On January 18, 2012, Ron Solt v. NFL was filed in the Eastern District of Pennsylvania. This is considered a “related case” and it will eventually be included in the currently pending MDL motion involving the other 15 lawsuits.
This now brings the total lawsuits filed against the NFL to 17, but there are only 16 lawsuits pending since the Hardman suit was voluntarily dismissed and replaced by the Jacobs lawsuit.
The Solt suit is similar to the other suits filed except the lawyers from the Locks Law Firm divided the putative class into subclasses; presumably it’s an attempt to satisfy the strict medical monitoring requirements.
According to the Complaint, the global Class is defined–similarly to the other lawsuits–as “[a]ll retired or former professional football players…who were employed by any member club that was part of the association called the NFL….”
The Class is then split into three subclasses: 1) Non-Concussion Subclass; 2) Symptomatic Subclass; and 3) Concussion Subclass.
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.”
Whenever a litigant attempts to create a subclass, the subclass must also meet all the procedural requirements of Rule 23. See Rule 23(c)(4) and Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 599 (7th Cir. 1993).
Whether the subclasses, and the global class, will be able to meet all the requirements of Rule 23 will have to be fully briefed by both parties and determined by the court.
However, the first matter before the court, other than deciding the MDL motion, will be whether Section 301 of the National Labor Relations Act preempts the Plaintiffs’ lawsuits. The Easterling Plaintiffs’ response to the NFL’s Motion to Dismiss is due February 1, 2012.
The Panel on multidistrict litigation (MDL) in the NFL Concussion Injury Litigation: MDL #2323, has scheduled oral arguments for January 26, 2012 in Miami, Florida.
The Panel will hear arguments from all parties that have filed suit against the NFL and Riddell Helmets. The hearing will determine if the fifteen currently pending lawsuits should be consolidated to the Eastern District of Pennsylvania.
The hearing should be uneventful since all the Plaintiffs are in support of the NFL’s Motion to Transfer and Consolidate the cases to the Eastern District of Pennsylvania, to be heard in front of Judge Anita Brody.
The only party that has objected to the NFL’s Motion is Riddell Helmets. Riddell was named a Defendant in the Maxwell, Pear, and Barnes lawsuits. According to Riddell’s Motion, it argues that it opposes the Motion to Consolidate because 1) there is currently a Motion to Dismiss pending in the Central District of California—where the three above lawsuits were filed–and 2) Riddell defendants are not a party in the majority of the actions filed against the NFL, and thus, common questions of fact are lacking.
The purpose of multidistrict litigation is to provide a single forum where all pre-trial motions and discovery can take place. The polestar is judicial economy and to prevent duplicative rulings.
Therefore, it is highly likely the Panel will rule in favor of the NFL’s Motion to Transfer and Consolidate to an MDL.
The NFL is not the only organization that was blindsided with a flurry of concussion-related lawsuits. On September 12, 2011, a class action complaint was filed against the NCAA in the U.S. Dist. Ct., Northern District of Illinois, Adrian Arrington v. NCAA. Shortly thereafter, another lawsuit was filed against the NCAA, Derek Owens and Alex Rucks v. NCAA. Subsequently the cases were consolidated, and a “Corrected Consolidated Complaint” was filed naming Adrian Arrington, Derek Owens, Mark Turner and Angela Palacios as Plaintiffs for the putative Class.
To read about Arrington and his lawyer’s comments see a related ESPN article here.
The Plaintiffs’ complaint asserts four claims: 1) medical monitoring; 2) negligence; 3) fraudulent concealment; and 4) unjust enrichment. The Plaintiffs seek compensatory and declaratory relief and the creation of a trust fund to establish a medical monitoring program for all past, present and future student-athletes who have suffered or will suffer concussion-related symptoms. (Note: the class is not limited to football players; it seeks to represent ALL student athletes.)
