Sports-related concussion litigation has been expanding across the country, with everything from the NFL and colleges to high schools and youth sports programs becoming defendants. But, even as the number of cases continues to climb, some see hurdles if attorneys want to push concussion litigation beyond basic negligence claims.

The most high-profile concussion litigation so far is the $1 billion class action settlement that the National Football League agreed to pay to cover injuries that former players sustained while playing professionally, but, the National Collegiate Athletic Association—which regulates intercollegiate sports—has been the subject of concussion lawsuits, as have the Pop Warner youth league, and numerous high schools and colleges across the country. Those cases are all focused on claims involving what the agencies and institutions knew or should have known about concussion risk, and whether their staff acted reasonably when working with players.

With little exception, concussion litigation has focused on these agencies and institutions, and some attorneys question whether concussion litigation can include products liability claims.

“There isn't anybody to my knowledge who can say, 'I can make a concussion-proof helmet,'” attorney Mark Granger of Granger Legal Consulting said. Granger is a member of the American Society for Testing and Materials and serves on its committee on sports, sports equipment and facilities. “Helmets do great things to reduce the risk of injury, and they do what they were designed to do: stop catastrophic brain injuries, cracked skulls and subdural hematomas.”

Montgomery McCracken Walker & Rhoads attorney Steven Pachman, who focuses on defending concussion lawsuits, said that the majority of concussion cases involve failure to warn claims.

“There really haven't been too many cases that I've seen in the product liability context, or certainly successful ones in the concussion arena,” he said. “It's pretty well-known now, through how publicized the concussion issue is, that helmets cannot prevent concussions.”

Kline & Specter attorney Thomas R. Kline agreed that the focus of concussion litigation will likely remain on the agencies and institutions overseeing the sporting events, but said that, given how fact-specific these cases are, attorneys will continue to evaluate each case for possible products liability claims, or any other ancillary claims, such as premises liability, or medical malpractice.

“I don't see it as a primary liability theory, but I certainly see it as being part of the many factors,” he said. ”There is a constellation of additional ancillary issues and avenues of investigation.”

Pachman said that, although he does not foresee products liability becoming the focus of concussion litigation, the types of concussion-related claims being brought is still expanding.

A decade ago, he said, not all schools had policies and protocols in place dealing with concussion. However, as the science around concussion detection improves and the public's awareness of the issue grows, the protocols are becoming more complex and schools are increasingly needing to update those policies to stay on top of the latest understanding of the injury. He noted that in 2010, most college sports teams only needed to have a concussion management plan on file, but seven years later those same schools are now required to submit new protocols each year to specialized safety committees and to do baseline neurocognitive testing on the athletes.

Whereas cases used to focus on a school's failure to have a policy in place, Pachman said, claims are now beginning to focus on whether the policy was properly followed, or if it is up to date.

“I see lawsuits continuing for some time to come largely because of the detailed requirements on schools and trainers that just weren't there a few years ago,” Pachman said.

Some of the biggest hurdles for plaintiffs is that many schools and state agencies that oversee sports programs are either immune under governmental immunity laws, or are subject to much less exposure than a private institution. Pachman and Granger also said that, with concussions becoming so prevalent, it is becoming increasingly difficult for injured players to claim they were unaware of the risks.

The U.S. Court of Appeals for the Third Circuit's recent decision in Mann v. Palmerton Area School District said some plaintiffs may be able to pursue claims stemming from a player's constitutional right to bodily integrity. That cause of action would allow plaintiffs to circumvent state-imposed immunity protections.

Pursuing claims against product designers and manufacturers is another way to avoid a limited recovery, and some cases are currently being litigated.

One high-profile case is underway in federal court. That litigation is aimed at the helmet maker Riddell, and it is an offshoot of the NFL settlement. Along with raising claims related to alleged negligence and concealment, the plaintiffs are contending that the helmets did not adequately protect against concussions.

Kline said he has seen some successful products liability claims stemming from concussion injuries, but Granger said strict liability cases are very difficult to make.

According to Granger, although scientists have nailed down the amount of direct force that can cause a player to sustain a concussion, the amount of rotational force a player can sustain before developing a concussion remains largely a mystery. The fact that the science is still in flux makes it unlikely that any judge would allow a products liability case to proceed against a helmet manufacturer, he said.

“Helmets were never designed with the idea that they were to prevent concussions,” Granger said.