By Anthony Corleto, of Wilson Elser
The past year yielded a few decisions that provide guidance and insight for the defense of sports concussion cases.
NFL CLASS ACTION
For those who need a recap – former players claimed that the NFL mismanaged and hid what it knew about the long-term effects of concussions, “sub-concussive blows” and Chronic Traumatic Encephalopathy (CTE). The Eastern District of Pennsylvania approved class certification for settlement purposes in 2015 (In re NFL Players Concussion Injury Litig., 307 F.R.D. 351) and the Third Circuit Court of Appeals affirmed in 2016 (821 F.3d 410). The court’s key findings starkly illustrate the state of scientific knowledge in this area: (1) the study of CTE is nascent, and the symptoms of the disease, if any, are unknown; (2) medical research has not reliably determined which events make a person more likely to develop CTE; and (3) research has not determined what symptoms individuals with CTE typically suffer from while they are alive. In re NFL Players Concussion Injury Litig. 821 F.3d at 441. Based on the lack of scientific proof, District Court carefully observed that without certification and settlement, many former players would get nothing for their claims.
Since then, there’s been continued litigation about settlement administration, attorney’s fees and opt-out rights. We highlight some recent developments.
Spousal Opt-Out Rights: No Tag-a-Long
Martin v. Kan. City Chiefs Football Club, LLC (In re Nat’l Football League Players’ Concussion Injury Litig.), 2019 U.S. Dist. LEXIS 652, 2*, No. 2:12-md-02323-AB (E.D. Pa. Jan. 3, 2019)
From 1988 to 1993, Christopher Martin played for the Kansas City Chiefs. He was married to Anita Martin from 1986 to 2006. In January 2014, Anita sued the Chiefs in Missouri state court for loss of consortium, claiming that their issues arose from post-concussion syndrome CTE and other issues related to multiple concussions Christopher suffered as a linebacker.
The Chiefs timely removed Martin’s lawsuit to the Western District of Missouri, and it was then consolidated with an action brought by other retired Chiefs, including Christopher. The consolidated case was transferred to the Eastern District of Pennsylvania and became part of the NFL Concussion MDL. The Chiefs moved to dismiss Anita’s Complaint because she is a member of the concussion class settlement and did not opt out. Anita argued that she “informally opted out”. Alternatively, she now moves to opt out.
The Court noted that although Christopher timely opted out of the Settlement, Anita did not, and she made no effort to opt out until the Chiefs moved to dismiss. Further, In 2017, three years after the opt-out period ended, Anita’s attorney participated in an opt-out organizational meeting, Martin responded to the Court’s Order for opt-outs to file a short form complaint, along with a motion to join the remand filed by her ex-husband and other plaintiffs.
The Court dismissed Anita’s suit, finding that she was a class member who did not effectively opt out of the Settlement. Her participation in the opt-out meeting 3 years after the opt-out period was not a “reasonable indication of a party’s intent to opt out”. In re Linerboard Antitrust Litig., 223 F.R.D. 357, 365 (E.D. Pa. 2004) (quoting In re Four Seasons Secs. Laws Litig., 493 F.2d 1288, 1291 (10th Cir. 1974)). “In order for a party to give a ‘reasonable indication’ of its intent to opt out, the party must perform some action that is unambiguously inconsistent with an intention to participate in the settlement.” In re Processed Egg Prods. Antitrust Litig., 130 F. Supp. 3d 945, 952 (E.D. Pa. 2015). This action must take place during the opt-out period. See In re Deepwater Horizon, 819 F.3d 190, 196 (5th Cir. 2016) (refusing to consider post-opt-out period conduct in determining whether a class member had informally opted out).
Significantly, the Court observed that, although Anita’s case was consolidated with Christopher’s and he timely opted-out, the right to opt out must be exercised individually. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1024 (9th Cir. 1998). See also William Rubenstein et al., Newberg on Class Actions §9:49 (5th ed. 2013) (“The right to opt out in a Rule 23(b)(3) class action is considered an individual right.”); Sloan v. Winn Dixie Raleigh, Inc., 25 F. App’x 197, 198 (4th Cir. 2002) (finding that a class representative could not opt out on behalf of individual class members). As such, Martin’s failure to opt-out of the Settlement was not cured by her ex-husband’s actions. The Court also found that Anita’s failure to opt-out was not due to excusable neglect.
Survivor’s Opt Out Rights: Derivative and Dependent
A.H. v. NFL (In re NFL Players’ Concussion Injury Litig.) 2019 U.S. Dist. LEXIS 24088. *2, No. 2:12-md-02323-AB (E.D. Pa. Feb 14, 2019)
A brief recap about Aaron Hernandez. After three seasons with the New England Patriots, Hernandez was released him from his contract in 2013, following a grand jury indictment. In 2015 he was convicted of first-degree murder and sentenced to life in prison. In 2017, Hernandez committed suicide in prison, shortly after he was acquitted in a separate double homicide case. Later that year, the Boston University CTE lab performed a brain autopsy and diagnosed Hernandez with CTE.
