On Friday, The Locks Law Firm filed its ninth concussion-related lawsuit. The lawsuit, filed in the Eastern District of Pennsylvania, is a mass tort and includes 25 former players and their wives: Wes Hopkins, et al v. NFL. The Firm now represents 325 former players. The Hopkins 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.
The lawsuit includes several young former players: Richard Parson, Jr. (31); Timothy Edwards (31); Rockne Freitas (32); Kevin Harris (33); Noah Herron (29); Alan Reuber, Jr. (31) and Shyrone Stith (33). According to my count, Herron is the youngest former player to be named in the 37 concussion-related lawsuits.
As I repeatedly say, I don’t think we are anywhere close to seeing the end. There are now over 800 former players–roughly 806–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.
The Locks Law Firm continues to attract clients. Earlier this week Gene Locks filed another concussion-related lawsuit. The lawsuit is a mass tort and includes 66 former players and their wives: Jethro Pugh, et al v. NFL. This is the eighth lawsuit filed by the Locks Law Firm, and they now represent 300 former players. The Pugh suit is no different than the others, asserting counts of negligence, negligent misrepresentation, fraud, fraudulent concealment, conspiracy to defraud, loss of consortium and declaratory relief.
Playerinjury.com has become a valuable advertising tool for the Locks Law Firm. The website’s seamless and impersonal way of signing up clients–by having the former players fill out a questionnaire and sign a retainer agreement for a 33 and 1/3 contingency fee—has surely had a profound impact on getting clients. Some lawyers involved in the lawsuits don’t think too highly of this impersonal method of soliciting and contracting with clients.
As I stated before, I don’t think we are anywhere close to seeing the end. There are now over 750 former players–roughly 781—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,” joining the multidistrict litigation (MDL) in Philadelphia.
Some notable players named in the Pugh lawsuit include Charlie Waters, three-time Pro Bowler for the Dallas Cowboys. Roger Brown a six-time Pro Bowler for the Detroit Lions and Los Angeles Rams. Jim Grabowski a former Green Bay Packer and radio commentator for the University of Illinois. Ervin Randle, former Tampa Bay Buccaneer, known for delivering helmet-jarring hits, and for winning the so-called “Hit of the Year” Award in 1987 after leveling Neal Anderson.
On March 6, 2012, Judge Brody issued a roadmap for how the NFL Players’ Concussion Injury Multidistrict Litigation (MDL) proceedings will commence. This is commonly known as a Case Management Order, and it will apply to all currently pending cases, and any tag-along actions that will become part of the MDL.
An Initial Organization Conference will be held April 25th at 10:30 in Judge Brody’s courtroom. Prior to this date, Judge Brody has set several deadlines and assignments that the lawyers must do in order to be prepared for the Conference. Each will be discussed in turn.
All prior deadlines for responsive pleadings and discovery are stayed. For those wondering, the March 2nd deadline for the Easterling motion in response to the NFL’s motion to dismiss is no longer due.
By March 30, 2012, all prior motions that were filed before the suits were consolidated in Philadelphia must be refiled with Judge Brody. This means that the NFL’s motion to dismiss, that argues the lawsuits do not belong in court, must be refiled. Likewise, the Pear, Barnes & Maxwell plaintiffs’ motion, that argues the lawsuits should proceed to discovery, must also be refiled. The motions are not binding and will be used merely as a guidepost to ensure “an accurate record of all outstanding motions.”
By March 30, 2012, the lawyers must meet and discuss their plan for proceeding with the litigation. Judge Brody ruled in a footnote that counsel for the Easterling plaintiffs, Anapol Schwartz, will initiate this process. The lawyers will discuss who will lead the pretrial proceedings, and the various strategies that will be used throughout the litigation.
