The Future of CTE is Eviscerated Under the Settlement
At the heart of the appeal is the NFL Concussion Settlement’s unfair treatment of CTE. Under the settlement, CTE is essentially eviscerated from the NFL-medico lexicon. No one will ever receive future compensation for CTE, even though scientists predict that within the next “five to ten years” CTE will be diagnosed in the living. No matter. Unless a player died and was diagnosed with CTE on or before April 22, 2015, no player will be compensated for CTE, ever! Take, for example, Ken Stabler.
In this latest excerpt of briefing from Deepak Gupta’s team, they attack the irrational treatment of CTE and the fact that players are forever releasing future CTE claims in exchange for nothing.
The settling parties have been unable to justify the mismatch at the heart of the deal: the disparate treatment between those diagnosed with CTE before, and those diagnosed after, the date of approval. The parties’ “proxy” theory—that other, rarer conditions may stand in for CTE—offers no justification for this disparity, and fails to account for the fact that many with CTE will get nothing. The same is true for scientific uncertainty, which is a reason to preserve, not extinguish, future claims. The only credible explanation for the disparity is also the simplest: the deal was achieved by sacrificing future claimants’ interests to the winds.
“The inadequacy of the representation” here “is apparent from examination of the settlement itself.” Nat’l Super Spuds v. N.Y. Mercantile Exch., 660 F.2d 9, 18 (2d Cir. 1981). This settlement creates a massive “disparity between the currently injured and [future-injury] categories of plaintiffs,” Amchem, 521 U.S. at 626—the class’s “most salient conflict,” Georgine, 83 F.3d at 630. Under the settlement’s terms, if a class member died with CTE before April 22, 2015—that is, if he had a current CTE claim on the day of approval—his estate will receive up to $4 million. But if a class member dies after April 22, 2015—that is, if he has a future CTE claim—his estate will “get no monetary award at all” for the very same injury. Id. Future injury plaintiffs, in other words, are forced to release all “claims relating to CTE,” A.77, yet they “will never enjoy the [CTE] benefits of the settlement”—benefits that were obtained at their expense. GM Trucks, 55 F.3d at 797.
It is hard to think of more “conspicuous evidence” of “an intra-class conflict.” Id. When a “settlement treats [one group] quite differently from [another],” it has “serious implications for the fairness of the settlement and the adequacy of representation of the class.” Id. at 777. That is especially true here, where the disparate treatment concerns the one injury that triggered this flood of litigation in the first place: death with CTE—the “industrial disease” of the NFL. A.5410.
What explains this eye-popping disparity if not a conflict of interest? Why would class counsel, who previously called CTE “the most serious and harmful disease that results from NFL and concussions,” A.2237, insist on up to $4 million in CTE compensation for those who have already died, but forever foreclose the possibility of CTE compensation for everyone else? Whose interest does that serve? How can we be sure that future CTE claims were not bargaining chips to benefit others?
The district court posited two justifications for the disparity. The lead justification was that “[a] prospective Death with CTE benefit would incentivize suicide because CTE can only be diagnosed after death.” A.144. Put differently, the court’s concern was that CTE claims are so valuable—and the settlement’s compensation for those who will be diagnosed with CTE in the future is so inadequate—that some class members will kill themselves to obtain the benefits. That justification is as perverse as it is fanciful.
Worse, these class members will “become bound to the settlement” even though they “lack adequate information to properly evaluate” it. Georgine, 83 F.3d at 633. The wide variation of CTE estimates in this case attests to that. Becauseany absent class member would have great “difficulty in forecasting what their futures hold,” Georgine, 83 F.3d at 31, any rational future-injury representative would insist on “an agreement that keeps pace with scientific advances,” as the district court explained. A.93. But this deal doesn’t do that. Instead, it “freez[es] in place the science of ,” Georgine, 83 F.3d at 31, by requiring only that the settling parties “meet at least every ten years and confer in good faith about possible modifications,” while giving the NFL veto power over “any prospective changes,” A.147.
Worse still, the uncertainty of the future creates especially “serious problems in the fairness” of this settlement, Georgine, 83 F.3d at 633, because it does not involve the small-dollar claims that Rule 23’s drafters had “dominantly in mind,” Amchem, 521 U.S. at 617. Rather, this case “involves claims for personal injury and death—claims that have a significant impact on the lives of the plaintiffs and [could one day] receive huge awards in the tort system.” Georgine, 83 F.3d at 633.
Each plaintiff thus “‘has a significant interest in individually controlling the prosecution of [his case]’; each ‘ha[s] a substantial stake in making individual decisions on whether and when to settle.’” Amchem, 521 U.S. at 616 (quoting Georgine, 83 F.3d at 633). Future-injury class members would thus “probably desire a delayed opt out like the one employed in Bowling v. Pfizer, Inc., 143 F.R.D. 141, 150 (S.D. Ohio 1992).” Georgine, 83 F.3d at 631. But here, too, class counsel came up short, instead bargaining for “an enormous legal fee,” GM Trucks, 55 F.3d at 801 further evidence that this settlement was beset with conflict, as discussed in Part II.
In short, the substance of this settlement should put this Court on high alert that future-injury class members did not receive fair and adequate representation here. The settlement facially discriminates against them as to the one injury at the heart of this litigation—an injury the settlement itself values at up to $4 million. The parties’ failure to justify the disparity leaves only one explanation: inadequate representation.
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