In complex, multi-district litigation, the court generally requires the parties to designate various leadership positions to determine the multiple lawyers’ roles. The goal is to provide a leadership structure that accounts for the varying skills and abilities of each lawyer involved and to provide an efficient and judicious means in which to coordinate the litigation. And, on a less pragmatic scope, to ensure the diverse egos don’t conflict, although there is no guarantee that will occur. There are three basic leadership positions up for grabs: Executive Committee, Steering Committee and Liaison Counsel.
Last week, the plaintiffs’ counsel submitted a Proposed Organizational Structure to Judge Brody that designates six firms to the Plaintiffs’ Executive Committee. The Executive Committee is essentially in charge of the litigation. The Exec Committee manages all administrative and financial matters, tracks time and expenses, and designates and organizes the subcommittees (e.g. discovery, legal, science, trial teams, etc.). The parties proposed the following six firms — twelve lawyers — to the Executive Committee:
- Sol Weiss & Larry Coben of Anapol Schwartz
- Thomas Girardi & Graham Lippsmith of Girardi Keese
- Michael Hausfeld & Richard Lewis of Hausfeld, LLP
- Gene Locks & David Langfitt of The Locks Law Firm
- Ricardo Martinez-Cid & Steven Marks of Podhurst Orseck
- Christopher Seeger & David Buchanan of Seeger Weiss, LLP
Next, the Plaintiffs’ Steering Committee (PSC) — a subset of the Executive Committee — also has significant control of the litigation. As one lawyer involved in the litigation put it, “this is where the real action and control’s at.” The PSC is responsible for conducting and coordinating all pre-trial discovery; acting as the spokesperson for all plaintiffs; coordinating, submitting and arguing all motions; deposing and examining witnesses; introducing evidence at hearings; and negotiating stipulations and settlements with defendants. In addition to the 12 lawyers above, the following seven lawyers will serve on the Steering Committee:
- James Dugan of The Dugan Law Firm
- Anthony Tarricone of Kreindler & Kreindler
- Arnold Levin of Levin, Fishbein, Sedran & Berman
- Michael McGlamry of Pope McGlamry, P.C.
- Dianne Nast of RodaNast, PC
- David Rosen of Rose, Klein & Marias, LLP
- Charles Zimmerman of Zimmerman Reed
The next leadership position is the Plaintiffs’ Liaison Counsel, which essentially acts as the clerk for the plaintiffs. The Liaison Counsel is in charge of all administrative matters, such as receiving court Orders and Notices; preparing and transmitting copies of the Notices and Orders to all plaintiffs; maintaining all documents filed with the court; scheduling meetings with counsel; and circulating status reports to the lawyers. Jeannine M. Kenney of Hausfeld LLP will occupy this position.
Finally, the application provides for the creation of a Common Benefit Fee and Cost Fund. This fund is used to reimburse the attorneys for their fees and expenses incurred by the named committees above. The fund will be bankrolled by a percentage of any settlement reached in the lawsuits.
The foregoing proposal is subject to Judge Brody’s approval and should, in all likelihood, be granted. The parties will discuss this application with Judge Brody at the April 25th hearing in Philadelphia.
This article cannot be reproduced without the authorization of the author. Any use or quotes must be attributed to the author and NFLConcussionLitigation.com.
I did not plan on writing about this jurisdictional dispute until Duerson’s lawyer, William T. Gibbs, filed a Motion to Remand. I received an email from Gibbs yesterday stating that he is currently “drafting the motion to remand.”
However, I felt compelled after I read a story from a Chicago radio station, WLS 890 AM. The title, “Duerson’s estate wants wrongful death case in federal court,” is so far from reality that whoever reported on the story should be fired immediately. Other media outlets have started to run with the story which will likely lead to greater confusion. To be fair, if you are not educated in the law, jurisdictional issues can be complex. But still, this egregious error cannot be looked over.
