The Third Circuit upheld Judge Brody’s Order approving the NFL Concussion Settlement. The Third Circuit’s Opinion can be found here: In re NFL Concussion Litigation Opinion
Perhaps the most notable quote from the Third Circuit’s decision is the following,
Before concluding, we address developments during the pendency of this appeal. In a March 2016 roundtable discussion on concussions organized by the House Energy & Commerce Subcommittee on Oversight & Investigations, the NFL’s Executive Vice President cited the research of Dr. McKee and agreed that there was a link between football and degenerative brain disorders like CTE. The NFL’s statement is an important development because it is the first time, as far as we can tell, that the NFL has publicly acknowledged a connection between football and CTE. On the other hand, the NFL is now conceding something already known. The sheer number of deceased players with a post-mortem diagnosis of CTE supports the unavoidable conclusion that there is a relationship, if not a causal connection, between a life in football and CTE.
The Third Circuit then concluded,
It is the nature of a settlement that some will be dissatisfied with the ultimate result. Our case is no different, and we do not doubt that objectors are well-intentioned in making thoughtful arguments against certification of the class and approval of this settlement. They aim to ensure that the claims of retired players are not given up in exchange for anything less than a generous settlement agreement negotiated by very able representatives. But they risk making the perfect the enemy of the good. This settlement will provide nearly $1 billion in value to the class of retired players. It is a testament to the players, researchers, and advocates who have worked to expose the true human costs of a sport so many love. Though not perfect, it is fair.
In sum, we affirm because we are satisfied that the District Court ably exercised its discretion in certifying the class and approving the settlement.
At a roundtable yesterday on Capitol Hill, the NFL’s top brass on player safety, Jeff Miller, acknowledged that “certainly…there’s a link” between football and CTE. But the admission did not come without equivocation.
Rather, it followed the industry’s playbook of perpetuating doubt: “But there are also a number of questions that come with that,” Miller went on to say.
Ergo you can expect that despite this admission, the NFL will continue to cast doubt upon the unequivocal link between repetitive brain trauma and CTE. Worse still, the NFL will continue to employ and associate itself with adamant CTE deniers–such as Dr. Pellman–and the NFL will also continue to pedal false hope to parents that playing youth tackle football is “safe.”
Indeed, shortly after the hearing concluded, the NFL went on the offensive and sought to reconcile Miller’s admission with the NFL’s playbook of doubt:
He was discussing Dr. Mckee’s findings and made the additional point that a lot more questions need to be answered,” NFL spokesman Brian McCarthy said in a statement. “He said that the experts should speak to the state of the science…[and he] made the additional point that a lot more questions need to be answered.
Far from being a watershed moment, this “admission” will likely be another chapter in the NFL’s obfuscation of the truth. History can be an important lesson.
The New York Times and Boston University reported this morning that Ken Stabler had Stage 3 CTE.
Dr. McKee described Stabler’s brain as showing severe neurodegeneration caused from years of repetitive brain trauma,
“He had moderately severe disease,” said Dr. Ann McKee, chief of neuropathology at the V.A. Boston Healthcare System and a professor of neurology and pathology at Boston University School of Medicine, who conducted the examination. “Pretty classic. It may be surprising since he was a quarterback, but certainly the lesions were widespread, and they were quite severe, affecting many regions of the brain.”
His changes were extremely severe in parts of the brain like the hippocampus and amygdala, and those are the big learning and memory centers,” McKee said. “And when you see that kind of damage in those areas, usually people are demented. So if he was still functioning reasonably well, he was compensating, but I don’t think that compensation would have lasted much longer.”
According to his family, Stabler spent the last few years of his life suffering.
“On some days, when he wasn’t feeling extremely bad, things were kind of normal,” Bush said. “But on other days it was intense. I think Kenny’s head rattled for about 10 years.”There were days when I walked in the door and looked at his face, and I could tell,” Bush said.
