League of Denial (19 page)

What transpired in Hoge’s lawsuit was a preview of the NFL’s troubles in the years ahead. Hoge was accusing Munsell of malpractice, but it went deeper than that. He argued that Munsell should have been aware of the latest developments in concussion research and applied them to his care. Instead, Hoge alleged, he was kept in the dark and allowed to continue to play despite his lingering symptoms. Hoge brought in the Pittsburgh Steelers brain trust—Maroon, Lovell, and Bailes—to explain the seriousness of concussions and the recent advances in diagnostic testing. Munsell argued that his treatment was state-of-the-art and that Hoge had had an obligation to inform the Bears’ medical staff of his symptoms.

“It was a difficult case; there was no real precedent,” said Robert Fogel, the Chicago lawyer who represented Hoge. “It isn’t like a lot of other football players were suing doctors over their mistreatment of concussions.”

Munsell was not an ideal witness for the defense. He acknowledged under oath that despite his role as team doctor he had no specialized training in sports medicine, nor had he read any medical literature on concussions. Before 1994, when Hoge’s injury occurred, “I don’t recall when I read an article in a book about a concussion,” he said. He seemed unaware of the most recent protocols for allowing concussed athletes to return to play.

Munsell did not take notes or keep records on Hoge’s brain injuries. Speaking of the night of the concussion in Kansas City, he said:
“I didn’t carry a notebook or notepad or paper and pencil on my person, but I certainly would have had it been available to me.”

That night on the team plane, Munsell informed Hoge that he would not play the next week. After touching down in Chicago, he never examined Hoge again.

Hoge’s injury had occurred on August 22, 1994. Under questioning from Fogel,
Hoge described the extent to which his injury was monitored:

“Merril, were you examined by any doctors from August 23rd till you returned to play August 29th?”

“No.”

“Did you have any conversations with any doctors from August 23rd to return to play on August 29th?”

“No.”

“Did you ever speak, and I mean in person, or on the telephone, with Dr. Munsell between August 23rd and August 29th when you returned to play?”

“No.”

“Merril, after August 22, 1994, did Dr. Munsell ever examine you before you returned to play?”

“No.”

“Did any doctor examine you before your return-to-play?”

“No.”

Munsell’s lawyers tried to show that Hoge had hidden his injuries from the Bears’ medical staff. This was
the crux of Munsell’s argument: How could he be held responsible for failing to treat Hoge when he was never informed that the player still had symptoms when he went back on the field? Didn’t Hoge bear some of the blame? Hoge knew football was a violent sport, yet he wanted so badly to continue playing that sport, he hid his injuries from the team doctor.

“We are dealing here with an intelligent man, not a child, not a person of suboptimal intelligence, but an intelligent adult,” Munsell said. “I believe there was a responsibility to be shared there.”

Munsell’s lawyer went through a long windup before raising this issue with Hoge on the witness stand.

Hoge seemed to be waiting for it like a power hitter sitting on a fastball.

“We could probably
save a lot of time here: Nobody told me anything about my concussion,” he said. “Nobody told me about the signs and symptoms and what to be aware of. Had I known those things, you’re darn right: I would have told him. Would have been more than happy to tell him.

“But at that time, I knew nothing. I did not know what I was risking. We talk about fatality and brain damage; I should have known about that, you’re darn right I should have known. If I feel like I can perform and I’m doing everything possible to perform, I will perform. But we’re not going to compare knees and ankles here. We’re talking about a brain, far more important than any other part of our body. And I did deserve that.

“Dr. Munsell took me over as his patient; that is his obligation. Not to stick me on a plane, send me home, and have nothing to do with me again.”

The jury awarded Hoge $1.55 million—the last two years on his contract plus $100,000 for pain and suffering.

Not long afterward, the judge threw a wrench into Hoge’s celebration. He ruled that Fogel had failed to disclose a key piece of evidence: a letter from a Chicago neurosurgeon who believed that Munsell should not be held liable. A new trial was ordered, at which point Hoge and Munsell settled out of court.

