May 20, 2019
The NFL Concussion Settlement is going off the rails and the issues are systemic. Problematic from the start, collisions between player interests and the interest of the NFL have steadily accelerated with the NFL prevailing in most instances. Judge Brody’s latest ruling, severely restricting players’ choice of doctors, and adding extra layers of scrutiny to an already burdensome process while changing the entire dynamic in favor of the NFL has finally derailed what was once seen as a beacon of hope to suffering retirees and their families.
This article will focus on systemic problems in mass-tort litigation and how they apply to the NFL Settlement. Since I’ve written extensively about the newly adopted revisions and the skirmishes that led to the derailment, I won’t elaborate in detail here, however of over 80 articles I’ve written on the settlement’s implementation, I’ve compiled some of the most significant developments chronologically and by topic, and that information can be accessed here.
In examining the NFL concussion litigation, it’s informative to go back to the beginning. Following the confounding and untimely death of Iron Mike Webster in 2002, and an obscure Nigerian pathologist’s discovery of a brain riddled with CTE, players who, at the time were not linked through social media began to awaken and realize they weren’t alone. As more and more knowledge came out on the subject of brain injury and CTE, retired players and their families began to connect the dots. Pittsburgh attorney Jason Luckasevic knew Dr. Omalu, the pathologist who diagnosed Mike Webster and began putting a case together and filed in 2011. Other attorneys quickly scrambled to the courthouse and among them was Christopher Seeger.
Unlike most of the other attorneys who filed cases and retained as many football clients with brain injury as they could locate, Seeger only sought a small handful—apparently just enough to make a representative filing. It seemed inevitable as lawsuits against the NFL for concussion dangers began to grow, that they would be consolidated. Seeger was aware of this and seemed confident from the beginning that he would become the lead attorney in the case.
In an October 2017 declaration to the court, Atlanta attorney Bruce Hagen, who had filed one of the early lawsuits stated:
Prior to the formation of the MDL, I was invited to and attended an organizational meeting among Plaintiffs lawyers who were involved in the NFL Concussion Litigation up to that point. The meeting was at the Podhurst Orseck law office in Miami and occurred on January 25, 2012, the day before the MDL hearings. It was at that meeting that I first met Chris Seeger. I did not know Mr. Seeger before, although I was aware of his reputation as a giant in the field of Class Actions and Mass Tort litigation. Despite the fact that the case had not yet been consolidated into an MDL proceeding, and despite the fact that no attorney had been elected or appointed to any leadership role, Mr. Seeger told the assembled lawyers at the meeting that he had already engaged in settlement discussions for ALL cases with a lawyer representing the NFL. I had no idea how or why he was discussing settlement in a case that was barely in it’s infancy, or under whose authority he purported to be acting, so I found his statement to be particularly odd. While I don’t recall the exact words that Mr. Seeger used, the gist of his comments were that the NFL lawyer wanted to settle the case for an amount that was less than $100 million and that Mr. Seeger had informed the NFL’s lawyer that the case would only settle if the amount were in the hundreds of millions.
In June 2012, Above the Law reported in a story highlighting Seeger Weiss as a leading plaintiffs’ firm referenced Seeger’s appointment as lead counsel.
Judge Anita Brody (E.D. Pa.), in appointing Seeger Weiss as co-lead counsel in the NFL players’ concussion injury litigation, commented on the record that “I would very much like one of co-lead counsel to be Mr. Seeger, Chris Seeger. I have to tell you, the ratings of people who have had MDLs [multidistrict litigations] with you involved have been very, very high, your law firm.
From the start, Seeger seemed destined to head the concussion suit. As you can see from the chart below, taken from data from a recently released book by Professor Elizabeth Chamblee Burch, Fuller E. Callaway Chair of Law at the University of Georgia School of Law. She is one of the nation’s foremost experts on complex litigation, mass torts, multidistrict litigation, and civil procedure.
In her book, Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation, Professor Burch explains how repeat-player plaintiffs’ firms tend to function in ways similar to a cartel, controlling the bulk of mass tort cases, enriching themselves, and granting closure to defendants often to the detriment of the plaintiffs seeking justice. As you can see from the charts, Chris Seeger leads the pack.
As Hagen stated in his declaration, it appears Seeger was engaging in backroom bargaining even prior to the formation of the MDL, and without knowledge or consultation with any of the other attorneys involved. (Spoiler, this wasn’t the first time.)
It’s instructive to study the past in order to understand the present, and Professor Burch makes the task much easier as she explains the dynamics of multidistrict litigation. Quotations and citations not otherwise designated are from her recently published book, which is the culmination of six years of dedicated and painstaking research.
In theory, she explains, aggregate litigation in multi-district proceedings empower vulnerable “Davids” to stand up to corporate “Goliaths” but, she writes, “there’s a significant problem in practice: the system for handling mass torts can fail the very people it was meant to serve.” Instead of men like Luckasevic and Hagen, who initiated the lawsuits and represented numerous plaintiffs linking them to a substantial interest in their outcomes, a small, elite group of attorneys are selected by courts, and not the plaintiffs, to head most proceedings, and their interests are not necessarily aligned with the majority of plaintiffs or the lawyers who filed the original lawsuits. “Why?” she writes, “Backroom deals benefit all the regulars – plaintiffs’ lawyers, defendants, and even judges.”
