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(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.
Cal Burnton, a litigation partner at Edwards Wildman Palmer in Chicago, suggested to Concussion Policy and the Law/Concussion Litigation Reporter this week that “the disclosure by the National Institute of Health that Junior Seau suffered chronic traumatic encephalopathy (CTE) is a potentially serious threat to football as we know it.
“Seau was a 12-time pro bowler with no history of concussions. The fact that he suffered CTE further buttresses the fears of past and current players, and supports the argument of those who contend football today is simply too dangerous and violent a sport to allow to continue without substantive changes.
“At present, approximately 4000 former players have filed lawsuits against the NFL. There are approximately 12,000 former NFL players, and it is expected that many more may file claims given the findings involving Seau. At present the league’s defense is premised on the argument that the players’ claims are preempted under federal labor law by virtue of various collective bargaining agreements between the NFL and the players. The final briefs are due in court January 28, 2013, and a ruling is expected thereafter. Should the motion be denied, the door will be open to discovery of NFL files and records, as well as those of the equipment manufacturers. The attorneys for the players clearly hope to establish a long pattern of false information and non-disclosure of risks.
“But more significantly, the Seau findings will lead to increased discussion, research and scrutiny of the risks of football. With players at every level getting bigger, stronger and faster, there is concern that the hits suffered by players even without causing concussions may be causing long-term harm. No doubt high school and college football administrators are following the developments concerning player health and asking whether the risks to player health outweigh the benefits of the game.”
Photo by Tim Hipps