By April 4, 2012, the lawyers must file a Proposed Case Management Order and a Proposed Conference Agenda. The lawyers will provide a roadmap for how they plan the litigation will proceed. This will include dates for amending the complaints (i.e. BountyGate allegations, if any), dispositive motions, responsive pleadings, and any other pretrial motions; a detailed discovery plan; issues relating to requests for class certification; the feasibility of a master complaint; and a target date for the conclusion of the MDL.
By April 4, 2012, any counsel that wishes to serve as Lead Counsel, Liaison Counsel or Steering Committee Member must file an application.
To qualify for any of the above roles, the lawyer must have extensive experience with complex litigation, and provide the court with a resume of past MDLs he or she has been involved in.
Inferring from Judge Brody’s footnote above, my early money is on Larry Coben to act as Lead Counsel. And for Co-Lead Counsel, I bet it will be a lawyer from Hausfeld LLP. Judge Brody also stated her desire for a Steering Committee. According to Kirkland Pope of Pope McGlamry, Mike McGlamry will be seeking to lead the Discovery Committee, which is a subset of the Steering Committee. Finally, for Liason Counsel, my early money is on Gene Locks of The Locks Law Firm.
These “bets” are merely reasoned guesses, so don’t fault me if I am wrong, but do congratulate me if I am correct!
Based upon Judge Brody’s Order, multidistrict litigation will now officially begin. Although the MDL proceedings have started, former players not yet involved in the lawsuits can still join. Thus, I expect concussion-related lawsuits to continue to be filed against the NFL within the coming weeks. Any additional lawsuits filed will be sent to Judge Brody.
I recently did a guest post for Sport in Law. The article discusses the various types of attorney advertising that is being used to entice former players to join the concussion lawsuits. For more, check it out here: http://sportinlaw.com/2012/03/05/when-the-bell-has-rung-the-sharks-will-come/
The Locks Law Firm continues to make it rain. On Friday they filed the 35th concussion-related lawsuit against the NFL. The lawsuit, filed in the Eastern District of Pennsylvania, is a mass tort and includes 52 former players and their wives: Carl Hairston, et al v. NFL. This is the seventh lawsuit filed by the Locks Law Firm, and they now represent 234 former players. The Hairston suit is no different than the others, asserting counts of negligence, negligent misrepresentation, fraud, fraudulent concealment, conspiracy to defraud, loss of consortium and declaratory relief.
With the creation of playerinjury.com, former players have rushed to the Locks Law Firm to seek representation. I don’t think we are anywhere close to seeing the end. Each week, for the past 10 weeks, a new concussion suit has been filed. With the recent national-media frenzy over Dave Duerson’s wrongful death suit, I am sure former players are starting to catch wind that these lawsuits may have a chance.
There are now over 700 former players–roughly 715–represented in the lawsuits. Whether or not the increased number of plaintiffs will drive the NFL to consider settling is highly doubtful. Any talks of settlement would not come until after, and IF, the plaintiffs are able to survive a motion to dismiss and summary judgment. In other words, the NFL is not going to roll over anytime soon and acquiesce to the former players’ demands. In all likelihood, if these cases survived summary judgment, they would still have to win over a jury. In fact, a common occurrence in complex litigation entails a few cases being tried, called “bellweather cases,” to forecast their possible success. If the case is successful in front of a jury, then the defendants are often willing to settle as opposed to risking numerous future trials.
However, we are far from the stage of settlement talks, in my opinion. The plaintiffs’ first challenge will be to overcome the NFL’s argument that the cases don’t belong in court (i.e. the lawsuits are barred by the CBA pursuant to Section 301 of the Labor Management Relations Action). In the next few weeks, the multidistrict litigation (MDL) proceedings should start to pickup, with the NFL filing its motion to dismiss as to all of the lawsuits.
In the interim, the lawsuits will continue to pile on, and they will slowly become “tag-along actions,” joining the MDL in Philadelphia.
As a humorous-side note, one of the plaintiffs is named “Fair Hooker” and another “Les Shy.” Both were fairly accomplished players in the 1960s and ‘70s.
