Graphic Comments: Massive Headwound Gary

20160219-08

If a player gets a concussion but there’s no doctor there to diagnose it, did he have any symptoms?

According to Gary Bettman, the answer is no.

At least that’s the only conclusion you can come to after reading his decision to uphold Dennis Wideman’s 20-game suspension for knocking over linesman Don Henderson.

And what a fascinating read it is.

This was a Bettman work of art, dripping with sarcasm and outrightly derisive at times. You can’t come away from reading it without picturing Bettman rolling his eyes at the testimony from Wideman or the NHLPA’s medical experts. And you certainly don’t need to read between the lines to imagine Bettman’s snickering sneer as he wrote some of the most pointed barbs in the decision.

Just picture one of those Bettman press conferences from the lockout and you’ll know exactly the tone that he took in writing up this decision.

I’m not here to discuss the merits of Bettman’s decision to uphold the suspension. As per Article 18.12 in the CBA, the appeal to the Commissioner is only in order to determine whether the original “decision was supported by clear and convincing evidence.” That’s a pretty low standard to clear, and it’s really no surprise that Bettman sided with his own staff on this.

No, what really interested me as I read the decision is how often Bettman went seemingly out of his way to attack and ridicule Wideman’s concussion defense. Ever the evil mastermind keen legal mind, Bettman clearly saw more at stake here than just the 20 game suspension.

He realized this case has the opportunity to open up another front in the league’s ongoing concussion-related legal battles and it needed to be contained. Or at least, the league needed to maintain logical consistency in their arguments and not provide evidence that could be used against them in the lawsuits, which are the real threat to the NHL in so much as they could cost them money. And we should all certainly understand by now that money is the really the only guiding principle behind every decision Bettman and the NHL makes.

With that in mind, let’s examine just how Bettman methodically takes apart effect that concussions can have on an individual. And that last bit is important. Because while Bettman is careful never to question the generic symptoms of concussions in the abstract, he very clearly questions their veracity at the individual level:

20160219-01

In effect, Bettman is ok with admitting that concussions might cause some symptoms sometimes for some people. But try to get specific and he’ll insinuate you’re a liar.

You see, because even though impulse control might be a common concussion symptom, unless you can definitively and objectively conclude that a specific individual was experiencing impulse control problems, well then it just didn’t happen:

20160219-02

This kind of makes me wonder just what that medical test for loss of impulse control might be. Like, should there have been a doctor on the bench with a cupcake? Or maybe he could be there holding Wideman’s cell phone with a blinking “new message” light. Or…oh oh I know, maybe put a linesman in his way as he’s skating back to the bench!

Because you know what sounds like an impulse control problem to me? Somebody with an unblemished record of supplementary discipline, violently checking a linesman to the ice for no apparent reason. I’m sure over the 755 games in Wideman’s NHL career he has on numerous occasions resisted the temptation, urge or impulse to cause harm onto another player. Yet this time, he didn’t. Hmm. I wonder why…

20160219-03

But hey, I am not a doctor.

Not that it would matter to Bettman.

I mean, the level of dickishness in the cross-examination of the two expert witnesses was incredible. At one point, one of them said that “you have to believe what your patient is telling you” that led to this jaw-dropping sequence:

Q.  So when you said in your direct examination in response to Mr. Stoykewych’s question about whether you believe the things Mr. Wideman told you, you said you have to believe what your patient is telling you?
A.  Correct.
Q.  Mr. Wideman wasn’t your patient?
A.  That’s correct.
Q.  So you didn’t have to believe what he told you, correct?
A.  Yeah.
Q.  But you did?
A.  Yes.
Q  And…you didn’t do anything to kind of test out whether what he was telling you might not be the case, did you?
A.  That’s correct.
Q.  You simply accepted it at face value?
A.  Yes.