“He was sitting in his chair, because he was always waiting for me, and the news was on and whatnot, and he had his head laid back, and his eyes just scrunched up so tight that I used to think that would give you a headache in itself, just the pure pressure of squinting like that.”
Shamefully, as noted nearly 7 months ago when Stabler’s death was disclosed, his family will receive nothing under the NFL Concussion Settlement. Instead, the NFL and owners will get to sit back and continue to print money off the backs of the thousands of players who have sacrificed their lives and brains to make the NFL a cash-cow juggernaut.
All the while, the NFL can revel in the fait accompli knowing they have effectively eliminated any future liability for CTE. In other words, they will never have to pay a dime to another family who has been inflicted by the so-called industrial disease of football because of the sweetheart deal they were able to broker under the NFL Concussion Settlement.
Stabler’s daughter likewise noted the injustice perpetrated by the Settlement’s terms:
“He played 15 seasons in the N.F.L., gave up his body and, apparently, now his mind,” Alexa Stabler said as she fought back tears. “And to see the state that he was in physically and mentally when he died, and to learn that despite all the energy and time and resources he gave to football — and not that he played the game for free, he made money, too — without the knowledge that this is where he would end up, physically and cognitively, and for the settlement to say you get nothing? It’s hard not to be angry.”
It is indeed a sad state of corporate greed when the NFL and owners can objectively see the damage they have caused, yet shirk all financial responsibility.
Unfortunately, there will be—and already has been—many more families who will receive a stiff arm by the NFL and the Settlement.
If it weren’t for the Settlement’s terms excluding any future compensation for CTE after April 22, 2015, Stabler’s family would have received approximately $980,000. The conclusion that Stabler’s family will receive nothing under the settlement assumes he was never diagnosed with another compensable disease (i.e., dementia, ALS, Alzheimer’s or Parkinson’s). Finally, this also assumes that the Settlement survives appellate scrutiny.
On January 26, 2016, Judge John Z. Lee granted preliminary approval to a proposed class action settlement that has been pending for nearly two years.
After initially rejecting the proposed settlement on December 17, 2014, Judge Lee ordered the parties to brief and attempt to re-work the settlement to remove some of the objectionable terms and to expand the class.
Most problematic, according to the objectors, was the fact that the proposed settlement forever barred any class member from pursuing personal injury claims against the NCAA on a class-wide basis. This, according to the objectors, is a valuable right that was released in exchange for essentially nothing.
The Court took note of this objection and, in its January 26 Order, this concern has been somewhat remedied.
Notably, however, the Preliminary Order is “subject to a number of modifications.” These modifications include the following:
- The class-wide release is limited. A class member still waives its right to pursue a personal injury claim on a class-wide basis; however, it will carve out the right to purse a “narrowly limited” personal injury class action directly against a member school and/or the NCAA as it relates to a specific sport and during a specific time period.
- The provision that essentially allowed the Medical Monitoring Program to seek a reimbursement from a class member’s private insurance is stricken. This is a substantial improvement.
- A few additional provisions were modified, including the NCAA’s $5 million “contribution to concussion research….” The Court confirmed that, as it stands presently, this is an “illusory benefit” to the Class; thus, the Court ordered the NCAA to strike this provision such that the $5 million contribution “must constitute additional funding for research that otherwise would not have occurred absent this settlement.” In other words, the NCAA cannot credit its previous concussion research monetary contributions as satisfaction for the $5 million requirement; it must be a new allocation.
Since these modifications are “subject to” the settling parties’ acceptance, the NCAA could, in theory, reject the modifications and seek that the deal be re-worked again. The Court Ordered the parties to report on the status of these modifications at the next scheduled hearing on
February 4, 2016 (rescheduled for) March 3, 2016.
Assuming the modifications are adopted and the settlement is preliminarily approved as modified, the notice process will begin. That is, all class members will be notified about the settlement and their rights to remain a class member, object or opt out.
