NFL players' concussion litigation - new 'Big Tobacco' - moves forward in Philly

Brody

PHILADELPHIA (Legal Newsline) - With a deep pocket defendant and experienced plaintiff attorneys, a growing personal injury case docket at federal court in Philadelphia has the potential to rival "Big Tobacco" litigation of the 1990s. Known as the National Football League Players' Concussion Injury Litigation, the fast-tracking multi-district litigation (MDL) is being overseen by U.S. District Judge Anita Brody in the Eastern District of Pennsylvania. What began in August 2011 with one lawsuit filed by seven former NFL players and their wives has grown to include 2,000 plaintiffs in nearly 150 individual suits. The overarching claim is that the NFL concealed the long-term health risks associated with players' repeated concussions on the football field. One of the first plaintiffs involved in the initial lawsuit, former Atlanta Falcons defensive back Ray Easterling, committed suicide this spring. Easterling, 62, died April 19 from a self-inflicted gunshot wound to the head, according to media reports. He was found inside his Richmond, Va. home. In an April 21 Fox Sports article, Easterling's wife, Mary Ann Easterling, was quoted as saying that her late husband had been diagnosed with dementia in March 2011, months before he filed his lawsuit against the NFL over allegations that the sports organization concealed the potential long-term health risks associated with concussions caused by sports play. The widow told Fox Sports that prior to his death, Easterling had been feeling "more and more pain. He felt like his brain was falling off. He was losing control." Mary Ann Easterling went on to say that it was sad to see a man who had memorized plays as a football player not being able to remember things from "five minutes ago." Other former NFL players who claimed to have suffered from play related head injuries also went on to kill themselves, including former Chicago Bears safety Dave Duerson and former Pittsburgh Steelers offensive lineman Terry Long, according to Fox Sports. In his suicide note, Fox reported, Duerson instructed relatives to donate his brain, which had showed evidence of the debilitating brain disease chronic traumatic encephalopathy (CTE), to Boston University for research purposes. Some legal experts are saying that doctors are going to play a key role in the concussion litigation. Travis Leach, an Arizona-based sports law attorney, told American Medical News in late July that a major factor in the litigation is going to be what physicians did, or didn't do, to warn players and the public about the health risks associated with repeated head trauma. "The crux of these cases is: What did medical professionals know historically about concussions, and what was the common medical practice 10, 20 years ago when these issues started arising?" Leach was quoted as saying in the July 30 AMN story. As for the potential outcome of the litigation, it remains to be seen if the cases will ever make it to trial. If they do, however, some are predicting Big Tobacco-like damages, especially given the fact that the NFL earned $9 billion in 2010 alone. "That level of liability would likely bring the NFL to an abrupt end," Darren Heitner, an attorney with Wolfe Law Miami, wrote in a piece for Forbes Magazine earlier this summer. The litigation so interested Missouri resident Paul D. Anderson that he created his own website dedicated to the case, www.nflconcussionlitigation.com. Anderson, a recent law school graduate who is not yet a licensed attorney, viewed the idea of creating a site to keep people up to date on the litigation as a great way to break into the world of sports law. "In law school you get to learn the law but don't really get to see the practical side," Anderson said. Anderson shared his take on the current state of the concussion litigation during a recent interview. Citing a recent Pennsylvania Record story about Judge Brody, the federal jurist overseeing the NFL case, refusing to dismiss claims against the Kellogg Company by a former worker, Anderson discussed why he feels the football players' litigation would at least make it to the discovery stage. "It appears that she [Brody] may be willing to allow the parties to get into discovery," Anderson said, drawing parallels between the Kellogg case and the NFL litigation, with the judge recently allowing discovery to proceed in the former case. In the NFL case, Anderson said the plaintiffs would likely have to prove that their claims are independent of the collective bargaining agreement (CBA); the NFL would probably argue that there is no way to decide this issue without looking at the CBA. The plaintiffs, Anderson said, will likely argue that the case involves "straight up" common law claims. "It's going to be a back and forth battle to persuade Judge Brody that she's not going to have to look at the CBA and that the claims are independent," Anderson predicted. The legal observer said there are no specific Third Circuit Court of Appeals cases similar to this litigation that would bind Brody, so it truly does remain to be seen how things will unfold from the bench. "In high stakes litigation, things can change at any moment," Anderson said. As of Sept. 13, Anderson said, there were 148 individual lawsuits contained in the master complaint. At present, the plaintiffs are under a 30-day window in which they can file a reply to the NFL's motion to dismiss, which was filed on Aug. 30. The players may get an extension, Anderson predicted, again mentioning Brody's decision in the Kellogg case as a hint to what the jurist might do in the concussion litigation. Anderson predicted that oral arguments in the case might be scheduled to take place in January with Brody then deciding whether or not the litigation can move forward. Discovery would likely then follow. Anderson went on to predict that the whole issue of independent state law claims versus what's contained within the collective bargaining agreement would likely dominate the litigation for the next two or three months. If Brody rules the claims are preempted by the CBA, the case would likely come to an end, he said. Regardless of the outcome, however, Anderson predicts a fast appeal to the federal appeals court sitting in Philadelphia. Meanwhile, Anderson pointed out that many of the attorneys involved in the concussion litigation were the same lawyers involved with the tobacco litigation. He said he believes about a quarter of the plaintiffs' lawyers on board at this point had been involved in Big Tobacco. Philadelphia attorneys Sol Weiss and Larry Coben, of the firm Anapol Schwartz, are just a couple of the plaintiffs' lawyers named in the docket.

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