In any event, here is what’s going on. Duerson’s wrongful death lawsuit was filed in Cook County State Court. The NFL has filed a Notice of Removal which essentially removes the case from state court and places the lawsuit in federal court in Chicago. In the following days, Duerson’s lawyer will file a Motion to Remand asking the Judge to send the case back to state court. The Judge will have to determine if the court has jurisdiction. Federal courts can only hear certain types of cases, and the NFL is arguing that the case should be in federal court because there is a federal question. According to the NFL, the court has original jurisdiction pursuant to Section 301 of the Labor Management Relations Act (LMRA). In other words, jurisdiction is proper with the federal court because the lawsuit is based upon a contract (Collective Bargaining Agreement) dispute between an employer (NFL) and a labor organization (Duerson, a member of the NFLPA).
Now that let me go through the inaccuracies in the WLS story.
Dave Duerson’s family filed a motion Thursday to move a wrongful death suit against the NFL out of county hands and into federal jurisdiction.
Corrected: The NFL filed the Notice of Removal on Thursday with the hopes of sending the case to Philadelphia once, and if, the court determines it has federal jurisdiction.
The U.S. Judicial Panel on Multidistrict Litigation recently announced those suits could be consolidated — something one of Duerson’s lawyers, Robert Michels, said his clients want to capitalize on.
Corrected: Robert Michels is the attorney for the NFL. William T. Gibbs of Corboy & Demetrio is Duerson’s lawyer. This mistake speaks for itself. I cannot comprehend how any reporter could have purportedly spoken to Michels and got from the conversation that Michels was representing Duerson. Do your damn homework!
Michels said the ultimate goal is that it be lumped with other cases and heard by a single judge.
Corrected: This is indeed the NFL’s ultimate goal. For convenience sake, they want this case transferred and consolidated with the other concussion lawsuits in Philadelphia.
At bottom, WLS F’d up badly! By simply reviewing the Notice of Removal – doing your due diligence – the confusion could have been prevented. Below is the Notice of Removal. I’ll have a more scholarly post of the jurisdictional battle once Duerson files the Motion to Remand.
[scribd id=88281575 key=key-2kokoyt11im3ra574tff mode=list]
Known as a vocal critic of the NFL and the Players’ Association over their handling of former players’ pensions and benefits, Bernie Parrish has officially joined the fight against the NFL for its alleged concealment of the risks related to concussions.
In a lawsuit filed yesterday in the Eastern District of Pennsylvania, Parrish’s complaint paints a picture of the NFL’s actions during his playing days with the Cleveland Browns. During a game in 1963, Parrish was kicked in the head by an opposing player that “rendered him unconscious.” Despite the obvious concussion, Parrish was “immediately returned to play,” according to the complaint. In addition the lawsuit alleges that Parrish “currently suffers from neurological conditions and symptoms related to multiple head traumas.”
The lawsuit asserts three counts: negligence, fraudulent concealment and negligent misrepresentation. Parrish seeks compensatory and punitive damages, and also medical monitoring due to the increased risk of “latent brain disease,” according to the complaint.
Parrish is represented by Frederick Schenk of Casey Gerry in San Diego California. Schenk was not immediately available for comment.
Parrish has a well-documented history of taking on the NFL and the Players’ Association. He is the author of the best selling and controversial book “They Call it a Game.” He also published a similar tell-all book, Delay & Deny that chronicles the NFL’s alleged concealment about the risk of concussions.
Parrish appears to be a strong voice for the former players in the current concussion litigation, as he took part in a Congressional hearing before the Judiciary Committee in January 2010. In his comments, Parrish hammers the NFL and the Players’ Association for dragging their feet on the concussion issue, analogizing the Mild Traumatic Brain Injury Committee to the Tobacco Industries’ self-funded junk science and cover-ups. Parrish also nails the Bert Bell/Pete Rozelle Retirement Board for alleged corruption and arbitrary denials of former players’ request for disability coverage related to brain injuries. And, in a twist of irony, Parrish calls out one of the members of the Board, Dave Duerson, as “a former NFL player and bankrupt business man crony of the late Gene Upshaw,” according to the Congressional transcript.
Coincidentally, Duerson’s family brought a wrongful death lawsuit against the NFL in February, alleging that Duerson’s brain damage and later suicide was caused from the NFL’s concealment about concussions.
