Tag Archives: discovery
Attorneys representing all current and former NCAA student-athletes announced date changes made by the court, affecting the concussions settlement that will provide a 50-year medical-monitoring program for student-athletes to screen for post-concussion syndrome and early-onset neurodegenerative disease that may have resulted from concussions or the accumulation of subconcussive hits while playing NCAA sports.
One of the participating plaintiff’s law firms gave the following synopsis:
What are the changes?
The court’s scheduling order extends the deadline to request exclusion from or object to the settlement and includes the following date changes: a new opt-out and objection deadline of Aug. 4, 2017, and a new Fairness hearing date of Sept. 22, 2017, at 10 a.m.
What is the case about?
The suit was filed against the NCAA for allegedly failing to uphold its promise to protect student-athletes against the life-altering effects of concussions, traumatic brain injuries and the accumulation of subconcussive hits.
Who is affected?
The settlement affects student-athletes who played an NCAA-sanctioned sport at a member school, an estimated 4.4 million current and former athletes in 43 different men’s and women’s sports, and more than a thousand NCAA member institutions, ranging from Division I schools to Division III schools.
What are the settlement benefits?
The core benefits provided in the settlement include:
A 50-year medical monitoring program that will screen for post-concussion syndrome and early-onset neurodegenerative disease that may have resulted from concussions or the accumulation of subconcussive hits while playing NCAA sports. If a class member qualifies through written screening, examinations will include neurological and neurocognitive assessments. The program will be funded by a $70 million medical monitoring fund, paid by the NCAA and its insurers.
Significant changes to and enforcement of the NCAA’s concussion management policies and return-to-play guidelines. All players will now receive a seasonal, baseline test to better assess concussions sustained during the season. All athletes who have sustained a concussion will now need to be cleared before returning to play, under the terms of the settlement. Additionally, a medical professional trained in the diagnosis of concussions will be present at all contact-sport games. The settlement also stipulates reporting mandates for concussions and their treatment.
Court: School District Attorney’s Communications with Former Coaches in Concussion Lawsuit Are Fair Game
(Editor’s Note: What follows is an excerpt of a case summary that appeared in the December issue of Concussion Litigation Reporter. For this summary and the case citation and many others like it, consider subscribing to the Reporter at https://concussionpolicyandthelaw.com/subscribe/)
In a majority decision involving a student athlete’s concussion-related lawsuit against a school district, the Washington Supreme Court has ruled that communications between the school district’s attorney and former coaches employed by the district are not shielded by the attorney-client privilege.
In so ruling, the court conceded that it “follows a flexible approach to application of the attorney-client privilege in the corporate context.” However, the privilege “does not broadly shield counsel’s post-employment communications with former employees.”
Highland High School quarterback Matthew Newman and his parents claimed in a lawsuit that Newman suffered a permanent brain injury while playing in a high school football game in 2009, one day after he allegedly sustained a head injury at football practice. Specifically, the plaintiffs alleged that the Highland School District No. 203 violated Lystedt law, RCW 28A.600.190, which requires the removal of a student athlete from competition or practice if he or she is suspected of having a concussion.
In pre-trial proceedings, the district moved for a protective order to prevent the plaintiffs from obtaining discovery of communications between the school district’s counsel and former coaches during time periods when the former coaches were not represented by the school district’s counsel. The state court judge denied the motion and the school district appealed.
In reviewing the appeal, the court noted …
The $765 million proposed settlement of concussion-related lawsuits targeting the NFL – which would have limited the league’s liability as well as allow it to keep secret what it knew about the dangers of concussions – now faces major problems that may prevent the settlement from ever going into effect, according to public interest law professor John Banzhaf of the George Washington University Law School, who has been advising several players involved in the deal.
First, said Banzhaf, he’s been told that more than 2,000 retired NFL players may refuse to accept the deal at all, thereby possibly preventing it from ever going into effect. He points out that at least this number opted out of another NFL $42 million settlement involving the players’ publicity rights, a deal which was apparently less controversial because it didn’t involve serious medical problems, alleged coverups, etc.
He added that even if somehow the number of players who opt out is small enough that the settlement can still go into effect, those who opt out can bring new litigation aimed at gaining additional compensation, and also forcing the league in pretrial discovery to disclose what it knew years ago about concussion injuries. Banzhaf notes that hundreds of players who opted out of the publicity-rights settlement have already initiated their own new lawsuits.
Second, another major problem that could also sink the proposed settlement is allegations of “double dipping” by some of the attorneys involved in negotiating the settlement. On the very day that it was revealed that some lawyers were apparently seeking “multiple paydays,” even though the players had been assured that no part of the $765 million deal would go to lawyers, federal Judge Anita Brody appointed a special master to look into the “financial aspects” of the proposed settlement. Since this new development comes some four months after the deal was announced, and was expected to be brought before the judge promptly for approval, it could further seriously delay – if not actually upset – the proposed settlement, according to the professor.
The problems facing the NFL concussion settlement may not be limited to professional football, suggested Banzhaf, noting that similar concussion suits have also been filed regarding other professional sports, as well as several different college level sports, and both male and female athletes. He says the NFL, NCAA, NHL, and individual teams could be facing a “new asbestos,” since asbestos lawsuits, like tobacco lawsuits, were also based on the theory that defendants actively covered up hidden dangers, and asbestos lawsuits are still being filed decades after the coverup was first discovered.
Banzhaf was involved in the major asbestos settlement, and has also been called “The Law Professor Who Masterminded Litigation Against the Tobacco Industry” and “a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars.”