Experts rip NFL’s $1B injury settlement

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The proposal faces sharp criticism from lawyers representing some players as well as advocates for survivors of traumatic brain injuries.

BY  
NEW YORK DAILY NEWS
Wednesday, November 19, 2014, 11:19 PM

Lawyers for the NFL and thousands of former players who claim the league covered up the long-term dangers of head injuries urged a federal judge in Philadelphia to approve a $1 billion settlement during a fairness hearing on Wednesday.

Attorney Christopher Seeger, the players’ lead lawyer, urged Senior U.S. Judge Anita Brody to approve the settlement in order to help financially strapped players with dire medical needs avoid lengthy and expensive legal battles with the league.

Seeger said the league would pursue “scorched-earth litigation” if the settlement isn’t approved and players are forced to pursue individual claims.

“The league could have fought these claims, successfully fought these claims in my view for many, many years,” NFL attorney Brad Karp agreed.

The proposal, however, faces sharp criticism from lawyers representing some players as well as advocates for survivors of traumatic brain injuries.

New York attorney Michael Kaplen, already an outspoken critic of the NFL’s proposed settlement, said Wednesday’s fairness hearing confirmed his fears that the plan is inadequate.

“People who deserve to be compensated will not be compensated,” said Kaplen, a lawyer who specializes in brain injury issues and is a lecturer at George Washington University’s School of Law.

Kaplen, who attended the hearing as an observer and does not represent any of the parties in the case, said he realized the plan is not based on retirees’ medical needs when Brody stopped Karp as he urged the court to approve the settlement and asked what “TBI” — traumatic brain injury — stood for.

“This case is about TBI and she wasn’t familiar with the term?” Kaplen said. “The train has already left the station.”

More than 4,500 former players, including stars such as Tony Dorsett, Jim McMahon and Eric Dickerson, accused the league of covering up the long-term health dangers caused by head injuries in a 2013 lawsuit filed in Philadelphia federal court.

Brody rejected a settlement that would cap the settlement at $765 million in January, expressing concerns that the $675 million portion dedicated to treating and assisting injured retirees would be insufficient to cover every claim. Brody gave preliminary approval to the settlement after the NFL agreed to lift the cap in July. The settlement is expected to cost the league about $1 billion.

“What matters now is time, and many retired players do not have much left,” former Philadelphia Eagle Kevin Turner said in a statement filed with the court.

The league has already argued that its collective-bargaining agreement with the Players Association requires concussion disputes to be handled in mediation, not in federal court, and that many players’ claims are barred by the statute of limitations. Also, experts say traumatic brain injuries can be caused by the thousands of hits to the head players suffer during the course of their careers, making it difficult to pinpoint a specific injury that caused long-term damage.

Karp told the court the “NFL is proud of this settlement.”

But Thomas Demetrio, an attorney who represents players who object to what he calls a lopsided deal, said that is not surprising.

“Yeah, no kidding,” Demetrio said. “I would be, too.”

Demetrio and other lawyers representing objectors also raised concerns about the $112 million the class attorneys stand to earn from the case.

Players diagnosed in the future with chronic traumatic encephalopathy (CTE), a condition linked to repeated blows to the head, will not be covered by the settlement. The estates of players diagnosed posthumously with CTE between 2006 and 2014 can seek up to $4 million. CTE, however, cannot be diagnosed in the living, and future deaths will be excluded from the settlement to avoid “incentivizing” suicide.

But Demetrio, whose clients included the family of former Bears and Giants safety Dave Duerson, ripped the deal because he said it shields the NFL from acknowledging liability for CTE. Duerson, who suffered from severe depression and acted erratically at the end of his life, shot himself in the chest in 2011. His suicide note asked his family to have his brain tested for CTE, and the tests were positive.

“The NFL by this settlement will never have to say what they knew, when they knew it, and CTE? Poof! It’s gone,” Demetrio said.

Kaplen and other critics of the settlement also say the deal is inadequate because players who suffer from depression, dizziness, sensitivity to light and sound and emotional disorders will be denied assistance. So will players who suffer from epilepsy induced by head trauma.

