By Paul D. Anderson of NFLconcussionlitigation.com
On January 26, 2016, Judge John Z. Lee granted preliminary approval to a proposed class action settlement that has been pending for nearly two years.
After initially rejecting the proposed settlement on December 17, 2014, Judge Lee ordered the parties to brief and attempt to re-work the settlement to remove some of the objectionable terms and to expand the class.
Most problematic, according to the objectors, was the fact that the proposed settlement forever barred any class member from pursuing personal injury claims against the NCAA on a class-wide basis. This, according to the objectors, is a valuable right that was released in exchange for essentially nothing.
The Court took note of this objection and, in its January 26 Order, this concern has been somewhat remedied.
Notably, however, the Preliminary Order is “subject to a number of modifications.” These modifications include the following:
- The class-wide release is limited. A class member still waives its right to pursue a personal injury claim on a class-wide basis; however, it will carve out the right to purse a “narrowly limited” personal injury class action directly against a member school and/or the NCAA as it relates to a specific sport and during a specific time period.
- The provision that essentially allowed the Medical Monitoring Program to seek a reimbursement from a class member’s private insurance is stricken. This is a substantial improvement.
- A few additional provisions were modified, including the NCAA’s $5 million “contribution to concussion research….” The Court confirmed that, as it stands presently, this is an “illusory benefit” to the Class; thus, the Court ordered the NCAA to strike this provision such that the $5 million contribution “must constitute additional funding for research that otherwise would not have occurred absent this settlement.” In other words, the NCAA cannot credit its previous concussion research monetary contributions as satisfaction for the $5 million requirement; it must be a new allocation.
Since these modifications are “subject to” the settling parties’ acceptance, the NCAA could, in theory, reject the modifications and seek that the deal be re-worked again. The Court Ordered the parties to report on the status of these modifications at the next scheduled hearing on February 4, 2016. Assuming the modifications are adopted and the settlement is preliminarily approved as modified, the notice process will begin; i.e., all class members will be notified about the settlement and their rights.
The Benefits to the Class
The Class consists of “All persons who played an NCAA-sanctioned sport at an NCAA member institution on or prior to the Preliminary Approval Date.”
As you can see, this potential Class is massive—and it includes all sports, not just contact sports. It is estimated that the Class consists of “4.4 million athletes in forty-three different men’s and women’s sports.” The settlement provides that $70 million will be allocated to create a Medical Monitoring Program. The Medical Monitoring Program will last for a period of 50 years.
If the settlement receives final approval, class members will receive medical monitoring for neurodegenerative diseases. The Medical Monitoring Program consists of two phases. First, all class members will be eligible to complete a written questionnaire which seeks information about the class members cognitive, mood and behavioral state. It essentially seeks to determine whether the class member is symptomatic. Once the questionnaire is submitted, a group of experts will analyze whether the class member qualifies for the second phase.
The second phase will include a personal evaluation by a medical professional to determine whether a diagnosis can be made. This evaluation will include a “neurological examination, neuropsychological examination, mood and behavioral evaluation, and any necessary ancillary tests that comply with the then-current American Academy of Neurology clinical practice guidelines for the diagnosis and treatment of neurological disease.” Conversely, if the class member is deemed asymptomatic pursuant to the questionnaire, then (s)he will not be personally evaluated and thus will remain in the first phase. The asymptomatic individuals will be allowed to re-submit a questionnaire every “five years until age fifty and then not more than once every two years after the age of fifty.”
As a best-case (or rather, worst-case) example, a class member completes a questionnaire and discloses that he is having mood and behavioral issues, headaches, feelings of hopelessness, depression, explosivity and suicidal ideations. The individual would likely qualify for the second phase: medical evaluation. Let’s assume, for the sake of this hypothetical, that an in-vivo diagnosis of CTE can be made that complies with the ANA clinical practice guidelines. The individual is then tested for CTE. Consequently, the individual tests positive for CTE and is therefore provided with a diagnosis of CTE to a reasonable degree of medical certainty. So, what’s next?
Under the settlement, nothing. The individual receives a diagnosis under phase 2 and that is basically all he is entitled to—he may be provided with some direction on a “treatment plan” but the cost of any such plan would not be covered under the settlement. However, this leads to the next very important component of the settlement.
The settlement preserves an individual’s right to pursue a personal injury action against the NCAA and/or the college he attended. Thus, after receiving a diagnosis of CTE, the individual can pursue a personal-injury claim directly against the NCAA and a member institution. The potential personal-injury damages could amount to thousands or millions of dollars, or nothing. Future litigation will dictate this result.
Accordingly, far from “buying peace” this settlement appears to breed additional CTE litigation. This chapter has yet to be written, but it appears that CTE litigation against the NCAA and its member institutions is an emerging tidal wave that could have ripple effects for the next half century, or not.
Anderson is an attorney at The Klamann Law Firm in Kansas City.