Legal ‘security blanket'
On its face, the NOCSAE statement makes no mention of liability concerns; only that the new rule was intended to "protect the integrity of the NOCSAE standards." But is reasonable to assume - especially in the super-heated legal climate in which the NFL, the NCAA, and the helmet companies are currently operating - that, while unstated, NOCSAE's ruling was motivated, at least in part, by liability concerns.
As a October 20, 2010 New York Times article by Alan Schwarz about NOCSAE certification points out, the primary defense against legal liability for school districts and helmet manufacturers when a player sustains a head injury and sues them for civil damages has usually been that the helmet met the NOCSAE standard. In a follow-up article for the Times the next day, Dr. Bob Cantu, a leading concussion expert and then, as now, a Vice President of NOCSAE, admitted to Schwarz that NOCSAE had become as concerned about legal liability as about child safety. "If NOCSAE were to supplement its helmet standard in an attempt to address concussions, it could open itself to lawsuits brought by players saying that their helmet did not prevent injury," says the article.
"Manufacturers and schools, equipment managers and the coaches - the whole football industry - don't want to go after or even criticize the security blanket of Nocsae," Sander Reynolds, vice president of product development for Xenith, told the Times in 2010. "If there's a lawsuit, they all look to Nocsae to say, ‘Hey, see, the product met the set standards.' They're all ultimately on the same side when it comes to liability." In his view, "Nocsae exists for two reasons - to avoid skull fractures, and to avoid liability.'"
It thus seems reasonable to assume that one reason for the NOCSAE rule was to provide helmet manufacturers legal cover. In the event of a lawsuit against a helmet manufacturer for injury suffered by a player wearing a helmet which has been modified with an after-market add-on product, whether it be a supplemental padding product or lightweight sensor, the NOCSAE ruling will likely allow a helmet manufacturer to argue that, but for the modification, its helmet would have continued to perform as designed, thus potentially shifting liability to the manufacturer of the add-on. (Although it should be noted that, in order to establish that the add-on was what tort law refers to as the "proximate cause of injury," the plaintiff would still need to offer evidence that the addition somehow changed or altered the performance characteristics of the helmet, which, as noted above, will likely to be difficult to prove).
Stifling innovation?
For those who fear that the NOCSAE ruling could have a potentially devastating effect on concussion product innovation, at least by companies other than the helmet manufacturers themselves, history appears to lend credence to such concerns.
"What was once a rather staid industry dominated by a few large companies has now grown to include an increasing number of upstart firms, serial entrepreneurs, and individual inventors," notes the December 2012 article on PopSci.com. "The result has been a proliferation of new designs. Mainstream helmet makers have stuck with variations on previous models: polycarbonate shells filled with various densities and thicknesses of padding. Newcomers have developed more creative, albeit less rigorously tested, approaches."
One of the reasons helmet companies may not want the upstarts to succeed is that "current safety standards don't require the companies to do anything more than what they're already doing." According to the article, "It's a criticism privately echoed by most helmet researchers. Simplistic certification standards provide convenient legal cover for the manufacturers. If NOCSAE certifies a company's helmets as safe, then the company has less risk of being held responsible for injuries. On the other hand, if that same company goes above and beyond the standards, it could put itself at risk of getting sued. Suddenly all of its existing helmets would appear to be inadequate, and worse, the company might have to admit knowing that they fell short."
As Blaine Hoshizaki, a biomechanics professor at the University of Ottawa and the recipient of a grant from NOCSAE to develop a new helmet standard that incorporates rotational acceleration, told Pop Sci, "If they could make a safer helmet, they would. I don't think they are against it, they're just making sure they don't cross that line and say, ‘Yeah, we should be managing rotation,' because that would bring up liability issues.' With a new standard, that roadblock would vanish."
To NOCSAE's critics, the situation is both harmful and backward. Niklas Steenberg is CEO of MIPS (Multidirectional Impact Protection System), a Swedish company which is testing helmets that utilize a layer of molded plastic attached with small rubber straps sitting between the helmet padding and the head which allow a player's head to float during an impact, eliminating in theory some of the rotational force believed to be most responsible for concussion before it makes its way to the brain.
"If something is available that makes your helmet more safe, you should be held liable for not using it," he says.
As the Popular Science article points out, "it's not the first time a new safety technology has faced such a paradox. All too often implementation hangs on the grim calculus of whether the cost to industry of adopting a safety measure is more or less than the cost to the public of going without it. When liability enters the equation, lawyers and judges and lawmakers get involved, and even the most urgent matters can end up mired in argument. It took more than a decade to legislate seat belts as standard equipment in automobiles." As the article notes, with a degree of irony, "the two companies that first popularized and implemented seat-belt standards were Saab and Volvo, both Swedish.
The same line of reasoning is advanced by Alan Schwarz in his October 20, 2010 article for the Times article on NOCSAE: "[B]ecause football helmets have already prevented deaths so effectively for decades, and because football's faster and more violent environment leaves biomechanists unsure of how to prevent concussion in the sport, Nocsae has not asked helmet makers to even try," the article observes. "When you have something that has worked well for a lot of years, you have to be pretty cautious," Oliver told the Times.
The result, says the PopSci.com article is that "unclear science makes for unclear standards, and unclear standards leave a lot of room for interpretation. The impact on the helmet industry is conspicuous. It's become a free-for-all."