According to the complaint, the NCAA has failed to,
“(1) address and/or correct the coaching of tackling, checking or playing methodologies that cause head injuries; (2) educate coaches, trainers and student athletes as to the symptoms indicating possible concussions; (3) implement system-wide “return to play” guidelines for student-athletes who have sustained concussions; (4) implement system-wide guidelines for the screening and detection of head injuries; (5) implement legislation addressing the treatment and eligibility of student-athletes who have sustained multiple concussions in the course of play; and (6) implement a support system for student-athletes who, after sustaining concussions, are left unable to either play their sport or even lead a normal life.”
The NCAA filed its general answer and denial on December 21, 2011, denying nearly all of the Plaintiffs’ allegations and asserting several affirmative defenses.
As an estimate, the requested relief for medical monitoring would likely be in the hundreds of millions of dollars, and therefore the NCAA will vigorously oppose any attempt by the Plaintiffs’ to certify the Class.
Fortunately for the Plaintiffs here, and unlike the hurdle the former NFL players have to overcome in the NFL litigation, the NCAA is unable to assert that the Plaintiffs’ claims are barred by the CBAs, since this is clearly not a “labor dispute.” This likely means that Discovery will begin immediately, and the Plaintiffs will not be nuanced with rebutting a preemption argument.
On January 13, 2012, the Plaintiffs and the NCAA filed a Proposed Joint Status Report defining the issues, setting the scope of discovery and proposing a timeline in which the litigation will proceed.
According to the Report, the Plaintiffs and the NCAA disagree upon the scope of discovery. The Plaintiffs argue that discovery should go directly to the merits of the lawsuit, while the NCAA argues that discovery should be limited to whether the Plaintiffs can satisfy the requirements of a Class.
The opposing arguments are arguably supported by caselaw; however, it is clear that a threshold question to be determined by the court is whether the putative Class should be certified pursuant to Rule 23. This analysis will “entail some overlap with the plaintiff’s underlying claim.” See Dukes v. Wal-Mart, 131 S. Ct. 2541, 2551 (2011). In other words, the analysis whether a Class should be certified and the merits of the Plaintiffs’ claims are not hermetically sealed, and therefore, the court will likely allow limited discovery into the merits of the Plaintiffs’ allegations.
It is apparent that the NCAA and the Plaintiffs are headed for a long litigation battle that may take several years to resolve.
In addition to the NFL litigation, this site will also follow the NCAA concussion lawsuits.
Throughout the stages of litigation, discovery almost always becomes a prime issue of controversy. Generally, one side blames the other side of embarking on a fishing expedition, while the other side claims that the information is necessary to adequately prosecute or defend the case. As expected, the proverbial fishing trip is about the set sail in the NFL concussion litigation.
The Easterling Plaintiffs fired the first shot on December 16th, by sending the NFL a Deposition Notice pursuant to Rule 30(b)(6). According to the Plaintiffs’ Memorandum supporting their Deposition Notice (filed December 20th), the purpose of the deposition is to further respond and to refute the factual allegations made in the NFL’s motion to dismiss.
Of prime concern to the Plaintiffs is the NFL’s argument that the CBAs control this “labor dispute” and any legal duty owed to the players arises from the CBAs. In other words, all of the Plaintiffs’ claims are preempted due to Section 301 of the Labor Management Relations Act (LMRA).
As an aside, if the NFL prevails on this argument and the court grants its Motion to Dismiss, this will likely be the end of the litigation and the players will be forced to pursue the limited rights and protections, if any, that arise from the LMRA and CBAs.
Specifically, the Memorandum raises four of the Defendant’s contentions cited in the NFL’s Motion to Dismiss, and the Plaintiffs attempt to expound upon each of the NFL’s arguments through “directed discovery.”
According to the Plaintiffs’ Memorandum, the Defendant’s contentions include 1) all alleged damages to the former players are covered by the CBAs; 2) the CBAs dictate the legal duties owed to the players; 3) the lawsuits are “fundamentally a labor dispute;” and 4) there is no independent duty to study or promulgate rules regarding concussions.
For each contention the Plaintiffs provide a list of questions that purport to provide the basis for the discovery requests. The first response to Defendant’s contention seeks to depose all NFL representatives who were allegedly responsible for excluding former players from the 2011 CBA.
