February 14, 2019
Late Thursday afternoon, Judge Anita B. Brody, dismissed the lawsuit filed by the daughter of the late Aaron Hernandez. Hernandez, who was serving a life sentence for the murder of Odin Lloyd and had been acquitted of a double murder days before he committed suicide in his prison cell on April 19, 2017.
The following September Boston University researchers made a startling discovery, “The brain scan came as a surprise even to researchers who for years have been studying the relationship between brain disease and deaths of professional football players,” wrote Ken Belson in the New York Times. The brain of twenty-seven-year-old Aaron Hernandez showed such severe atrophy that the damage resembled that of players who died in their 60s. According to Dr. Ann McKee, this was the most severe case of CTE ever seen in a person so young.
The lawsuit filed on behalf of Avielle Hernandez, referred to as A.H. in the pleadings asserts only one claim—loss of consortium through Massachusetts state law. Her causes of action did not include any conduct by the NFL regarding medical treatment or even neglect during her father’s playing career. Her father’s CTE was too advanced. It began developing long before he dressed out in a Patriots uniform and set foot on an NFL field. A.H. pled instead, duties to the general public which affected her father as a child and high school football player—the time when he most likely began to develop CTE. This excerpt from her motion to remand seems self-explanatory.
The very first sentence of Judge Brody’s order reads into her complaint the very claims she did not plead.
Nowhere in the complaint did she claim damages “related to injuries her father, Aaron Hernandez (‘Hernandez’) sustained while playing professional football for the NFL.
I fully expect this decision will be appealed.
UPDATE 8:40 PM
Via Twitter, Avielle’s attorney Brad Sohn issued the following statement:
“Many have asked me for comment on today’s Hernandez ruling. My response is as follows: it is easy to throw the baby out with the bath-water and be critical of just one decision. But it’s too easy and incorrect to do so in a vacuum. We do not necessarily understand today’s order, but sometimes reasonable minds disagree. Would I rule out anything right now? Absolutely not. Anyone who knows me knows that I will fight until the end. Certainly that’s still true.”
In comments to Law360, Sohn said:
“It is impossible to emphasize how much I admire the work of this court, yet I confess that today’s order has me confused,. Upon reassessing in the coming days, we will figure out how best to fight for this child and do just that.”
I shall try to follow Sohn’s example, but there are many things about Judge Brody’s decision that trouble me, and I might not be quite as tactful.
Update (February 15, 2019) Analysis:
As I’ve written previously, the major issues in A.H.’s claims that were contested were her status as a settlement class member, and preemption under LMRA Section 301.
As Judge Brody noted in her dismissal order, the settlement designates class members as follows:
While Hernandez was not actively playing football, as brought out in the briefing, he by no means considered himself retired. As I wrote in a previous article devoted entirely to Aaron Hernandez’s status as a non-class member, and through him, his daughter, “In their attempt to box young Avielle (referenced as A.H. in some court documents) into the class of retired players eligible for settlement benefits, they now seek to impose their own timeline, viewing the past from the future.”
Here are a few points that Judge Brody apparently failed to consider beginning with this statement by Sohn on behalf of Avielle.
Aaron Hernandez was not retired as of the settlement opt-out date
“Prior to the resolution of the charges pending against him,” is a key phrase. It was nearly a year after the opt-out deadline of October 14, 2014, when on April 15, 2015, Hernandez was convicted of the murder of Odin Lloyd. In our system of justice, an accused is to be presumed innocent until duly convicted beyond a reasonable doubt. Until his conviction there was every reason to believe Hernandez would return to the NFL. During his trial debate.org posted a poll that asked if Hernandez was found “not guilty” should he be allowed to return to the NFL. Results were split 50/50.
Between his arrest and conviction various news outlets reported on his plan to return to the NFL and even speculated as to his chances of being signed. In August 2013, a Rolling Stone writer predicted that Hernandez would be playing again in “three or four years. I think they’ve grossly overcharged him based on the case they’re building — no direct eye witness, no murder weapon [and] no plausible motive,” said Paul Solotaroff on CBS Sports Radio.
Hernandez was one of the top tight ends in the NFL, and half of the most explosive tight end duo in the league with Rob Gronkowski. Boston Globe’s Gladiator series acquired numerous audio files of phone calls Hernandez made while in prison, and in some of those calls he discussed his plans to return to a team other than the Patriots. Hernandez certainly didn’t know that he was “retired” any more than a player who is cut following an injury and plans to rehab and return. Numerous players have returned to the NFL after extended absences whether precipitated by injury or incarceration.
Aside from the fact that Hernandez did not consider himself retired, there’s also the issue of notice. Retired players whose whereabouts were known were issued individual notices. Hernandez did not, on information and belief receive one of those notices, nor did he have access to the internet and television where advertising was done to alert class members who may not have received individual notice.
Judge Brody wrote in her order, however:
This seems shallow. Hernandez was certainly identifiable and his address at Bristol County House of Corrections was well known. Toddler Avielle certainly had no means of receiving or even comprehending notice, and since her mother was not married to Hernandez, she would have not received individual notice, and likely believing as Aaron did, that he would return to the NFL, there is no reason to believe, if she saw the advertisements, that they were pertinent to their situation. As a federal judge who’s been on the bench since 1992, Judge Brody should understand that for every rule there are exceptions. Lives and events don’t always fit into nice, neat uniform packages.
Judge Brody, however elaborates at length on the types of notice given, that people such as spouses and children of retired players needed to register, and she stressed the Opt-Out date of October 14, 2014, while failing to acknowledge this was a year prior to Hernandez’s conviction, which should be viewed as his earliest possible retirement date, as his likelihood of return to the NFL diminished at conviction and sentencing—not before.
