Former Portland Timbers forward Eddie Johnson filed a lawsuit on Tuesday, alleging that his former club and the club’s medical team negligently permitted Johnson to return to playing soccer after he suffered a series of head injuries. Johnson’s lawsuit is the second lawsuit brought by a current or former MLS player against an MLS club, with Bryan Namoff’s 2012 lawsuit against D.C. United being the first.
Johnson filed his complaint (the “Complaint”) in Oregon state court (Multnomah County Circuit Court), alleging negligence and seeking just under $10 million in damages. The lawsuit names 5 separate defendants: (1) Peregrine Sports, LLC (the company doing business as Portland Timbers), (2) Oregon Sports Medicine Associates (“OSMA” and alleged to be a team physician), (3) Jonathan Greenleaf, M.D. (alleged to be a team physician), (4) Nik Wald (alleged to be the team’s head athletic trainer), and (5) James E. Bryan (a psychologist and specialist in neuropsychology) (collectively, the “Defendants”).
The Complaint alleges that as the Timbers’ team physician and trainer, OSMA, Dr. Greenleaf, and Wald “were responsible for advising the team and its players if a player’s physical condition will adversely affect the player’s performance or health, and if a player’s condition will be significantly aggravated or made permanent by continued performance.”
Johnson claims that the team physician and trainer were “substantially responsible for making return to play decisions following a concussion,” but each of those defendants failed to exercise the duty of care and skill ordinarily careful physicians and trainers would use in the same or similar circumstances in the same or similar community in a reasonable in prudent manner. In other words, Johnson alleges that OSMA, Dr. Greenleaf, and Wald acted or failed to act in a manner that breached their duty of care (as medical providers) to Johnson, a Timbers player.
The Complaint sets forth a relatively simple statement of the facts underlying Johnson’s claims. Johnson alleges that on August 3, 2011, he suffered a concussion or other head injury during pregame warm-ups. He alleges that he again suffered a concussion or head injury during a game on August 14, 2011. As a result of the head injury on August 14, 2011, Johnson alleges that the Defendants determined that Johnson could not safely return to play for the remainder of the 2011 MLS season. Johnson further claims that he “was not given the return to play protocol after his injury on August 14, 2011.”
Although not specifically alleged in the Complaint, Johnson’s claims regarding “return to play protocol” apparently refer to MLS’s official return to play protocol for athletes suffering concussions, which was implemented in 2011 (the “RTP Protocol”). The RTP Protocol mandates baseline testing for all players. Any player with a suspected brain injury must be immediately removed from games or training and evaluated by medical staff. If the player is determined to have a concussion, he will not be cleared to return to the game or training.
Team physicians, like OSMA and Dr. Greenleaf, are the “ultimate authority.” The RTP Protocol requires that players who have suffered brain injuries pass cognitive tests and be symptom-free before returning to the field. Once the player is physically and cognitively symptom-free, a designated team consulting neuropsychologist evaluates the player using neuropsychological testing to ensure that the player is cognitively fit to begin gradually increasing their aerobic activity.
Returning to the Complaint, Johnson alleges that the team physicians, trainer, and Dr. Bryan failed to properly evaluate Johnson after his season-ending concussion or head injury on August 14, 2011 before Johnson was permitted to return to play and participate in 2012 preseason activities. Johnson claims that he was still experiencing symptoms from the 2011 concussion or concussions during the 2012 preseason. Regardless, Johnson was permitted to return to play for the 2012 preseason, and on February 6, 2012, he alleges he suffered a further head injury from heading the ball or from physical exertion. As a consequence of this further head injury, Johnson alleges that his professional soccer career ended.