Every Friday it seems that a new concussion lawsuit is filed. As expected, lawsuit number 34 was filed today. The latest plaintiff is Michael Myers, former defensive tackle for the Dallas Cowboys. The lawsuit was filed in the Southern District of Texas, and it is similar to the other lawsuits. Myers is represented by the Buzbee Law Firm and Sutliff & Stout, PLLC.
Lawsuit total:
Easterling v. NFL (Aug. 17) E.D. Penn
Pear v. NFL (Oct. 11) CA
Barnes v. NFL (Oct. 11) CA
Maxwell v. NFL (Oct. 11) CA
Hardman v. NFL (Oct. 13; voluntarily dismissed)
Finn v. NFL (Dec. 5) NJ
Jacobs v. NFL (Dec. 20) NY-Manhattan
Levens v. NFL (Dec. 21) ATL
Lewis v. NFL (Dec. 21) ATL
Stewart v. NFL (Dec. 21) ATL
Kuykendall v. NFL (Dec. 21) ATL
Jones v. NFL (Dec. 22) MIA
Rucker v. NFL (Dec. 27) NY
Boyd v. NFL (Jan. 9) E.D. Penn
Dronett v. NFL (Jan. 9) ATL
Austin v. NFL (Jan. 9) ATL
Ron Solt v. NFL (Jan.18) E.D. Penn
Joel Steed v. NFL (Jan. 19) CA
Andrew Glover v. NFL (Jan. 19) E.D. Penn
Rob Johnson v. NFL (Jan. 20) E.D. Penn
Steve Wallace v. NFL (Jan. 23) E.D. Penn
Shawn Wooden & Ryan Fowler v. NFL (Jan. 24) Miami
Fred Barnett et al v. NFL (Feb. 2) E.D. Penn
Ashley Lelie et al v. NFL (Feb. 3) E.D. Penn
Britt Hager et al v. NFL (Feb. 3) E.D. Penn
Estate of Wally Hilgenberg v. NFL (Feb. 3) E.D. Penn
Estate of Pete Duranko v. NFL.(Feb. 9) E.D. Penn
Adams v. NFL (Feb. 9) E.D. Penn
Steve Everitt et al v. NFL (Feb. 10) E.D. Penn
Henesey v. NFL (Feb. 10) E.D. Penn
Tyrone Hughes et al v. NFL (Feb. 17) E.D. Louisiana
John Brodie et al v. NFL (Feb. 17) E.D. Penn
Parker et al v. NFL and NFL Properties (Feb. 17) E.D. Penn
Myers v. NFL (Feb. 24) S.D. Texas
Updated 2/24/12 @ 2:05 pm
On Thursday, the law firm of Corboy and Demetrio along with the family of the late Dave Duerson announced that Tregg Duerson filed a wrongful death lawsuit on behalf of his late father. As you may recall, Dave Duerson took his life last year after shooting himself in the chest and requesting that his brain be donated to the “NFL’s brain bank.”
The lawsuit was filed in Cook County Circuit Court; however it is doubtful it will remain in Illinois for long. I have received a copy of the complaint from Duersons’ lawyer, William T. Gibbs. Read it here: Duerson Complaint
The lawsuit is very similar to the other three wrongful death suits filed against the NFL. It asserts six counts against the NFL and Riddell Helmets pursuant to the Illinois Wrongful Death Act: 1) negligence, 2) fraudulent concealment, 3) conspiracy, 4) failure to warn, 5) strict liability against Riddell and 6) Negligence against Riddell.
Just like the first concussion-related lawsuits, I expect the NFL to file a notice of removal asking the court to consolidate this suit with the other 32 suits. Pear, Barnes and Maxwell were initially filed in state court, but the NFL quickly filed a notice of removal, seeking that the lawsuits be removed to federal court. Judge Manuel Real denied the former players attempt to send it back to state court. Ruling that the lawsuits involve a federal question, mainly the Labor Management Relations Act, and as such should remain in federal court.