Parrish is also very familiar with litigation, as he was a former named plaintiff in a class action against the NFLPA over unpaid royalties from the use of retirees’ names and likeness. The lawsuit, Adderley v. NFLPA, was eventually settled for $26.5 million.
Parrish’s lawsuit is the 56th concussion lawsuit against the NFL, and there are more than 1,060 players involved, with more expected in the following weeks.
The case is Bernard Parrish v. National Football League, Case No. 2-12-cv-01700, U.S. District Court, Eastern District of Pennsylvania (Philadelphia).
This article cannot be reproduced without the authorization of the author, any use or quotes must be attributed to the author and NFLConcussionLitigation.com.
On April 2, 2012, The Locks Law Firm kept its weekly streak alive by filing the 54th and 55th concussion-related lawsuits. There are now more than 1,060 — roughly 1,069 — players involved. The first is a mass tort, exactly like the other lawsuits filed by Lock’s in the Eastern District of Pennsylvania, John “Golden” Richards, et al v. NFL. The other lawsuit, also filed in the E.D. of Penn, names longtime Detroit Lions Quarterback, Greg Landry and his wife as plaintiffs, Landry et al v. NFL.
[scribd id=87741099 key=key-cfeydl1a3c22yhrald8 mode=list]
[scribd id=87817767 key=key-px16aru0hunhb1su0v5 mode=list]
As inaccurately reported over the weekend, the Richards’ lawsuit includes Curt Warner, but he is not “joining Rypien’s concussion lawsuit.” Rather, Warner is a named plaintiff in the Richards’ lawsuit. In other words, they are separate lawsuits.
The Richards’ lawsuit also names the youngest player to join the litigation thus far, twenty-seven-year old, Brandon Register.
Of course, the lawsuits will continue to be filed in the coming weeks. They will eventually become “tag-along actions” or “related-actions” and be consolidated with the mutli-district litigation proceedings taking place in front of Judge Brody.
*Scroll to the bottom for a simple lesson to distinguish between a mass tort and a class action.
The NFL concussion litigation has brought on a new form of vocabulary that is honestly very difficult to comprehend. These civil lawsuits fall within the high-stakes realm of “complex litigation.” Complex litigation, as the term implies, generally includes numerous parties, complex variations of law, and millions — perhaps billions — of dollars at stake.
Although the various lawsuits filed in the past eight months are very similar in the factual allegations pled and the legal theories asserted, they are technically different. There are three types of lawsuits that have been filed thus far: (1) single plaintiff lawsuits; (2) mass torts and (3) class actions. We’ll discuss each in turn.
Single Plaintiff Lawsuit
Let’s say you were involved in a car accident. You were stopped at a red light and another vehicle rear-ended you, and let’s say you broke your leg and received a concussion. So, what do you do? (You better call Saul!!!) You file a lawsuit against the person that rear-ended you, and the lawsuit would likely be captioned, Paula Plaintiff v. Danny Defendant.
There is one plaintiff, Paula v. one Defendant, Danny. This is the type of lawsuit that was filed by Jamal Lewis: Lewis v. NFL. The only slight difference is that Lewis names two defendants: the NFL and the NFL Properties. But the same principle applies, a single plaintiff is seeking damages from a defendant(s).
Ok, I’m sure you were all aware of this type of lawsuit, now lets jump into the realm of aggregate litigation. This a technical area of the law that focuses initially on procedural requirements, for our purposes, set forth in the Federal Rules of Civil Procedure (FRCP). The term often used to describe this type of litigation is called “party aggregation.” Meaning, that several parties will be combined together through one procedural device or another: either a mass tort or a class action.
Mass Tort
A mass tort is where several plaintiffs are joined together in one single action. The procedural requirement is set forth in FRCP 20(a), called joinder. The general requirement is that the plaintiffs share common questions of fact or law that arises out of the same series of transactions or occurrences.
Using the Mark Rypien et al v. NFL lawsuit as an example, the 126 plaintiffs share several common questions of fact and law that occurred through a series of transactions and occurrences by the NFL.
