(Editor’s Note: What follows is Paul D. Anderson’s analysis of the suit brought by Junior Seau’s family against the NFL. Paul is the editor of Concussion Litigation Reporter and founder and editor of NFL Concussion Litigation)
In another not-so-surprising fashion, the family of the late Junior Seau filed a wrongful death lawsuit against the NFL and Riddell Helmets.
This will certainly provide a boost to the litigation. Seau is arguably the most prominent player, living or deceased, to join the litigation. (Sorry, Eric Dickerson) Whether this will force the NFL’s hand to start talking settlement is highly doubtful, but it may cause other prominent players to join the NFL Concussion Litigation Club.
Two weeks ago, it was announced that Seau’s brain showed signs of the debilitating neurodegenerative disease, Chronic Traumatic Encephalopathy (CTE). Shortly after the announcement was made, the NFL issued a statement – effectively thanking the Seau family for deciding to sue it: “We appreciate the Seau family’s cooperation with the National Institutes of Health.”
These results may have been the turning point in the Seau’s family’s decision to sue the NFL.
Seau’s lawsuit is not unique, however. There are a dozen wrongful death lawsuits pending against the NFL – the most notable are Dave Duerson and Andre Waters, both of whom were diagnosed with CTE.
Seau, however, is the youngest, and he played during an era where the alleged fraud of the Mild Traumatic Brain Injury Committee (1994 – 2009) was likely at its peak.
Similar to the other lawsuits filed outside of Philadelphia (E.D. of PA), Seau’s lawsuit will soon be removed to federal court and then transferred and consolidated with the other 198 concussion lawsuits.
Assuming the players survive all the pre-trial hurdles – which is a BIG assumption – there is a chance that Seau’s lawsuit may be chosen as the first bellwether case. In other words, the plaintiffs’ lawyers may choose to try Seau’s case because it arguably has the best facts.
Bellwether cases are common in mass tort litigation; the purpose is to give an indication to both sides (i.e. plaintiff sand defendants) as to the value, among other things, of the case.
In theory, if the plaintiffs were to try Seau’s case and receive a huge verdict, the NFL would likely want to talk a global settlement to avoid multiple verdicts throughout the country. On the other hand, if Seau’s lawsuit fell on deaf ears and the jury provided a defense verdict, the NFL would – puff out its chest – tell the plaintiffs’ lawyers to bring on more cases – that will, perhaps, be defeated.
All of this talk about jury trials is YEARS away, however. The discovery process alone could take 2-15 years, add all the motion practice, and I don’t think a case would be tried, IF at all, until 2018 at the earliest.
Only time will tell whether Seau’s lawsuit was the one that broke the NFL’s back.