumers, including attaching stickers on products that contain a warning label (as displayed to the right).

The first statement on the warning label is in bold and all-caps and reads, “NO HELMET CAN PREVENT SERIOUS HEAD OR NECK INJURIES A PLAYER MIGHT RECEIVE WHILE PARTICIPATING IN FOOTBALL.” While many would think that the use of this label is a sort of admission that these types of concussion warning labels should have been in use in the past (and indicating that Riddell should be held liable for damages), getting the label admitted into evidence is complicated and may not be an easy score for the retired football player Plaintiffs.

On July 17, 2012, the Plaintiffs filed their Amended Master Administrative Long-Form Complaint in the United States District Court – Eastern District of Pennsylvania, where the Judicial Panel on Multi District Litigation decided to consolidate and transfer the many individual concussion-based claims. U.S. District Courts adhere to federal rules. Rule 407 of the Federal Rules of Evidence is titled, “ Subsequent Remedial Measures” and states,

“When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or–if disputed–proving ownership, control, or the feasibility of precautionary measures.”

The Plaintiffs have alleged that the Riddell Defendants inaccurately marketed their Revolution helmet as being safer in reducing the risk of concussions by 31% and that the Riddell Defendants failed to warn any Plaintiff or retired player of the long-term health effects of concussions. It is unlikely that the Plaintiffs would be able to introduce the new concussion warning label into evidence to prove either of those 2 claims. Further, the Plaintiffs have included counts for 1) Strict Liability for Design Defect, and 2) Strict Liability for Manufacturing Defect, and based upon the exclusions in Rule 407, above, Plaintiffs would similarly be barred from introducing the warning label.

Perhaps the only way that the Plaintiffs are able to include the concussion warning label on their Exhibit List is to argue that it should be admitted to prove the feasibility of precautionary measures. This is typically a tricky area for courts dealing with manufacturer liability. If the court were to allow the concussion warning label into evidence to prove the feasibility of precautionary measures, the judge must instruct the jury that it is only on the issue of feasibility that they should consider the Riddell Defendants’ new warning on their helmets, and must do everything possible to prevent the Plaintiffs from using the label to prove negligence (which the Plaintiffs include as a count against the Riddell Defendants) or any of the other non-admissible bullet points as stated in the Rule. The problem with the introduction of the label for the limited purpose of determining feasibility of precautionary matters is that it opens the door to abuse by the Plaintiffs to prove other claims (such as negligence and design defect), which technically constitutes reversible error should the Riddell Defendants choose to appeal an unfavorable verdict. Based on that alone, my thought is that the new concussion warning label, if added to the Plaintiffs’ Exhibit List, will be stricken by the Court and not introduced to a jury.

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