Specifically, the plaintiffs allege that they were all football players in the NFL, they all received a concussion, and they all currently suffer from cognitive impairment (i.e. memory loss, dementia, headaches, etc.). Further, the purported wrongdoing occurred by the NFL in a series of occurrences throughout the player’s careers. Such as, the NFL allegedly engaged in several years of concealing the truth about concussions and the long-term consequences that could occur.
Class Action
On the other hand, a class action generally involves one or two named plaintiffs, or sometimes more, but the named plaintiff seeks to represent a class of several individuals not named in the complaint. The procedural requirements to certify a class are set forth in FRCP 23. The requirements are very strict and each must be satisfied before a class can be certified.
A class action, in theory, allows a lawyer to bring a lawsuit on behalf of several hundred people without even having to know the names of 99% of them, initially. All a lawyer needs is a good-faith belief that there are several class members, and more importantly, a class representative that purports to represent the interest of the entire class.
This procedural device was used in the first lawsuit filed in federal court: Easterling v. NFL. In this lawsuit, there are seven class representatives and each purport to represent a class of football players that played during a different era in the NFL.
For example, Jim McMahon is a named plaintiff, and he seeks to represent a Class of all NFL players that played in the NFL from 1981-1989.
Similarly, the Locks Law Firm has started filing class actions in state court that seek to represent a Class of all former players that are residents of said state where the lawsuit was filed.
However, just because the lawsuit seeks to certify a class of all players that played during a certain era, or currently reside in a state, the court must approve that the class meets all the requirements set forth in Rule 23. In a class action, this is often the most litigated aspect of the lawsuit. The parties spend an enormous amount of time briefing and arguing whether the class should or should not be certified. You will definitely see this take place in the concussion lawsuits, if the players are able to defeat the NFL’s Motion to Dismiss.
Here is a quick and simple way to distinguish between the two lawsuits:
Mass Tort
1) If the complaint names several plaintiffs, it is likely a mass tort.
2) If you can find the word “joinder” and Rule 20(a), it is a mass tort.
NOTE: The Civil Cover Sheet does not check the box “class action.”
[scribd id=87257476 key=key-vtv82wkp8cigy2900f8 mode=list]
Class Action
1) If the complaint names only a few plaintiffs but the complaint states “Class Action,” then obviously it is a class action.
2) If you see Rule 23, and a Class definition, then it is a class action.
NOTE: The lawsuit initially states “Class Action…Complaint”
[scribd id=78242119 key=key-191rraaktlldsyzzxgs0 mode=list]
Finally, to make things more confusing, a class action can be called a mass tort; however, it is technically incorrect to call a mass tort a class action. Non sequitur, indeed!
It was a late Sunday night in 2008 when friends found Curtis Whitley lying face down in a trailer, dead at the age of 39. Whitley lived a well-depicted life of a bad boy: snorting crystal meth, driving erratically high on drugs and alcohol, and breaking NFL’s policies like a bat out of hell.
He played six years in the NFL and was suspended twice due to violations of the NFL’s drug and alcohol policies.
Was it the drugs and alcohol or something else that led to Whitley’s premature death?
According to the most recent wrongful death lawsuit filed by Whitley’s family, the NFL was responsible for Whitley’s demise by “conceal[ing] important medical information….” According to the lawsuit, Whitley suffered from Chronic Traumatic Encephalopathy (CTE).
Whitley’s brain was one of the several brains of former NFL players examined by Drs. Bennett Omalu and Julian Bailes that was found to show signs of CTE.
Although an autopsy report determined that Whitley’s cause of death was due to a drug overdose, during the latter part of his life he did suffer from symptoms directly related to severe cognitive decline, including paranoia, suicidal thoughts and extreme depression, according to the complaint.
Whitley left behind two minor children: Hanna Whitley and Curtis Whitley, Jr. Their legal guardian is Alfred R. Camarena, the party whose name the case is captioned in.
This is the sixth wrongful death lawsuit filed against the NFL and the 51st concussion-related lawsuit.
The complaint alleges similar facts as the other lawsuits, and asserts six counts: negligence, negligent misrepresentation, fraud, actual fraud, wrongful death, and survival and pain and suffering.
The family is represented by Stuart Fraenkel and Nicole Andersen of Kreindler & Kriendler LLP. Andersen stated that the law firm plans on filing additional lawsuits in the coming weeks.
