Hall of Famers Randy White, Rayfield Wright and Bob Lilly, among others, are the latest to join the concussion lawsuits against the NFL.
On Tuesday, a flock of Hall of Famers, Pro Bowlers and All-Pros filed suit in the Southern District of Texas claiming that the NFL concealed information about the long-term effects of concussions.
The lawsuit includes 31 retirees, and it asserts four counts: negligence, fraudulent concealment, negligent misrepresentation, and conspiracy. The conspiracy count alleges that the NFL conspired with the other member clubs and independent contractors to “reject the causal connection between multiple concussions suffered while playing in the NFL.”
Walter Umphrey of Provost * Umphrey, L.L.P. filed the complaint.
This is the 64th concussion-related lawsuit filed against the NFL, and there are now more than 1,300 plaintiffs. Of course, more will be filed in the coming weeks.
The complaint is Lee Roy Jordan et al v. NFL (April 24, 2012) S.D. Texas, Case No. 12-cv-01296.
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But Wait…There’s More
The 65th concussion-related lawsuit was filed against the NFL in the Southern District of Mississippi. The lawsuit includes 14 former players and is captioned Tobiath Myles et al v. NFL.
Podhurst Orseck was also busy on Tuesday, amending the Shawn Wooden et al v. NFL complaint by adding 118 former players.
On the eve of of the first hearing in the NFL Concussion Litigation, there are now 65 lawsuits and more than 1,500 plaintiffs. That number will continue to grow, and lawsuits filed outside of the Eastern District of Pennsylvania will soon be transferred and consolidated to take part in the multi-district litigation.
On May 10 – 12, sports lawyers – and law students — from around the country will meet to discuss the hot topics going on in the sports world. The event will take place at the Hilton Bayfront in San Diego. If you haven’t signed up already, below you will find all the information you need.
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UPDATED: June 21, 2012
Today’s guest post is by Eric Sable. Although the following article is not related to concussions, it is an intriguing lawsuit against the NFL that deserves coverage . Eric is a third-year law student at Widener University in Wilmington, Delaware. He spent this past school year as a Wolcott Fellow at the Delaware Supreme Court and also served as the Editor-in-Chief of the Delaware Journal of Corporate Law. Eric has his sights on breaking into the sports and entertainment industry. You can follow him on twitter @EricSable.
UPDATE: D.J. Williams’ lawsuit seeking to overturn his suspension was dismissed today, as Judge Christine Arguello granted the NFL’s motion for summary judgment. He’ll be forced to serve his 6 game suspension at the start of the regular season. You can read the Judge’s Order: here.
Ryan McBean — now of the Baltimore Ravens — had previously settled his claims with the NFL, in exchange for a reduction in his suspension from 6 to 3 games.
UPDATE: McBean and the NFL have agreed to resolve his claims outside of court, so his claims are dismissed from this case. D.J. Williams is now the only remaining plaintiff in this matter.
For those who followed the Ryan Braun suspension and successful appeal, a similar but distinct development is now taking place in the NFL.
In November 2011, D.J. Williams and Ryan McBean were suspended 6 games by the NFL after their urine tests revealed no endogenous steroids — substances which are naturally produced by healthy males. The NFL’s Policy on Anabolic Steroids (the “Steroid Policy”) clearly provides that “Any effort to … manipulate a test to evade detection will be considered a violation of the Policy and likely will result in more severe discipline than would have been imposed for a positive test.” Indeed, whereas a player that produces a positive test receives a 4-game suspension, a player that manipulates a test receives a 6-game suspension.
Williams and McBean appealed their suspensions and NFL executive Harold Henderson presided over the arbitration. The players argued for reversal of their suspensions because alleged errors in the specimen collection process and gaps in the chain of custody undermined the integrity of the tests. Specifically, Williams claimed the following violations: his sample was not sealed in his presence, the actual time in which his sample was collected was not documented, his sample’s seal was not initialed, and a three-hour gap in custody appeared on the documentation. McBean argued that he did not observe the collector seal two of the four samples and also that the documentation showing the arrival of his sample to the laboratory contained conflicting dates. The players also highlighted the fact that the specimen collector was subsequently fired by the independent collection company for not following its own internal collection protocols.
