Lawyers for former NHL players suing the league say some members of the brain-injury litigation may be diagnosed with the brain-withering disease chronic traumatic encephalopathy, or CTE, while still living — a claim the league argues runs counter to an entire field of science.
According to documents filed by the NHL on April 12 in U.S. federal court in Minneapolis, Boston University neurologist Dr. Robert Cantu, hired as an expert witness by lawyers for the former players, may diagnose one-time NHLers Bernie Nicholls, Dan LaCouture or others he's scheduled to examine, with CTE.
Michael Cashman, a lawyer working for the former players, emailed NHL lawyer John Beisner on March 12 about upcoming player medical examinations scheduled to be conducted by Dr. Cantu.
"It is possible that Dr. Cantu will diagnose one or more of these men with a neurodegenerative disease such as CTE," Cashman wrote.
Cashman's letter has been included in documents filed this week in U.S. federal court in Minneapolis by the NHL. The league challenges Dr. Cantu's prospective diagnoses, alleging they "would be the first of their kind in medical history."
While some medical researchers say they are getting closer to detecting CTE in living patients – a Florida neurologist on Monday told TSN that he has been able to use a special kind of MRI exam to detect brain trauma in retired NFL players – the NHL pointed out in its court filings that the widespread belief in the medical community is that CTE can be diagnosed only during a post-mortem autopsy. Several deceased NHL players, including Bob Probert, Steve Montador and Derek Boogaard, were found to have suffered from CTE.
The NHL wants the plaintiffs to provide Dr. Cantu's protocol for making any such diagnoses. (LaCouture was scheduled to be examined by Dr. Cantu on Tuesday; Nicholls was scheduled to be examined on Wednesday.)
"The Court should order plaintiffs to produce the protocol," the NHL's lawyers wrote in a motion filed Tuesday. "Dr. Cantu's protocol will be critical evidence for evaluating the reliability of any purported CTE diagnosis that emerges from his examinations. Specifically, the NHL is unaware of any recognized criteria for diagnosing CTE in living patients… Documentation of the exact tests Dr. Cantu performed and the results of those tests will be critical to assessing the reliability of Dr. Cantu's apparent attempt to revolutionize an entire field of science by making a diagnosis of CTE in a living person for purposes of litigation."
Dr. Cantu was travelling on Friday and not available to respond to the NHL's criticisms, said Boston University spokeswoman Gina Maria Wilczewski.
Charles Zimmerman, a lawyer who is co-lead counsel for the former players, defended Dr. Cantu's prospective tests.
"Dr. Cantu can, through examination, make a diagnosis of CTE," Zimmerman said in an interview with TSN. "That doesn't mean we can clinically prove it, like you can prove a broken arm with an X-ray. But he believes he can clinically diagnose it. The league takes the position that you can't diagnose it. That's their opinion.
"We think they're wrong. It's no different than someone with Alzheimer's. You don't know for a fact someone has Alzheimer's until they're dead and you slice the brain in an autopsy. But people who exhibit the symptoms, you can make a clinical diagnosis that the person probably has Alzheimer's. It's the same thing with CTE."
Dr. Carmela Tartaglia, a neurologist at Toronto Western Hospital and a researcher with the Canadian Concussion Centre, said many researchers now refuse to make clinical diagnoses, because they can be wrong.
"Why would someone in 2016 stand up and say they are making a clinical diagnosis of CTE?" Dr. Tartaglia said in an interview with TSN. "It's not, to me, a very scientific approach."
Dr. Tartaglia said it could be dangerous to diagnose a living person with CTE and pointed to the case of Todd Ewen, a former NHL player who died in 2015. According to a release on the autopsy from the Canadian Concussion Centre, although Ewen suffered from memory loss, chronic body pain, diabetes and depression prior to his death, his brain showed no sign of any neurodegenerative disease.
"This guy thought he had it. He had memory problems, dizziness, and so everyone, including him and his wife, thought he had it, but he didn't," Dr. Tartaglia said. "Everyone was so certain that he had CTE."
A 2013 study sponsored by the drugmaker Eli Lilly and Co. found that nearly 20 per cent of patients diagnosed with Alzheimer's disease while living were found not to have the disease upon autopsy.
That study's results have led many researchers to stop making clinical diagnoses – diagnoses based simply on symptoms, Dr. Tartaglia said.
She said she diagnoses patients with Alzheimer's only if tests including spinal taps produce biological evidence, known as biomarkers, that provides reliable, objective proof of the disease.
Even so, diagnosing Nicholls, LaCouture or others with CTE may be key to the NHL lawsuit.
While more than 100 former players are suing the league for allegedly putting profits ahead of their safety, it's uncertain how many of those players already have brain diseases. Former NHL player Steve Ludzik has Parkinson's disease, but he recently withdrew from the lawsuit, saying he didn't "have the physical strength" to continue with the litigation.
Lawyers representing the former players hope to have the case certified as a class action, in which a number of similar plaintiffs would combine similar claims into a single suit, raising the possibility of a higher judgment award, and lowering legal costs for each player.
Ludzik was to have been a class representative, meaning he would have been used as a representative for all players in the case who have already been diagnosed with a brain disease. Those players, lawyers say, will ask the court to award damages, not just coverage for medical monitoring for future brain problems.
The court has scheduled a hearing on April 19 where lawyers will discuss the NHL's concerns.
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