NFL Concussion Class Action Litigation

Transcription

1 NFL Concussion Class Action Litigation Timothy Liam Epstein SmithAmundsen LLC 150 North Michigan Ave. Chicago, IL (312)

2 Timothy Liam Epstein is a partner in SmithAmundsen s Chicago office, and a Professor of Sports Law at Loyola University School of Law. His current practice focuses primarily on sports, construction, commercial, and large loss claims. Mr. Epstein s Sports Law practice is all-encompassing, but is litigation-based at its core. From injuries on the athletic field, to sports product issues, to disappointment lawsuits (lack of/misuse of an athlete s playing time), amateur representation issues (while not violating NCAA rules), NCAA/high school association violations, personal website/social networking issues, multiplier/anti-recruiting measures, recreational immunity, coach s standing to sue/file TRO s, Olympic issues, off-thefield issues during athletic trips, drug testing, construction/sports issues, and the intersection of sports/religion. Mr. Epstein also serves as general counsel to the producer of numerous musical events, including the Pitchfork Music Festival.

3 NFL Concussion Class Action Litigation Table of Contents I. Introduction II. Background A. Statistics B. Concussion Litigation Timeline III. In re NFL Players Concussion Injury Litigation A. Background B. The Players Claims against the NFL Causes of Action Relief C. The Players Claims Against Riddell D. NFL s Counter-Arguments E. Class Certification Issues F. Labor Law Issues G. Potential for Settlement IV. Conclusion NFL Concussion Class Action Litigation Epstein 469

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5 NFL Concussion Class Action Litigation I. Introduction Former NFL players concussion class-action litigation has become a rapidly growing trend in There are currently more than ninety-nine separate concussion-related lawsuits, including more than 2,600 former players in various states. There are more than 12,000 other former players that could potentially join these lawsuits. II. Background A. Statistics In 2010, 159 head injuries were reported in the NFL. This made the incidence rate of head injuries and concussions percent. That averaged to 9.35 concussions occurring every week, and 0.62 concussions occurring every game. In 2011, 162 head injuries were reported in the NFL, despite tighter safety regulations. This averaged to 10.8 concussions occurring every week, which meant there was a 72 percent chance of a concussion injury occurring at every NFL game. B. Concussion Litigation Timeline In 1994, the NFL established its Mild Traumatic Brain Injuries Committee to research the medical effects of repeated concussions. In 2002, Dr. Omalu conducted the first brain examination of a deceased NFL player. The examination was of fifty-year-old Pittsburgh Steelers Hall of Famer center Mike Webster. Webster s brain showed signs of chronic traumatic encephalopathy (CTE), a brain disorder associated with repeated head trauma. Today, the brains of 18 out of 19 deceased ex-nfl players show evidence of CTE. In 2006, Dr. Omalu examines samples of former Eagles and Cardinals safety Andre Waters brain. Dr. Omalu found that the 44-year-old brain had degenerated to the equivalent of an 85-year-old man. Also in 2006, NFL Commissioner Roger Goodell imposes fines and suspensions for illegal hits. In 2007, the NFL adopts the 88 Plan. The 88 Plan provides financial support to former NFL players suffering from dementia, up to $88,000 per year. In 2009, the U.S. House Judiciary Committee convened hearings on legal issues related to football head injuries. In 2011, former Falcons safety Ray Easterling filed the first, federal class-action concussion lawsuit against the NFL. III. In re NFL Players Concussion Injury Litigation A. Background Thousands of lawsuits have been consolidated into two complaints, both filed on June 7, 2012 in the Eastern District Court of Pennsylvania. The complaints were filed on behalf of all NFL retirees, against the NFL and the football helmet manufacturer Riddell. The named class is all retired or former NFL or professional players. The first complaint divides the class into three subgroups: the National Class, which will adhere to New York law, the Florida Class and the California Class. The class is formed under Federal Rules of Civil Procedure rule 23(b)(2), which is only appropriate for injunctive relief. As of July 2012, about 2,000 individual plaintiffs have filed short complaints. Answers to the complaints are due on August 6, 2012 and September 4, NFL Concussion Class Action Litigation Epstein 471