Burch presents empirical data from 22 years of mass-tort proceedings. She points out a trend of plaintiffs attorneys negotiating huge common benefit fees for themselves directly with the defendants, brokering deals that are sometimes of nominal value to the plaintiffs. This is true of the NFL Concussion Settlement. Seeger directly negotiated $112.5 million in attorney fees with the NFL and marketed this as a win for the players, but as you’ll see, as we continue to dig in, this “benefit” is only one of many misleading claims marketed to the players.
Chris Seeger began his rise to prominence in the Propulsid litigation, which, unfortunately, became a blueprint for future MDLs.
[I]n litigation over the acid-reflux medicine Propulsid, only 37 of 6,012 plaintiffs (0.6%) recovered anything through the strict settlement program. Their collective recoveries totaled no more than $6.5 million. Yet, defendant Johnson & Johnson agreed to pay lead lawyers more than $27 million in common-benefit attorneys’ fees. In return, what was left of the fund (some $45 million) would go back to Johnson & Johnson.1 So, it appears that plaintiffs’ lawyers profited, Johnson & Johnson paid the equivalent of a regulatory fine, and most plaintiffs were left to puzzle over why they were left empty-handed.
While the NFL Concussion Litigation resulted in a certified class action settlement as opposed to an uncertified MDL like Propulsid, which in theory grants class members greater protection, the NFL case demonstrates that theory isn’t necessarily aligned with reality. The recovery numbers in the NFL settlement are deceiving. If one looks at the settlement strictly from a dollar perspective it appears to be working, having paid out over $500 million in claims, but a closer examination shows that players suffering from dementia are finding themselves in a position similar to the Propulsid plaintiffs.
The higher profile illnesses of ALS and Parkinson’s Disease, as well as the small window of eligible Death with CTE claims, have generally been paid. Since ALS and Parkinson’s are neuromuscular diseases that are very difficult to dispute, not to mention the PR nightmare of fighting men surviving on respirators and feeding tubes, these, along with the CTE claims have progressed largely unimpeded. As Associated Press reporter Maryclaire Dale explains:
Of the 872 awards paid to date, the average is just under $575,000, according to the claims administrator’s latest online report. They include an average of $2.4 million for ALS (36 cases); $1.2 million per death with CTE (73 cases); $610,000 for Parkinson’s disease (111); and $435,000 for Alzheimer’s disease (244 cases).
Less than 15 percent of the 1,700 dementia claims filed so far have been approved and paid. Many others are still in the evaluation process. To get a financial award, a player must receive a “Level 2.0” or “Level 1.5″ diagnosis, when “2″ is considered moderate and “1.0” mild. (Editor’s note: 1.0 is not a compensable condition, although when the settlement was pitched, Level 1.5 which is early dementia, was often referred to as “mild.”)
With CTE, the focus of the original lawsuits eliminated outside a small window of deaths, dementia is by far the most prevalent impairment in the retired NFL population. Just as in Propulsid, an onerous claims process was agreed to which will severely limit payouts to dementia claimants. Instead of recognizing dementia standards typical to medical practice, the settlement defined a very rigid protocol creating settlement specific legal standards, “Level 2 and Level 1.5 Neurocognitive Impairment” that don’t exist outside the settlement. The settlement provides a free Baseline Assessment Program (BAP) that rigidly enforces the settlement defined conditions. A second path, the Monetary Award Fund program (MAF) permits players to choose from a number of settlement approved neurologists, whose compensation they are responsible for, but the MAF doctors are permitted to diagnose in a manner “generally consistent” with the BAP, which gives doctors some leeway to rely on their own medical training and experience as opposed to a strictly numerical calculation which doesn’t necessarily show a player’s true condition anymore than a person’s credit score reflects a person’s integrity. Just as someone with a perfect credit score may fudge on taxes or in other areas, or a lower score may belong to a person of stellar character who’s undergone hardship, neurological raw score numbers can’t provide a complete and accurate picture of dementia in many instances. Sadly this vitally important bargained for provision has now been discarded by the presiding judge. (“How can she do this?” you may be asking. Read on for some clues.)
Another similarity shared by the NFL litigation and Propulsid is how the uncapped NFL fund relates to the revertible fund in the acid reflux case. In a capped settlement with no provision for unused funds to revert back to the defendant, the defendant typically has no interest in seeing claims denied. Once the money has been deposited in the escrow account, the defendant doesn’t have an interest in how that money is used. On the other hand, in a settlement where unused funds revert, or when the settlement isn’t capped, the defendant has an interest in seeing claims denied and spending as little as absolutely necessary.
When common benefit fees are directly linked with plaintiff recoveries as opposed to a negotiation with the defendant, attorneys are much more motivated to negotiate better terms for plaintiffs and vigorously support their interests in contrast with appeasing the defendant responsible for their compensation.
Why don’t the courts monitor for this or other attorneys who do have an interest in player recoveries object more vigorously? Read on.
Immense gratitude to Professor Elizabeth Chamblee Burch for the incredible research presented in Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation. It is through studying what has become routine behavior in mass torts that pervasive problems can be identified and hopefully corrected.