Furthermore, the Duerson lawsuit involves the same questions of fact and law (e.g. whether the NFL is responsible for concealing the dangers of concussions), making it even more likely that it will be consolidated with the other 32 concussion-related lawsuits in Philadelphia.
Now, let me digress from my usual position of providing objective legal reporting to address a few articles I read recently from respectable media outlets that made a few false assertions. I’m sure it was not done intentionally. Respectfully, I will qualify the following paragraphs by saying, (1) I am neither an expert, a lawyer nor a professional journalist and (2) I am not paid, however, I believe, under the circumstances, I do a pretty good job in reporting the facts.
From Maggie Hendricks at NBC 5 Chicago:
“Though other former players have sued the NFL over negligence in concussions, this the first to allege the NFL contributed to a player’s death. The suit claims the NFL knew the harmful effects of concussions, but concealed those facts from Duerson.” http://www.nbcchicago.com/blogs/grizzly-detail/Family-of-Dave-Duerson-Sues-the-NFL-for-Wrongful-Death-140186893.html#ixzz1nHBAJnPY
False: This is the fourth concussion-related wrongful death lawsuit that alleges the NFL contributed to a player’s death. See Dronett v. NFL, Estate of Wally Hilgenberg v. NFL and the Estate of Pete Duranko v. NFL.
From Dan Pompei at WSTB:
“A federal judge in Philadelphia had consolidated the 657 complaints into 18 lawsuits. Never before has the league been sued over brain issues like this. And of the 657 cases, you can bet none are anywhere near as strong as Duerson’s. The difference in Duerson’s case is that his was the only brain that was studied and found to have advanced brain damage called chronic traumatic encephalopathy. http://www.wsbt.com/ct-spt-0224-pompei-bears–20120224,0,3542096.column
False: First off, no, there are not 657 complaints—yes, that is roughly the number of plaintiffs. There are currently 32 lawsuits, and Duerson’s suit brings the total to 33. Although Fridays seem to be the plaintiffs’ lawyers’ favorite day to file new concussion-related lawsuits, so I’m sure the number will continue to rise.
Secondly, I have no clue where Pompei pulled the “18 lawsuits” from; I reached out to him, but to no avail.
Next, Duerson’s brain is not the only brain that showed signs of CTE. In fact, according to Boyd v. NFL , Brent Boyd is the only living, former player that has been diagnosed with CTE. Furthermore, both Pete Duranko and Wally Hilgenberg’s brains showed signs of CTE and CTEM.
Finally, probably the most laughable assertion, is Pompei’s “bet” that Duerson’s case is the “strong[est].” Take this bet now, quickly, before he reneges.
Not only is every concussion-related wrongful death lawsuit suspect ab initio, but causation will be even tougher to prove here than in the other personal injury suits. Further, if this case ever came in front of a jury, the defense would be quick to point out that Dave Duerson sat on the panel for disability benefits and reportedly denied coverage for several former players suffering from concussion-related illnesses, and Duerson testified in front of Congress that there was not a definitive link between concussions and cognitive decline.
Please forgive me for my deviation from the norm; however, I feel it is my duty to expose the falsehoods for what it is. Remember folks, these are professional, paid journalists. I guess much of my cynicism arises from being a victim of copyright infringement by a “veteran” reporter, Mike Mastovich, from the Tribune Democrat. Instead of a sincere apology from him and his editor, I was told it was an “oversight,” and that they would correct it. The correction was laughable and disingenuous at best.
Now, back to reporting about the NFL concussion lawsuits!