The Benefits to the Class
The Class consists of “All persons who played an NCAA-sanctioned sport at an NCAA member institution on or prior to the Preliminary Approval Date.”
This potential Class is massive—and it includes all sports, not just contact sports. It is estimated that the Class consists of “4.4 million athletes in forty-three different men’s and women’s sports.” The settlement provides that $70 million will be allocated to create a Medical Monitoring Program. The Medical Monitoring Program will last for a period of 50 years.
If the settlement receives final approval, class members will receive medical monitoring for neurodegenerative diseases. The Medical Monitoring Program consists of two phases. First, all class members will be eligible to complete a written questionnaire which seeks information about the class members cognitive, mood and behavioral state. It essentially seeks to determine whether the class member is symptomatic. Once the questionnaire is submitted, a group of experts will analyze whether the class member qualifies for the second phase.
The second phase will include a personal evaluation by a medical professional to determine whether a diagnosis can be made. This evaluation will include a “neurological examination, neuropsychological examination, mood and behavioral evaluation, and any necessary ancillary tests that comply with the then-current American Academy of Neurology clinical practice guidelines for the diagnosis and treatment of neurological disease.” Conversely, if the class member is deemed asymptomatic pursuant to the questionnaire, then (s)he will not be personally evaluated and thus will remain in the first phase. The asymptomatic individuals will be allowed to re-submit a questionnaire every “five years until age fifty and then not more than once every two years after the age of fifty.”
As a best-case (or rather, worst-case) example, a class member completes a questionnaire and discloses that he is having mood and behavioral issues, headaches, feelings of hopelessness, depression, explosivity and suicidal ideations. The individual would likely qualify for the second phase: medical evaluation. Let’s assume, for the sake of this hypothetical, that an in-vivo diagnosis of CTE can be made that complies with the ANA clinical practice guidelines. The individual is then tested for CTE. Consequently, the individual tests positive for CTE and is therefore provided with a diagnosis of CTE to a reasonable degree of medical certainty.
So, what’s next?
Under the settlement, nothing. The individual receives a diagnosis under phase 2 and that is basically all he is entitled to—he may be provided with some direction on a “treatment plan” but the cost of any such plan would not be covered under the settlement. However, this leads to the next very important component of the settlement.
The settlement preserves an individual’s right to pursue a personal injury action against the NCAA and/or the college he attended. Thus, after receiving a diagnosis of CTE, the individual can pursue a personal-injury claim directly against the NCAA and a member institution. The potential personal-injury damages could amount to thousands or millions of dollars, or nothing. Future litigation will dictate this result.
As you can see, far from “buying peace” this settlement appears to breed additional CTE litigation. This chapter has yet to be written, but CTE litigation against the NCAA and its member institutions is potentially an emerging tidal wave that could have ripple effects for the next half century, or not.
Disclaimer – nothing herein should be interpreted as legal advice; rather, this is purely informational in nature. You should seek legal assistance if you have questions about your potential rights under the settlement.
A man that contributed so much to the game provided one last contribution upon his death: The reality that football can cause brain disease.
Gifford’s family announced that the Hall of Famer was diagnosed with CTE. In a statement released on Wednesday, the family disclosed the news:
While Frank passed away from natural causes this past August at the age of 84, our suspicions that he was suffering from the debilitating effects of head trauma were confirmed when a team of pathologists recently diagnosed his condition[.]
The family said the reason why they made the donation was to contribute to “the advancement of medical research concerning the link between football and traumatic brain injury.”
We miss him every day, now more than ever, but find comfort in knowing that by disclosing his condition we might contribute positively to the ongoing conversation that needs to be had; that he might be an inspiration for others suffering with this disease that needs to be addressed in the present; and that we might be a small part of the solution to an urgent problem concerning anyone involved with football, at any level.
This is a remarkable act for a family whose lives have been tied to football for decades. Hopefully this will encourage more families to step forward and donate their loved one’s brain.