Subsequently his minor daughter sued the NFL for loss of consortium, in Massachusetts state court. NFL timely removed the case to the U.S. District Court. The case was transferred to the Eastern District of Pennsylvania, within the NFL Concussion MDL. In July 2018, the daughter moved to remand back to Massachusetts state court. NFL responded with a motion to dismiss A.H.’s consortium claim because she is a member of the concussion class settlement and did not opt out. A.H. argued that the Court cannot decide claim preclusion (class inclusion) before addressing her motion to remand, because to do so would require a finding of fact: whether Aaron was “retired” as defined by the settlement class. In other words, when you challenge a court’s jurisdiction (the motion to remand) its power is limited.
Observing that dismissal on preclusion grounds is “not technically a judgment on the merits.” Hoffman v. Nordic Nats., Inc., 837 F.3d 272, 277 (3d. Cir. 2016) (citing Comm’r of Internal Revenue v. Sunnen, 333 U.S. 591, 597, 68 S. Ct. 715, 92 L. Ed. 898 (1948)), the court determined that it could decide the issue, regardless of the jurisdictional challenge (remand motion).
A plaintiff’s claim is said to be precluded when there has been: “(1) a final judgment on the merits in a prior suit involving (2) the same parties or their privies and (3) a subsequent suit based on the same cause of action.” Duhaney v. AG of the United States, 621 F.3d 340, 347 (3d Cir. 2010) (internal quotation marks omitted). “It is now settled that a judgment pursuant to a class settlement can bar later claims based on the allegations underlying the claims in the settled class action. This is true even though the precluded claim was not presented, and could not have been presented, in the class action itself.” In re Prudential Ins. Co. of Am. Sales Practice Litig., 261 F.3d 355, 366 (3d Cir. 2001).
As a judicially approved settlement agreement, the NFL Concussion Settlement was a final judgment on the merits. See Rein v. Providian Fin. Corp., 270 F.3d 895, 903 (9th Cir. 2001Further, the NFL is a named party in the settlement.
Noting that “the crux of the issue is whether Hernandez was ‘seeking active employment’ as an NFL football player as of July 7, 2014”, the Court found that Hernandez was retired within the meaning of the settlement: Hernandez had been imprisoned — without bail — for nearly a year.
The Court found that A.H. was bound by the Settlement, as a Derivative Claimant and a Class Member regardless whether she was a named member of the class. See Smith v. Bayer Corp., 564 U.S. 299, 314, 131 S. Ct. 2368, 180 L. Ed. 2d 341 (2011) (noting that “unnamed members of a class action [may] be bound, even though they are not parties to the suit”). A.H.’s action was similar to the actions brought against the NFL by class members. Distribution of the Class Notice was “reasonably calculated to apprise interested parties” and give them an opportunity to object, as such A.H. is a Class member that did not opt-out of the Settlement.
Accordingly, the Court dismissed A.H.’s claims, as derivative claimant, within the settlement class Member, and thus preclude.
NCAA CASES
The original NCAA Student Athlete Concussion Injury class action (“Arrington v NCAA”) was filed in the Northern District of Illinois September 12, 2011. The lead plaintiff, Adrian Arrington, attended Eastern Illinois University and competed on the football team. Without citing a particular injury, he claims to suffer a host of cognitive and emotional issues and seeks certification of a medical monitoring class. On December 18, 2013, the United States Judicial Panel on Multi District Litigation consolidated Arrington with several similar actions against the NCAA, under MDL No. 2492.
The court subsequently certified three claimant classes for settlement of medical monitoring claims. The certification order enjoined further litigation by class members, “except for personal injury or bodily injury class claims on behalf of persons who allege injury resulting from their participation in a single NCAA-sanctioned sport at a single-NCAA member school.” This order set up a series of “single-sport single-school” (“SS”) sub class actions. These actions were consolidated. In re NCAA Student-Athlete Concussion Injury Litigation — Single Sport/Single School (Football), Master Docket Case No. 16-cv-08727.
In late 2016, the court stayed proceedings in the SS cases pending the outcome of class certification motions in four sample cases. The sample cases established in Case Management Order No. 8 are: Richardson v. Southeastern Conference, NCAA, 16-cv- 9980; Rose v. Big Ten Conference, NCAA, 17-cv-1402; Weston v. Big Sky Conference, NCAA, 17-cv-4975; and Langston v. Mid-America Int. Athl. Assoc., NCAA, 17-cv-4978.
Preliminary decisions from the sample cases have been issued.
Jurisdictional Issues
The SS cases invariably name the NCAA and in some instances the conference along with the institution, and are brought in NCAA’s home court, the Southern District of Indiana. Each case is then transferred to the Northern District of Illinois, for handling within the consolidated MDL docket. Conferences and schools located outside Illinois and Indiana are generally interested in moving to dismiss for lack of jurisdiction, forcing plaintiff to either drop the claim against the institution or sue in the school’s home state.