On February 17, 2012, the thirty-second concussion-related lawsuit was filed against the NFL. The lawsuit is a mass tort and includes three young former players: Sirr Parker (34); Jerrell Pippens (31); and Floyd Wedderburn (35). The lawsuit is similar to the other suits filed, asserting counts of negligence, fraud, fraudulent concealment, and seeking declaratory relief. The action was filed in the Eastern District of Pennsylvania, captioned Parker et al v. NFL and NFL Properties. The plaintiffs are represented by William G. Caldes of Spector Roseman Kodroff & Willis, P.C. and Stanley O. King of King & King, LLC.
Lawsuit total:
Easterling v. NFL (Aug. 17) E.D. Penn
Pear v. NFL (Oct. 11) CA
Barnes v. NFL (Oct. 11) CA
Maxwell v. NFL (Oct. 11) CA
Hardman v. NFL (Oct. 13; voluntarily dismissed)
Finn v. NFL (Dec. 5) NJ
Jacobs v. NFL (Dec. 20) NY-Manhattan
Levens v. NFL (Dec. 21) ATL
Lewis v. NFL (Dec. 21) ATL
Stewart v. NFL (Dec. 21) ATL
Kuykendall v. NFL (Dec. 21) ATL
Jones v. NFL (Dec. 22) MIA
Rucker v. NFL (Dec. 27) NY
Boyd v. NFL (Jan. 9) E.D. Penn
Dronett v. NFL (Jan. 9) ATL
Austin v. NFL (Jan. 9) ATL
Ron Solt v. NFL (Jan.18) E.D. Penn
Joel Steed v. NFL (Jan. 19) CA
Andrew Glover v. NFL (Jan. 19) E.D. Penn
Rob Johnson v. NFL (Jan. 20) E.D. Penn
Steve Wallace v. NFL (Jan. 23) E.D. Penn
Shawn Wooden & Ryan Fowler v. NFL (Jan. 24) Miami
Fred Barnett et al v. NFL (Feb. 2) E.D. Penn
Ashley Lelie et al v. NFL (Feb. 3) E.D. Penn
Britt Hager et al v. NFL (Feb. 3) E.D. Penn
Estate of Wally Hilgenberg v. NFL (Feb. 3) E.D. Penn
Estate of Pete Duranko v. NFL.(Feb. 9) E.D. Penn
Adams v. NFL (Feb. 9) E.D. Penn
Steve Everitt et al v. NFL (Feb. 10) E.D. Penn
Henesey v. NFL (Feb. 10) E.D. Penn
Tyrone Hughes et al v. NFL (Feb. 17) E.D. Louisiana
John Brodie et al v. NFL (Feb. 17) E.D. Penn
Parker et al v. NFL and NFL Properties (Feb. 17) E.D. Penn
On Friday, two more concussion-related lawsuits were filed against the NFL. The first lawsuit was filed in the Eastern District of Pennsylvania by the Locks Law Firm. The lawsuit is a mass tort comprised of 49 former players and their wives. The case is captioned John Brodie et al v. NFL. The other lawsuit is a class action, filed in the Eastern District of Louisiana, and captioned Tyrone Hughes et al v. NFL. 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.”
In addition to the NFL, the Hughes’ lawsuit names Riddell Helmets as a defendant. The class asserts seven counts: negligence, fraud, fraudulent concealment, negligent misrepresentation, conspiracy, loss of consortium and medical monitoring. Similarly, the Brodie lawsuit asserts the same causes of action. This now brings the total lawsuits to 31. The lawyers representing the Hughes’ class expect the lawsuit to be transferred to the Eastern District of Pennsylvania, joining the other 30 lawsuits.