This diagnosis also raises another unfortunate reminder about the deficiencies of the NFL Concussion Settlement. Since Gifford died after April 22, 2015 (the date of final approval), he will receive zilch under the settlement despite “suffering from the debilitating effects” of CTE.
The Third Circuit has published the oral arguments from Thursday’s hearing. You can find them here.
The audio recording from this morning’s oral arguments are not posted yet. However, the AP has reported on a few quotes from the arguments. Most notably is the quote from the NFL’s lawyer, Paul Clement:
The science could determine that all that matters for CTE is the concussive hits you took before your 18th birthday.
OMG. Heads will roll at 345 Park Ave. Because USA Football and the thousands of moms who will hear that remark.
Twitter is also having a frenzy with the quote.
NFL cringes at this hypo: “science could determine that… CTE is the concussive hits you took before you[‘re] 18” https://t.co/SOnp41k652
— Paul D. Anderson (@PaulD_Anderson) November 19, 2015
— Chris Nowinski (@ChrisNowinski1) November 19, 2015
— NFLCSFacts (@NFLObjectors) November 19, 2015
To be fair, it was just a hypothetical.
Earlier this week, I noted the likely lineup for the oral arguments on Thursday. Since the parties have a limited time yet wide-ranging arguments, the Third Circuit ordered the parties vying for an opportunity to speak to split up their time accordingly. The Objectors are allotted thirty minutes and the proponents of the settlement are allotted thirty minutes. Since the Objectors are appealing the settlement, they will go first. The NFL and the Class will follow, and then the Objectors will get a rebuttal.
The following lineup has been solidified, subject to a division for rebuttal time and any last minute changes:
- Steven Molo on behalf of the Faneca Objectors (13 mins including rebuttal) – description of arguments: “substantive unfairness of settlement’s disparate treatment of CTE”
- Deepak Gupta on behalf of Armstrong Objectors (13 mins including rebuttal) – description of arguments: “inadequate representation of future-injury claimants”
- Howard Bashman on behalf of Heimburger Objectors (2 mins) – description of arguments: “inappropriateness of class certification”
- Jared Beck on behalf of Gilchrist Objectors (1 min) – description of arguments: “Daubert“
- Chip Becker on behalf of Alexander Objectors (1 min) – description of arguments: “Girsh factors”
- Samuel Issacharoff on behalf of the Class (17 mins)
- Paul Clement on behalf of the NFL and NFL Properties (13 mins)
- Steven Molo
- Deepak Gupta
Third Circuit Panel
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.
This week may end up being the most pivotal moment in the future of the NFL Concussion Settlement Litigation. On Thursday, the Third Circuit will hear oral arguments on why the NFL Concussion Settlement should be reversed or affirmed.
And while oral arguments are often not decisive, they at least provide a glimpse of which way the judges are leaning. They also focus the issues that are potentially determinative, which in turn, allow observers to analyze a likely result.
Some of the best appellate lawyers in the country are slated to argue the respective sides. The NFL has, once again, called on Paul Clement to save the settlement. Also advocating for affirming the settlement, the Class will likely be represented by Professor Samuel Issacharoff.
On the opposite side, seeking reversal of the settlement, there are several lawyers vying for an opportunity to speak. The two most prominent are Deepak Gupta and Steven Molo. Molo’s group has been a tour de force throughout the objection process, providing critical assessment and analysis of the settlement’s inadequacies. Gupta’s group, similarly, has submitted some stellar appellate briefs that effectively identify the deficiencies of the settlement that arguably compel reversal.
Simply put, the parties are well represented, and you can all-but guarantee that this case is headed for the Supreme Court, though the granting of certiorari is less than certain. But first, the Third Circuit must weigh in.
Rather than summarize the arguments on appeal, Gupta’s Opening brief frames the issues so well that it deserves to be excerpted below. Over the next four days, I also intend to republish here what I deem to be the most compelling arguments. (If you can’t wait, you can read the full Opening brief here and the Reply brief here. The rest of the briefing from all sides can be found here.).
