Jon Campisi Sep. 10, 2013, 6:34am


The recent $765 million settlement reached between the NFL and the

former players who sued over concussion related injuries may have been, as the mediator termed it, “historic,” but the move still requires approval by the federal judge who was assigned to oversee the multidistrict litigation.

And the announcement that the National Football League and the injured former professional players reached an apparent amicable resolution to their case doesn’t mean that the litigation is over.

The MDL also named as defendants helmet manufacturer Riddell, and as of late August, talks between that defendant and the former players appeared to be continuing.

In an order filed on Aug. 29, U.S. District Judge Anita Brody, the federal jurist chosen to oversee the National Football League Players’ Concussion Injury Litigation at the Eastern District of Pennsylvania, noted that the proposed settlement between the NFL and the former athletes doesn’t include the Riddell defendants.

Brody ordered the talks between Riddell and the plaintiffs to remain confidential, with the judge writing that “they and their counsel must refrain from publicly discussing the mediation process or disclosing any discussions they may have as part of that process.”

As for the proposed $765 million settlement between the NFL and the former players, which covers concussion related compensation, future medical exams and medical research for retired players and their families, Brody commended the parties for coming to an agreement, but noted that she still would reserve judgment on the “fairness, reasonableness, and adequacy of the settlement until the motions for preliminary and final approval of the settlement are filed.”

“Right now, however, I commend the parties and their counsel on their extensive and good faith negotiations and thank Judge Phillips for his diligence in assisting the parties in reaching an agreement,” Brody wrote.

Brody was referring to former federal judge Layne Phillips, whom she had assigned to handle mediation between the parties.

The judge ordered the plaintiffs and defendants into mediation in early July, a move that surprised some who had followed the litigation.

Three months prior, the parties had convened in Brody’s courtroom at the federal courthouse in downtown Philadelphia to address the NFL’s motion to dismiss the case.

That hearing drew local, national and international media attention given the size and scope of the litigation.

The MDL contained more than 4,500 former football players who alleged the league mislead athletes and their families on the long-term health risks associated with on-the-field head injuries, namely concussions.

In her Aug. 29 order, Brody wrote that from the outset of the litigation, “I have expressed my belief that the interests of all parties would be best served by a negotiated resolution of this case. The settlement holds the prospect of avoiding lengthy, expensive and uncertain litigation, and of enhancing the game of football.”

Reaction following the announced settlement was varied.

Paul Anderson, an attorney who closely followed the case with his website, NFLConcussionLitigation.com, wrote in a Sept. 6 post that his initial reaction to the deal was that it was a fair ending to the matter.

“Most importantly, it is beneficial to the players and families currently suffering with severe neurological disorders,” Anderson wrote. “Yes, the dollar figure pales in comparison to the annual revenue of the NFL and teams. The fact that the NFL’s alleged misconduct may never be discovered – unless certain players opt out – is a detriment to the public.”

But, Anderson continued, “when balanced against the lives of many players and families that are on the verge of bankruptcy and death, the urgency is clear. Guaranteed money now is much better than no money after years of litigation.”

Anderson, who lives and works in Missouri, wrote that he has always maintained that regardless of the outcome of this particular case, the most import thing has already happened: “a new era of concussion awareness was born.”

As for the remaining case against Riddell, the helmet manufacturer, there’s no telling how the mediation is faring as this point.

Recent history shows, however, that the Riddell defendants may be on the hook for some amount of damages.

This past spring, a jury in Colorado determined that Riddell failed to adequately warn a former football player about the dangers of concussions, with the state case ending in a $3.1 million plaintiff’s verdict.

In that case, jurors weighed in favor of Rhett Ridolfi, a 22-year-old man who sustained a head injury five years ago while participating in a high school football drill.

Anderson, the attorney who operates NFLConcussionLitigation.com, wrote in a past blog post that while that verdict appeared to be an “anomaly, it could indicate that juries are placing more responsibility on manufacturers to explicitly warn about the limitations of helmets.”

During the hearing at U.S. District Court in Philadelphia this past April, attorneys for Riddell argued that the case against their clients should be heard separately from the case against the NFL and NFL Properties.

A motion to sever was never approved by Brody, with the judge ordering the Riddell defendants into mediation as well.

As for the case against the NFL defendants, while mediation produced a proposed dollar figure to settle the ex-players’ claims, one thing that remains to be seen is just how much money will be going to plaintiffs’ lawyers, since the process to determine attorneys’ fees is still ongoing.

Brody has not yet said when she would approve or deny a motion seeking fees for the lawyers who represented the plaintiffs.

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