The second response requests to depose NFL representatives responsible for drafting and issuing the December 2, 2009, “Return To Play statement.” Furthermore, it requests information regarding the NFL Sideline Concussion Assessment Tool, and other rules issued for identifying and managing concussions, including “when did the NFL first acknowledge that concussions can lead to long-term permanent neurological problems in players” (emphasis added).
The third response requests a list of all former players who have applied for “funds via any program authorized by any CBA because of neurogenic deficits such as dementia, memory loss, etc.”
The final response requests to depose NFL representatives responsible for creating the controversial NFL Concussion Committee, including the purpose of the Committee, the leadership structure, the Committee’s authority and the funding received.
In order to prevent the Plaintiffs from catching big fish, the NFL quickly filed its Objection to the Plaintiffs’ requested discovery on January 6, 2012, and accused the Plaintiffs of embarking on a fishing expedition. In addition, the NFL’s objection includes a request for a protective order preventing the Plaintiffs from taking depositions until the NFL’s Motion to Dismiss is decided.
The NFL cites a substantial amount of Caselaw arguing that, “merit-based discovery” should not be allowed in order for the Plaintiffs to 1) respond to the Motion to Dismiss and 2) to “salvage their insufficiently pleaded claims,” according to the NFL’s Objection.
The NFL’s Motion to Dismiss and Objection argues that the Plaintiffs failed to satisfy the heightened fact-pleading requirements when alleging concealment, conspiracy and medical monitoring. See Iqbal and Twombley (facts pleaded must move the claim “across the line from conceivable to plausible”). The NFL further argues that merit-based discovery should not be allowed at this juncture because a 12(b)(6) motion should consider only the four corners of the pleadings.
Prediction
Based upon the Plaintiffs’ Memorandum, it is apparent that this is a classic attempt of premature far-reaching discovery. Each question posed by the Plaintiffs goes to the heart of the litigation, and seeks information that all Plaintiffs, not just the Easterling Plaintiffs, will surely seek as the litigation proceeds.
At this early stage of litigation, granting discovery would seem imprudent primarily because an MDL motion is waiting to be decided. Contrary to the Defendant’s contentions that the Plaintiffs failed to adequately plead facts, the Plaintiffs’ Amended Complaint is replete with facts sufficient to survive a Motion to Dismiss.
If the court were to grant the discovery request and an MDL panel is granted, you can guarantee that the other Plaintiffs will demand to depose the NFL, asking the same questions that the Plaintiffs seek here.
Accordingly, Judge Brody should stay the Plaintiffs’ request for discovery until 1) the MDL motion is decided and 2) the Motion to Dismiss is either decided or converted to a Motion for Summary Judgment, at which time pretrial discovery would be warranted.
Over the past 6 months the NFL was rocked with a flurry of concussion-related lawsuits. As of January 18, 2012, a total of 17 lawsuits have been filed against the NFL.
- 1) Pear v. NFL (Sept.12) CA
- 2) Barnes v. NFL (Oct. 4) CA
- 3) Maxwell v. NFL (Sept. 12) CA
- 4) Easterling v. NFL (Oct. 6) E.D. Penn
- 5) Hardman v. NFL (Oct. 13; voluntarily dismissed)
- 6) Finn v. NFL (Dec. 5) NJ
- 7) Jacobs v. NFL (Dec. 20) NY-Manhattan
- 8) Levens v. NFL (Dec. 21) ATL
- 9) Lewis v. NFL (Dec. 21) ATL
- 10) Stewart v. NFL (Dec. 21) ATL
- 11) Kuykendall v. NFL (Dec. 21) ATL
- 12) Jones v. NFL (Dec. 22) MIA
- 13) Boyd v. NFL (Jan. 9 ) E.D. Penn
- 14) Rucker v. NFL (Dec. 27) NY
- 15) Dronett v. NFL (Jan. 9) ATL
- 16) Austin v. NFL (Jan. 9) ATL
- 17) Ron Solt v. NFL (Jan. 18) E.D. Penn
The lawsuits allege essentially the same facts and assert the same counts: medical monitoring, negligence, fraud, fraudulent concealment, negligent misrepresentation, and loss of consortium. In addition, Finn v. NFL includes an allegation regarding the administration of Toradol.
