Red flag: Ninth Circuit affirms summary judgment against football-related wrongful death claims


By: Sharlynne M. Mate

In Archie v. Pop Warner, No. 20-55081; CD CA 2:16-cv-06603, the Ninth Circuit panel unanimously affirmed summary judgment against chronic traumatic encephalopathy wrongful death claims by the estates of two former youth football players. The players died in their mid-twenties, a decade after their participation in Pop Warner Football – a program that provides youth with football and cheerleading activities. One decedent died from a self-inflicted gunshot wound while the other in a motorcycle accident.

The suit was brought by the mothers of the two former youth football players after the players’ brains were found to have chronic traumatic encephalopathy upon autopsy. The mothers alleged that their sons’ deaths were caused by their participation in Pop Warner Football as children, where their repetitive contact in the sport exposed them to chronic traumatic encephalopathy that eventually played a substantial part in their untimely deaths. This is the same disease that was found in the autopsied brains of late football players Aaron Hernandez and Junior Seau. It is of note that both decedents went on to play high school football, one advanced to college football, and one had a bipolar disorder that led to multiple psychiatric holds.

In December 2019, the district court granted Pop Warner’s summary judgment motion on the insufficiency of evidentiary basis that Pop Warner’s alleged negligence in connection with Pop Warner Football, to the exclusion of high school football, other experiences, and social and biological factors, was a substantial factor in the decedents’ respective motorcycle accident and suicide. The court found that the factual causation standard simply cannot be met in Plaintiffs’ argument that if chronic traumatic encephalopathy was found postmortem in a child that participated in Pop Warner Football, without any report or documentation of head trauma, the child had a viable cause of action based on recklessness or mood behaviors in the child’s later life.

On appeal, Plaintiffs argued that the district court incorrectly excluded their causation experts, neuropsychiatrist James Merikangas and pathologist Bennet Omalu. Merikangas specifically admitted in his deposition that there were no solid grounds to conclude that the deceased young football players incurred head traumas from playing in Pop Warner football, “aside from the fact that people playing football have head trauma.” Adding to the fact that Merikangas could provide no explanation as to how Pop Warner Football was a substantial factor in the decedents’ passing given external factors, Merikangas’ opinion was excluded under Daubert v. Merrell Dow Pharm., Inc. 509 U.S. 579, 590 (1993). Omalu’s opinion that youth football was a “substantial factor” in both deaths was also deemed “unreliable” by the district court.

In September 2021, the Ninth Circuit panel ultimately found that the district court did not err in excluding the experts’ opinions as they were unreliable, inadmissible, and did not provide a logical explanation as to why Pop Warner was a substantial cause, rather than simply a possible cause, to the decedents’ behaviors. The panel found that even if the experts’ opinions were rendered admissible, the opinions failed to raise a triable issue, as the opinions “showed only that Pop Warner football could have caused the deaths and contained no explanation why Pop Warner likely caused the deaths.”