Lawsuit total:
Easterling v. NFL (Aug. 17) E.D. Penn
Pear v. NFL (Oct. 11) CA
Barnes v. NFL (Oct. 11) CA
Maxwell v. NFL (Oct. 11) CA
Hardman v. NFL (Oct. 13; voluntarily dismissed)
Finn v. NFL (Dec. 5) NJ
Jacobs v. NFL (Dec. 20) NY-Manhattan
Levens v. NFL (Dec. 21) ATL
Lewis v. NFL (Dec. 21) ATL
Stewart v. NFL (Dec. 21) ATL
Kuykendall v. NFL (Dec. 21) ATL
Jones v. NFL (Dec. 22) MIA
Rucker v. NFL (Dec. 27) NY
Boyd v. NFL (Jan. 9) E.D. Penn
Dronett v. NFL (Jan. 9) ATL
Austin v. NFL (Jan. 9) ATL
Ron Solt v. NFL (Jan.18) E.D. Penn
Joel Steed v. NFL (Jan. 19) CA
Andrew Glover v. NFL (Jan. 19) E.D. Penn
Rob Johnson v. NFL (Jan. 20) E.D. Penn
Steve Wallace v. NFL (Jan. 23) E.D. Penn
Shawn Wooden & Ryan Fowler v. NFL (Jan. 24) Miami
Fred Barnett et al v. NFL (Feb. 2) E.D. Penn
Ashley Lelie et al v. NFL (Feb. 3) E.D. Penn
Britt Hager et al v. NFL (Feb. 3) E.D. Penn
Estate of Wally Hilgenberg v. NFL (Feb. 3) E.D. Penn
Estate of Pete Duranko v. NFL.(Feb. 9) E.D. Penn
Adams v. NFL (Feb. 9) E.D. Penn
Steve Everitt et al v. NFL (Feb. 10) E.D. Penn
Henesey v. NFL (Feb. 10) E.D. Penn
Tyrone Hughes et al v. NFL (Feb. 17) E.D. Louisiana
John Brodie et al v. NFL (Feb. 17) E.D. Penn
Among the flurry of concussion-related lawsuits filed against the NFL, the families of two former players, Wally Hilgenberg and Pete Duranko, are blaming the NFL for concealing the link between concussions and the disease that eventually killed their husband/father. Both lawsuits were filed in the Eastern District of Pennsylvania, captioned the Estate of Wally Hilgenberg v. NFL and the Estate of Pete Duranko v. NFL.
Sometime after their NFL careers, Hilgenberg and Duranko were diagnosed with amyotrophic lateral sclerosis (ALS). ALS, or Lou Gehrig’s disease, is a potentially deadly disease that some studies suggest may be caused from repeated blows to the head. According to the complaint, “the incidence and mortality of ALS is statistically high in athletes who suffered repeated head trauma.”
Hilgenberg died in 2008 after a “three-year battle with what was then misdiagnosed as ALS.” Similarly, Duranko died in July 2011 after a five-year battle with ALS, according to the complaints.
Following their respective deaths, the families donated vital organs to Boston University School of Medicine, Center for the Study of Traumatic Encephalopathy. According to the complaints, it was then that the families first learned that the decedents’ previously diagnosed ALS was Chronic Traumatic Encephalomyopathy (CTEM). CTEM, according to the complaint, was the result of multiple concussions while playing in the NFL. (For an informative article on CTEM, ALS, and CTE see here.)
Like the other lawsuits, the plaintiffs allege that the NFL concealed the link between concussions and brain disease. However, these lawsuits are the first to explicitly accuse the NFL of concealing the relationship between clinically diagnosed ALS and concussions. In addition, the lawsuits include allegations that both Hilgenberg and Duranko were denied benefits under the NFL’s 88 plan. The reasoning, according to the complaints, was that ALS is not an illness covered by the Plan.
The lawsuits assert four counts: concealment, civil conspiracy, negligence, and damages for wrongful death. There are now three wrongful death lawsuits filed against the NFL, and inferring from a paragraph in one of the complaints, likely not the last. The Hilgenberg complaint includes a paragraph that alludes to other former players suffering from ALS: Steve Smith, Orlando Thomas, and the late Eric Scoggins.
Larry Coben from Anapol Schwartz is representing the families of the deceased. Coben is also representing, among others, the Easterling plaintiffs, one of the first concussion-related lawsuits filed against the NFL.