{"id":1807,"date":"2015-11-16T09:35:59","date_gmt":"2015-11-16T15:35:59","guid":{"rendered":"http:\/\/nflconcussionlitigation.com\/?p=1807"},"modified":"2015-11-16T09:44:50","modified_gmt":"2015-11-16T15:44:50","slug":"the-future-of-cte-is-eviscerated-under-the-settlement","status":"publish","type":"post","link":"http:\/\/nflconcussionlitigation.com\/?p=1807","title":{"rendered":"The Future of CTE is Eviscerated Under the Settlement"},"content":{"rendered":"

At the heart of the appeal<\/a> 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\u00a0ever<\/em> receive future compensation for CTE, even though scientists predict that within the next “five to ten years” CTE will be diagnosed in the living<\/a>. No matter. Unless a player died and was diagnosed with CTE on or before April 22, 2015, no player will\u00a0be compensated for CTE,\u00a0ever<\/em>! Take, for example, Ken Stabler<\/a>.<\/p>\n

In this latest excerpt of briefing from Deepak Gupta’s team<\/a>, they attack the irrational treatment of CTE and the fact that players are forever releasing future CTE claims in exchange for nothing.<\/p>\n

**********<\/p>\n

The\u00a0settling parties have been unable to justify the mismatch at the heart of the deal:\u00a0the disparate treatment between those diagnosed with CTE before, and those\u00a0diagnosed after, the date of approval. The parties\u2019 \u201cproxy\u201d theory\u2014that other,\u00a0rarer conditions may stand in for CTE\u2014offers no justification for this disparity,\u00a0and fails to account for the fact that many with CTE will get nothing. The same is\u00a0true for scientific uncertainty, which is a reason to preserve, not extinguish, future\u00a0claims. The only credible explanation for the disparity is also the simplest: the deal\u00a0was achieved by sacrificing future claimants\u2019 interests to the winds.<\/p>\n

[…]<\/p>\n

\u201cThe inadequacy of the representation\u201d here \u201cis apparent from examination\u00a0of the settlement itself.\u201d Nat\u2019l Super Spuds v. N.Y. Mercantile Exch.<\/em>, 660 F.2d 9, 18 (2d\u00a0Cir. 1981). This settlement creates a massive \u201cdisparity between the currently\u00a0injured and [future-injury] categories of plaintiffs,\u201d Amchem<\/em>, 521 U.S. at 626\u2014the\u00a0class\u2019s \u201cmost salient conflict,\u201d Georgine<\/em>, 83 F.3d at 630. Under the settlement\u2019s terms,\u00a0if a class member died with CTE before April 22, 2015\u2014that is, if he had a current\u00a0CTE claim on the day of approval\u2014his estate will receive up to $4 million. But if a\u00a0class member dies after April 22, 2015\u2014that is, if he has a future CTE claim\u2014his\u00a0estate will \u201cget no monetary award at all\u201d for the very same injury. Id<\/em>. Future\u00a0injury\u00a0plaintiffs, in other words, are forced to release all \u201cclaims relating to CTE,\u201d\u00a0A.77, yet they \u201cwill never enjoy the [CTE] benefits of the settlement\u201d\u2014benefits\u00a0that were obtained at their expense. GM Trucks<\/em>, 55 F.3d at 797.<\/p>\n

It is hard to think of more \u201cconspicuous evidence\u201d of \u201can intra-class conflict.\u201d\u00a0Id<\/em>. When a \u201csettlement treats [one group] quite differently from [another],\u201d it has\u00a0\u201cserious implications for the fairness of the settlement and the adequacy of\u00a0representation of the class.\u201d Id<\/em>. at 777. That is especially true here, where the\u00a0disparate treatment concerns the one injury that triggered this flood of litigation in\u00a0the first place: death with CTE\u2014the \u201cindustrial disease\u201d of the NFL. A.5410.<\/p>\n

What explains this eye-popping disparity if not a conflict of interest? Why\u00a0would class counsel, who previously called CTE \u201cthe most serious and harmful\u00a0disease that results from NFL and concussions,\u201d A.2237, insist on up to $4 million\u00a0in CTE compensation for those who have already died, but forever foreclose the\u00a0possibility of CTE compensation for everyone else? Whose interest does that serve?\u00a0How can we be sure that future CTE claims were not bargaining chips to benefit\u00a0others?<\/p>\n

