PENNSYLVANIA RECORD

When the country’s major tobacco companies paid out more than $200 billion in the late

1990s to settle claims that they misled consumers about the health risks associated with cigarette smoking, it seemed as though no other legal settlement could possibly come close in terms of size and scope.

But that remains to be seen, especially considering there’s multidistrict litigation playing out in federal court in Philadelphia in which the defendant is an organization that rakes in more than $9 billion per year in revenue.

For more than a year-and-a-half now, individual suits have been piling into the National Football League Players’ Concussion Injury Litigation, an MDL being overseen by U.S. District Judge Anita Brody at the Eastern District of Pennsylvania.

At present, there are more than 4,200 named player-plaintiffs in the 200-plus suits filed against the NFL over allegations that the organization purposely misled athletes about the long-term health risks associated with concussions caused by on-the-field play.

On Tuesday April 9, the parties will appear in Brody’s courtroom to hold the first set of oral arguments in the case, with both sides addressing the NFL’s motion to dismiss the case.

In court papers, lawyers for the NFL have argued that the plaintiffs’ claims are preempted by the collective bargaining agreement, and that the federal court system is not the proper venue in which to handle the claims.

Defense attorneys have also stated that they believe the NFL is not the proper defendant in the case, since the players are technically employees of their respective football teams, not the league.

While the case could technically be tossed by Brody following Tuesday’s oral arguments on the NFL’s dismissal motion, some legal observers believe the case will move forward, although when a potential trial could occur is anyone’s guess, since the pre-trial legal wrangling could go on for years.

NFL spokesman Brian McCarthy was recently quoted in the Wall Street Journal as saying that the league has some court precedence on its side, citing the granting of the NFL’s dismissal motion in the wrongful death case filed by the widow of Korey Stringer, a lineman from the Minnesota Vikings who died as a result of heatstroke that occurred during training camp.

Attorneys for the NFL, the WSJ article stated, are similarly expected to argue in front of Brody that the sheer number of lawsuits consolidated in the MDL and the varying circumstances involving the plaintiffs make the litigation “too varied to qualify as a class action.”

“These claims – like personal injury claims generally – cannot be decided on a class-wide basis because they turn on individual issues such as each player’s medical condition and injury history,” McCarthy was quoted as saying in the March WSJ report.

Lawyers for the former players, however, have argued in court filings that class action status is appropriate because of the allegations that the league intentionally misled professional football players about the dangers of repeated concussions.

The fact that the misleading was intentional, at least in the eyes of the plaintiffs’ lawyers, proves an element of fraud, and voids any chance for the questions presented in the case to be folded into collective bargaining, the WSJ article stated.

Another argument is that many of the plaintiffs named in the litigation played football before the first collective bargaining agreement was entered into in the late 1960s, or during a time period in the late 1980s and early 90s when there was no CBA in effect, thereby proving that the civil claims are valid.

Paul Anderson, a Missouri-based attorney who tracks the MDL case in his blog, NFLConcussionLitigation.com, said in a recent post that the contrasting legal views highlights what he terms the upcoming “battle of the experts.”

“It will take medical and causation experts to persuade the jury that the NFL’s conduct, in fact, caused or contributed to the players’ damage,” Anderson wrote on April 3.

Anderson went on to write that the NFL’s recent public comments, such as McCarthy’s statements to the Wall Street Journal, could indicate that the league and its attorneys are “revving up the rhetoric in case Judge Brody denies the motion to dismiss. Maybe it’s a calculated PR move – by noting that a settlement is NOT in sight, and the players’ claims are weaker than they appear.

“The image-conscious NFL has taken a beating in the court of public opinion,” Anderson continued. “In any event, before we even get to the merits, the issue of preemption and whether the players’ claims belong in court will have to take center stage on April 9^th in Philadelphia.”