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Judge Hurls Lone Pine Order at NFL Concussion Settlement Opt-Outs. Could this be an axe to their cases?

July 26, 2018
Sheilla Dingus

True or False? The Constitution of the United States of America guarantees every injured party his or her day in court?  You’d have been correct with either answer.  While the Constitution does make that broad guarantee, other laws and pleading rules tend to cloud it.

If a person is harmed through criminal conduct, the prosecutor – usually the district attorney – will decide whether he wants to seek a grand jury indictment and prosecute the case.  Many sexual assault, and domestic violence cases (among other offenses) never make the leap from the police report to prosecution by the State.  “But the victim still has the option for a civil trial,” you might inject.  This is true – to an extent.

If you happen to be a victim among several victims with similar claims such as being injured through dangerous medication or medical devices, toxic environmental hazards, a car with defective brakes, or an employer’s prioritization of profits, at the cost of employee safety, you’ve got a long road to travel that may or may not end in front of a jury.

This is a crossroads at which a number of retired NFL players find themselves.  Hundreds if not thousands of retired players have suffered the ill effects of brain injury for many years, often silently, some wondering if they were going crazy and fearful to talk to anyone.  Mysterious clusters of ALS, or Lou Gehrig’s disease that no one seemed to understand.  Wives who wondered what happened to their kind, gentle giant husbands who had morphed into monsters completely opposite the men they married. Most suffered alone, silently and in fear until a startling discovery emerged in 2002.

At that time, Dr. Bennet Omalu examined Mike Webster’s brain which led to his discovery of what he termed Chronic Traumatic Encephalopathy (CTE). The next year, ESPN’s award-winning writers Mark Fainaru Wada and Steve Fainaru released both a documentary and a book entitled “League of Denial” in which they told the story of Mike Webster and pointed out the manner in which the NFL deluded the public and players alike regarding the inherent danger of the sport.   In 2005 Will Smith portrayed Dr. Omalu in “Concussion,” a revealing movie that placed a spotlight on the disease and the lengths the NFL went to in order to quiet the doctor’s research.  As the information began to accumulate, players and their families who’d previously been unable to figure out what was going on, started connecting the dots and filing lawsuits. And as the lawsuits accumulated, the courts took notice and the Judicial Panel for Multidistrict Litigation consolidated all of them to the Eastern District of Pennsylvania under Judge Anita B. Brody.  Lead Counsel Christopher Seeger was appointed by the court to oversee the consolidated cases and eventually a settlement was reached with the NFL.

While over 20,000 former players decided to enroll in the settlement, not everyone was happy with it and some decided to opt out and pursue their own litigation for various reasons.  Having had their cases placed on hold until the settlement was finalized, these players and their families thought they’d finally see their day in court to confront the league they feel used, damaged and deluded them and then spit them out.  But due to a sua sponte, or unprompted order filed on July 24, they may not have that opportunity.

In the order, Judge Brody demanded medical records from 47 of the opt-out plaintiffs whom she considered to have pled similar causes of action against the same defendants.  I found this to be rather strange since no discovery orders had been issued so I emailed an inquiry to University of Georgia Law Professor Elizabeth Chamblee Burch, who specializes in multidistrict litigation.  She replied:

“This is the equivalent of what’s known as a Lone Pine order.  It imposes evidentiary burdens on non-settling plaintiffs as a prelude to dismissal. I view Lone Pine orders as illegitimate end-runs around the established Federal Rules of Civil Procedure. Their effect closely resembles summary judgment, but they lack the procedural protections that summary judgment supplies.”

I did some additional investigation.  The term “Lone Pine” stems from Lore v. Lone Pine Corp, a toxic tort case in the Superior Court of New Jersey which ended in 1987.  During pre-discovery in that case, the court issued an order requiring each plaintiff to submit information to support their claims, including medical records, their individual exposure to the toxins and proof the toxins caused their injuries.  This type of information typically is brought out in the discovery process, for plaintiffs to affirm, defendants to dispute, and a jury to decide if no settlement is reached.  In Lone Pine, however, the court issued a sua sponte demand, and then upon viewing the evidence submitted, concluded that it was insufficient to determine liability against the defendant, dismissing the case with prejudice.

