Finally got around to reading the document. As it's an appeal, it doesn't do anything to delve into the socalled 'clear and convincing evidence'. Based on the doc, it appears that the one video angle is the only evidence, which as we've seen (and will be discussed below) elicits variable reactions. I'd love to see if the league used any other evidence else to justify it in the original hearing.
I have no life and love playing pretend lawyer, so here are some statements that stood out to me:
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As discussed in greater detail below, the conclusions expressed by Dr. Comper and Dr. Kutcher were not based on what Mr. Wideman's capacity actually was at the time in question but about what his condition might have been
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Which is exactly was Bettman and Campbell's conclusions are based on. Of course the experts have some conflict of interest, but so do Bettman and Campbell (who are not brain surgeons (I know they probably aren't surgeons, but it's a rare time that the term can be effectively used).
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The trainer's notes provided to Drs. Comper and Kutcher do not contain anything to indicate that Mr. Wideman was confused when he returned to the bench or at any point thereafter. While the trainer's notes statethat Mr. Wideman was "hit in second period, states felt unbalanced going to bench [and] cleared in a few minutes" (Exh. 9), Dr. Kutcher testified that Mr. Wideman was not suffering from motor incoordination at the time he struck Mr. Henderson.
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Now that is transcript quote I'd actually like to see. Just as the doctors could not definitively that Wideman's actions were as a result of concussion symptoms, I very much doubt he would/could definitively testify that Wideman was not suffering from motor incoordination. There is in fact a quote from Kutcher in the document that seems to refute this [I]"Dr. Kutcher testified that "
t's difficult to make that. . . determination based on the video alone that the motor coordination problem at that time was present. " "
Kutcher is saying that he cannot say that motor coordination was present, but he is certainly not saying that it is not present...I think Bettman is taking liberties here.
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he realized that he was going to hit Mr. Henderson just before he did so and that he attempted to get out of the way, thus undermining Dr. Kutcher's suggestion that he experienced "situational unawareness.
" (Tr. 220). ' Moreover, after striking Mr. Henderson, Mr. Wideman
continued past the end of the Nashville bench and stepped directly onto Calgary's bench, making clear (again) that he knew exactly where he was. When asked how he squared his conclusion that Mr. Wideman lacked "situational awareness" with Mr. Wideman's statements that he saw, and tried to avoid, the linesman, Dr. Kutcher testified: "I think we' re
discussing a concussed individual and I think they are confused. " (Tr. 221) That reasoning is entirely circular.
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This one kills me. Apparently "situational awareness" is a black and white. You're either ready to write the SATs, or you're
baking an imaginary cake. This issue is obviously in the grey - I suspect that Wideman was on autopilot skating back to the bench (something he has done thousands of times), but not "situationally aware" enough to react to an unexpected zebra.
When Wideman crosses the blue line is the time it would appear reasonable for him to start anticipating his path crossing with the linesman (based on his head position, and that the linesman has starting moving backwards). It is less than 1.5 seconds before the contact happens. It should be plenty of time to take avoiding action, but maybe not if you're not 100% there.
The other thing that comes to mind is how very rare this situation was to begin with. How often do we see a linesman skating backwards in the opposite direction of a player behind them? It was a bit of a perfect storm (hell, it wouldn't have happened in the 1st or 3rd period without the long change). I would be surprised if there was video evidence of a player way behind the play coming off for a change while the play is now coming right back towards him along the same boards. This doesn't really have anything to do with guilt/innocence, aside from the routine nature of going to the bench for a line change compared to this fluke scenario.
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In fact, the video
shows Mr. Wideman lifting his stick to cross-check the linesman before he actually made contact. It was not a reflex action caused by impact.
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Or more likely he was trying to not pull one of
these. Getting your stick vertical before entering the bench is completely routine, and a reasonable 'autopilot' action.
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Dr. Kutcher limited that observation to "the first two or three strides" and testified that "by the
time he's approaching the blue line, he appears to be skating with more purposeful strides" and,
significantly, with no sign of motor incoordination. ' (9)
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To my point above, note the use of quotation vs. paraphrase. The underlined part above is even underlined in the document. I can't imagine why Bettman wouldn't use a direct quote if it existed...
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(9) During the hearing, the NHLPA introduced evidence that the Calgary concussion spotter log (Exh. 8) shows a notation of "motor incoordination/balance" problems and that the Player should have been removed from the game and evaluated pursuant to the NHL-NHLPA concussion protocol. I make no finding at this time on whether the Club violated the concussion protocol, a question that need not be decided here and that I reserve for another day.
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This is a footnote to the previous quote. I'm not sure what Bettman is doing here - trying to use a statement from an expert that he largely discredits to validate his side, therefore discrediting the credibility of concussion spotters? It seems like he just wanted to slip in something about the club and concussion protocol to acknowledge it without much attention. Perhaps another example of different people seeing the same thing differently?
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I do not agree that there can be "ten different responses" to the video of the incident. However, it is noteworthy that the Player's two experts did not agree with each other about what they saw.
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Sure, there probably aren't "ten different responses", but there are at least two (probably more like five to account for various shades of grey).
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In Dr. Kutcher's words, "[a]ll presentations are different. . ." (Tr. 194) Thus, generalizations about possible or "common" symptoms have little probative value as compared to observations that can be drawn from watching footage of the incident itself.
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I know this isn't a courtroom (as much as Bettman (who I must again say I think does a reasonable job on the business side of the sport) may want to swing a gavel), but the experts' testimony would go a long way to showing reasonable doubt.
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In particular, I do not credit his testimony that he tried to avoid the linesman at the last minute. He did not swerve out of the way
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I guess Bettman doesn't want to acknowledge Wideman's shifting feet right before impact. Most, but not all people have acknowledged this, regardless of their particular reaction to the video.
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He was not wobbly; indeed, he hit the
official with full force and then continued to the Calgary bench.
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Just as dazed does not always = concussed, not wobbly does not always equal "fully situationally aware". I fully acknowledge that Wideman used more force than he should have, but claiming 'full force' is absurd. Almost no way Henderson is getting up from a 'full force' shot, and only a 20 game suspension would be equally absurd.
All in all, this document amounts to:
1. The experts were hired by the PA, so they are probably biased
2. There is apparently only one correct way to interpret the video?
3. Look a this text! What a bad dude Wideman is!
