Namoff Concussion Litigation to Proceed After Judge Denies Motion to Dismiss

On Friday, a judge in the Superior Court for the District of Columbia (the “D.C. Superior Court”) denied a motion to dismiss Bryan Namoff’s lawsuit (as first reported by the Washington Post), which alleged that D.C. Soccer LLC (doing business as D.C. United), D.C. Soccer’s trainer, and former coach Tom Soehn were negligent in failing to properly evaluate Namoff’s 2009 concussion injury and in clearing Namoff to play too soon after sustaining the concussion.  The practical consequence of the order is that Namoff’s lawsuit will proceed to the discovery phase of litigation, whereby both parties will begin to collect evidence in support of their respective positions in the litigation.

1280px-Chad_Barrett_vs_Jaime_Moreno_at_RFK_Stadium

Bryan Namoff in a May 8, 2008 game against the Chicago Fire.
Photo author: Ben Stanfield

Last year, Bryan Namoff and his wife, Nadine Namoff, filed a complaint against D.C. Soccer, Goodstein, and Soehn based on allegations relating to Namoff’s career-ending concussion injury.  Namoff alleged that on September 9, 2009, in a game against the Kansas City Wizards (now Sporting Kansas City), he sustained a hit to the head when he collided with a Wizards player.  Namoff alleged that Dr. Christopher Annunziata, D.C. United’s team physician, did not leave the sideline to check on Namoff after the hit occurred.  Namoff alleges that after the game, he informed Brian Goodstein, D.C. United’s trainer, “that he did not feel right, that the lights were hazy, and that he had no peripheral vision.”  Namoff alleges that Dr. Annunziata and Goodstein did not “assess, evaluate, and/or examine” Namoff after the game.  Namoff claims that although he suffered headaches and did not feel well for the next few days, and was held out of physical training, neither Dr. Annunziata nor Goodstein assessed, evaluated, or examined him from September 9 to September 12.

Although Soehn allegedly was aware of Namoff’s status and continuing symptoms, Soehn elected to play Namoff in D.C. United’s game against the Seattle Sounders on September 12.  Namoff claimed that he continued to experience post-concussive symptoms during the game and reported as much to Dr. Annunziata and Goodstein after the game.  According to the original complaint, Dr. Annunziata and Goodstein again failed to evaluate, assess, or examine Namoff, and “[t]hey merely stated that they would monitor him.”

Namoff filed an amended complaint in May of this year, which alleged that D.C. Soccer, Goodstein, and Soehn were (1) negligent for failing to properly assess Namoff’s head injury sustained during the game against the Wizards and (2) negligent in making return-to-play decisions.  Namoff also alleged that Dr. Annunziata, an employee of Commonwealth Orthopaedics & Rehabilitation, P.C., negligently treated Namoff’s head injury.

Namoff claimed that as a result of the defendants’ actions and failure to act, he has suffered permanent and disabling damage to his body, including permanent traumatic brain injury, permanent cognitive deficits and memory problems, permanent fatigue, and headaches, among other symptoms; and will be forced to incur medical, hospital, rehabilitative, and pharmaceutical expenses for years to come.  Between Namoff’s negligence claims and his joint claim with his wife for loss of consortium, Namoff claimed damages in the aggregate of $12,000,000.

D.C. Soccer, Goodstein, and Soehn filed a motion to dismiss the amended complaint, arguing that the D.C. Superior Court did not have jurisdiction to hear the merits of the case because the District of Columbia’s Worker’s Compensation Act (the “WCA”) limited the court’s ability to hear workplace injury claims and required such claims to be heard in the D.C. Office of Workers’ Compensation (“DCOWC”).  Dr. Annunziata and Commonwealth Orthopaedics joined the D.C. Soccer defendants’ motion to dismiss the amended complaint, arguing that Dr. Annunziata was a co-employee of Namoff and that the WCA therefore prevented the D.C. Superior Court from retaining jurisdiction over the claims against Dr. Annunziata.

The D.C. Superior Court addressed two critical issues: whether D.C. Soccer was Namoff’s employer and whether D.C. Soccer provided workers’ compensation insurance coverage.  The court stated that it would retain jurisdiction over Namoff’s claims if (1) D.C. Soccer was not Namoff’s employer (with respect to the claims against D.C. Soccer) or Dr. Annunziata was not Namoff’s co-employee (with respect to claims against Dr. Annunziata); or (2) assuming D.C. Soccer was Namoff’s employer, D.C. Soccer failed to provide requisite workers’ compensation insurance coverage.