The NHL’s representative (it’s unclear whether it was Bettman or the NHL’s lawyer doing the questioning here) then proceeded to scold the doctor for not including in his report the “possibility” that Wideman was exaggerating his symptoms in order to avoid responsibility for his actions. So, while Bettman takes issue with qualified assessments when it comes to the symptoms, apparently he doesn’t have issue with qualified statements when it comes to Wideman’s motivation.

Then there’s the consistent use of “scare quotes” when talking about Wideman’s state of confusion. Those scare quotes are apparently necessary because Wideman’s claims of confusion, and the doctors’ experience of confusion as a common symptom are contrary to the objective evidence provided by, wait for it, the video of the incident! That’s right. Gary Bettman needs to be able to see the effects of a cognitive impairment. 

So if you were to turn to the Brain Injury Association of America for a look at the “common issues people experience after a concussion” you would find that pretty much all of the symptoms that could have lead Wideman to hit Henderson would have little or no visible manifestation:

Concussion_symptoms

Interestingly enough, while Bettman finds that the video provides “objective” evidence, he gleefully points out that Dr. Comper’s “testimony is illuminating as to the subjectivity of his (and Dr. Kutcher’s) own conclusions” drawn from the video. 

So when Bettman watches the video, it’s objective. When a doctor watches the video, it’s subjective. See the difference?

Finally, to wrap it all up in a nice little bough, and get to the point Bettman really wanted to get across, he basically spelled out the NHL’s guiding principle when it comes to concussions:

20160219-04

So you doctors can talk all you want about generic symptoms and long terms effects of concussions, but everybody’s experience is different, so you’re going to have to prove it. And none of this preponderance of evidence standard of proof either. You’re going to have to prove it beyond a reasonable doubt.

Bettman then concludes his written decision with a systematic takedown of Wideman’s defense and pretty much questions his integrity on every point. Even if he were to concede that Wideman was in some sort of distress, Bettmand contents that “his every instinct as an NHL player should have been to avoid hitting Mr. Henderson”. Because, you know, from an early age, NHL players are taught to avoid physical contact at every opportunity.

Then in stunning show of gall, Bettman says that he has to uphold the suspension because “on-ice officials simply can’t be made the target of a player’s frustration or anger.”

So while he has spent the entirety of the written decision undermining conjecture and supposition on the part of the expert witnesses as to Dennis Wideman’s state of mind during the incident, he then proceeds to assert that he alone knows Wideman’s emotional state and motivation.

Bravo, Gary! Bra-vo!

And for an encore, he needlessly trots a text message from Wideman to a teammate blaming the whole thing on “the stupid refs and stupid media” just to further impugn Wideman’s character and at the same time show how magnanimous he is in not increasing the suspension, as was within his discretion.

Irony is dead.

After all, nothing has been more of an embarrassment to the NHL than the release of internal emails:

20160219-07

So the NHL using somebody’s electronic communications regarding concussions against them is truly Gary Bettman at his finest.

What this all comes down to is that the NHL, much like the tobacco industry before it, is going to deny any and all negative impacts arising from its product. In fact, I’m pretty sure that the only way Harry Gary will ever acknowledge any kind of symptoms or long term effects of a head injury is if a dog starts chewing on somebody’s massive headwound:

Massive_Head_Wound_Harry

(If you’re in the US, you can watch that classic SNL skit here.)

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  • Johnny Goooooooaldreau

    What happened leading up to the last second before Wideman and the linesman came together are moot points.

    Anyone can see that at the last second Wideman violently cross checks “someone” in his way. He is responsible for his actions, no different than when you go to hit someone near the boards and at the last second need to pull up because they are in a vulnerable position.

    He is responsible. Pure and simple.

    He has still not to this day accepted ANY responsibility for HIS actions.

    • Charlie Allnut

      Uggg. This piece has nothing to do with the incident but rather how slimey Bettman can be. He is using the incident to push the leagues position in defence of lawsuits against them. Why would you even discuss Wideman?