According a business litigation article by Quinn Emanuel Trial Lawyers:

“Since the Lone Pine decision, courts have adopted similar protocols in appropriate cases, noting the usefulness of Lone Pine orders in defining and narrowing issues, streamlining discovery, weeding out unmeritorious claims, and conserving judicial resources. Federal district court judges have wide discretion to enter such orders under Rule 16(c)(2)(L), and, generally speaking, state courts can employ such mechanisms at their discretion.”

Appellate courts have varied in their stance regarding whether this practice is a useful mechanism to help the court function more efficiently or an obstruction of plaintiffs’ due process rights.

A 2000 Fifth Circuit opinion in Acuna v. Brown & Root Inc., a case in which miners alleged injury and illness from the uranium they mined was caused by the defendant’s mining and processing activities.  A large number of individual lawsuits were consolidated in the Western District of Texas, and during early pre-trial proceedings the judge issued a Lone Pine order which required the plaintiffs to submit evidence supporting their injuries and the defendant’s causation of those injuries.  A magistrate judge ruled that the evidence submitted was insufficient to support the claims, dismissing the case.  The case was appealed to the Fifth Circuit, claiming abuse of discretion in requiring that level of one-sided discovery so early in the case, nevertheless, the Fifth Circuit affirmed the district court decision, writing in part:

“Lone Pine orders are designed to handle the complex issues and potential burdens on defendants and the court in mass tort litigation. In the federal courts, such orders are issued under the wide discretion afforded district judges over the management of discovery under Fed.R.Civ.P. 16…We also find that the district court’s pre-discovery orders and orders of dismissal were not abuses of its discretion. We therefore AFFIRM the judgments of the district court.”

Numerous other courts have held with this view.

On the flip side of the coin, in 2014, the Eleventh Circuit opined in Adinolfe v. United Technologies, that courts shouldn’t use Lone Pine orders as “platforms for pseudo-summary judgment motions,” reversing a district court dismissal in which this was done.

In this case, the plaintiffs were in the same position as the concussion settlement opt-outs – awaiting a ruling from the defendant’s motion to dismiss for failure to state a claim.  The district court issued a Lone Pine order, without any discovery imposed on the defendants. The case was dismissed at the district court level because the judge did not find the evidence presented was sufficient to determine defendants’ causation and liability. On appeal, the Eleventh Circuit reversed that decision, stating that a Lone Pine order “should not be used as a pre-discovery case management tool before the district court rules on the legal sufficiency of the complaint.”  A 2006 Tenth Circuit decision in Tal v. Hogan, which was cited in Adinolfe, reads, “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be granted.”

Unfortunately for the opt-out players, the Third Circuit appellate court under which Judge Brody and the Eastern District of Pennsylvania are governed find Lone Pine orders permissible under Federal Rules of Civil Procedure (FRCP) 16 which defines standards for case management and  26 which governs the discovery process.  Although the information sought is beyond the scope of defined pretrial discovery, Rule 26(d)(1) provides a “by court order” exemption which has facilitated the use of the Lone Pine orders.

(d) Timing and Sequence of Discovery.

(1) Timing. A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.

Often courts will justify use of a Lone Pine order for reasons of judicial efficiency and/or if a judge deems that expense of extensive discovery will likely outweigh its benefits, and often courts feel that the information requested should have been in the plaintiff’s possession at the time the case was filed.  This isn’t always the case, however. In certain types of cases, the plaintiffs lawyer may have not fully developed some of their evidence, not expecting to have to produce it in a manner of a few weeks with little or no indication they’d need it so quickly.  Often, plaintiffs rely on discovery against defendants to obtain the evidence they need to prove their allegations against a defendant.

I view these orders as problematic, in that the court, without benefit of mutual discovery can essentially provide a ruling on the merits without plaintiffs ever having had an opportunity to conduct their own discovery and present their case in a jury trial as was their intention.

