Experts Go Ten Rounds in Heavyweight Legal Bout – How Competing Expert Opinions Can Push a Case to Trial, A Case Study of Thomas v Farrago

From the annals of Sports Litigation Alert:

By Eric Chang and Dylan F. Henry, of Montgomery McCracken Walker & Rhoads LLP

Round 1- The Facts

On November 2, 2013, heavyweight boxer, Magomed Abdusalamov, stepped into the ring at Madison Square Garden and squared off against challenger, Ismaikel Perez, to defend his USNBC Heavyweight Title in a fight regulated by the New York State Athletic Commission (SAC). When the dust settled after 10 rounds of punishing blows, Abdusalamov was heavyweight champ no more; Perez won by unanimous decision. But this loss would soon be the least of Abdusalamov’s concerns.

SAC physicians, including Gerard P. Varlotta, D.O., examined Abdusalamov’s bloodied and swollen face in the locker room after the bout. The physicians stitched a laceration above his eye and suspected that Abdusalamov had sustained a nasal fracture. However, the physicians noted that Abduslamov did not manifest any neurological issues and saw no symptoms suggesting brain trauma, a brain bleed, or a subdural hematoma. They administered the King-Devick (KD) test, which helps physicians quickly recognize possible concussion symptoms.  Abduslamov passed both before and after the bout.  Though there were ambulance on-site, the physicians did not send Abdusalamov to the hospital. Rather, they cleared him to leave the Garden and only advised him to get an x-ray once he returned home to Florida.

Shortly after leaving the Garden that night, Abdusalamov became increasingly unsteady and nauseous and began to manifest signs of neurological distress. Abdusalamov was rushed to Roosevelt Hospital by taxi where he was diagnosed with a subdural hematoma and cerebral herniation. Soon, Abdusalamov underwent emergency brain surgery, suffered multiple strokes, and was placed in a medically­‑induced coma. With the exception of a brief moment to remove his respirator, Abdusalamov remained in a coma for over a month. When he was eventually discharged from the hospital, Abdusalamov was paralyzed on his right side, unable to walk, and his speech was mostly limited to mumbling.

 Round 2— The Lawsuit and Partial Settlement

In January 2014, Abdusalamov and his family sued the State of New York, the SAC, the three SAC ringside physicians, and the referee. Plaintiffs alleged that defendants failed to provide adequate medical and neurological examination and evaluation to determine Abdusalamov’s physical and neurological condition during and after the fight, and that the defendants further failed to recognize, diagnose, or appreciate the significance of the blood found in “Abdusalamov’s urine, along with signs, symptoms and complaints of progressive nausea, vomiting, headache, malaise, facial fracture(s), hand fractures, disorientation, compromised coordination, alteration of speech pattern, lethargy and vertigo indicative of a closed traumatic brain injury.”  The allegations also claimed the defendants “failed to provide timely and appropriate medical transport via ambulance to a nearby qualified hospital facility[.]” In 2017, the State of New York and the SAC agreed to pay $22 million in settlement. The medical malpractice suit against the ringside physicians and the referee remained.

Rounds 3 and 4—Summary Judgment, and Summary Judgment Redux

Prior to trial, the ringside physicians moved for summary judgment. The defendants argued that Abdusalamov showed no signs of neurological distress during the fight or during the post‑bout medical examination and further claimed they did not deviate from the applicable standard of  care because there was no cause for sending Abdusalamov immediately to the hospital emergency room. The court agreed and initially granted summary judgment with respect to Dr. Varlotta.

Plaintiff requested reargument, and the court changed its mind after reconsideration. Plaintiff pointed out that the court had overlooked plaintiff’s expert who opined that, even in the absence of overt signs of neurological distress, Abdusalamov should have been held for further observation or immediately transferred to a hospital for a CT scan of his brain. Plaintiff contended that the competing expert opinions, i.e., a “battle of the experts,” should have led the court to deny the motion for summary judgment and send the case to trial.

