Tag Archives: appeal

Analyzing SCOTUS’ Decision to Pass on Reviewing Challenges to the NFL Concussion Settlement

(Editor’s Note: What follows is an excerpt of an article that appeared in the January issue of Concussion Litigation Reporter. For this article and many others like it, consider subscribing to the Reporter at http://concussionpolicyandthelaw.com/subscribe/)

By Richard C. Giller,  of Polsinelli

On December 12, 2016, nearly eight months after the Third Circuit Court of Appeals unanimously approved an uncapped concussion settlement agreement reached in the traumatic brain injury class action litigation involving over 22,000 former NFL players, the United States Supreme Court denied, without comment, two petitions challenging the Third Circuit’s decision approving that settlement.  By essentially punting on these challenges, the Supreme Court left in place a settlement that may end up paying close to $1 billion to retired players, with payments up to $5 million per player depending on their diagnosis, while not requiring any player to establish that his ailments were caused by playing football. The finality of the settlement also precludes the NFL from arguing that the League should not be held responsible for the cumulative effects of hits to the head suffered by players from Pop Warner, High School, College and the NFL.

The history of the NFL concussion litigation and settlement is a tortured one, but a brief summary of the proceedings is appropriate.  Beginning in July 2011, retired NFL players began filing lawsuits against the League claiming that the NFL failed to take reasonable actions to protect players from the chronic risks posed by repetitive head injuries.  In January 2012, the cases which involved nearly 5,000 players by then, were consolidated and transferred to the United States District Court for the Eastern District of Pennsylvania. During a court-ordered mediation in the summer of 2013, the former players and the NFL negotiated a $675 million settlement.  On January 14, 2014, the District Court rejected the settlement forcing the parties to renegotiate the terms and amount.  On June 25, 2014, the parties filed a second motion seeking preliminary approval of a new, uncapped settlement.  On July 2, 2014, seven retired players objected to the settlement.

Following months of legal wrangling, which included an interlocutory appeal to the Third Circuit, District Court Judge Anita B. Brody held a day-long fairness hearing on November 19, 2014 to hear arguments from counsel for the retired players, the NFL and several objectors.  After the hearing, the Court proposed several changes to the settlement agreement.  The parties agreed to the changes and submitted an amended settlement in February of 2015.  On April 22, 2015, the District Court issued a 123-page opinion granting the motion for class certification and granting final approval of the amended settlement.  [In re: National Football League Players Concussion Injury Litigation, 307 F.R.D. 351 (E.D. Pa. 2015).]  A number of players, who objected to the April 22, 2015 Order, filed 12 separate appeals, all of which were consolidated into a single appeal.

On April 18, 2016, the Third Circuit Court issued an opinion (which was amended on May 2, 2016), affirming the District Court’s conclusions granting class certification and granting final approval of the concussion settlement. [In re: National Football League Players Concussion Injury Litigation, 821 F.3d 410 (3d Cir. 2016)]. In that opinion, the Court of Appeals noted that “it is the nature of a settlement that some will be dissatisfied with the ultimate result. Our case is no different, and we do not doubt that objectors are well-intentioned in making thoughtful arguments against certification of the class and approval of this settlement… . But they risk making the perfect the enemy of the good.  This settlement will provide nearly $1 billion in value to the class of retired players….  Though not perfect, it is fair.”

Thereafter, the estate of former Buffalo Bills running back Carlton Chester “Cookie” Gilchrist and an additional 31 former players (including NFL Hall of Famer Charles Haley and 1996 Super Bowl MVP Larry Brown) filed petitions with the U.S. Supreme Court seeking a writ challenging the Third Circuit’s approval of the settlement. For more than 90 years, most Federal Court decisions have not been appealable to the Supreme Court as a matter of right. Instead, litigants are required to request by way of a writ of certiorari (meaning “to be informed”) that the Supreme Court exercise its discretion to review a lower court decision. In this case, the objecting players filed such a writ and argued that such discretion should be exercised because the settlement …

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Third Circuit Asked to Rehear Concussion Settlement

(Editor’s note:Partner Joseph M. Hanna of Goldberg Segalla posted the following this morning on the firm’sblog – Sports and Entertainment Law Insider)

On Thursday, April 28, 2016, objectors to the approved $1 billion uncapped settlement agreement between the National Football League and a class of former players over concussion injuries sustained during their playing careers, filed a petition with the Third Circuit Court of Appeals, asking the court to rehear their appeal en banc. In a unanimous decision handed down earlier this month, the court, hearing the appeal with only three presiding justices, affirmed the district court’s decision approving the settlement, holding that the agreement was both reasonably under the circumstances and bargained for by both the League and the players.

The petition for a rehearing by the objecting members comes as no surprise; some objectors expressed their displeasure at the court’s decision almost immediately after the approval was affirmed. Continuing one thread of objection that was a focal point of the original appeal, the petitioners on Thursday cited to the fact that the current deal as agreed to – which demands the NFL only settle claims with former players who can prove they suffer from specific degenerative neurological diseases like Alzheimer’s and Parkinson’s as a result of their football days – fails to provide any remedial measures for players who suffer CTE. CTE, which stands for chronic traumatic encephalopathy and exhibits symptoms such as memory loss, mood swings, uncontrollable anger, and suicidal tendencies, has been the subject of intense media backlash throughout the last few years. Unfortunately, CTE can only currently be diagnosed posthumously – an area of contention the objectors continue to raise, arguing that the settlement cannot cover even the basic medical expenses of former players suffering from the disease.

Focusing on CTE harshly, the objectors rely on the fact that even the Third Circuit admitted the science on the subject was still in its infancy, arguing that until more is known about this specific brain disease and how to protect players from experiencing it, any settlement should be postponed or renegotiated to evolve with that science as it continues to develop.

If their petition shall fail, however, the objectors would only have the opportunity to appeal directly to the Supreme Court of the United States. And unfortunately for those members of the class already suffering, the longer this appeals process is dragged out, the longer it will be until settlement claims can actually be handed out to the former players.

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