The U.S. Judicial Panel on Multidistrict Litigation has found sufficient commonality across a number of concussion lawsuits targeting the NCAA to consolidate or “centralize” the lawsuits and consider them as one in the Northern District of Illinois.
The panel issued the order on December 18 after a hearing in Las Vegas, to the relief of the NCAA, which supported the consolidation. District Judge John Z. Lee will oversee the litigation.
The impetus for the decision was a motion brought, pursuant to 28 U.S.C. § 1407, by the attorneys for Adrian Arrington et al., who sued the NCAA in 2011.
The Arrington Lawsuit
Arrington, a former Eastern Illinois University defensive back, alleged that NCAA officials knew as early as 2003 that multiple concussions could lead to health problems, yet chose not to require concussion policies until 2010. Arrington claimed he endured five concussions at EIU. Several times, he alleged, the team doctor cleared him to return to play one day after his injury.
In response to a NCAA mandate in 2010, EIU reportedly created a five-step process for athletes to return to play. The policy stated that the student athlete must be symptom-free for 24 hours before taking the first step — light aerobic exercise — and that only one step can be taken per day. The protocol also calls for athletes to reveal after each step whether any of their symptoms have returned.
Arrington and his co-plaintiffs—former Central Arkansas football player Derek Owens, former Ouichita Baptist University soccer player Angela Palacios, and former Maine hockey player Kyle Solomon—sought monetary damages as well as long-term medical monitoring by the NCAA and stricter guidelines.
Joseph Siprut of Siprut PC initiated the suit, and was later joined by Hagans Berman Sobol Shapiro LLP in representing the plaintiffs.
Opposing the Motion
The panel noted that there were eight related actions, pending in the Northern District of Florida, the Northern District of Georgia, the Southern District of Indiana, the District of Minnesota, the Eastern District of Missouri, the Western District of Missouri, the District of South Carolina, and the Eastern District of Tennessee.
In the latter district, attorneys representing Chris Walker of Chattanooga, a defensive end for the University of Tennessee 2007-2111; Ben Walker of Knoxville, a defensive end for the University of Tennessee 2007-2111; and Dan Ahern of Pensacola, Fla., an offensive guard for North Carolina State from 1972-1976, strongly opposed the motion to consolidate the lawsuits.
According to the panel, their argument was as follows: “that (1) the putative classes and claims alleged in these actions do not sufficiently overlap; and (2) given the small number of actions pending, alternatives to centralization are preferable.”
The panel disagreed.
“Opponents’ arguments, while persuasive when the Section 1407 motion was first filed, are less compelling now given the current state of the litigation. Since the motion for centralization was filed, an additional eight related actions have been filed, most alleging overlapping putative classes of former football players at NCAA-member schools.”
The panel continued: “Most of the actions now pending, however, involve nearly completely overlapping putative classes and claims. Moreover, we are persuaded that the overlap between Arrington and the remaining actions is sufficient to warrant centralization. Regardless of the scope of the putative classes alleged, all actions share common factual questions concerning the NCAA’s knowledge of the risks of concussions in football players and its policies governing the protection of players from such injuries. Plaintiffs in all actions seek medical monitoring for putative class members.
“On the basis of the papers filed and hearing session held, we find that these actions involve common questions of fact, and that centralization in the Northern District of Illinois will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. These actions share factual questions relating to allegations against the NCAA stemming from injuries sustained while playing sports at NCAA-member institutions, including damages resulting from the permanent long-term effects of concussions. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings, including with respect to class certification; and conserve the resources of the parties, their counsel, and the judiciary.”
Also opposing centralization were plaintiffs John DuRocher and Darin Harris, who not only sued the NCAA, but also helmet manufacturer Riddell Inc. and its parent company (Kranos Corp., which does business as Schutt Sports) in the Southern District of Indiana. Joining in opposition to the consolidation were the defendants.
DuRocher and Harris are represented by Irwin Levin, Richard Shevitz, Scott Gilchrist and Lynn Toops of Cohen & Malad LLP; James R. Dugan II, David Franco, Douglas Plymale and Chad Primeaux of The Dugan Law Firm APLC; Don Barrett of Barrett Law Group PA and Douglas Gill of Douglas H. Gill & Associates.
The panel agreed with the plaintiffs, and left that that case in the Southern District of Indiana. “It seems unlikely that the products liability claims would share sufficient overlap with the common claims against the NCAA to warrant inclusion in centralized proceedings,” the panel wrote.
Reaction to the Ruling
Not surprisingly, Siprut was pleased with the ruling.
“We appreciate the MDL panel making the correct decision to send the cases to Chicago, where our Arrington case has been pending for nearly three years and where we have already litigated the case all the way to pending class certification,” he said.
