Paul Anderson: Humanizing the Objections

(Editor’s Note: What follows is a guest post by concussion expert Paul D. Anderson, which appeared yesterday in his blog www.NFLconcussionlitigation.com)

All too often in litigation, the lawyers, shamefully, forget about the victims that will be impacted by the outcome of a case. That is especially true in class actions where there are often thousands of absent class members that may never appear before the court. Fortunately, there is a system in place that seeks to ensure that all voices may be heard.paul

That is the process that will play out in Philadelphia on November 19th in the NFL Concussion Litigation. The Fairness Hearing will provide class members and their lawyers an opportunity to appear before the Court and set forth the reasons why the proposed settlement is unfair, unreasonable, inadequate, arbitrary and inequitable. In anticipation of the hearing, class members were able to submit written objections.

What follows, in no particular order, are quotes from some of the heartfelt objections drafted by former players and their loved ones.

My objection is to the way in which the offer uses the player’s age at diagnosis to calculate the Monetary Award for that player according to the proposed Monetary Award Grid. This approach actually rewards the NFL for the very actions it is being sued for…No one outside the League knows who at the NFL knew what information about head injury and subsequent neurological damage or in what year it was know and with the settlement agreement, the public may never know these facts…Ironically, in the preliminarily approved agreement, the NFL will again save millions of dollars due directly to those early deceptive tactics and inside knowledge that perhaps goes back to the 1980s or even 1970s….However, if one estimates that just half of the 150 disabled players were formally diagnosed at an older age, over age 54, but like my husband and many other former players, had been undiagnosed disease for years prior, then the NFL’s deceit has the potential to save it many millions of dollars and deny a reasonable award to many who are in dire need. – Dr. Eleanor Perfecto, widow of Ralph Wenzel (Entire Objection can be found here)

***

My initial contacts with the NFL Player Care Foundation, were among the stymied efforts. Primary care physicians were often dismissive and indifferent to my husband’s symptoms and needs. – Dr. Mary Hawkins, wife of Ross Hawkins (Entire Objection can be found here)

***

The proposed settlement fails to honor those on whose shoulder the NFL organization stands, namely deceased NFL football players that have suffered from CTE…Dale retired from the NFL in 1968…But, in 1981 at the age of 48 Dale began experiencing symptoms of CTE and within 6 month was incapable of fulfilling his job duties, nonverbal, suffering from memory loss, aggressive and unable to care for himself…For his family, it was devastating to watch the mental deterioration and frightening to think of what harm he might do to himself or others…Carmerita contacted the NFL and explained Dale’s condition. Carmerita asked if any other retired NFL players were experiencing similar demential and personality issues and she was given a firm “No” by NFL staff. In addition, Carmerita was told by NFL staff that Dale could not receive disability benefits because she couldn’t prove that his dementia was caused by playing football…The proposed settlement is ambiguous and unfair regarding players that died prior to January 1, 2006. Players that died prior to 2006 have never received benefits from the NFL Mackey 88 Plan to compensate for the cost of dementia nor had access to sufficient research regarding CTE to litigate the existence, causation and effect on their personal health. The players in the 1960′s made so little money compared to the unknown risk of becoming mentally incapacitated at an early age by football related dementia…The proposed settlement agreement provides a unique opportunity for the NFL football organization with current annual profits of $10 billion to recognize and reimburse those who innocently risked their quality of life and mental health to benefit the current NFL dynasty of today. – Personal Representative for the Estate ofDale Meinert  (Entire Objection can be found here)

***

CTE is a direct result of head trauma. I feel it should be ahead of ALS because it has not been proven that ALS is a direct result of head trauma where CTE has been proven to be a direct result from head trauma. My father was in stage 4 of CTE. – Scott Gilchrist, son of “Cookie” Gilchrist (Entire Objection can be found here)

***

I have carefully read the NFL Concussion Settlement Notice documents several times and still find them extremely convoluted and confusing. Even after reviewing the Notice documents with the substantial help of a savvy and experienced legal advisor, I find the proposed structure illogical and unrealistic…The offer to ‘uncap’ the payout is really nothing more than a red herring – designed for public consumption and to confuse as many retired players as possible. It doesn’t affect the NFL’s ‘exposure’ one iota, as long as the compensation discount factors and class exclusions remain! – Eugene Moore (Entire Objection can be found here)

***

The settlement does not fairly compensate the older players who cannot take care of themselves…The NFL should compensate these older players who paved the way for the financial success the NFL enjoys today…I grieve for my father because he has been mentally gone for a long, long time. He and other older players should be compensated. – Personal Representative ofJoseph P. O’Malley (Entire Objection can be found here)

***

Football is big business, and we need to recognize that in entering into this settlement, the NFL has made a business decision…The settlement is fundamentally flawed for a number of reasons, and is calculated to ensure that the vast majority of retired football players who suffer from neurodegenerative diseases will receive little if any monetary compensation. At the same time, those players will forever release claims potentially worth millions of dollars. – Darren Carrington (Entire Objection can be foundhere)

***

I’m writing to suggest that CTE be addressed in living players because there is technology being developed that will diagnose that condition if not now somewhere in the near future. The settlement only addresses CTE when a player dies [Editor’s note, but only if you died before July 2014] and I think the court should have a clause in the settlement that will allow players to be compensated while they are still alive to take advantage of the benefits. It seems an injustice not to consider CTE in a living player because we cannot enjoy the benefits dead. – Judson Flint (Entire Objection can be found here)

***

My husband has been incapacitated for five years and has lived in a nursing home. For  several years before he was moved, we had caregivers in our home. And for years before that, we living with the knowledge that something terrible was wrong with him–but during those years, we lived in a state of denial, not wanting to accept what the future would hold.In today’s world, our thought process would be totally different.  – Ruth Daniel, wife ofWilliam P. Daniel (Entire Objection can be found here)

***

Responsibility for a player’s health and physical welfare has been extremely lacking since the beginning, from the equipment used to attitude. The old but true expression of, “They use you, abuse you, and throw you out” was known by all and experienced by most. Doing the ‘right’ thing cost too much, and money was, and is now, the name of the game. Injured player are expendable. – Larry Barnes (Entire Objection can be found here)

***

While the thought of the suit is great, there are many things about it that are unfair to our future. Not only is it not fair to us as a player, but to our families as well. – Justin Green (Entire Objection can be found here)

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I’m sure you can relate to my pain and suffering even to imagine what life would be without your child or spouse and watch them suffer from a brain disease or head trauma due to the negligence of an organization to fail to release information to prevent the suffering and death of many. Had the research been made public many years ago, these tragedies could have been prevented. – Debra Pyka (Entire Objection can be found here)

Finally, the schedule for Wednesday’s Fairness Hearing is proposed as follows:

  • The NFL and Class Counsel will go first;
  • Second, the Sean Morey Objectors will argue for 65 minutes, followed by 70 minutes of arguments from other objecting lawyers;
  • Third, class members (including players and their families) will have an opportunity to speak. The following individuals are scheduled to address the Court: Ben Utecht, Mary Hawkins, Rebecca Carpenter, Gene Moore, Tregg Duerson and Eleanor Perfetto; and
  • Fourth, the NFL and Class Counsel will get a rebuttal.
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