Wednesday, November 28, 2018

Mayall v. USA Water Polo (9th Cir. - Nov. 28, 2018)

Most of the time, I'm merely intellectually interested in the result of a particular published opinion.  But this Ninth Circuit opinion from today hits extraordinarily close to home.

It's a putative class action against USA Water Polo -- the governing body for water polo in the United States -- that alleges that USA Water Polo didn't do anything to stop its players from getting put back into games after they'd suffered a concussion.  Which resulted in some players getting another (more serious) concussion.

The district court dismissed the lawsuit on a 12(b)(6) motion, and USA Water Polo offers a lengthy defense of that dismissal on appeal, arguing that (1) the primary assumption of the risk doctrine bars any claims for injuries, (2) USA Water Polo's rules satisfied its duty of care anyway, and (3) there wasn't "gross negligence" in any event.

The Ninth Circuit squarely rejects every one of these defenses.  In a way that makes it fairly clear (at least to me) that even beyond getting remanded, the case will survive summary judgment.  Which in turn means it's going to eventually settle.  Because even though this is a pleading opinion, what the Ninth Circuit says is strongly pro-plaintiff here.  Which has consequences for how the thing will play out on remand.

The reason why this case is of particular interest to me is because (1) all four of my kids play water polo, (2) all of 'em are members of USA Water Polo, (3) several of them have been concussed, and (4) one of them was and is on the USA National Team, which -- as today's opinion notes -- had a separate and fairly detailed set of concussion rules.  So it's a topic I'm familiar with.  Even though, until today, I had no idea there was a pending class action about the thing.

Water polo is a rough sport.  Rougher than perhaps most people who are unfamiliar with the game -- which definitely included me, until my kids started to play -- realize.  And that ball gets thrown very, very hard.  And sometimes hits people's heads.  Not to mention the elbows and other flying things that very easily give players concussions sometimes.  (I'm also totally putting to one side the out-and-out deliberate punches, which I've seen in games and, yes, happen.)  In short:  It's rough.  Injuries are indeed part of the game.  Unfortunately.

But the Ninth Circuit says that even though initial injuries are inevitable, putting someone back in after they've been injured isn't.  Hence why it reverses the dismissal below.  Because, allegedly, USA Water Polo could and should have done more.

I suspect my family's USA Water Polo annual dues (which, ironically, we just paid earlier today) will increase after this thing settles.  And that a part of 'em have already gone to pay USA Water Polo's lawyers.

That too is the nature of the "sport" -- litigation -- that we also play.