Submitted by Gupta Wessler PLLC, et al on behalf of the Armstrong Objectors
By the summer of 2013, the NFL’s executives faced a crisis. Despite the League’s campaign to obscure the effects of concussions in pro football, the autopsy of a beloved former player had led to the discovery several years earlier of chronic traumatic encephalopathy. Characterized by mood and behavioral problems, and even suicide, CTE is a neurodegenerative condition caused only by repeated head trauma. Of 91 former NFL players’ brains examined, CTE has been found in 87.
The discovery of CTE set off a wave of lawsuits by over 5,000 players—a legal and public-relations nightmare for the NFL. But those in the NFL’s boardroom that summer were even more alarmed by what they saw on the horizon, and what the rapidly evolving science foretold: a tsunami of claims by the far larger number of players who would be diagnosed with CTE in the decades to come.
So the NFL wanted an end game: It would pay those with present injuries, including families of players who had already died with CTE. In exchange, the NFL would secure a sweeping global release of all former players’ future CTE claims, without paying any of them. This bargain would result in a stark disparity: The family of a player who dies with CTE before the class-action settlement’s approval gets up to $4 million. But an identically situated player who dies a day after the settlement’s approval releases his claim and gets paid nothing—for the exact same diagnosis.
Why did the NFL believe it could get the plaintiffs’ lawyers to go along with such a lopsided deal? Because, for these lawyers and their injured clients, “the critical goal is generous immediate payments.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 (1997). “That goal,” however, “tugs against the interest” of those with future claims, id., who would prefer to reduce payouts now in favor of “sturdy back-end opt-out rights” and a deal that “keep[s] pace with changing science.” Id. at 610-11.
Why did the NFL and the lawyers think they could disregard the thousands of former players who may be diagnosed with CTE in the future? Because none of the lawyers at the negotiating table independently represented their interests. The personal-injury cases had been consolidated before a single judge in Philadelphia, who appointed a Plaintiffs’ Steering Committee and ordered it to mediate with the NFL in July 2013. But the court never appointed independent counsel for the future claimants, whose rights the Committee had every incentive to trade away.
Just a few weeks later, in August 2013, the NFL and the lawyers emerged with a signed term sheet. There had been no formal discovery, and no litigation beyond a motion to dismiss. Yet the plaintiffs’ lawyers secured the right to seek a nine-figure fee award. The NFL got the sweeping release it wanted, and the present claimants got their compensation. Meanwhile, thousands of potential future CTE claimants—including the 34 Armstrong Objectors—were left on the sidelines.
Neither “the terms of the settlement” nor “the structure of the negotiations” can provide this Court with any assurance that the interests of future claimants were truly represented during the negotiation process. Amchem, 521 U.S. at 627. As to substance: The settling parties are unable to defend the disparate treatment at the heart of this deal. They cannot explain why a player who dies with CTE tomorrow loses the millions that would go to that same player if he died last year.
As to procedure: The supposedly independent “futures” subclass counsel was not, in fact, independent. He was picked by, and from within, the Plaintiffs’ Steering Committee. And the subclass representative was recruited only after the deal had already been hashed out by the lawyers. He doesn’t even allege a claim based on CTE—either for himself or for the thousands of players he supposedly represents. A “representative” who abandons the most valuable claims of those he represents, for nothing, is no representative at all—certainly not an adequate one.
This inadequacy is underscored by class counsel’s refusal to file a fee request until after final approval, leaving many critical questions unanswered. That procedure violates the rule in this circuit that “a thorough judicial review of fee applications is required in all class action settlements.” In re GM Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 819-20 (3d Cir. 1995). “There was no excuse for permitting so irregular, indeed unlawful, a procedure,” Redman v. RadioShack Corp., 768 F.3d 622, 638 (7th Cir. 2014)—an independent ground for reversal.