Henderson found these arguments unpersuasive and upheld the players’ suspensions. He noted that while nobody else involved in the process had a motive to manipulate their samples, the players were in the accelerated stages of the league’s substance abuse program — where a positive test would result in discipline. Henderson also cited past attempts by Williams to manipulate the drug test. In the end, Henderson concluded that any departure from the Steroid Policy did not materially affect the validity of the test.
In March, the players responded by filing a lawsuit seeking to preliminarily enjoin (i.e., block) imposition of the suspensions until the case is heard, and vacate (i.e., overturn) the arbitrator’s decision. Williams and McBean argue that Henderson: (1) exceeded his powers by rendering a decision that conflicts with the NFL’s Steroid Policy; (2) prejudiced the players by failing to issue a ruling within the required 5-day time period and also by having impermissible conversations with the NFL’s general counsel, Jeff Pash, after the arbitration hearings; (3) disregarded the law by affirming suspensions despite facts that could not establish a valid collection process and chain of custody; and (4) was not impartial because he has served as an NFL executive for twenty years.
This week, the NFL filed its brief opposing the injunction and also moved for summary judgment. The league argues that the Norris-LaGuardia Act prevents the court from issuing an injunction because this case grows out of a labor dispute. Alternatively, the NFL contends that the players do not meet the legal standard for an injunction.
In its motion for summary judgment, the NFL emphasizes that an arbitrator’s decision may be overturned “only in extraordinary circumstances,” which are not present here. The NFL argues that: (1) Henderson’s decision draws its essence from the Steroid Policy and cannot be second-guessed by a court; (2) the players — through the NFLPA — collectively bargained for the Steroid Policy and were fully aware of Henderson’s employment with the NFL; (3) the delay in rendering the decision was due to the NFL and NFLPA discussing possible solutions to the dispute; (4) the players waived their right to contest Henderson’s conversations with Pash, and even if they had not, those conversations do not warrant overturning the decision; and (5) the players have not demonstrated that Henderson knew the law and explicitly disregarded it.
For various reasons, Williams and McBean will probably not enjoy the same success that Braun had in defeating his suspension.
While Braun won his direct appeal in the context of the MLB’s internal arbitration procedure — the three-member panel to which he appealed included the MLBPA’s Executive Director and an independent arbitrator — Henderson, the sole arbitrator in this case, has already ruled adversely against Williams and McBean. Thus, they face an uphill battle, as courts typically eschew meddling in the arbitration process, absent flagrant violations by the arbitrator. An arbitrator’s ruling is typically final and binding. Second, Braun was able to establish a clear departure from the collection process delineated by the MLB’s drug program. Here, it appears that the NFL substantially complied with the procedure established by the collectively bargained Steroid Policy; Williams and McBean take umbrage with the fact that the specific protocols of the independent collection agency were not followed. Finally, the gap in the chain of custody of Braun’s sample lasted 48 hours. In this case, Williams sample had a gap of three hours at most, and this break in time is probably not enough to undermine the validity of the lab test.
Although the NFL is likely to prevail, we await the court’s ruling.
It wouldn’t be a Friday without The Locks Law Firm filing another concussion lawsuit. Three-time Pro Bowler Mark Chmura is the latest to lead a group of 28 former players in their pursuit to hold the NFL liable for their cognitive decline allegedly caused by concussions. As you may recall, Chmura was charged with rape in 2001 but was later acquitted following a jury trial.
The lawsuit, filed in the Eastern District of Pennsylvania, is the 61st concussion-related lawsuit against the NFL. There are now more than 1,260 former players involved in the litigation.
As I repeatedly say, the lawsuits will continue to pile on as more players learn about the concussion lawsuits. According to a court document filed in an unrelated case, there are approximately 10,000 retired and former NFL players. Thus, the number of plaintiffs currently involved in the lawsuits is only a small fraction of the former and retired players that may join in the coming weeks and months.
The complaint, Mark Chmura et al v. NFL, can be accessed here.
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Earlier this afternoon I received confirmation from Ray Easterling’s lawyer, Larry Coben, that Easterling committed suicide. No additional information is available at this time.
Easterling was the lead plaintiff in the first NFL concussion lawsuit filed in federal court, Easterling v. NFL.