In March 2020, the Court granted Southeastern Conference’s motion to dismiss, finding that there was no personal jurisdiction in Illinois over the Alabama based organization. Richardson v. SEC. 16-cv- 9980.
Timeliness
Plaintiffs in the SS cases are generally living adults who played decades ago, outside the applicable statute of limitation or repose. Defendants are therefore interested in challenging timeliness based on allegations of symptom onset, awareness and diagnosis, in light of the applicable statute in their jurisdiction. This can be done on an early motion to dismiss or on summary judgment after discovery.
In March 2020, the Court denied two motions to dismiss for failing to satisfy statutes of limitations and repose, under Florida (Richardson, 3/30/20) and Kansas (Langston, 3/25/20) law. An earlier decision ruled similarly under Illinois law (Rose, 9/28/18). In each decision, the Court articulated that plaintiff need not plead or prove timeliness at this stage, suggesting that the court prefers to address timeliness at the summary judgment stage, after discovery is completed.
Waiver and Duty
In May 2020, in an unconsolidated case, Bradley v NCAA, 16-cv-346, the United States District Court for the District of Columbia issued an order resolving several motions for summary judgment. Bradley played Field Hockey at American University from 2009-12. After taking a head strike, which she passed off as “not more extreme” than other routine hits”, she exhibited signs and symptoms of concussion, claiming post-concussion syndrome including cognitive and emotional issues. The federal government was sued as the employer of one of the school physicians, Aaron Williams. During Bradley’s time at AU, Dr. Williams served as director of the U.S. Peace Corps, in the Obama administration. The court (i) denied the government’s motion for judgment on the “borrowed servant” rule, on the issue of plaintiff’s contributory negligence and on the negligent infliction of emotional distress claim; (ii) granted the University Defendants’ motion for judgment on the participant waiver, finding that the contract was not an unenforceable contract of adhesion, that there was nothing procedurally unconscionable in its procurement or substantively unconscionable in its terms; and (iii) granted NCAA’s motion for judgment on the negligence claim, finding that NCAA owed no duty and did not proximately cause plaintiff’s injuries.
HELMET CASES
Prior Disability Claim Distinct from Latent Injury Claim
Recognizing a distinction between accrual for acute injuries and latent injuries, the Illinois courts found that a former NFL player’s suit against a helmet manufacturer timely, even though it was filed years after his disability claim. Following precedent in Connecticut and Ohio, the court determined that the player’s disability claim for a severe concussion in 2013 was unique from his long-term injuries that arose as a result of “several ostensibly innocuous circumstances.” The court stated, “The knowledge of having suffered one severe concussion does not mean that the person has knowledge of all brain related injuries, including those that generally require multiple traumas to actualize.” Nakamura v. BRG Sports, LLC, 144 N.E.3d 610, 2019 Ill App. LEXIS 844 (2019).
Accrual for Neurodegenerative Disease Claims
Giving deference to the “harsh consequence” of requiring plaintiffs to sue before the extent of their injuries is known, the Illinois appellate court considered Plaintiffs’ argument that their claims for neurodegenerative disorders did not accrue until receipt of a formal diagnosis. However, the court affirmed dismissal because plaintiffs could have brought their claims against the helmet manufacturer when they joined in the NFL class action, more than two years prior, where the exact same claims were asserted for present and future head injuries. Butler v. BRG Sports, LLC, 141 N.E.3d 1104, 2019 Ill App. LEXIS 841 (2019).
Accrual by Actual Knowledge of Negligence
Trying to avoid dismissal for failure to timely file, plaintiff claimed that his school medical records were wrongfully withheld for “years” after his graduation. However, the court determined that Plaintiff’s actual knowledge of the school’s tortious conduct in encouraging him to play despite his concussions and without a doctor’s release was sufficient: withholding of the records did not conceal the accrual of a claim.. Boland v. Parkrose Sch. Dist., 2019 U.S. Dist. LEXIS 224149, Case No. 3: 19-cv-01049-SB (U.S. Dist. Ct. Dist. Ore.) (2019)
CRIMINAL DEFENSE
After a trial and conviction for first degree murder, defendant sought continuance of his sentencing so he could retain new counsel to assert, for the first time, a CTE defense. The court denied the request, noting that defendant already had extensive psychiatric evaluation and the only proof of CTE was the opinion of his new attorney. Reviewing the petition for writ of habeas corpus, the United States Magistrate Judge agreed that the mere claim petitioner suffered concussions playing football, without more, was insufficient to grant the continuance. Humphries v. Sherman, 2019 U.S. Dist. LEXIS 88116, Case No. CV 18-5748-JFW (U.S. Dist. Ct. Cent. Div. Cal.) (2019)
