NFL lawyer warns judge on rejecting concussion settlement

An NFL lawyer on Wednesday warned a federal judge that if she didn’t approve a $765 million head injury settlement, the league may drag out the litigation for years.

Objectors to the deal, who say it’s too small, ignore the reality of the NFL’s strong legal defenses, Brad Karp said Wednesday in a hearing. Without a settlement, retired players face years of litigation and “a very significant risk of defeat.”

“The NFL had a fundamental choice to make in this matter,” Karp told U.S. District Judge Anita Brody in Philadelphia. “The league could have fought these claims, successfully fought these claims in my view, for many, many years.”

Brody is overseeing lawsuits filed by about 5,000 players seeking damages for head injuries. In July, she granted preliminary approval to a revised accord in which the league would pay at least $675 million to retirees who suffer from a list of qualified injuries including Alzheimer’s disease, Parkinson’s disease and amyotrophic lateral sclerosis, or ALS.

Medical monitoring and educational programs bring the total settlement to $765 million. The league estimates it will have to pay no more than $900 million.

“We ended up with something that maybe isn’t perfect, but it’s really good and clearly fair,” said Chris Seeger, the lead plaintiffs’ lawyer who helped negotiate the settlement.

Brody didn’t indicate when she would make a ruling after hearing arguments Wednesday. She ruled last month that objectors may file supplemental arguments by Dec. 1 with responses due from the NFL by Dec. 11.

Players faced huge risks in continuing to litigate, including the league’s argument that claims are barred by labor agreements, Seeger said. The judge ordered the parties into mediation last year before ruling on that issue.

While the accord has been approved by more than 99 percent of the roughly 21,000 retired players in the class, dozens of players and their relatives have criticized it. The deal falls short, especially for players with symptoms of chronic traumatic encephalopathy, or CTE, a brain disease diagnosed only after death, the critics say.

CTE, discovered in the brains of at least 76 deceased NFL players, destroys functions such as memory and anger control and can lead to dementia and death. The disease has been linked to the suicides of Pro Bowl linebacker Junior Seau in 2012 and Chicago Bears safety David Duerson in 2011.

The late Pittsburgh Steelers players Mike Webster and Terry Long were also diagnosed with CTE. Webster died of heart disease at age 50 in 2002 after suffering from dementia. Long killed himself in 2005 at age 45 by drinking antifreeze.

The families of players who died from CTE before the settlement’s July 7 preliminary approval date might receive as much as $4 million each under the settlement. Players living with symptoms of the disease or those who die after July 7 stand to get nothing.

Lawyers negotiating on behalf of players bargained away the rights of those with CTE symptoms, said Thomas Demetrio, an attorney for players objecting to the accord.

“No class representative was there to advocate for the people who died from CTE,” Demetrio told Brody. “No one was advocating that post-July 7 CTE needs to be compensated. Say what they will, CTE is real, it’s with us, it’s not going away.”

The case is In re National Football Players’ Concussion Injury Litigation, 12-md-02323, U.S. District Court, E.D.Pa. (Philadelphia).

CTE, whose symptoms can mimic those of Alzheimer’s, ALS and Parkinson’s, isn’t adequately compensated through dementia payouts under the settlement, Steven Molo, an attorney for some objectors, said. Players with symptoms in the first two of four stages of the disease typically exhibit mood and behavioral changes including suicidal thoughts, which isn’t compensable under the agreement.

“Why is nothing built into the settlement that would deal with suicide?” Molo said.

Initially discovered in boxers in the 1920s, CTE results from repeated shaking of the brain. It involves the formation of abnormal protein tangles in the brain that hamper communication between cells and lead to cell death.

Bruce Birenboim, an attorney for the league, argued that the principal symptoms of CTE are covered. Later stages of the disease would coincide with a decline in neurocognitive behavior and dementia, which are covered under the deal, he said. Mood behavior and depression are too prevalent in the general population with many other causes, making proving causation difficult, Birenboim said.

“You can’t assume there is a causal link,” Birenboim said. “This settlement draws a line at the more significant aspects of CTE.”

Medical experts disagree on whether there will soon be tests to diagnose the disease while a player is living.

Robert Stern, the co-founder of the Boston University CTE Center, said in court papers that tests are at most 10 years away.

Kristine Yaffe, a University of California professor, said a link between football and CTE is tenuous at best. CTE science is in its infancy, she said in a filing on behalf of the NFL.

The league “would have challenged the science at every level, and at the end of the day this is a science-driven case,” said Seeger, the plaintiffs’ lawyer. “People can talk about discovery, you can talk about fraud, you can talk about all these issues, but you don’t get to jump over causation to get to these issues.”

Brody on Wednesday appointed Wendell Pritchett, interim dean at University of Pennsylvania’s law school, and Jo-Ann Verrier, vice dean of administrative services at UPenn, to oversee the settlement should she grant final approval.

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