Editor’s note: This article contains discussion of suicide. If you’re feeling suicidal, you are not alone. Please call the National Suicide Prevention Lifeline at 1-800-273-8255 or UNM’s Student Health and Counseling at 505-277-3136.
On Aug. 25, famed attorney Ben Crump announced a wrongful death lawsuit regarding the November 2019 death of former University of New Mexico football player Nahje Flowers. The suit alleges that Flowers suffered from untreated and/or undiagnosed chronic traumatic encephalopathy (CTE) — a neurological disorder common in athletes who participate in contact sports such as boxing or football — due to repeated head trauma during the course of play in his capacity as a defensive lineman for the Lobos.
The legal case against the NCAA — one of three defendants named in the lawsuit — may crumble before it even begins.
The Daily Lobo obtained the medical examiner’s report from Flowers’ autopsy upon request from the UNM Health Sciences Center’s media relations office. According to the report, the autopsy was conducted by Dr. Lauren E. Dvorscak, a licensed medical investigator and assistant professor of pathology at UNM. Dvorscak’s report stated she didn’t find sufficient evidence of CTE upon microscopically examining recoverable parts of Flowers’ brain.
In civil cases — including wrongful death suits — the discovery phase is conducted after the complaint is filed. Thus, the plaintiffs’ counsel may not have had access to Flowers’ autopsy report while drafting or prior to filing the complaint. Their entire case against the NCAA, according to the complaint, rests on the possibility that undiagnosed CTE caused Flowers’ depression and the ensuing suicidal episode that led to his death.
It wasn’t immediately clear whether Flowers’ injuries from his cause of death could potentially have obscured some evidence of CTE in his brain. Dvorscak did not respond to a request for comment as of the publication of this article.
According to the Mayo Clinic, CTE cannot be diagnosed while the patient is still alive except in rare cases. It can only be diagnosed after an autopsy on a decedent who had a history of repeated head trauma.
The complaint’s arguments against former football head coach Bob Davie allege that he was at least willfully ignorant of Flowers’ depressive behaviors and may have directly contributed to Flowers’ depressed mental state by repeated verbal and emotional abuse. The lawsuit also accuses Davie of granting exemptions from play for medical reasons to white players but not making such concessions for Black players.
The complaint states that Davie forced Flowers to play after he made Davie aware of his emerging depression and beginning treatment with antidepressant medication — a treatment with which Flowers had no prior experience, according to the lawsuit.
Veronica Gonzales-Zamora, an assistant professor at UNM’s School of Law, agreed to an interview with the Daily Lobo to clarify some points on the complaint.
She confirmed that the discovery phase of a civil lawsuit — including wrongful death — includes depositions. According to Gonzales-Zamora, settlement negotiations are still possible because they will occur during or directly after depositions.
Gonzales-Zamora also commented on the reason for some of the allegations and requests in the complaint. She said that a complaint serves the function of “covering the bases” due to the limited amount of time in which a complaint can be modified or amended. For this reason, the original complaint included as many provisions for such things as trial and requests for relief as possible to avoid being penalized for attempting to make late amendments or requests.
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The defendants’ counsel has the opportunity to file an “answer” to the complaint within 21 days of service, according to Gonzales-Zamora. It isn’t clear at this time whether the summons and complaint were served to the defendants — the NCAA, Davie and the UNM Board of Regents — on the day of Crump’s announcement of the lawsuit.
Gonzales-Zamora stated that this type of lawsuit can take anywhere from 18 to upwards of 30 months to resolve. The next phases include the defendants filing an answer, discovery and depositions — including possible settlement negotiations — and, if the depositions don’t yield a settlement, a jury trial to follow.
Although research into CTE is still in its very early phase, it’s commonly understood by the medical community to be degenerative and has four stages similar to those of cancer, with the fourth stage preceding death. However, individuals suffering from the first stages of CTE may not survive to phase four due to depressive symptoms resulting in the taking of their own life.
Gonzales-Zamora of the UNM School of Law provided this information as an individual who is an expert in civil procedure. All views expressed are solely her own. She does not speak on behalf of UNM or the School of Law or any of their affiliates. She is not affiliated with any party to the matter discussed, has not received any compensation for this interview and otherwise has no personal or economic interest in the subject of the publication.
Hevyn Heckes is a freelance reporter at the Daily Lobo. She can be contacted at news@dailylobo.com or on Twitter @H_Squared90