The district court posited two justifications for the disparity. The lead\u00a0justification was that \u201c[a] prospective Death with CTE benefit would incentivize\u00a0suicide because CTE can only be diagnosed after death.\u201d A.144. Put differently,\u00a0the court\u2019s concern was that CTE claims are so valuable\u2014and the settlement\u2019s\u00a0compensation for those who will be diagnosed with CTE in the future is so\u00a0inadequate\u2014that some class members will kill themselves to obtain the benefits. That\u00a0justification is as perverse as it is fanciful.<\/p>\n

[…]<\/p>\n

Worse, these class members will \u201cbecome bound to the settlement\u201d even\u00a0though they \u201clack adequate information to properly evaluate\u201d it. Georgine<\/em>, 83 F.3d\u00a0at 633. The wide variation of CTE estimates in this case attests to that. Becauseany absent class member would have great \u201cdifficulty in forecasting what their\u00a0futures hold,\u201d Georgine<\/em>, 83 F.3d at 31, any rational future-injury representative\u00a0would insist on \u201can agreement that keeps pace with scientific advances,\u201d as the\u00a0district court explained. A.93. But this deal doesn\u2019t do that. Instead, it \u201cfreez[es] in\u00a0place the science of [2014],\u201d Georgine<\/em>, 83 F.3d at 31, by requiring only that the\u00a0settling parties \u201cmeet at least every ten years and confer in good faith about\u00a0possible modifications,\u201d while giving the NFL veto power over \u201cany prospective\u00a0changes,\u201d A.147.<\/p>\n

Worse still, the uncertainty of the future creates especially \u201cserious problems\u00a0in the fairness\u201d of this settlement, Georgine<\/em>, 83 F.3d at 633, because it does not\u00a0involve the small-dollar claims that Rule 23\u2019s drafters had \u201cdominantly in mind,\u201d\u00a0Amchem<\/em>, 521 U.S. at 617. Rather, this case \u201cinvolves claims for personal injury and\u00a0death\u2014claims that have a significant impact on the lives of the plaintiffs and [could\u00a0one day] receive huge awards in the tort system.\u201d Georgine<\/em>, 83 F.3d at 633.<\/p>\n

Each\u00a0plaintiff thus \u201c\u2018has a significant interest in individually controlling the prosecution\u00a0of [his case]\u2019; each \u2018ha[s] a substantial stake in making individual decisions on\u00a0whether and when to settle.\u2019\u201d Amchem<\/em>, 521 U.S. at 616 (quoting Georgine<\/em>, 83 F.3d at\u00a0633). Future-injury class members would thus \u201cprobably desire a delayed opt out\u00a0like the one employed in Bowling v. Pfizer, Inc.<\/em>, 143 F.R.D. 141, 150 (S.D. Ohio\u00a01992).\u201d Georgine<\/em>, 83 F.3d at 631. But here, too, class counsel came up short, instead\u00a0bargaining for \u201can enormous legal fee,\u201d GM Trucks<\/em>, 55 F.3d at 801 further\u00a0evidence that this settlement was beset with conflict, as discussed in Part II.<\/p>\n

In short, the substance of this settlement should put this Court on high alert\u00a0that future-injury class members did not receive fair and adequate representation\u00a0here. The settlement facially discriminates against them as to the one injury at the\u00a0heart of this litigation\u2014an injury the settlement itself values at up to $4 million.\u00a0The parties\u2019 failure to justify the disparity leaves only one explanation: inadequate\u00a0representation.<\/p>\n

**********<\/p>\n","protected":false},"excerpt":{"rendered":"

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\u00a0ever 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. […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"ngg_post_thumbnail":0},"categories":[1],"tags":[474,29,16,88,101,32,489,23,152,126,13,4,241,155,291,6,407],"jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/1807"}],"collection":[{"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1807"}],"version-history":[{"count":6,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/1807\/revisions"}],"predecessor-version":[{"id":1813,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/1807\/revisions\/1813"}],"wp:attachment":[{"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1807"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1807"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1807"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}