Terry Ott: Canadian Concussion Law Suit Begins Its Slow Crawl To Resolution

Dustin.Fink Dustin Fink

In July this blog broke the news that Canada was facing its first law suit based on concussions in their professional football league.  Since that time there has been plenty of information, misinformation and general commentary about this issue in Canada.  The fact remains that this is a long way from getting settled, if you remember correctly the concussion issue in America took over a year to get “settled” and even now it is not completely final/finished.  Although there has been coverage in Canada (which has limited this blogs need to post/present about it) Terry Ott continues to beat the trail and get information to  present in his unique way.  With that backdrop I give you Mr. Ott’s latest filing…

Just as it was a long way to Tipperary, it is surely a long way to go before the Arland Bruce III concussion lawsuit against the CFL, its member clubs, CFL Alumni director Leo Ezerins and Dr. Charles Tator and Krembil Neurosciences Center (KNC) ever comes close to a courtroom, or even any kind of resolution.

However, the legal equivalent of a punt has begun, and court documents obtained for this story provide for a very interesting if limited insight as to what can be expected in this first of its kind case in Canada.

And while much of the above is pro-forma legal to-and-fro tiddlywinks, some of the “denied” and “outside the knowledge of the defendant” defenses as described in the Tator response to the civil claim are, ah, questionable to this reporter. (See attachments provided below.)

  • concussive and sub-concussive blows to the head can cause long-term brain injury
  • that during a concussion summit held in Vienna in 2001 he and others had created a protocol that included, “when in doubt, sit them out”
  • that Dr. Tator had been aware of the Riddell helmets “HITS” application
  • that Dr. Tator co-authored the “The Absence of CTE In Retired Football Players With Multiple Concussions and Neurological Symptomatolgy” study
  • that Bruce even suffered a concussion on Sept. 12, 2012.

Perhaps even more baffling are the areas that the Tator defense claims are outside the defendant’s knowledge despite Tator’s close association with TBI research, and the CFL, which has provided some funding for some of Tator’s research.

Here’s a real head-scratcher: Dr. Tator, who was described recently in an “CFL, Neurologist Fights Back” article on the TSN Canada website as a “renown neurosurgeon,” claims  that the Canadian Medical Association’s definition of concussion is outside of his knowledge as is the generally world-wide accepted fact that multiple blows to the head causes damage to the brain.  The defendant also claims that papers on head trauma published over the last 40 years by the American Journal of Medicine, The New England Journal of Medicine and the British Lancet on concussion trauma are also “outside the knowledge of the defendant.” Renown, indeed, it would appear.

Also under the heading of, “pardon me” is Tator’s defense that the well publicized activities of Dr. Bennet Omalu – League of Denial shown last year on PBS, and the first doctor to identify CTE and his continued research, etc. – are once again, “outside the knowledge of the defendant.” Perhaps Dr. Tator does not watch TV? Nor, according to the defense response, does Tator appear have inside knowledge of Dr. Ann McKee of Boston University who has performed 80 odd autopsies on former footballers and found almost a one hundred percent finding of CTE. I can’t think of an outside answer for that one, regarding the defense position.

Nor, does Dr. Tator, in his filed defense and his “knowledge” appear to know nowt about the photograph of CTE pathology which was included in the Bruce pleadings despite the fact that Tator himself found 3 cases of CTE in 6 of the former CFL players that he investigated for his study entitled partly, “Absence Of CTE.” Possibly an oversight?

But enough of that nit-picking, effete nattering – on to the defense!

Besides employing a jurisdictional defense, alternatively, Tator’s lawyer states again that Bruce had not “suffered any injury, loss, or damage” and finally, that the plaintiff – even if he did suffer any injuries – “has failed to mitigate his losses by failing to take all reasonable steps to minimize, or avoid such injury, loss, damage, or expense.”

And of course Dr. Tator denies any alleged negligence as described in the Bruce lawsuit and since he is innocent unless found liable based on a doctrine of law and evidence, then the presumed defenses provided by Tatorand his legal team should be afforded what they are worth legally, if not necessarily afforded how they appear to the layman, or woman.

For the record,  legal representatives for both the plaintiff, Robyn Wishart, and the defense, Nigel Travethen, did not respond to e-mails asking for comment.