The court again concluded that plaintiff did not offer competent expert evidence that Dr. Varlotta missed signs of neurological distress. The court recognized that defendants’ experts opined that (1) Dr. Varlotta did not deviate from the accepted standards of care because Abdusalamov “showed no signs of neurological distress during or after the bout or during Varlotta’s examination, so that Dr. Varlotta could not have reasonably anticipated that Abdusalamov would develop signs and symptoms of neurological distress later on”[1]; (2) that Abdusalamov did not manifest any signs or symptoms of possible neurological injury until after he left MSG, one hour after the fight ended; and (3) that brain bleeds are a rare occurrence resulting from a boxing match. Furthermore, plaintiff’s own expert conceded that Abdusalamov first exhibited signs of neurological distress only after Dr. Varlotta completed his examination.

Nevertheless, the court acknowledged the plaintiff’s expert’s opinion that even in the absence of overt signs of neurological distress, the defendant doctors departed from the standards of accepted medical care when they released Abdusalamov less than 30 minutes after the end of the bout, with knowledge that he had sustained a head trauma. The court specifically focused on plaintiff’s expert’s opinion that “there can be no debate that when over three‑hundred head blows [are inflicted] in the span of thirty‑nine minutes, by a heavy weight opponent, hospitalization is indicated and warranted.”[2]

The conflicting expert opinions presented a credibility question which required a jury’s resolution. Accordingly, the court denied Dr. Varlotta’s motion for summary judgment. The denial of the summary judgment motion moved the case onward toward trial. On September 2019, however, the day jury selection was scheduled to begin, the remaining defendants, including Dr. Varlotta, settled the case with Abdusalamov for an undisclosed amount.

Round 5—Takeaways

The case study of Thomas v. Farrago is important because it not only demonstrates how vital expert opinions are to both parties in these types of cases, but it also shows how a plaintiff can preserve its case for trial and defend at the summary judgment stage even if the facts are not in plaintiff’s favor, as long as there is a legitimate “battle of the experts” that creates a question of fact for the fact finder (e.g., the jury) to decide. Even though the court recognized that there were no observable symptoms of a brain injury, the fact that Abdusalamov participated in a brutal and one-sided boxing fight alone seemed to be enough for the court to punt to a jury the question of whether the SAC physicians breached their standard of care. The holding opened the door for a requirement that physicians examining boxers post-fight to either continually reassess and examine a fighter beyond the initial assessment, or to send the fighter to a hospital for further testing; even in the absence of overt symptoms that would raise red flags as to the fighter’s physical or mental condition.

It does not take much of an imagination to extend the court’s analysis in Thomas v. Farrago to similar litigation resulting from injuries in other sports, and the case raises a lot of important questions: Is the mere fact that a football player took a seemingly-brutal hit, or a cheerleader sustained a seemingly-nasty fall, even in the absence of any signs or symptoms upon examination, enough for a case to proceed to trial as to whether a medical professional breached the standard of care? Is either continued monitoring or hospital admission of an athlete required for a medical professional to meet the standard of care even if the athlete is cleared on initial examination? What is the “golden hour” of observation (e.g., required period of time) after a suspected brain injury and when can a medical provider safely assume that no further observation is required (and thus, the medical provider’s legal “responsibility” for the athlete ends)? These questions remain unanswered, but Thomas v. Farrago suggests that coaches, trainers, and physicians need to be hypervigilant, perhaps to the point of over-vigilant, when it comes to athlete care.  This is especially true in circumstances involving repeated blows to the head.

As we often advise clients, the standard of care for concussion and traumatic brain injury management is ever evolving, and changes can come from a host of places.  As the sporting and legal worlds alike continue to recognize the devastating effects of traumatic brain injuries and continue to adopt measures to protect the athletes, it is important to stay up to date as the courts concurrently evaluate whether these measures are legally adequate and when they prove wanting.

[1] Id. at *5.

[2] Id.