Presumably, Easterling’s family will eventually file a wrongful death lawsuit against the NFL. If so, this will be the seventh wrongful death complaint filed against the NFL.
Easterling’s suicide is among several other former players that have taken their life after their respective NFL careers. The families of Dave Duerson, Curtis Whitley, and Shane Dronett each filed a wrongful death complaint alleging that the player’s cause of death was directly linked to concussions and chronic traumatic encephalopathy (CTE).
It’s a small win, but it is a victory nonetheless. Shortly after Duerson’s family filed their wrongful death complaint in Cook County State Court, the NFL removed the case to the Northern District of Illinois (i.e. federal court). Thereafter, the Judicial Panel on Multi-district litigation (JPML) ordered a conditional transfer, preliminarily determining that Duerson’s case should be consolidated with the other 30 plus cases in Philadelphia (E.D. Pa.).
Contemporaneously, the NFL filed a motion to stay requesting that the Northern District of Illinois refrain from taking action until the JPML’s conditional order became final. Meanwhile, Duerson’s lawyer — wanting the case to go back to Cook County — was busily preparing a motion opposing the stay and a motion to remand.
Judge Holderman, of the N.D. Illinois, requested a status hearing for April 19th and listened to both parties’ respective positions. Following the hearing, he took the matter under consideration and said he would issue an order “as swiftly as possible.”
Judge Holderman did just that and issued his order prior to the close of business on April 19th. In a three page order, Judge Holderman denied the NFL’s motion to stay and ruled that the parties must fully brief the issue of whether the case should be remanded back to Cook County.
Judge Holderman applied the three-step analytical framework from Meyers v. Bayer AG, 143 F. Supp. 2d 1044 (E.D. Wis. 2001). Meyers essentially requires the court to 1) look at the merits of the motion to remand, and if removal is improper, send the case back to state court; 2) if the “jurisdictional issue appears factually or legally difficult,” then the court should see if other courts are facing, or will face, an identical issue; and 3) if the jurisdictional issue is both difficult and similar to those facing other courts, then the court should balance the following factors: a) the interests of judicial economy; b) hardship and inequity to the moving party; and c) potential prejudice to the non-moving party.
Judge Holderman determined that Duerson’s motion to remand raises a “jurisdictional issue that is difficult.” Then Judge Holderman balanced the factors finding that the NFL (as the moving party) showed a minimal amount of hardship since they would only be required to brief the remand issue. Conversely, Judge Holderman stated, “if the motion to stay is granted and the MDL panel transfers the case [to Philadelphia], Duerson will have to wait at least seven months before the motion to remand can be briefed and decided….”
On balance, Judge Holderman held that the “stay is inappropriate at this time.”
The take away from Judge Holderman’s ruling is this: the parties will now fully brief whether the case should stay in federal court or if it should go back to state court. By making this ruling, Judge Holderman will be required to rule on the jurisdictional merits of whether this is fundamentally a labor dispute governed by Section 301 of the Labor Management Relations Act and thus federal jurisdiction is present, or whether Duerson’s claims are garden-variety state law claims not preempted by Section 301.
If Judge Holderman determines the former, then the case will likely be sent to Philadelphia. However, if Judge Holderman decides the latter, then Duerson’s case will go back to state court potentially becoming the first major test case in the NFL concussion litigation. In other words, if the case goes back to state court, discovery would start and a trial date would be set within thirty months, according to Duerson’s motion opposing stay (e.g. In Cook County, 30 months is the average time span from date of filing to trial).
So what’s next? The NFL must file a response to Duerson’s motion to remand by April 27th. Duerson must reply by May 4th, and Judge Holderman will make his, potentially (persuasive) precedent-setting, ruling shortly thereafter. However, there has already been one federal judge that decided the motion to remand in the NFL’s favor, and thus, Duerson’s lawyer still has an uphill battle to climb.
The above title comes from a fiery pre-game speech that defensive coordinator Greg Williams delivered to the New Orleans Saints last year. The quote is also now part of the court record in the NFL concussion lawsuits.
On Monday, the 59th concussion-related lawsuit was filed against the NFL. Although the lawsuit doesn’t name a high-profile player that was a victim of the bounty scandal, it did attract a frenzy of attention from the national media. As I predicted when the Williams’ speech was first released,
None of the lawsuits include allegations ab the Bounty Scandal, yet, but u can bet 1 will soon include “Kill the head & the body will die.”
