Moriarty, Jane Campbell

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Duquesne Law Review Volume 56 Number 1 Athletes, Veterans, and Neuroscience: A Symposium on Traumatic Brain Injury and Law Article 2 2018 Foreword: Athletes, Veterans, and Neuroscience : A Symposium on Traumatic Brain Injury and Law Jane Campbell Moriarty Follow this and additional works at: https://dsc.duq.edu/dlr  Part of the Medical Jurisprudence Commons Recommended Citation Jane C. Moriarty, Foreword: Athletes, Veterans, and Neuroscience : A Symposium on Traumatic Brain Injury and Law, 56 Duq. L. Rev. 1 (2018). Available at: https://dsc.duq.edu/dlr/vol56/iss1/2 This Front Matter is brought to you for free and open access by Duquesne Scholarship Collection. It has been accepted for inclusion in Duquesne Law Review by an authorized editor of Duquesne Scholarship Collection. ForewordAthletes, Veterans, and Neuroscience: ASymposium on Traumatic Brain Injury and LawJane Campbell Moriarty*The last several years have educated us about the multiplecauses and effects of traumatic brain injury (TBI). We have learnedabout concussions and brain injuries that many athletes suffer andthe possibility of long term damage that such injuries may cause.The public is now sadly aware that many veterans are returningfrom Afghanistan and Iraq with combat-related brain injuries. Andmany citizens have learned first-hand that serious accidents cancause concussions and other forms of serious brain injuries.In fact, TBI occurs in the United States with alarming frequency:Between 1.7 and 2.5 million TBIs occur every year, and some esti-mate that 5 million of those injured individuals will suffer from per-manent disability.' Scholars have described the rate of TBIs as an"epidemic of concussive brain injuries."2 One study tracking dataconcluded that from 2002-2006, approximately 275,000 hospitaliza-tions and 52,000 deaths from TBI were related to accidents, as-saults, and sports-related injuries.3 Data compiled by the United* Carol Los Mansmann Chair of Faculty Scholarship and Professor, Duquesne Univer-sity School of Law. Many thanks to The Honorable Maureen Lally-Green, Dean of DuquesneUniversity School of Law, for suggesting and supporting this Symposium, and to Jacob H.Rooksby, Associate Dean of Administration and Associate Professor, Duquesne UniversitySchool of Law, for co-chairing this Symposium with me. Particular thanks to the firm ofQuattrini Rafferty, Attorneys at Law, for its generous support of this Symposium. And fi-nally, thanks to the editors and staff of the Duquesne Law Review for their capable and hardwork on this Symposium.1. See Jane Campbell Moriarty, Seeing Voices: Potential Neuroscience Contributions toa Reconstruction of Legal Insanity, 85 FORDHAM L. REV. 599, 614 n.98 (2016) (citing MARKFAUL ET AL., U.S. DEP'T OF HEALTH & HUMAN SERVS., TRAUMATIC BRAIN INJURY IN THEUNITED STATES: EMERGENCY DEPARTMENT VISITS, HOSPITALIZATIONS AND DEATHS 2002-200613 (2010), http://www.cd.gov/traumaticbraininjury/pdf/blue-book.pdf[https://perma.cc/M5W5-5B69] (estimating 1.7 million)). A more recent study puts the num-ber at 2.5 million per year in the United States, with 5 million of those people living withlong-term disability due to such injury. Jennifer Hay et al., Chronic Traumatic Encephalo-pathy: The Neuropathological Legacy of Traumatic Brain Injury, 11 ANN. REV. PATHOLOGY21, 22 (2016).2. Betsy J. Grey & Gary E. Marchant, Biomarkers, Concussions, and the Duty of Care,2015 MICH. ST. L. REV. 1911, 1912 (2015).3. Moriarty, Seeing Voices, supra note 1, at 614 (citing data).1Duquesne Law ReviewStates government suggest that 12% of Iraq and Afghanistan vet-erans are diagnosed with TBI from blast exposure, but there is evi-dence that this number is vastly underreported.4 Evaluations ofveterans returning from Iraq and Afghanistan conclude that TBI isa "pre-eminent injury" of those wars.5 Sports-related concussionsin young athletes and the discovery of chronic traumatic encepha-lopathy (CTE) in former NFL players have prompted much concernin the public generally6 and in legal/medical fields specifically.7The medical and psychological implications of TBI are profoundfor individuals with such brain injuries. Over the last decade, TBIhas become part a more prevalent aspect of cases moving throughthe legal system. TBIs are often an element of damage in accidentcases, are raised as defenses or mitigation by defendants in crimi-nal