Case Caption: Alfred Camarena on behalf of the Estate of Curtis Whitley v. NFL — filed in California Superior Court, Alameda County on March 21, 2012.
Updated: 3/26/12
In the past six days, nine lawsuits have been filed in the Philadelphia Court of Common Pleas. Sol Weiss and Larry Coben of Anapol Schwartz filed eight of the nine lawsuits. The lawsuits are factually similar to the others, but they are not mass torts. The lawsuits name only the former player and his wife (e.g. Lincoln Kennedy and Patricia Kennedy v. NFL) The other seven include brothers Sydney and Kerry Justin, Pete Koch, Scott Player, Jay Taylor, George Adams and David Krieg.
The ninth lawsuit, filed by the Locks Law Firm on March 21st, is a class action and includes three former players, Frank LeMaster, Michael Evans and Reggie Wilkes. The plaintiffs, all Pennsylvania citizens, seek to represent a Class of former players that are currently Pennsylvania citizens. The lawsuit seeks medical monitoring for the Class, and it’s separated into three subclasses: concussion subclass, non-concussion subclass, and symptomatic subclass. An additional lawsuit was filed by the Locks Law Firm on March 21st in the Superior Court of New Jersey, Camden County. It is exactly like the LeMaster complaint, except it seeks to represent a Class of of former players that are currently New Jersey Citizens. It includes former players Michael Haddix, Greg Brown, and Larry Watkins.
The Non-Concussion Subclass includes all members of the Class who are “asymptomatic and did not sustain any concussions while playing football in the NFL….”
The Symptomatic Subclass includes all members of the Class who “suffered and/or presently suffer from conditions and/or symptoms as a result of one or more concussions…from their playing football in the NFL.”
The Concussion Subclass includes all members of the Class who “are asymptomatic but sustained one or more concussions…while playing football in the NFL.”
There are now 49 concussion lawsuits pending against the NFL, and more than 850 former players named as plaintiffs.
The NFL has 30 days to file a Notice of Removal, and to request that these suits be consolidated with the other thirty plus lawsuits currently in multidistrict litigation (MDL) in front of Judge Brody.
A similar jurisdictional battle is getting ready to take place in Dave Duerson’s wrongful death lawsuit. In the next seven days, the NFL will file a Notice of Removal, seeking to have Duerson’s lawsuit transferred to Philadelphia to join the MDL. Duerson’s lawyer plans to challenge the NFL’s Notice and file a Motion to Remand to send the lawsuit back to Cook County Illinois State Court. A California Federal Judge, Manuel Real, decided a similar issue in December and denied the players’ attempt to send the case back to state court.
Hey Bryan, thanks for allowing me to interview you.
Tell me about your duties as a designated NFLPA Workers’ Compensation Panel Attorney.
Since the workers’ compensation laws in each state are different, the National Football League Players Association has designated workers’ compensation panel attorneys in each city with an NFL team. The players on the team in that town are not obligated to use that attorney, however there are unique challenges facing a workers’ compensation case involving a professional athlete in the State of Missouri. The panel attorney has a national network of attorneys to consult with and has significant experience in handling these claims.
Do you represent solely football players or athletes from other professional sports, too?
I have represented players from the Kansas City Chiefs, the Kansas City Royals, minor league players in the Royals farm system, the St. Louis Rams, the St. Louis Blues, the Kansas City Blades, the Kansas City Brigade and the Kansas City Wizards.
What are the most common injuries you see in football?
Although I have represented athletes with injures to almost every part of the body, the most common are heads, knees, shoulders and backs.
If you can quantify, how successful are the injury claims?
Missouri statutory restrictions not withstanding, nearly every carefully analyzed and investigated workers’ compensation claim is compensable and has resulted in a successful outcome.
Do the awards provide lifetime coverage for continuing medical care?
Continuing medical care is an issue directly tied to the injury and the prognosis related to necessary treatment in the future. As each case is unique, the issue of medical care is a case-by-case proposition driven by the peculiar facts of each athlete and the injury he has suffered. However, in the right circumstance, future medical care is a very important part of the resolution to a workers’ compensation claim.
