Lawyers In Massachusetts And Elsewhere Ponder Whether Football Helmets Cause Head Injuries: Part II

Assuming that the modern-day football helmets effectively prevent against the most serious head injuries – such as fractured skulls – but are ineffective in preventing other sorts of head injuries would Massachusetts product liability law regard the typical football helmet as a dangerous or defective product?
That’s a good question and there’s really no clear cut answer under Massachusetts law right now since there are no cases directly on point. Despite the lack of case law to guide us, there are a few things that we can say for certain. Massachusetts law recognizes three main types of product liability claims:
1. Manufacture defects: These types of cases involve something that went awry in the factory – basically this is a case when the machine spits out an irregular product, but it gets packaged up and sold anyways and the manufacture defect causes injury.
2. Design defects: This type of case involves a product that was manufactured as intended but the design concept was unreasonably dangerous.
3. Failure to warn: This is a claim that the product did not provide an adequate warning about a danger involved in its use and this failure-to-warn caused an injury.
If the safety of football helmets were litigated in Massachusetts, a player’s claim would like be premised on both a failure to warn theory and a design defect theory.
It would most likely be up to a jury to consider whether modern day football helmet has any design defects and, in weighing that question, a Massachusetts jury would be asked to weigh several factors:
-the gravity of the danger posed by the current football helmet design
-the likelihood that head injury will result from the use of the helmet
-the technical feasibility of a safer alternative design
-the financial feasibility of that alternative design, and
-any other consequences likely to result from the alternative design
However, even if a jury were to conclude that there exists a cost-effective design that would be more effective in preventing head injuries than the current football helmet design, the manufacturer might still have a few defenses under Massachusetts law: the so-called Vassallo defense and Correia defense. (The defenses are named after the Massachusetts cases that bear their name).
The Vassallo and Correia defenses would exonerate a defendant if either: 1. the danger could not be detected by reasonable testing at the time the product was sold or 2. the consumer unreasonably continues to use the defective product after becoming aware of its dangers. The relevance, if any, of these defenses would really only come out through litigating the case.
As you can see, a design defect case can be difficult to prosecute and normally requires expert testimony from engineers or other design defects. Failure-to-warn cases tend to be the simpler variety of products liability litigation.
If a football player were successful in such a products liability case who would be held liable? The helmet manufacturer and merchant who sold the helmet would definitely be liable and, under Massachusetts law, the school or team supplying the defective helmet might also be held responsible.
Will football helmet litigation ever take off in Massachusetts? Who knows. But let’s hope that we do see safer helmets down the road, so fewer players meet the plight of former Patriots linebacker Ted Johnson and others like him.

If you know someone who has suffered a head or brain injury as a result of a defective product, such as a football helmet, and who requires the services of a Boston personal injury attorney, call The Law Office of Alan H. Crede to arrange a free in-person consultation.