cases, and are litigated in both veterans benefit claims andworkers disability hearings. State legislatures are grappling withconcussion statutes designed to protect young athletes,8 and theNFL has been involved in a massive concussion settlement pro-gram.9 The criminal and civil litigation issues include how to provemild TBIs (mTBIs),10 what types of expertise and imaging is appro-priate for court," and whether TBIs can excuse or mitigate a de-fendant's liability in criminal cases.124. Valerie Gray Hardcastle, Traumatic Brain Injury, Neuroscience, and the Legal Sys-tem, 8 NEUROETHICS 55, 56 (2014).5. Susan L. Eskridge et al., Injuries from Combat Explosions in Iraq: Injury Type, Lo-cation, and Severity, 43 INJURY, INT. J. CARE INJURED 1678, 1681 (2012) (evaluating a cohortof roughly 4600 injured veterans).6. Most recently, the New York Times published a recent article based upon a disturbingnew study suggesting that blows to the head that do not even rise to the level of concussionsmay result in immediate brain damage. See Gretchen Reynolds, Hits to the Head May Resultin Immediate Brain Damage, N.Y. TIMES (Jan. 31, 2018), https://nyti.ms/2GwObMf. The un-derlying study is Chad A. Tagge et al., Concussion, Microvascular Injury, and Early Tauopa-thy in Young Athletes After Impact Head Injury and an Impact Concussion Mouse Model, 141BRAIN 422 (2018).7. See, e.g., Grey & Marchant, supra note 2. For a comprehensive discussion on CTE,see Christopher R. Deubert, I. Glenn Cohen & Holly Fernandez Lynch, Protecting and Pro-moting the Health of NFL Players: Legal and Ethical Analysis and Recommendations, 7HARV. J. SPORTS & ENT. L. 1, 26-29 (2016) (summarizing the current state of knowledge aboutCTE).8. See generally Francis X. Shen, Are Youth Sports Concussion Statutes Working?, 56DUQ. L. REV. 7 (2018).9. See NFL CONCUSSION SETTLEMENT, https://www.nflconcussionsettlement.com/ (lastvisited Feb. 20, 2018).10. See Grey & Marchant, supra note 2, at 1918 (noting the difficulties of diagnosingmTBI).11. See generally Jane Campbell Moriarty, Daniel D. Langleben & James M. Provenzale,Brain Trauma, PET Scans, and Forensic Complexity, 31 BEHAV. SC. & L. 702 (2013) (dis-cussing imaging and expertise related to TBI).12. See, e.g., Stephen J. Morse, Brain Overclaim Syndrome and Criminal Responsibility:A Diagnostic Note, 3 OHIO STATE J. CRIM. L. 397 (2006) (discussing neuroscience and criminal2 Vol. 56Winter 2018These pressing concerns prompted the idea for a Symposium atDuquesne University School of Law in April 2017 to address themyriad legal implications of traumatic brain injury. Focusing onTBIs arising from both combat exposure and sports-related injuries,the Symposium aimed to educate lawyers and members of the pub-lic about the legal, medical, psychological, and ethical issues relatedto TBI. Speakers for the Symposium included distinguished mem-bers of the judiciary, a renowned neuroradiologist, a highly re-garded clinical neurorpsychologist, and well-known members of thelegal academy and the practicing bar. The Symposium was de-signed to provide multiple perspectives on the implications of TBIin the law.In addition to the Keynote Speaker, Francis X. Shen,13 who ad-dressed The Future of Brain Injury and the Law, the Symposiumincluded honored participants Debra McCloskey Todd, Justice ofthe Supreme Court of Pennsylvania, and Dwayne D. Woodruff,Judge of the Court of Common Pleas of Allegheny County (and aformer player for the Pittsburgh Steelers).Daniel Kunz, the Supervising Attorney and Adjunct Clinical Pro-fessor in Duquesne Law's Veterans Clinic, spoke movingly about hiswork with veterans. Another academic speaker, Professor Paul Lit-ton,14 addressed the complicated theoretical concerns that TBIposes for questions of legal responsibility, while I addressed themyriad, complex questions surrounding the admissibility of neuro-science evidence. Professor Mark Yochum kept the audience raptwith his legal ethics performance over the lunch hour, aptly titledThe Bonehead Play.Both Vincent J. Quatrini, Jr. and Michael V. Quatrini, highly re-garded practicing lawyers, provided insights into the complexity ofrepresenting individuals with TBI in the areas of civil litigation,workers compensation, and veterans disability benefits.1 5Duke University School of Medicine neuroradiologist James M.Provenzale, M.D., F.A.C.R., provided clinical insight into neuroim-responsibility); Nicole A. Vincent, A Compatibilist Theory of Legal Responsibility, 9 CRIM. L.