{"id":630,"date":"2012-05-05T12:08:07","date_gmt":"2012-05-05T17:08:07","guid":{"rendered":"http:\/\/nflconcussionlitigation.com\/?p=630"},"modified":"2012-05-07T11:17:24","modified_gmt":"2012-05-07T16:17:24","slug":"testing-the-strength-of-the-nfl-concussion-lawsuits","status":"publish","type":"post","link":"https:\/\/nflconcussionlitigation.com\/?p=630","title":{"rendered":"Testing the Strength of the NFL Concussion Lawsuits"},"content":{"rendered":"

I recently wrote an exclusive article for Sports Litigation Alert<\/a>. It provides in-depth legal analysis of the issues confronting Judge Holderman. You can check it out here<\/a>.<\/p>\n

As you may be aware, Dave Duerson\u2019s family filed a wrongful death complaint<\/a> in February. The NFL and Riddell Helmets removed<\/a> the case to federal court, and Duerson filed a motion to remand<\/a>.<\/p>\n

Duerson and the NFL & Riddell Helmets submitted their briefs to Judge Holderman on Friday. A decision is expected within the coming weeks.<\/p>\n

Duerson is essentially arguing that the wrongful death complaint does not belong in federal court. Conversely, the NFL wants Duerson\u2019s case consolidated with the other concussion-related lawsuits in Philadelphia.<\/p>\n

The controversy hinges on whether the lawsuits are \u201cfundamentally a labor dispute\u201d governed by the collective bargaining agreement (CBA), or if the state-law claims are independent of the CBA and therefore not preempted.<\/p>\n

Judge Holderman has a difficult and complex ruling to make\u2014the 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<\/strong><\/em>.<\/p>\n

In other words, a lot is riding on Judge Holderman\u2019s ruling.<\/p>\n

Judge Brody will have to make a similar decision when she eventually rules on the NFL\u2019s motion to dismiss. However, that decision is not expected until 2013.<\/p>\n

That is why Judge Holderman\u2019s 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,\u00a0IF<\/strong>\u00a0and when, a trial will take place.<\/p>\n

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.<\/p>\n

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\u2019s 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\u2019s case potentially being a test case, \u201cIt definitely can\u2019t hurt.\u201d<\/p>\n

The plaintiffs\u2019 lawyers are anxiously awaiting Judge Holderman\u2019s 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\u2019s hand (i.e. defense strategy). Accordingly, the parties’ respective positions may be bolstered or severely weakened.<\/p>\n

At bottom, if Judge Holderman rules against Duerson \u2013 following Judge Manuel Real\u2019s prior decision<\/a> \u2013 nothing dramatic will have occurred. On the other hand, if the case is sent back to state court, it will be BREAKING NEWS.<\/p>\n

Sit tight, it\u2019s about to be a fun ride!<\/p>\n","protected":false},"excerpt":{"rendered":"

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\u2019s family filed a wrongful death complaint in February. The NFL and Riddell Helmets removed the case to federal court, and Duerson […]<\/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":[],"jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/630"}],"collection":[{"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=630"}],"version-history":[{"count":4,"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/630\/revisions"}],"predecessor-version":[{"id":660,"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/630\/revisions\/660"}],"wp:attachment":[{"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=630"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=630"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=630"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}