  • Johnny Goooooooaldreau

    I know it’s fashionable to criticize and hate Bettman in hockey fandom, but I strongly disagree with the tone of this column. I did enjoy all the background info on post concussion effects though.

    “In effect, Bettman is ok with admitting that concussions might cause some symptoms sometimes for some people. But try to get specific and he’ll insinuate you’re a liar.”

    By stating that the medical reports were based on the offender’s post hoc subjective self reports, he was indicating that in his opinion they should be given less weight as exculpatory evidence. I think that is not an unreasonable conclusion to reach, particularly in light of the significant financial interest Wideman had in arguing he lacked capacity to form the necessary intent to injure.

    “I mean, the level of dickishness in the cross-examination of the two expert witnesses was incredible. At one point, one of them said that “you have to believe what your patient is telling you” that led to this incredible sequence:

    Q. So when you said in your direct examination in response to Mr. Stoykewych’s question about whether you believe the things Mr. Wideman told you, you said you have to believe what your patient is telling you?
    A. Correct.
    Q. Mr. Wideman wasn’t your patient?
    A. That’s correct.
    Q. So you didn’t have to believe what he told you, correct?
    A. Yeah.
    Q. But you did?
    A. Yes.
    Q And…you didn’t do anything to kind of test out whether what he was telling you might not be the case, did you?
    A. That’s correct.
    Q. You simply accepted it at face value?
    A. Yes.
    The NHL’s representative then proceeded to scold the doctor for not including in his report the “possibility” that Wideman was exaggerating his symptoms in order to avoid responsibility for his actions. So, while Bettman takes issue with qualified assessments when it comes to the symptoms, apparently he doesn’t have issue with qualified statements when it comes to Wideman’s motivation.”

    This is a very standard cross, nothing dickish about it. It is eminently reasonable for the NHL’s attorney to attempt to poke holes in an expert report, particularly as here it is a key piece of evidence relied on by the defense.

    I think it’s fair to suggest the NHL has an interest beyond the facts of this case in the concussion issue. I did not get the sense that it colored the decision maker’s reasoning in this case however. On the whole, I found the written decision demonstrated the issues and evidence were carefully considered and the conclusions reached fair and reasonable (and not as value laden as you suggest).

  • cberg

    “Dripping with sarcasm and outrightly derisive at times” said the pot.

    This isn’t a new legal issue. Giving individuals an “I didn’t do it” medical defense that can’t be proven or refuted gives everyone a free pass to do what they will.

    This ultimately comes down to Wideman hitting a ref, claiming “er, I was concussed”. and then showing zero signs of a concussion following the incident.

  • cberg

    Everyone is right:
    – NHL is right that Wideman is responsible for attacking a linesman, there can be zero allowance

    – Wideman is right that if, say, Darren Dreger had downplayed the incident there would be no suspension

    – Medicine is right that an unthinking attack shortly after a concussion is typical behaviour for such an injury

    – The linesman is supposed to have been concussed himself, and he does not even get to speak publicly let alone injure Wideman (but we all know the NHL will do nothing to police a gang of officials from extracting vengeance with 1000 missed or bad calls for the rest of Wideman’s career)

      • RedMan

        Flames have already seen a huge increase in penalties called against, plus there is the non-calls, like the blatant holding against (was it Brodie?) in last night’s tilt between Vancouver and Calgary. Right after the (Wideman) incident, there was lots of rumors coming out of the officiating union that there would be consequences if there wasn’t a huge suspension. These things can never be proven.

        I wonder if the NHLPA has the right to call the leagues text messages and emails into evidence? I sure hope so, but have no doubt, based on how silent the Ref went, that he was already coached to not say anything to anyone via text or email.

        • RedMan

          MORE STUPIDITY

          I believe the CBA makes it clear that BOTH SIDES can call this kind of evidence. A labour arbitration is not a criminal trial, there is no “right to remain silent” in this context. A lawyer (like Brian Burke) should know this.