Among the 17 lawsuits filed, Dronett v. NFL is the first wrongful death action, as a result of a suicide, filed against the NFL . Although it pleads primarily the same facts, the action is brought on behalf of former NFL player Shane Dronett’s surviving spouse, Christine Dronett.
According to the complaint, Shane Dronett died on January 21, 2009 as a result of a self-inflicted gunshot wound. A related article regarding Shane’s death and the events leading up to his suicide can be found here.
Due to the substantial amount of lawsuits filed against the NFL, the NFL has requested that all actions be transferred and consolidated in front of a Judicial Panel on Multidistrict Litigation (MDL). Several of the Plaintiffs have joined in the NFL’s Motion to Transfer to the Eastern District of Pennsylvania to be assigned to Judge Anita Brody.
The Eastern District of Pennsylvania is where the leading class action, Easterling v. NFL, was filed and which Judge Brody is currently presiding. According to the NFL’s MDL Motion, the Eastern District of Pennsylvania is the most convenient forum for all interested parties (save Riddell Helmets, opposing the MDL motion—next blog post)
The polestar for an MDL is judicial economy and to prevent several different and perhaps conflicting rulings to occur throughout the District Courts. An MDL will allow all pre-trial discovery and motions to be heard in front of a Panel and is used to prevent duplicative rulings on the same common questions of fact and law.
The potential MDL has been assigned the case name, In Re: National Football League Players’ Concussion Injury Litigation, and the MDL Docket Number is 2323.
A ruling on the NFL’s Motion to Transfer to an MDL will likely be granted, and a hearing is scheduled for January 26, 2012.
In the interim, check out the articles below for a glimpse of the materials this site will publish.
In the last six months ten lawsuits have been filed against the NFL and there are likely more to come.
The leading class action is Easterling v. NFL, No. 11-5209, U.S. Dist. Ct. E.D. Pa., and the petition alleges that the NFL actively concealed the link between concussions and neurodegenerative diseases. The putative class seeks medical monitoring and the complaint asserts four state-law claims: negligence, concealment, civil conspiracy and loss of consortium.
The other nine lawsuits are essentially the same except for Finn v. NFL, filed in the U.S. Dist. Ct. of New Jersey. Joe Horn is a plaintiff in this suit. It includes an additional allegation that the League’s medical providers administered a non-steroidal anti-inflammatory drug called Toradol in order to “mask the pain” caused from concussions. The Finn complaint cites a 2002 study that found that athletes using the drug should be warned of the increased risks associated with the drug. According to the complaint, the medical providers failed to warn or disclose of the known risks.
Four of the ten lawsuits (Pear, Barnes, Maxwell and Hardman) were initially filed in California State Court. The NFL filed a Notice of Removal and the cases were subsequently removed to federal court in the Central District of California. These lawsuits include additional defendants, Riddell Sports and Easton-Bell Sports, and assert negligence-monopolists against the NFL, failure to warn and strict liability for design and manufacturing defects against Riddell.
According to Jim Mitchell, a paralegal at Hausfeld LLP–the law firm representing the Hardman and Jacobs’ putative class, on December 5, 2011, federal Judge Manuel Real denied Maxwell, Pear, and Barnes’ Motion to Remand back to state court, and further ruled that the Plaintiffs’ negligence claim was preempted by Section 301 of the Labor Management Relations Act. In other words, the Collective Bargaining Agreement controls the labor dispute.
Subsequently, the Hardman Plaintiffs’ took notice of this adverse ruling and voluntarily dismissed their claims. According to Hausfeld LLP, it will be re-filed in another jurisdiction.
The adverse ruling may be an early defeat for the former players since there is at least one judge who believes these lawsuits are barred by the LMRA.
On November 17th the NFL filed a Motion to Consolidate and Transfer the lawsuits (Easterling, Pear, Barnes and Maxwell) to the Eastern District of Pennsylvania. The NFL is seeking that all lawsuits pending against the NFL be transferred to a panel for multidistrict litigation (MDL). This, the motion argues, would allow pre-trial discovery to occur in a single forum, and will “significantly advance the just and efficient conduct of the litigation….”