6 B. The Players Claims against the NFL 1. Causes of Action The Players allege fraud, fraudulent concealment, negligence, negligent omission, negligent misrepresentation and negligent hiring and retention against the NFL. The Players assert that the NFL was and is in a superior position of knowledge and authority, and owed a duty to the players. The Players claim that the NFL established the Mild Traumatic Brain Injury Committee, and conducted independent research regarding concussions. They also assert that the NFL knew that repeated head trauma leads to neurodegenerative diseases, and that the NFL conspired to hide the long-term effects of head injuries from players for decades. In addition, the Players assert wrongful death and survival actions. They allege that the Players developed debilitating brain diseases and conditions, sometimes resulting in death because of the NFL s direct and proximate conduct. The Players also claim loss of consortium. 2. Relief Finally, the Players seek a court-supervised, NFL funded medical monitoring program to facilitate the early diagnosis and treatment of neurodegenerative disorders. Medical monitoring is typically sought by plaintiffs who have been unknowingly exposed to toxic substances. The claim for medical monitoring is viewed as a tactical move on part of the Players, because they cannot claim specific, current injuries sufficient for a personal injury suit. A claim for medical monitoring requires exposure to harmful occurrence (repeated head trauma), which renders the defendant liable for any damages suffered. The Players must prove that the repeated head trauma, considered in light of genetics and medical history of each plaintiff and other relevant factors relating to plaintiff s work and lifestyle, medical surveillance is reasonable required to detect future neurodegenerative diseases. C. The Players Claims Against Riddell The Players allege strict liability for design and manufacturing defects. They assert that Riddell designed, manufactured, sold and distributed defective and unreasonably dangerous and unsafe helmets, and that their helmets did not provide adequate protection against the foreseeable risk of concussive brain injury. The Players also claim negligence and failure to warn. The Players claim that Riddell had a duty to protect against the long-term risk of concussions, and that the Players did not know, or have reason to know of the existence of defects or increased risks of harm. Civil conspiracy and fraudulent concealment actions were also filed against Riddell. The Players allege that Riddell acted in concert with the NFL to perpetuate the fraudulent concealment of repetitive traumatic brain injury, long-term neuro-cognitive damage, illness and decline. Lastly, the Players claim loss of consortium. D. NFL s Counter-Arguments NFL Spokesperson Brian McCarthy has publicly spoken out regarding NFL s defense. McCarthy has stated that the league offers multiple programs to provide medical care to retirees, the league has spent more than $1 billion for player pensions and medical disability benefits, player safety has long been a priority for the NFL and that the league makes health programs available to current and former players, including neurological evaluations. E. Class Certification Issues Whether or not the putative class is ascertainable is an issue for the Players. The injuries and circumstances surrounding each player might be too individualized for a class-action. Askey v. Occidental, Annual Meeting October 2012

7 A.D.2d 130 (1984) expressed doubt as to whether a class action could stand for a medical monitoring claim because individualized proof is required for each plaintiff. In re Agent Orange, 818 F.2d 145 (2d Cir. 1987) held that class actions were unworkable when the determination of exposure and harm depend on the characteristics of the plaintiff. Whether or not a FRCP 23(b)(2) class is appropriate for the type of damages sought is also an issue for the Players. It is not appropriate for a 23(b)(2) class to seek relief primarily in the form of money damages. Nonetheless, the Players can argue that they are seeking integrated relief, or, in other words, that no adequate remedy at law exists. For example, Gibbs v. DuPont, 876 F. Supp. 475 (W.D.N.Y. 1995) held that a court-administered fund which goes beyond payment of costs of monitoring is injunctive in nature. Barth v. Firestone Tire, 661 F. Supp. 192 (N.D. Cal 1987) held that a medical monitoring fund that disseminates information relating to diagnosis and treatment is injunctive relief. Choice of law issues present a final hurdle impeding class certification. Because medical monitoring is a tort claim and every state has slightly differing tort law, a claim for medical monitoring in a class-action might not be proper. Furthermore, some states do not even recognize medical monitoring as a valid remedy or cause of action, making class certification even more difficult. F. Labor Law Issues Workers Compensation laws provide guaranteed benefits to injured employees, but bar most civil suits. Stringer v. NFL, 474 F. Supp. 2d 894 (S.D. Ohio 2007) held that WC laws preempt a private cause of action for wrongful death. 301 of the Labor Management Relations Act preempts state claims, but allows for a federal cause of action involving violations of collective bargaining agreements. Because all of the Players claims are state claims, and 301 covers all the players claims (because the players operate under a union contract that includes provisions for workplace injuries), 301 could bar their entire suit. G. Potential for Settlement Some sort of settlement is predicted within two to three years. A multi-tiered settlement is the most likely outcome; a conservative estimate for the settlement figure is $500,000,000 paid over twenty years. This is the equivalent of $250,000 paid to each class member. In addition, the NFL might agree to provide long-term medical care for members of the class to protect their public image. Professional football is too popular, too engrained in our society for the claims against the NFL to impede the league completely. It is unlikely that these concussion class-action suits will have an immediate impact on the sport. However, continued lawsuits against leagues, athletic associations, helmet manufacturers, as well as college and high school programs could eventually starve the game of participants down the road. IV. Conclusion Because of the numerous individualized questions surrounding the hypothetical injuries for which medical monitoring is allegedly needed, class certification poses a serious hurdle for the Players to overcome. Federal labor laws preempt all of the players claims because the players operate under a union contract, and 301 applies and bars all state causes of action. Settlement is the most likely end resolution. Discovery will be too costly and time consuming for both parties and the NFL will likely seek to dispose of the litigation quickly. NFL Concussion Class Action Litigation Epstein 473

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