Do the Clubs vigorously attempt to deny coverage?
Clubs will generally not deny coverage, but they will strenuously contest and litigate the nature and extent of an injury.
Have you represented a client suffering with cognitive issues (i.e. concussion-related symptoms, severe headaches, memory loss, dementia, etc.)?
Yes, I have represented players for claims in cognitive loss situations.
Has a Club denied coverage due to concussion-related symptoms?
Clubs have certainly contested the nature and extent of injuries related to concussions, but I have been fortunate enough to prevail in these type of cases which I have brought. However, the concussion-related lawsuits are a different cause of action, which will be brought in different courts and are distinct from any workers’ compensation claims that the player may have filed.
How well educated are your clients and the players in regard to concussions?
As a general proposition concerning the issue of concussions, the player’s diagnosis, treatment and long-term effects are just coming to the fore in the National Football League. As such, most players have not been provided with a very strong working knowledge of concussions and how they should be treated. There is certainly a lack of scientific data addressing the long-term effects of those who have suffered concussions during their playing career which is an important aspect of the remedy sought in the concussion-related lawsuits.
Although we rarely see them and they don’t get the glory (or pay) like the starters, it seems that the Practice Squad guys (at least prior to 2011) are at the same risk of getting concussions and suffering from long-term brain injuries?
Games are only a small part of the time players spend on the job and practice squad players are every bit as prone and likely to experience injury as any other player. I strongly believe that both physically and mentally, players who have suffered concussions are as injured as those who exhibit accepted injuries such as those to knees and shoulders.
Do you think former players suffering with concussion-related symptoms should join the concussion lawsuits?
The choice of a lawyer is an important one, but I believe that each person is entitled to his or her day in court. The team of attorney’s in the Kansas City area working on the concussion-related lawsuits are of the highest caliber and are some of the most experienced and successful litigators in the nation.
Thanks, Bryan.
If you are a former player and want to discuss whether you are a candidate to participate in the concussion-related lawsuits, you can contact Bryan E. Round by clicking here.
The choice of a lawyer is an important decision and should not be based solely on advertisements. Nothing on here should be construed as legal advice.
On Wednesday, The Buzbee Law Firm filed its second concussion-related lawsuit, Charles Alexander et al v. NFL. The lawsuit was filed in the Southern District of Texas and includes former players, Charles Alexander, Gregory LaFleur, and Pro Bowler Lamar Lathon. The lawsuit is similar to the other 38, asserting counts of negligence, negligent misrepresentation, fraud, fraudulent concealment, and conspiracy.
The Buzbee Law Firm also represents Michael Myers. Just like that lawsuit, this one will be transferred to Philadelphia, and consolidated with the other concussion-related lawsuits.
As I continue to say, I don’t think we are anywhere close to seeing the end. There are now over 850 former players–roughly 854–involved, a small fraction of the thousands of former and retired players that could potentially join the lawsuits.
The lawsuits will continue to pile on, and they will slowly become “tag-along actions” or “related actions” joining the multidistrict litigation (MDL) in Philadelphia.
On Monday, the Locks Law Firm filed another concussion-related lawsuit–its third within seven days and tenth overall. The mass tort was filed in the Eastern District of Pennsylvania, and it includes 45 former players and their wives: Eric Allen, et al v. NFL. The Firm now represents 370 former players, almost half of the entire field of plaintiffs.
The Allen suit is no different than the others, asserting counts of negligence, negligent misrepresentation, fraud, fraudulent concealment, conspiracy to defraud, medical monitoring, loss of consortium and declaratory relief.
Some notable players include six-time Pro Bowler and Philadelphia Eagle, Eric Allen; six-time Pro Bowler and Minnesota Viking, Mick Tingelhoff; and four-time Pro Bowler and “reformed” troublemaker, Dale Carter.
As I continue to say, I don’t think we are anywhere close to seeing the end. There are now over 850 former players–roughly 851–involved, a small fraction of the thousands of former and retired players that could potentially join the lawsuits.
The lawsuits will continue to pile on, and they will slowly become “tag-along actions” or “related actions,” joining the multidistrict litigation (MDL) in Philadelphia.