Still, it was a devastating defeat for the Bears and, by extension, the NFL. It put the teams, its doctors, and the league on notice.
Fogel suddenly found himself getting calls from lawyers around the country. They represented not only football players but athletes from other sports as well. The NFL’s mushrooming crisis now had legal implications.

The league, of course, was aware of the lawsuit. An indication of its concern came late in the case, when Munsell’s lawyers produced a new witness. According to a letter filed with the court, this witness, in contrast to the leading concussion experts in the country, would testify that “at all times Dr. Munsell acted within the standard of care” for the National Football League.
At all times
—
the letter emphasized that
point repeatedly. Munsell’s treatment met the standard of care for the NFL from the moment Merril Hoge heard the ocean in Kansas City. His treatment met the standard of care for the NFL when Hoge was allowed to take the field a week later without Munsell or any other doctor examining him. Munsell’s treatment met the standard of care for the NFL right up to the moment five weeks later when Hoge bent down to make a block and his world went black, ending his career.

It turned out that Munsell’s lawyers produced this expert witness too late, and so he was not allowed to appear in court in support of the Bears’ team doctor. But Fogel always wondered how the witness suddenly materialized. “I just got the sense, you know, some of this went to another level.”

The witness’s name was Elliot Pellman. He was the head of the NFL’s Mild Traumatic Brain Injury Committee.

Even though they were on opposite sides of Merril Hoge’s lawsuit, Mark Lovell and Elliot Pellman knew each other well. One day back in 1994,
Pellman had called Lovell in Pittsburgh, identifying himself as the chairman of the NFL’s Mild Traumatic Brain Injury Committee. Pellman explained that the new entity had been created by Commissioner Paul Tagliabue to study concussions. He told Lovell he was familiar with his new concussion test—of course he would have been, since that test had been used to end Hoge’s career—and invited him to participate in the committee’s first meeting in February 1995 at the NFL Combine in Indianapolis.

As skeptical as Tagliabue was about the NFL’s concussion problem (“a pack journalism issue”), the MTBI committee was a logical response to a mushrooming public relations crisis. The retirements of Toon and Hoge, Troy Aikman’s erased memory after the 1993 NFC Championship Game, and the spate of head injuries league-wide had left fans with a growing impression that the entire sport was concussed. The Mild Traumatic Brain Injury Committee—some researchers said the name itself suggested the NFL’s benign view of the problem—promised to take a scientific approach to concussions and come up with a series of measures to make the game safer than ever.

Lovell traveled to his first meeting of the MTBI committee with the trepidation befitting a novice entering the seat of power. He had started
baselining the Steelers just two years earlier and was still unfamiliar with the world of pro sports. His innate shyness didn’t help. Accompanied by the Steelers’ doctor, Tony Yates, Lovell put on his best suit for the occasion. “What are you trying to do, embarrass me?” said Yates. When they walked into the hotel conference room where the first meeting was held, the dozen men who greeted Lovell were a picture of casualness in both manner and dress; some wore sweat suits emblazoned with their team’s logo, as if they had just come off the sidelines. “I’m the only guy wearing a suit,” Lovell recalled of the moment. “I feel like a jerk.” Most of the men seemed to know one another, but Lovell didn’t recognize any of them, nor did they seem to have any clue who he was. He suspected that they probably had no idea what a neuropsychologist was, much less how one might treat a concussion.

Lovell, of course, was involved in some of the most cutting-edge research in the emerging science of head trauma—he was one of Steinberg’s people who believed the world was round. With the NFL’s power and resources, he imagined he would be joining a veritable dream team of concussion experts to attack the problem. In fact, there were very few. The contemporary researchers whose studies were reshaping the entire conception of what a concussion was—men such as Jeff Barth, Julian Bailes, Joe Maroon, and Barry Jordan—were nowhere to be found. Instead, Tagliabue’s concussion committee was made up almost entirely of NFL insiders.
Nearly half the members were team doctors, the same men who had been sending players back on the field for years. There were two trainers, a consulting engineer, and an equipment manager. The committee did have one neurologist, Ira Casson, who had studied boxers and had made the fateful recommendation to Al Toon that he retire, and a neurosurgeon, Hank Feuer (pronounced FOY-er), who had done an internship at Indiana Medical School at the same time Maroon was there and worked for the Colts.
Reflecting years later on his status as the committee’s lone neurosurgeon, Feuer, measuring his words, said: “That was always, to me, ah, I just thought it’s an
interesting
committee. The best way I could put it.” The MTBI committee’s epidemiologist—the man charged with analyzing much of the committee’s research—was John Powell, the number cruncher behind the NFL’s claim that concussions had held steady at one every three or four games.