“There is no rhyme or reason to this settlement,” Kaplen said. “It is as if the lawyers came up with a settlement amount and now they are trying to figure out how to divide up the money.”

Still, the deal appears to have the support of the more than 22,000 retired players covered by the class. Only 199 opted out, Seeder said, and another 206 objected.

Seeger acknowledged the deal is not perfect.

“But it is really good,” he said. “And it is fair.”

Fewer than 1% of ex-players opt out of concussion settlement

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Gary Mihoces, USA TODAY Sports
8:22 p.m. EST November 3, 2014

Former NFL players and survivors of others had a chance to separate themselves from a tentative settlement of concussion lawsuits filed by more than 5,000 ex-players against the league. But only a few pulled out even though objections to the agreement continue.

A filing Monday in federal court in Philadelphia said 220 “opt out” requests were received by mail prior to the Oct. 14 deadline. Those who didn’t opt out are eligible for benefits and potential monetary awards, but they surrender the right to bring future lawsuits against the league related to their cases.

Potential members of the settlement classes totaled 33,984, including 25,060 former NFL players and 8,924 relatives of deceased players.

Listed among those who opted out were representatives of the estate of the late Junior Seau, the former San Diego Chargers linebacker who committed suicide in 2012. After an examination of his brain, Seau was diagnosed with chronic traumatic encephalopathy (CTE), a brain disease increasingly diagnosed in deceased players.

In the tentative settlement, a former player diagnoses after death with CTE would be eligible for an award of up to $4 million.

Also among the listed as opting out were Pro Football Hall of Famers Tony Dorsett and Joe Delamielleure. But in total, they represent a small fraction of those eligible for the tentative settlement.

“With over 99 percent participation, it is clear the retired player community resoundingly supports this settlement,” said a statement issued by Christopher Seeger and Sol Weiss, co-lead attorneys for the players who filed suits.

“Over the last several months, we have heard from countless retired players who are in dire need of these benefits, as well as those who take comfort in the long-term protections the settlement provides. If the settlement receives final approval, former NFL players will be able to take advantage of its benefits within months, unless appeals are filed that will indefinitely delay the start of these programs.”

U.S. District Court Judge Anita Brody will hold a Nov. 19 hearing in Philadelphia on whether to grant final approval to the tentative settlement.

Objections filed in court by ex-players argue that the proposed settlement doesn’t go far enough in providing awards to players suffering various types of brain impairments, that it is overly friendly to the NFL, and that ex-players were not sufficiently informed about specifics of the agreement.

Attorney Michael Kaplen, a critic of the settlement who is not involved in the suits, said it was “disappointing but not surprising” that so few opted out.

“It doesn’t surprise me because of both what the players have to do in order to opt out and the misinformation that they were given by their attorneys about why this settlement is a good deal for them. They were kind of scared into accepting it,” said Kaplen, a New York attorney who practices brain injury law and teaches it at George Washington University.

The settlement would provide awards of up to $5 million for ALS (Lou Gehrig’s Disease), $3.5 million for Parkinson’s and Alzheimer’s and $3 million for neurocognitive impairment such as dementia.

But Kaplen said it doesn’t go far enough because it denies compensation for other conditions such as memory, concentration and behavioral problems.

“One of the inherent problems here is that the attorneys who have to provide the players with this information and have to make recommendations to them in good conscience about whether they should opt out … are answering to many different masters,” said Kaplen.

“They’re answering to people who stand to gain a lot as a result of this proposed settlement, players who have the ALS condition, who have Parkinson’s Disease, who have severe dementia. But they have conflict because they’re talking one way to these players, and to be honest they would to talk a completely different way to the players who are suffering (the other effects).

“That’s one of the main roots of the objection. … You can’t be representing both type of players and do a good job of representing both types of players. It’s just an inherent conflict.”

Kaplen is hopeful the judge will consider the objections, no matter how few players opted out.

“They (the attorneys in the suits) want to make this out that, ‘Look, if only (220) people say no, then how bad can it be, judge,’ ” said Kaplen.

“The judge still has to go the heart of the issues. … I’m hoping that we have a judge who really wants to get to the bottom line and issues her ruling based upon all of the evidence. But if she doesn’t, then she’ll certainly have these issues that are going to be raised on appeals.”