& PHIL. 477 (2015).13. Francis X. Shen is Associate Professor of Law & McKnight Presidential Fellow, Uni-versity of Minnesota; Director, Shen Neurolaw Lab; Senior Fellow in Law and Neuroscience,Harvard Law School Petrie-Flom Center and Affiliated Faculty Member, MGH Center forLaw, Brain and Behavior; Executive Director of Education & Outreach, MacArthur ResearchNetwork on Law and Neuroscience.14. Paul J. Litton is the Associate Dean for Research and Faculty Development, R.B.Price Professor of Law, University of Missouri School of Law.15. The Law School is grateful for the sponsorship of the April 2017 Symposium byQuatrini Rafferty, Attorneys at Law.Foreword 3Duquesne Law Reviewaging and brain trauma, while Glen E. Getz, Ph.D., A.B.N., a clini-cal neuropsychologist, explained the complicated definition of neu-rocognitive impairment from the NFL's Concussion Settlement.Other speakers included Attorney Alan C. Milstein, who addressedthe ethics of being a sports fan, and Ralph Cindrich, an attorney,sports agent, and former NFL player, who provided a unique out-look on concussions and CTE based upon his multiple roles over theyears. It was a fascinating day with multiple perspectives from theacademy, the medical and psychological professions, the practice oflaw, the judiciary, and former athletes.This written Symposium sponsored by the Duquesne Law Reviewfeatures two articles by academic participants Francis X. Shen andPaul J. Litton. One article discusses concussion statutes and pre-liminary data about whether the statutes are working, and theother examines moral philosophy's intersection with criminal re-sponsibility in those individuals with TBIs. The articles capturethe importance of both empirical work and theory in the intersec-tion of law and neuroscience.Professor Shen's article, Are Youth Sports Concussion StatutesWorking?,16 provides a multi-dimensional investigation and evalu-ation of existing sports concussion statutes. His article also detailsan empirical project that his Neurolaw Lab, housed at the Univer-sity of Minnesota School of Law, is engaged in to determine whetherMinnesota's Concussion Statute is working and is well-understoodby parents and athletes.Currently, every state in the union has a concussion statute,17and while there is divergence among them, they are all intended to:educate athletes, parents, and coaches; remove players immedi-ately who suffer concussions; and require medical clearance beforeathletes return to play.18 Many of these statutes are being amendedto address additional matters such as preventing concussions andimproving early detection of concussed athletes. But as manystress, the current laws may not be sufficient to address publichealth concerns.19Professor Shen notes that there are generally no provisions forprivate legal action for athletes who are injured in these state stat-utes, and without a "vehicle for accountability"-and few provisions16. Shen, supra note 8.17. Id. at 10.18. Id. (citing Kerri McGowan Lowery & Stephanie R. Morain, State Experiences Imple-menting Youth Sports Concussion Laws: Challenges, Successes, and Lessons for EvaluatingImpact, 42 J.L. MED. & ETHICS 290, 291 (2014)).19. Shen, supra note 8, at 11; see also Hosea H. Harvey, Refereeing the Public Health, 14YALE J. HEALTH POL'YL. & ETHICS 66, 113 (2014).4 Vol. 56Winter 2018for reporting concussions-there is little data to determine whetherthese laws are effective or even whether the legal requirements arebeing implemented.20Explaining the details of multiple state statutes, Shen concludesthere are several conclusions to be drawn about the implementationof these laws. Critically, he notes that both the public and thestakeholders approve of the statutes and that "most high schoolshave implemented a concussion protocol (roughly) consistent with"state laws to protect athletes in school sports.21 Nonetheless, de-spite these advances, important gaps in knowledge exist aboutwhether these protocols are effective and whether they are imple-mented in non-school sports leagues.22 In an attempt to fill thesegaps and to provide data about the efficacy of these statutes, Pro-fessor Shen presents several aspirational, foundational principlesto better evaluate concussion laws that consider not only the feasi-bility of these policies, but the need to evaluate the data in a scien-tifically sound manner.23Attempting to determine how the policies