Litigation Update
In the last six months ten lawsuits have been filed against the NFL and there are likely more to come.
The leading class action is Easterling v. NFL, No. 11-5209, U.S. Dist. Ct. E.D. Pa., and the petition alleges that the NFL actively concealed the link between concussions and neurodegenerative diseases. The putative class seeks medical monitoring and the complaint asserts four state-law claims: negligence, concealment, civil conspiracy and loss of consortium.
The other nine lawsuits are essentially the same except for Finn v. NFL, filed in the U.S. Dist. Ct. of New Jersey. Joe Horn is a plaintiff in this suit. It includes an additional allegation that the League’s medical providers administered a non-steroidal anti-inflammatory drug called Toradol in order to “mask the pain” caused from concussions. The Finn complaint cites a 2002 study that found that athletes using the drug should be warned of the increased risks associated with the drug. According to the complaint, the medical providers failed to warn or disclose of the known risks.
Four of the ten lawsuits (Pear, Barnes, Maxwell and Hardman) were initially filed in California State Court. The NFL filed a Notice of Removal and the cases were subsequently removed to federal court in the Central District of California. These lawsuits include additional defendants, Riddell Sports and Easton-Bell Sports, and assert negligence-monopolists against the NFL, failure to warn and strict liability for design and manufacturing defects against Riddell.
According to Jim Mitchell, a paralegal at Hausfeld LLP–the law firm representing the Hardman and Jacobs’ putative class, on December 5, 2011, federal Judge Manuel Real denied Maxwell, Pear, and Barnes’ Motion to Remand back to state court, and further ruled that the Plaintiffs’ negligence claim was preempted by Section 301 of the Labor Management Relations Act. In other words, the Collective Bargaining Agreement controls the labor dispute.
Subsequently, the Hardman Plaintiffs’ took notice of this adverse ruling and voluntarily dismissed their claims. According to Hausfeld LLP, it will be re-filed in another jurisdiction.
The adverse ruling may be an early defeat for the former players since there is at least one judge who believes these lawsuits are barred by the LMRA.
On November 17th the NFL filed a Motion to Consolidate and Transfer the lawsuits (Easterling, Pear, Barnes and Maxwell) to the Eastern District of Pennsylvania. The NFL is seeking that all lawsuits pending against the NFL be transferred to a panel for multidistrict litigation (MDL). This, the motion argues, would allow pre-trial discovery to occur in a single forum, and will “significantly advance the just and efficient conduct of the litigation….”
Since there are a number of lawsuits filed against the NFL, there is a high probability that the cases will be heard in front of an MDL panel.
According to the Scheduling Order dated November 21, 2011, Judge Anita B. Brody ruled that the Easterling plaintiffs have until February 1, 2012, to file their responses to the NFL’s motion to dismiss. The plaintiffs’ reponse will attempt to persuade the court that the complaint is not barred by the LMRA and that pre-trial discovery should proceed. Finally, all discovery should be completed by July 2, 2012.
Here is a list of lawsuits filed against the NFL. A majority of them can be viewed at my scribd.com profile.
1) Pear v. NFL (Sept.12) CA
2) Barnes v. NFL (Oct. 4) CA
3) Maxwell v. NFL (Sept. 12) CA
4) Easterling v. NFL (Oct. 6) Penn
Above Actions cited in NFL motion to Transfer
5) Hardman v. NFL (Oct. 13; voluntarily dismissed)
6) Finn v. NFL (Dec. 5) NJ
7) Jacobs v. NFL (Dec. 20) NY-Manhattan
8 Levens v. NFL (Dec. 21) ATL
9) Lewis v. NFL (Dec. 21) ATL
10) Jones v. NFL (Dec. 22) MIA
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