In cases such as the opt-outs from the concussion settlement, I feel their due process rights are severely compromised for a number of reasons.  First of all, each of these plaintiffs’ individual lawsuits from across the country were corralled with similar lawsuits under an MDL.  When cases are consolidated in this manner, often the lawyers who initially filed and developed the cases are cut out of the picture or relegated to a diminished role as co-lead counsel who may have no vested interest in the plaintiffs are appointed and class certification is sought.

Attorneys appointed by the courts, such as Chris Seeger in the concussion class action, are generally selected for their success in achieving settlements and perceived financial strength to withstand protracted litigation.  They are most often repeat players in the multidistrict litigation scene and have been described as resembling a cartel in a law review paper by Professor Burch, in which she writes, “If leadership’s influence is unchecked, it’s possible that lead attorneys could secure generous common-benefit fees for themselves, while generating suboptimal outcomes for some or all claimants.”  She provided numerous examples pointing to cases in which this has taken place.

Opt-outs from the concussion settlement either felt their conditions were not addressed, or for other reasons felt it wasn’t a good deal when they opted out of the settlement, but instead of being permitted to proceed with their lawsuits, they were placed on hold in the Eastern District of Pennsylvania until objector appeals were exhausted on December 12, 2016, when the approved settlement became official. The court then focused on implementation issues in the settlement as it moved into its next phase, and on April 12, 2017 finally issued its first scheduling order with Lieff Cabraser attorney Wendy Fleishman appointed to represent and coordinate opt-out lawsuits.  Over the next year, an amended complaint was filed on behalf of the opt-outs and the NFL filed motions to dismiss.  Then the Lone Pine order.

While it is possible that the players will survive the order after medical records are submitted, in most cases that I’ve researched plaintiffs’ claims are dismissed.  It’s worth asking, who will evaluate the medical records once they are submitted?  Will it be the judge and her clerks? An appointed expert?  If it’s the latter, will he or she accept the records at face value or make an arbitrary determination of their legitimacy?  It is essential that plaintiffs comply with the order, however.  In many of the cases I’ve studied, plaintiffs failed to provide the court with the information ordered and in each instance, the cases were dismissed.  In one case, Strudley v. Antero Resources Corp., the plaintiffs supplied all the information sought by the court to still find their cases dismissed, but that ruling was reversed on appeal.

The opt-out players definitely have a major hurdle to overcome with this order, but if they have strong records, hopefully they can survive it.  The family of beloved NFL vet Junior Seau, who committed suicide at age 43 by shooting himself in the chest so that his brain could be studied is among the opt-out plaintiffs affected. Seau was posthumously diagnosed with CTE, and the pathology is definitive.  The dementia struggles of Tony Dorsett, another high-profile player in the opt-out group has been profiled in major media, If others in the group present strong medical evidence, that is evaluated fairly the case may be allowed to continue, but it is still troubling that the case may move forward or die on the subjective evaluation of medical evidence by one federal judge.  Will she find that perhaps Mr. Seau’s family has proven damages to her satisfaction while other plaintiffs, who may be experiencing neurologically induced mental health problems have not?  Will she dismiss the totality of the cases if she doesn’t feel the majority of players have demonstrated sufficient illness?  Will she allow some cases to move forward while axing others on a subjective judgment as to who she feels is “sick enough”?  Will she base this on conditions that are covered in the concussion settlement and prejudice conditions that aren’t?  Existence of conditions not compensable under the settlement is a likely reason some of these players have opted out of it.

Unlike some of the cases I’ve studied in which Lone Pine orders were issued, Judge Brody has not ordered the players to submit evidence of causation, so it doesn’t appear that she’s attempting to decide the merits as to NFL liability.  That she didn’t could be a silver lining to the cloud.  Hopefully, once medical records are submitted and reviewed instead of tossing the cases, she will consider them adequate reason to deny the NFL’s motion to dismiss for failure to state a claim.  If the players’ lawsuits survive this motion, they will still need to overcome the NFL’s preemption and statute of limitations arguments before binary discovery is permitted and merits arguments are considered, but at least there’s room for hope.  Time will tell.

Ms. Fleishman did not respond to Advocacy for Fairness in Sports requests for comment.

Full text of the order, with names of those affected following:

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