are being carried out inpractice, Professor Shen devised a study at the Minnesota StateFair: Researchers asked parents and student-athletes questions de-signed to gauge their knowledge about the current Minnesota lawand to evaluate the way they thought the law was being followed.The preliminary data indicated that many responders did fully un-derstand the law, and a wide range of beliefs existed about how wellthe law was working.24 Professor Shen thus concludes that the an-swer may not be more legislation but more creative research andstrategies to make sure the laws about concussions are working forall involved.Professor Litton's article, by comparison, engages in a theoreticaldiscussion about the potential relationships between TBI and re-sponsibility and asks how TBI might affect one's status as a legally-responsible agent.2 5 In so doing, Professor Litton examines themultiple ways in which traumatic brain injury may (or may not) berelevant to assessing a person's responsibility under the law. Bydiscussing how TBI can cause changes to rationality, self-control,and personality, the article addresses both legal and moral respon-sibility.20. Shen, supra note 8, at 13.21. Id. at 25.22. Id. at 26.23. Id. at 27.24. Id. at 30-31.25. Paul Litton, Traumatic Brain Injury and a Divergence Between Moral and CriminalResponsibility, 56 DUQ. L. REV. 35, 40 (2018).Foreword 5Duquesne Law ReviewHe argues that rationality is really the guiding force for evaluat-ing responsibility, not simply a brain injury. Discussing legal con-ceptions of responsibility under the insanity defense, Litton arguesthat only if the TBI impairs rationality to a sufficiently severe de-gree might the individual's status as a responsible agent be under-mined or diminished.26 Moreover, in a jurisdiction in which voli-tional capacity is a permitted variant of legal insanity, ProfessorLitton argues that the actor must not only show that he lacked suf-ficient capacity to control his behavior but that he would have doneso had the facts been altered slightly. Thus, the actor might arguehe could not stop himself from shooting the decedent, but the criti-cal inquiry is whether he would have been able to had he been stand-ing in front of a police department at the time.2 7Legal insanity is rarely available and is a difficult test to meet.More typically, the inquiry will consider whether TBI has affectedan actor's cognitive or volitional abilities such that it is relevant toa reduced, or diminished, criminal responsibility-generally onlyrelevant at sentencing.2 8Finally, the article delves into an extended discussion of how abrain injury may change a personality so drastically that the personpost-injury is no longer the same person.29 That is to say, a givenindividual is no longer his "true self." These marked behavioralchanges-typified by the story of Phineas Gage-suggest a poten-tial, although not certain, reason to excuse an agent from wrongdo-ing.30 The difficulty with this concept, however, is that a change inpersonality to a different, less law-abiding personality does not ac-tually provide a reason to excuse the person's behavior withoutproof of cognitive or volitional impairments. Simply because some-one is no longer their "true self' may not provide a legal excuse forbehavior.The articles in this Symposium are both timely and thought-pro-voking discussions of a fascinating subject.26. Id. at 42. The federal law and most states use "some variant of the mid-1800'M'Naghten test,' a cognitively focused standard that considers whether an individual knowsor appreciates the wrongfulness of his conduct due to serious mental illness or injury." Mo-riarty, Seeing Voices, supra note 1, at 607-08. Some states still permit the volitional prongof the insanity defense. For more on the differing tests for legal insanity, see State v. Clark,548 U.S. 735 (2006) (collecting state laws).27. Litton, supra note 25, at 43.28. Id. at 44.29. Id. at 48.30. Id. at 51-52. For more on the story of Phineas Gage, see Hanna Damasio et al., TheReturn of Phineas Gage: Clues About the Brain from the Skull of a Famous Patient,264 SCIENCE 1102 (1994).6 Vol. 56

Foreword: Athletes, Veterans, and Neuroscience : A Symposium on Traumatic Brain Injury and Law

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Foreword: Athletes, Veterans, and Neuroscience : A Symposium on Traumatic Brain Injury and Law

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