With respect to his negligence claims against the Portland Timbers, OSMA, Dr. Greanleaf, and Wald, Johnson alleges four acts or omissions in which those defendants breached their duty of care to Johnson:
(1) failure to follow proper guidelines and protocols for concussions and return to play decisions;
(2) failure to properly assess, evaluate, and examine Johnson before permitting him to return to play in the 2012 preseason;
(3) failure to properly assess, evaluate, and examine Johnson after his August 14, 2011 concussion or head injury and before February 6, 2012 (when Johnson suffered a career-ending head injury); and
(4) allowing Johnson to return to play fully for the 2012 preseason.
Johnson also alleges that Wald failed to make “proper referrals” (presumably to specialists in accordance with the RTP Protocol) before allowing Johnson to return to play.
Finally, Johnson alleges the Dr. Bryan, a neuropsychologist, participated in the team decision to end Johnson’s MLS season in 2011 after the August 14, 2011 head injury. Johnson claims, however, that Dr. Bryan failed to properly assess, evaluate, and examine Johnson after his August 14, 2011 concussion or head injury and before February 6, 2012, and negligently permitted Johnson to play in 2012 while Johnson was still experiencing symptoms associated with a concussion or head injury.
Johnson alleges that as a result of those actions or failures to act, he sustained serious and permanent brain injuries and suffers from headaches, memory impairment, and depression among other physical symptoms. As a result of those injuries and continued symptoms, pain, and loss of function, in addition to past and future medical and rehabilitative services, Johnson seeks aggregate damages of just under $10 million.
All things considered, Johnson’s lawsuit is at the earliest stage of the litigation process. In order to be successful in his suit, Johnson will eventually have to prove the allegations in his Complaint. That is, Johnson will have to show, through testimony and other evidence, that each of the Defendants breached their duty of care to Johnson. The Defendants will have the chance to respond through the legal process by filing an Answer to the Complaint within 30 days (admitting or denying, as applicable, the claims made by Johnson or asserting counterclaims against Johnson) or otherwise filing a motion to dismiss the Complaint. For example, the Defendants may file a motion to dismiss the Complaint under Oregon Rule of Civil Procedure 21(A)(8), arguing that even if Johnson can prove his allegations, he would not be entitled to the relief he requests in the Complaint (i.e., that Johnson failed to “state ultimate facts sufficient to constitute a claim”).
There is a long road ahead for this litigation. Assuming Johnson’s complaint survives any motion to dismiss, the parties will have an opportunity to gather evidence during discovery, and may well settle the litigation before the parties even get to a jury trial. That can take years.
The Timbers have taken the opportunity, however, to respond to Johnson’s complaint by issuing the following statement: “While we cannot comment publicly on any specific active legal proceeding, we can definitively state that the Portland Timbers follow all MLS player health-related protocol and have done so since we joined the league. Additionally, we approach head injuries with extra caution and err on the side of conservatism above and beyond official protocol when dealing with them. We have an expert staff of physicians and trainers and stand by them and their evaluations.” In the context of the litigation, the statement carries no weight and will have no impact on the outcome of the litigation. Whether the statement is beneficial from a public relations perspective is debatable.
Johnson is the second MLS player to bring a concussion-related lawsuit directly against his former team, with the first being Bryan Namoff. In 2012, Namoff brought a lawsuit against D.C. United, the team’s trainer, the team’s physician, and former head coach Tom Soehn alleging that those parties were negligent in failing to properly evaluate Namoff’s 2009 concussion injury and in clearing Namoff to play too soon after sustaining a concussion. The Namoff litigation and, in particular, discovery continue to this day. The outcomes of the two cases will not be related. Each of Johnson and Namoff have alleged as the basis for their lawsuits discrete acts or omissions by their former clubs and those clubs’ medical teams that led to their career-ending injuries. Assuming that either case makes it to a jury trial, the likelihood of success of their respective lawsuits is dependent entirely on the veracity of their claims and their ability to prove the factual allegations in their complaints.
The combined impact of the results of their lawsuits, however, may eventually impact the RTP Protocol and other players’ willingness to seek legal redress for career-ending injuries associated with 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.