— Paul D. Anderson (@PaulD_Anderson) April 5, 2012
The first paragraph of the complaint cites the now infamous quote that has — according to some — added extra ammunition to the former players’ lawsuits against the NFL. Although the NFL will likely raise an objection, there is no doubt the plaintiffs’ lawyers will try to play the inflammatory speech to the jury.
We need to find out in the first two series of the game, that little wide receiver, No. 10, about his concussion. We need to f****** put a lick on him right now. — Williams
To be admissible the judge must find that the propounded evidence is both relevant and not overly prejudicial. See Federal Rules of Evidence 403. In other words, the evidence cannot be so one-sided that it distracts the jury from the issue(s) at trial.
For example, during a murder trial the prosecutor will try to introduce several pictures of the victim’s maimed and bloody body. The defense will make an objection, arguing that some of the pictures are severally prejudicial to the defendant because it either incites or inflames the jury. On balance, the judge will have to determine if the picture’s probative value is substantially outweighed by the danger of unfair prejudice. See State v. Bocharski 22 P.3d 43 (Ariz. 2001).
Similarly, IF the concussion cases ever go to a jury, the judge will have to determine if the Williams’ audio is relevant to the issue of whether the NFL is liable for concealing vital information about concussions that subsequently caused the former players’ cognitive decline.
As Professor Michael McCann opined,
@patrick_hruby @PaulD_Anderson IMO good argument tape IS admissible as more probative>prejudicial. Goes to heart of culture of game on trial
— Michael McCann (@mccannsportslaw) April 5, 2012
Of course, we will never know until the cases goes to trial, and since there may be multiple trials throughout the country, some judges may allow the recording into evidence and others may exclude. In either event, it will remain an academic exercise until a victim (i.e. possibly Kurt Warner) of the bounty scandal files a lawsuit. At that time, it will indeed be relevant.
Here, the four players named in the lawsuit — Myron Guyton, Lomas Brown, Jessie Small, and Willie Whitehead — do not allege that they were victims of the bounty scandal. However, they do allege that the bounty scandal is part of the NFL’s “win-at-all-cost mentality” and that it “encouraged its players to think of themselves as gladiators.”
The complaint includes some original and unique allegations different from the other 58 lawsuits. Other than the bounty allegations, the complaint includes a quote – that I tweeted the other day — from the 17th Annual Meeting of the American Football Coaches Association,
Quote from 1937 “During the past seven years the practice has been too prevalent of allowing players to continue playing after a concussion.
— Paul D. Anderson (@PaulD_Anderson) April 11, 2012
In addition, the complaint is the first to assert a cause of action for negligent hiring. The claim is directed at the hiring and supervision of the now-defunct 1994 Mild Traumatic Brain Injury Committee (MTBI). Specifically, the lawsuit alleges that the NFL hired Drs. Pellman, Casson, and Viano knowing that they “were not suited to serve on the MTBI Committee or otherwise influence the NFL’s concussion policy.”
The plaintiffs are represented by Von DuBose and E. Marcus Davis. DuBose is also a certified player’s agent. This explains why there is an entire section of the complaint devoted to a player signing an NFL contract and not being warned about the risks of concussions, labeled “How Athletes Become NFL Players.”
Finally, the lawsuit asserts six counts: fraudulent misrepresentation; negligent misrepresentation; negligence; negligent hiring, retention and supervision; medical monitoring; and loss of consortium. Since this lawsuit was filed in state court, the NFL will have to (1) file a Notice of Removal — removing the case to federal court, (2) file a Notice of a Potential Tag-Along Action with the Judicial Panel on Multi-District Litigation (JPML), and then barring any objections, (3) the JPML will transfer the case to Philadelphia.
In the past three days, 177 additional former players joined the NFL concussion lawsuits. On Wednesday, Hausfeld LLP amended Boyd et al v. NFL, by adding 100 additional players.
The Locks Law Firm also kept its weekly streak alive by filing a mass personal injury lawsuit on Thursday. The lawsuit includes 70 former players and their wives. The lead plaintiff is a four-time Pro Bowler and former actor, Alex Karras. According to the AP’s report, Karras was diagnosed with dementia seven years ago. The case is captioned Alex Karras et al v. NFL.