Since there are a number of lawsuits filed against the NFL, there is a high probability that the cases will be heard in front of an MDL panel.
According to the Scheduling Order dated November 21, 2011, Judge Anita B. Brody ruled that the Easterling plaintiffs have until February 1, 2012, to file their responses to the NFL’s motion to dismiss. The plaintiffs’ reponse will attempt to persuade the court that the complaint is not barred by the LMRA and that pre-trial discovery should proceed. Finally, all discovery should be completed by July 2, 2012.
Here is a list of lawsuits filed against the NFL. A majority of them can be viewed at my scribd.com profile.
1) Pear v. NFL (Sept.12) CA
2) Barnes v. NFL (Oct. 4) CA
3) Maxwell v. NFL (Sept. 12) CA
4) Easterling v. NFL (Oct. 6) Penn
Above Actions cited in NFL motion to Transfer
5) Hardman v. NFL (Oct. 13; voluntarily dismissed)
6) Finn v. NFL (Dec. 5) NJ
7) Jacobs v. NFL (Dec. 20) NY-Manhattan
8 Levens v. NFL (Dec. 21) ATL
9) Lewis v. NFL (Dec. 21) ATL
10) Jones v. NFL (Dec. 22) MIA
Concussion Lawsuits Rattle the NFL
This article was published on Yahoo! December 5, 2011
It should be a no-brainer that repeated blows to the head might lead to detrimental long-term effects, right? Not according to several former NFL players.
Two class actions (Easterling & Hardman) and three separate multi-plaintiff lawsuits (Maxwell, Pear & Barnes) were filed against the NFL this fall.
The leading class action, Charles Ray Easterling v. NFL, No. 11-5209, U.S. Dist. Ct. E.D. Pa., alleges that the NFL actively concealed the link between concussions and neurodegenerative diseases. The putative class seeks medical monitoring, and the complaint asserts four state-law claims: negligence, concealment, civil conspiracy and loss of consortium.
The four other lawsuits filed in California include a substantial amount of explosive factual allegations. In addition, they name the NFL Properties, Riddell Sports, and Easton-Bell Sports as defendants. Furthermore, the California actions assert negligence-monopolists against the NFL and strict liability for design and manufacturing defects against Riddell.
Since it is likely that all the lawsuits will be transferred to the judicial panel on multidistrict litigation, this article will combine the five lawsuits and discuss the allegations facing the NFL individually and its likely defense in blocking the lawsuits.
The Offensive Scheme
According to the complaints, for more than 35 years the NFL concealed the link between concussions and long-term-brain injuries. In 1994 the NFL undertook the duty of creating the Mild Traumatic Brain Injury Committee (MTBIC), its purpose was to study “the effects of concussions on the long-term health of retired NFL players.” Drs. Elliot Pellman, Ira Casson and David Viano headed the committee.
As early as 2000, peer-reviewed studies were published within the scientific and neurological community that unequivocally stated there is a link between concussions and long-term-brain injuries. One study led by the University of North Carolina and published in the September-October issue of the American Journal of Sports and Medicine stated, “concussions can lead to permanent brain damage, vision impairment or even death if not managed properly.”
The NFL’s MTBIC disputed these findings and concluded that it was junk science and lacked “scientific rigor.” In rebuttal, the MTBIC published its own studies in 2003 and 2004 in Neurosurgery; the studies concluded “that NFL players did not show a decline in brain function after suffering concussions.” Coincidentally, the editor of the scholarly journal was Mike Apuzzo, the New York Giants’ neurosurgical consultant. Perhaps a conflict of interest!
The most compelling research linking concussions with later cognitive decline came between 2005 and 2008 through the independent studies of Drs. Bennet Omalu, Robert Cantu and Ann McKee. Their combined research led to the finding of Chronic Traumatic Encephalopathy (CTE) in several former players (e.g. 14 of 15 player’s brains studied showed signs of CTE).