          So that leaves two possibilities. One, the Flames management was TOO STUPID to warn all their staff, and players, not to text message about team matters. Two, the players got that advice but they were TOO STUPID to follow it.

          Look at the big picture. Wideman has acted like a total dunce since this happened? Do you really want a guy like that on your team?

          On the other hand, I suppose you are stuck with Burke…

          • RedMan

            I guess all the doctors testimony and the related science regarding head injuries and the potential for uncharacteristic behavior immediately following is STUPID too?

            I mean, we see clearly that anyone whose opinion differs from yours is stupid.

            So Wideman, after 11 years and 755 games played in the NHL where he has been known as a stand up, level headed guy who has never done anything stupid or disrespectful, suddenly snaps because he is “pissed” and decides to teach a ref a lesson he will never forget?

            Like other hockey players have said, “No player is stupid enough to do that” let alone a guy like Wideman who has been one of the “good guys” for his entire career.

            there are many idiots in the league who have crossed the line many times, in many ways, but have not been stupid enough to do this. but you think this decent person did. OK.

  • cberg

    I fail to understand how any player can be suspended for an action that never resulted in a penalty! First u must be guilty on the ice before you can be guilty off the ice! No penalty, No suspension, zero games!!!

    • cberg

      STUPID

      Players get suspended ALL THE TIME for incidents where there was not penalty called during the game. Sometime refs miss things during the game.

      Also, the refs are looking at where the puck is, looking where the action is. Do you think that referees think “I better watch that guy making a line change, because he might cross-check a linesman between the shoulder blades”.

  • Charlie Allnut

    Well let’s just chime in with the latest news about the text messages from Wideman’s phone, shall we? Blaming straight out the “stupid” refs and media for the incident, he was. The question now becomes, does the concussion extend to texting too?

    • cberg

      Yes the zebras are also the 3rd team on the ice. As we are considered part of the ice/game it is not where I could not have gotten out of the way.

      I have zero hard feelings towards
      Wideman or the NHLPA, I do have a problem with everyone’s favourite little mouse, ferry but man.

      No need to cause ànymore strife between the 2 unions, nhl wouldn’t even put me through concussion protocol

    • cberg

      Yes the zebras are also the 3rd team on the ice. As we are considered part of the ice/game it is not where I could not have gotten out of the way.

      I have zero hard feelings towards
      Wideman or the NHLPA, I do have a problem with everyone’s favourite little mouse, ferry but man.

      No need to cause ànymore strife between the 2 unions, nhl wouldn’t even put me through concussion protocol

  • RedMan

    DICKISHNESS?

    As pointed out in an earlier post, there was nothing whatsoever “dickish” about the cross-examination. That is what lawyers do.

    What WAS dickish was Wideman’s text message, SIX DAYS after the fact, saying that the ONLY reason he was in the disciplinary hearing was because of the “stupid refs and stupid media”. Wideman does not seem to have a lot of sympathy for the linesman Mr. Henderson, whose career my be over. Or maybe the Flames think Henderson is just faking his injury to make life difficult for Wideman and the Flames.

    Also interesting that Wideman never produced a text message saying “don’t they realize I was totally out of it” or anything like that.

    Colborne said Wideman’s text message was taken out of context. What possible context could justify what Wideman said?

    I find it interesting to look at the footage of Wideman on the bench after the incident. He kept on looking up at the jumbotron. His eyes were not “rolling around in his head”. He was looking up at the jumbotron BECAUSE HE WAS HOPING THERE WOULD BE NO REPLAY SHOWING WHAT HE HAD JUST DONE.

    Bettman did not “ridicule” the defence. He just didn’t accept it. I think his conclusion was reasonable. Get over it

  • Whackanuck

    Bettman doesn’t give a sh*t about Wideman or, probably Henderson for that matter. It’s about consistently laying precedents and groundwork to short circuit the NHL’s liability for concussions.

    What’s the arbitrator going to rule, do you think?