The most perplexing choice was Tagliabue’s handpicked chairman: Pellman. With the endorsement of the powerful commissioner, Pellman had instantly become one of the most influential concussion researchers in the country, yet
he had not produced a single piece of scientific literature on the subject. This almost certainly was due in part to his medical specialty, rheumatology, which deals primarily with bone and joint disorders such as arthritis. Pellman was genial and stout, a balding man, then 41, routinely described by colleagues as “a good administrator.” Through his contacts with the NFL, Pellman came to work as a top medical adviser with other leagues, including the NHL and Major League Baseball. One executive who worked closely with Pellman described him as a kind of medical “concierge” whose primary responsibilities were to administer flu shots and recommend specialists. “If an individual employee has a bad back, Elliot is great in New York about getting you in to see the best back guy,” the executive said. He described Pellman as “honestly, a nice man” and suggested he was kept around because of his pleasantness.

The
most complete professional biography of Pellman would be assembled years later by the
New York Times
after the newspaper discovered in 2005 that he had exaggerated his credentials in a biography he sent to the House Committee on Government Reform. This came as Pellman testified before the committee, offering effusive praise of baseball’s steroids policy, the same policy that had done nothing to prevent Barry Bonds from shattering the career home run record. Pellman had claimed in his biography, which he circulated widely, that he obtained his medical degree from the State University of New York at Stony Brook. In reality, Pellman had attended medical school in Guadalajara, Mexico, and received his medical degree from the New York State Department of Education. Pellman also reported that he was an associate clinical professor at the Albert Einstein College of Medicine, when, in fact, he was an assistant clinical professor, an honorary position held by thousands of doctors, and didn’t teach at the school. He told the
Times
the errors were minor. “In a way, I thank you,” he said, “because those discrepancies are not important enough to be there, and they have all been fixed.” Pellman explained he had enrolled at the Universidad Autónoma de Guadalajara, which had lower admissions standards,
because he received poor grades as an undergraduate biology major at NYU. He attributed his poor academic record to his complicated life at the time, including his father’s death and a busy schedule working in his family’s flower shop in the Bronx and as a cab driver. Pellman blamed the errors on his secretary and the New York Jets, where he had worked as team doctor since 1988. “So SUNY said he didn’t get an MD from there?” Jets vice president Ron Colangelo told the
Times
. “Oh my goodness, oh my goodness gracious.”

When Pellman first came to the NFL, he was practicing rheumatology at Long Island Jewish Medical Center. As the Jets’ doctor, he had treated Al Toon after the concussion that ended Toon’s career. When Pellman went to look for a neuropsychologist to test Toon’s brain function, he approached a colleague, Bill Barr. “
I don’t know who any neuropsychologists are; I’ve never worked with one,” Pellman said, according to Barr, who recounted the conversation to ESPN’s Peter Keating. “But somebody said Al Toon should see a neuropsychologist, so I asked around and I’m calling you.” As the NFL slowly began to adopt neuropsychological testing to diagnose concussions, Pellman brought on Barr to work with the Jets. Occasionally, the two men—along with Casson, another colleague at Long Island Jewish—would appear at coaching clinics to talk about concussions.
Barr was struck by how ignorant Pellman seemed of all previous research. By then, Barth, Lovell, and others had been publishing for years. “During these lectures, Pellman’s saying things like, ‘Nothing has ever been done on concussions or mild brain injury and we’re starting from scratch,’ ” Barr, who had moved on to New York University, said in an interview for this book. “I had been trained in evaluating MTBI, and I knew the literature. But he acted like nothing had ever been published on this before 1995.”