The above lawsuits were filed in the Eastern District of Pennsylvania and will soon be consolidated with the multi-district litigation (MDL) proceedings in front of Judge Brody.
On Friday, a class action was filed in the Eastern District of Louisiana and names seven class representatives: Michael Brooks, Harold Bishop, Ronnie Halliburton, Liffort Hobley, Justin Vincent, Corey Raymong, and Shawn King. The putative class seeks to represent “All persons, and spouses of persons, who sustained one or more concussions, or suffered concussion like symptoms, while playing in an NFL football game and who has developed or will develop mental or physical problems as a result of the concussions or concussion like symptoms.”
The class action asserts counts of negligence, fraud, fraudulent concealment, negligent misrepresentation, conspiracy, loss of consortium, and medical monitoring. The lawsuit was filed by The Law Office of Derriel C. McCorvey, L.L.C; the Singleton Law Firm; Andrus Hood & Wagstaff; and Mike Espy PLLC. Like the other lawsuits filed outside of the Eastern District of Pennsylvania, this class action will soon become a “tag-along action” and be transferred to Judge Brody.
There are now more than 1,200 – approximately 1,253 – players named in the 58 lawsuits. As I repeatedly say, the lawsuits will continue to be filed as more players hear that their purported rights may be vindicated. As to the question of whether there is a deadline to join the lawsuits, there technically is not one. In America, every person/player is entitled to his or her day in court.
Guest Post: The Discovery Rule: Why latent injuries are not barred by the statute of limitations
Today’s guest post is by Alexandra Hoffman. She is a second-year law student at the University of San Francisco, with a focus in both Sports Law and Corporate Law. She is currently researching the role of science in the law in the NFL concussion litigation context. You can follow her on Twitter @yexxer13.
In civil cases, statutes of limitations (restrictions on how long plaintiffs may wait before filing a suit after an alleged wrong) serve to assure that claims are pursued in a timely manner. The statute of limitations (SOL) for a claim will vary depending on the state and the particular cause of action. Typically the defendant bears the burden of proving the claim is barred by the SOL.
The traditional time of Injury rule starts the running of the SOL clock at the point when the plaintiff initially experiences the injury or harm. In the NFL concussion litigation context, the clock would start when the player incurred the concussion(s). Over time, however, and especially with the rise of asbestos exposure and toxic tort cases, courts began to see the need to allow flexibility for insidious and latent diseases, those where the symptoms of the disease don’t manifest until much later. The discovery rule, an equitable doctrine that may arise out of common law or statute, emerged as a solution to this problem.
Essentially, the discovery rule “tolls,” or postpones, the start of the SOL from the point of injury to the point of when it was discovered or reasonably should have been discovered. This allows plaintiffs to bring a claim for a disease or injury which has it roots in something that occurred years ago, but that only recently began to manifest symptoms. It has been used extensively in asbestos exposure cases, for example, where exposures to asbestos can take over a decade to manifest in symptoms of mesothelioma.
In the NFL concussion lawsuits, the Discovery Rule plays a key role in allowing players to bring claims from injuries initially sustained years or even decades ago. Given the nature of traumatic brain injury, it is often difficult to pinpoint a specific injury or moment in time when the harm was initially experienced. Many of the players experienced repeated concussions over a long period of time, and in some cases the symptoms came on gradually or appeared much later than the actual trauma.
Furthermore, under the discovery rule, a plaintiff’s ignorance is generally not a valid reason to toll the statute – his illness must be such that he could not have reasonably known he was injured until the time of discovery. This concept ties in directly with one of the plaintiffs’ central assertions: the players argue that the NFL’s negligence and concealment in failing to educate them about the harms and symptoms of traumatic brain injury prevented them from discovering their illness until recently. Thus, according to the players, there is no way they “should have known” they were suffering from the disease until the NFL disclosed the link between concussions and long-term brain injury beginning with its educational efforts in 2009.
Although there are certainly no guarantees, the plaintiffs’ attorneys predict that the claims will move forward and are unlikely to be barred by the statute of limitations because of the discovery rule.