This is puzzling.
In her recap of “the present litigation” Judge Brody correctly states Avielle’s claims in contrast to her misstatement of them in the first sentence of her order.
Judge Brody writes at length on the legal standard she considered.
After the NFL removed Avielle’s lawsuit from Massachusetts to the Eastern District of Pennsylvania, and had it consolidated into the MDL that spawned the concussion settlement, her counsel filed a motion to remand the case back to Massachusetts and argued that Pennsylvania did not have jurisdiction over the lawsuit.
Through incorrectly classifying Hernandez and his daughter as members of the settlement class, she de facto avoided the arguments of proper jurisdiction and assumed jurisdiction relying on her authority over the settlement.
She writes, “Res judicata may afford the basis for a Rule 12(b)(6) dismissal when the defense is apparent on the face of the complaint.” Res judicata basically means that a matter that has been adjudicated by a competent court may not be pursued further by the same parties.
Cornell Law School’s Legal Information Institute, dives into the subject and shows that traditionally courts had to consider the merits of the case, but modern courts, which depend heavily on procedure allow dismissal before the merits stage. Because of this, trials are becoming a rarity.
I frequently lament that many, if not most meritorious cases in federal court die an ignominious death by 12(b). Because Judge Brody ruled Hernandez to be a class member, she managed to bypass the jurisdictional arguments that would have forced remand of the case.
In William and Mary Law Review, University of California, Berkley School of Law professor Andrew Bradt, pens in The Long Arm of Multidistrict Litigation:
Nearly 40 percent of the civil cases currently pending in federal court—now over 130,000—are part of a multidistrict litigation, or MDL. In MDL, all cases pending in federal district courts around the country sharing a common question of fact, such as the defectiveness of a product or drug, are transferred to a single district judge for consolidated pretrial proceedings, after which they are supposed to be remanded for trial. But the reality is that less than 3 percent are ever sent back because the cases are resolved in the MDL court, either through dispositive motion or mass settlement…Surprisingly, despite the fact that the MDL court is where all of the action in these cases typically happens, that court need not have personal jurisdiction over the plaintiffs or the defendants under the rules that would apply were the cases being litigated one-by-one. Indeed, even as the Supreme Court has clamped down on personal jurisdiction in recent years, the personal jurisdiction exercised in MDL has avoided rigorous analysis for reasons that do not survive scrutiny.
Professor Bradt, in his analysis, suggests that this process compromises the due process rights afforded under the Fifth Amendment. I agree.
In justifying her dismissal grant through res judicata, Judge Brody writes:
In justification of her ruling, Judge Brody further writes, “The only facts relevant to claim preclusion are the dates of Hernandez’s confinement and the content of the Settlement Agreement, both of which are public records. Nothing else is needed to determine claim preclusion, because A.H.’s class membership status can be determined solely from these sources and from the Complaint.”
I consider this to be an error in that there is a critical factual dispute—that of whether Hernandez and his daughter are members of the settlement class—that should not—and cannot be ignored. In her order, Judge Brody correctly recaps critical dates regarding the Hernandez timeline, but even in doing so fails to acknowledge that if we presume an accused to be innocent until found guilty in a court of law, Hernandez was not retired, and therefore not a member of the settlement class, leaving opt-out dates and registration a moot factor.
The following paragraph presents what I consider to be perhaps the most problematic in Judge Brody’s order.
There’s a lot to unpack here. “It is now settled that a judgment pursuant to a class settlement can bar later claims based on the allegations underlying the claims in the settled class action. This is true even though the precluded claim was not presented, and could not have been presented, in the class action itself.”
The term of the NFL settlement is 65 years; because of this every brain injury claim made by a former NFL player will almost certainly wind up transferred into the MDL. Judge Brody has opined that since a couple of brain injury cases (which pled very different claims than Hernandez) and a settlement with the defendant has been reached, then res judicata allows easy disposal of these cases. Presumably this may bar justice to claimants whose class member status is not disputed as well as Hernandez, whose status is in dispute.
For Hernandez, the phrase, “seeking active employment as players with any Member Club,” has not been fully developed. Did he fire his agent? Did he instruct his agent to cease scouting for opportunities for his return? Did he instruct his agent to pursue opportunities and perhaps get a feel for Clubs that might be interested in acquiring his services? Hernandez has met all other criteria to distinguish himself as separate from the class of retired players. If the answers to these questions were to resolve in his favor, then would he still be precluded under Judge Brody’s interpretation of res judicata from pursuing a complaint against the NFL, and by extension, his daughter?
Toward the end of her decision, Judge Brody segues into the incorrect argument, once again.
In A.H.’s 86-page complaint, the phrase, “experienced repeated traumatic head impacts,” is used twice—once on page 77 of the complaint, “Aaron Hernandez Experienced Repeated Head Trauma While Playing Football,” and the other on page 78.
Is the phrase “during his amateur and professional football career” sufficient to strike the context and the remainder of the complaint? A proper reading of the complaint will quickly dispel that A.H.’s complaints stem from her father’s professional NFL career; in fact, her attorney goes to great lengths to explain that her father’s professional career is only incidental to her claims of duty to the public and the same claims could be made by the survivors of someone who never played football past high school.
Judge Brody writes:
This is not correct. The settlement is narrowly focused to the treatment and care of NFL players during their careers, not the NFL’s “product liability” for lack of a better term for misrepresenting football to the general public. By this reasoning, no one would ever be allowed to hold the NFL responsible for its actions whether they played in the league or not.
I expect that an appeal will be filed.