Testing the Strength of the NFL Concussion Lawsuits
I recently wrote an exclusive article for Sports Litigation Alert. It provides in-depth legal analysis of the issues confronting Judge Holderman. You can check it out here.
As you may be aware, Dave Duerson’s family filed a wrongful death complaint in February. The NFL and Riddell Helmets removed the case to federal court, and Duerson filed a motion to remand.
Duerson and the NFL & Riddell Helmets submitted their briefs to Judge Holderman on Friday. A decision is expected within the coming weeks.
Duerson is essentially arguing that the wrongful death complaint does not belong in federal court. Conversely, the NFL wants Duerson’s case consolidated with the other concussion-related lawsuits in Philadelphia.
The controversy hinges on whether the lawsuits are “fundamentally a labor dispute” governed by the collective bargaining agreement (CBA), or if the state-law claims are independent of the CBA and therefore not preempted.
Judge Holderman has a difficult and complex ruling to make—the case law and sports labor law experts are split on the issue. But, if he rules in favor of Duerson and sends the case back to state court, it will undoubtedly become the first test case in the concussion lawsuits against the NFL.
In other words, a lot is riding on Judge Holderman’s ruling.
Judge Brody will have to make a similar decision when she eventually rules on the NFL’s motion to dismiss. However, that decision is not expected until 2013.
That is why Judge Holderman’s decision may be groundbreaking. If Judge Holderman determines the claims are not preempted — and sends the case back to state court — Duerson and the NFL will immediately start discovery, with an anticipated trial date set for 2014. Of course, there is no guarantee, IF and when, a trial will take place.
There is also no telling what may be uncovered during the discovery process, but it will provide an indicator for how the other lawsuits will play out. Although 2014 sounds like an eternity, it will indeed shape-up well before the other 60-plus lawsuits engage in significant action.
For example, if damning evidence is discovered (i.e. depositions of the Mild Traumatic Brain Injury Committee: Drs. Pellman, Casson and Viano, among others), the strength of the NFL’s defense will be tested. This will create a windfall effect for all of the other concussion lawsuits. As one attorney closely involved in the lawsuits told me in response to Duerson’s case potentially being a test case, “It definitely can’t hurt.”
The plaintiffs’ lawyers are anxiously awaiting Judge Holderman’s ruling because it will effectively provide a roadmap for how Judge Brody may rule on the Section 301 preemption issue, and allow the plaintiffs to see the NFL’s hand (i.e. defense strategy). Accordingly, the parties’ respective positions may be bolstered or severely weakened.
At bottom, if Judge Holderman rules against Duerson – following Judge Manuel Real’s prior decision – nothing dramatic will have occurred. On the other hand, if the case is sent back to state court, it will be BREAKING NEWS.
Sit tight, it’s about to be a fun ride!