Despite these findings and numerous public reports discussing the severity of concussions, the MTBIC published another article in the Nerologoical Focus concluding, “that mild TBIs [traumatic brain injuries] in professional football are not serious.” The most damning of all evidence to date, was a press release the NFL circulated to all teams and players in April 2007 explicitly stating, “Current research with professional athletes has not shown that having more than one or two concussions leads to permanent problems…[t]here is no magic number for how many concussions is too many.”
In 2007 the national media started reporting on the tragic stories of former players struck with neurodegenerative diseases; the findings of Drs. McKee, Cantu and Omalu; and the NFL’s stiff-arm and blatant denial that concussions lead to long-term cognitive decline. On October 28, 2009, Congress took note of the seriousness of concussions in the NFL after a University of Michigan study was released that found “NFL alumni are diagnosed with Alzheimer’s disease or similar memory-related diseases vastly more often than the national population—including a rate of 19 times the normal rate for men ages 30 through 49.” Appropriately, the judiciary committee summoned the NFL and others to report on the “Legal Issues Relating to Football Head Injuries.”
The Congressional hearings exposed the NFL’s insincere position and active concealment of the link between concussions and cognitive decline. Roger Goodell was peppered with questions as to why the NFL’s MTBIC continued to deny and discredit the medical community’s findings that multiple former players were suffering from dementia, depression, and severe neurodegenerative diseases. In reply, Goodell deferred the questions to his cohorts (Drs. Casson, Pellman and Viano) by asserting the “empty-chair defense.” Dr. Casson and his crew failed to appear at the Congressional hearing, so the Committee played Dr. Casson’s comments on HBO Real Sports. Dr. Casson emphatically denied that multiple head injuries in the NFL could lead to dementia, depression, CTE, and early-onset Alzheimer’s. This denial led Congresswoman Linda Sanchez to analogize the NFL’s concealment to the tobacco industry’s denial of the link between cigarette consumption and health hazards, effectively foreshadowing the pending lawsuits against the NFL.
Following the Congressional hearings and the embarrassment the NFL received due to its failure to act, the NFL was obligated to do a complete about-face. The NFL forced Drs. Casson and Viano to resign and suspended the work of its misinformed MTBIC. The NFL partnered with the Center for the Study of Traumatic Encephalopathy and started pouring money into its so-called “brain-bank” operation. To be fair, the NFL has increased certain retirement benefits, but the process is notorious for its quick denials and monotonous administrative procedures, leaving numerous qualified recipients without coverage.
The NFL’s Counter Attack
On November 9, 2011, the NFL responded to the Easterling lawsuit by filing a motion to dismiss. The crux of the NFL’s argument is federal preemption. In essence, the response argues that the plaintiffs’ cause of action is barred by the Collective Bargaining Agreement (CBA) the players and the NFL entered into, and thus any dispute must be resolved through the grievance procedures set forth in the CBA. The CBA requires all disputes arising from the CBA to be interpreted by an arbitrator. The NFL’s response is well grounded in precedents and may very well rule the day.
The tragic irony of the case being dismissed on the pleadings is that the same agreement the players entered into to protect their rights, may be the biggest hurdle to providing the players with their day in court.
Post-Game Analysis
In order to overcome the NFL’s preemption argument and to prevent dismissal, the plaintiffs must persuade the court that the state-law claims are not “inextricably intertwined with consideration of the terms” of the CBA. This indeed will be a tough argument to make; however with the ingenuity of a good plaintiff’s lawyer there are arguments to be made.
In short, the argument will likely be that the plaintiffs (i.e. retired players) are not a party to the CBA, and thus the CBA does not apply nor will it need to be interpreted to adjudicate the state-law claims. Next, the NFL owed a duty to the players by undertaking the creation of the MTBIC. And then, applying the pertinent facts above, the NFL breached this duty by failing to inform the players of the risks of concussion, it misrepresented and concealed the link between concussions and cognitive decline, and thus materially harmed and caused damage to the former players. I admit, full analysis is lacking but for the sake of simplicity this is likely the argument that will be raised.
In any event, the litigation battle has begun, and the ball is now back in the plaintiffs’ hands to respond to the NFL’s motion to dismiss. The saga will continue throughout the following year.