Considering those issues, the Court first took up the question of Namoff’s employment relationship with D.C. Soccer.  Notably, the parties do not dispute that MLS was Namoff’s employer.  The key question for the court, however, was whether D.C. Soccer was also Namoff’s employer (or a “special employer”) for the purposes of determining whether the WCA limited the D.C. Superior Court’s jurisdiction over Namoff’s workplace injury claim.  The court concluded that the factual record was insufficient to conclude as a matter of law that a special employment relationship existed between D.C. Soccer and Namoff.  This special employer issue will likely be revisited later in the litigation after the factual record is developed.

Importantly, the D.C. Superior Court concluded that even assuming that D.C. Soccer was Namoff’s employer or special employer, D.C. Soccer did not provide the requisite workers’ compensation insurance to require that the claims be heard in the DCOWC.  Under the WCA, an employer may not take advantage of the DCOWC’s exclusive jurisdiction over workplace injury claims unless it has provided workers’ compensation insurance for its employees.  The general idea is that an employer will be given immunity from workplace injury claims if it has provided an avenue through which its employees may obtain compensation for such claims (i.e., through workers’ compensation insurance).  Although MLS had obtained workers compensation insurance, the D.C. Superior Court held that the satisfaction of the insurance requirement by the general employer (MLS) did not satisfy the insurance requirement for a special employer (D.C. Soccer) that had not obtained workers’ compensation insurance.  In short, the D.C. Superior Court held that it could exercise jurisdiction over Namoff’s claims against D.C. Soccer because even if D.C. Soccer was Namoff’s employer, D.C. Soccer had failed to obtain workers’ compensation insurance that entitled it to the benefits of DCOWC jurisdiction.

The Court also held that it had jurisdiction over Namoff’s claims against Dr. Annunziata because, even assuming that D.C. Soccer was Namoff’s special employer, the team physician, Dr. Annunziata, was an independent contractor, not a co-employee.  The court stated that if D.C. Soccer was not Namoff’s special employer, then Dr. Annunziata could not be Namoff’s co-employee.

Of course, it is important to note that Namoff has not yet proved any of his allegations, and the judge’s order simply permits the civil case to proceed in the D.C. Superior Court.

During discovery, Namoff and the defendants will have the opportunity to collect evidence from the opposing party to establish their claims (in the Namoffs’ case) or to disprove or assert defenses to the claims (in the defendants’ case).  This evidence—which may include expert opinion from other physicians—will likely address what Dr. Annunziata, Goodstein, and Soehn knew about Namoff’s potential injury during the relevant September 9 to September 12 period; what each defendant did to address Namoff’s situation; whether the defendants’ actions (or failure to act) constituted a failure satisfy their duty to Namoff as a physician, trainer, and coach; and whether such actions or inaction caused Namoff’s long-term injury.   During this phase of the litigation, the parties will also likely assess whether to continue with litigation and a potentially costly trial or whether settlement is a more favorable option.

Namoff’s concussion-related injury is not unique in sports.  Awareness of concussions and the need to properly address and treat concussions is growing in soccer, football, and hockey circles, as well as other sports.  In MLS alone, there is a distinguished list of players who have been forced to retire due to concussion-related issues, including Namoff, Taylor Twellman, Jimmy Conrad, Adam Cristman, and Alecko Eskandarian.  Pablo Mastroeni recently took nearly a year off from soccer to recover from post-concussive symptoms.  The issue is so prevalent that Twellman started an organization, the ThinkTaylor Foundation, to create increased awareness, recognition, and education regarding traumatic brain injuries.

Namoff is unique, however, in that he is the first MLS or former MLS player to bring a lawsuit alleging that his team and his team’s physician were negligent in providing care and treatment to him, and that such negligence was the cause of a career-ending and life-altering injury.  By contrast, players in the current NFL concussion litigation brought claims directly against the National Football League; and the recent wrongful death litigation by the late NHL player Derek Boogaard’s survivors was brought directly against the National Hockey League.

Namoff’s lawsuit against his former team, its medical staff, and former coach–but not MLS as a league–is important for all professionals who play contact sports.  While concussion awareness has increased the push for baseline testing and the exercise of caution in the handling and treatment of concussions, the Namoff lawsuit could serve both retributive and instructive purposes by providing insight into the legal standards to which sports teams may be held when treating players that suffer concussions.*

 

* None of the material contained herein is offered, nor should it be construed, as legal advice.  You should not act or rely upon information contained in the above material without specifically seeking professional legal advice.

 

Reporting on the business side of the world's game.