Pop Warner Head Injury Class Action Lawsuit Will Continue

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Following a federal judge’s decision, Pop Warner will continue to face claims over head injuries suffered in its youth tackle football program.

U.S. District Judge Philip S. Gutierrez partly granted and partly denied motions for dismissal by defendants Pop Warner Little Scholars Inc. and National Operating Committee on Standards for Athletic Equipment.

After dismissing all claims by plaintiffs Debra McCrae and Shannon Barnes, all claims against NOCSAE, and other specific claims, the action will proceed against Pop Warner on a set of fraud- and negligence-based claims.

Plaintiffs Kimberly Archie, Jo Cornell, Debra McCrae and Shannon Barnes are bringing claims on behalf of young football players, all of whom suffered severe residuals resulting from head injuries sustained while playing tackle football as part of the Pop Warner youth football program.

The plaintiffs claim their children’s head injuries led to behavioral and emotional dysfunction, and in some cases led to untimely death due to chronic traumatic encephalopathy.

Judge Gutierrez denied Pop Warner’s motion to dismiss the planitiffs’ negligence claim. Pop Warner tried to argue that the plaintiffs failed to show a causal link between Pop Warner’s actions and the young players’ injuries. But the judge noted that at the pleading stage, the plaintiffs don’t have to prove causation – they need only allege facts that if true would support a finding of causation.

Claims for fraud, fraudulent concealment and negligent misrepresentation also survived. Pop Warner argued it never claimed that tackle football was free of risk. But the judge found the plaintiffs’ allegations under these claims to be adequate.

He found plaintiffs had adequately alleged that Pop Warner falsely claimed that safety is its top priority and that it provided safety training for its coaches. Pop Warner allegedly used equipment that was not safety-tested for children, did not require a brain injury history, and did not keep track of whether its coaches received any safety training.

Judge Gutierrez determined that plaintiff McCrae’s claims were filed too late and are now barred by the applicable statute of limitations. McCrae filed suit in January 2017 on behalf of player Richard Caldwell, who allegedly suffered injuries no later than 2003.

On the other hand, claims by plaintiffs Cornell and Archie are not time-barred because they were not able to discover their sons’ injuries until after their deaths.

After playing in a Pop Warner program for several years, Cornell’s son Tyler developed severe depression, which culminated in his April 2014 suicide. Archie’s son Tyler began exhibiting behavioral problems that ultimately led to his death in September 2014.

Both plaintiffs’ sons were diagnosed with chronic traumatic encephalopathy only after post-mortem examination of their brains.

Judge Gutierrez dismissed plaintiff Barnes’ claims for lack of standing. Barnes alleged her children were at risk for future injury due to head trauma suffered while playing in a Pop Warner league. The judge said Barnes’ allegations of potential injury were too speculative to confer standing.

The judge dismissed two claims under California consumer protection laws. These claims allege economic losses related to personal injury, which are not the kind of economic harms covered by these statutes, the judge said. The plaintiffs have leave to amend these claims and reassert them.

All claims against co-defendant NOCSAE were dismissed for lack of jurisdiction. Judge Gutierrez found NOCSAE did not purposely direct any of its activity toward the state of California in a way that gave the court jurisdiction over that defendant.

The plaintiffs are represented by Thomas Girardi, Robert W. Finnerty and Michael Kelly of Girardi & Keese.

The Pop Warner Concussion Class Action Lawsuit is Kimberly Archie, et al. v. Pop Warner Little Scholars Inc., et al., Case No. 2:16-cv-06603, in the U.S. District Court for the Central District of California.