NFL concussion suit: Belcher’s daughter opted in

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Gary Mihoces, USA TODAY Sports 11:11 p.m. EDT October 13, 2014

Former NFL players have until Tuesday to decide whether to opt out or take part in a tentative settlement of concussion suits against the league. Few have opted out so far. An attorney says different choices will be made in the cases of late Kansas City Chiefs linebacker Jovan Belcher and more than 20 other ex-players he represents.

Dirk Vandever, a Kansas City, Mo., attorney, said Monday he will take part in the settlement on behalf of Belcher’s toddler daughter but that his other clients will opt out because the settlement isn’t sufficient for them.

“We have a responsibility to make sure that we’re making the right decisions for each individual player,” said Vandever.

Belcher was a 25-year-old Chiefs linebacker on Dec. 1, 2012, when he shot and killed his girlfriend, Kasandra Perkins, and himself. Vandever initially filed suit against the Chiefs on behalf of their daughter, Zoey, who was two months old at the time of the deaths.

The suit was consolidated in federal court in Philadelphia with suits against the NFL by more than 5,000 former NFL players or their estates, alleging the league knowingly failed for decades to protect them from long-term effects of concussions.

Vandever could opt out and continue the lawsuit. But the tentative settlement, which will provide awards for hundreds of millions of dollars, includes up to $4 million for a former player diagnosed after death with the brain disease chronic traumatic encephalopathy (CTE).

Belcher’s body was exhumed a year after his death. Vandever said a neuropathologist who examined Belcher’s brain issued a report early this year that he found signs of CTE, which some researchers have linked to repetitive head trauma. The maximum CTE award of $4 million would be for a player diagnosed after death at age 45 or under with five years of NFL experience.

With Belcher’s four-year career, the potential award in his case would have a 20% deduction from the maximum.

The settlement does not require proof that NFL football contributed to any brain injuries, nor does the NFL acknowledge any cause and effect. But the diagnosis has to have been made prior to the July 7 date that U.S. District Judge Anita Brody gave preliminary approval to in the settlement.

“We are not going to opt out Jovan Belcher,” said Vandever.

” … We have a neuropathologist that says he (Belcher) did have CTE, and it’s happenstance that we had that evaluation done before the cutoff. … Now people who have pathologic diagnosis of CTE (going forward) will not qualify.”

The requirement that CTE had to have been diagnosis before the preliminary approval is just one element of the argument against acceptance of the settlement.

Vandever said upwards of 20 other players he represents will opt out because their conditions will not show up in the battery of tests in the proposed settlement. He said he had the players take the settlement tests with no qualifying result for awards. He said they took other tests which showed they have other impairments that should warrant compensation.

“Some tests that were not contained within the NFL battery shows that they did have impulsivity, which is a hallmark of chronic traumatic encephalopathy. They did have depression, anxiety, which is a hallmark of CTE. None of that is reflected in the NFL battery tests,” said Vandever.

“Those players we represent have indicated that they intend to opt out.”

Vandever and other attorneys wanted an extension of today’s deadline. “I don’t think that’s going to happen,” he said. “That’s tomorrow, and I haven’t heard anything to the contrary. So I believe we’re going to go ahead and file either today or tomorrow for our people opt out.”

Players have had the opportunity to opt out by notifying a claims administrator in writing.

Chris Seeger, co-lead counsel for the players in the consolidated suits, said during an October 7 teleconference with Judge Doty that few had.

In audio posted online as part of the court record, Seeger challenged arguments that he said described the settlement as “shrouded in secrecy” and misunderstood by the players.

“It almost stretches the imagination to believe that you can make that argument,” Seeger told the judge. ” …. I have never been involved in a settlement where the notice has been as successful as it has been in this case.”

He said there are about 18,000 retired players and that there have been over 60,000 visits to the settlement website. He said about 5,000 former players and their families provided information so they are not in the claim administrative system.

Seeger said in the teleconference that there were few opt outs.

“One week to go before the opt-out deadline, there are nine people that have indicated they want to opt out. One of those nine has indicated they want to revoke their opt-out and come back in, which they’re welcome to do,” said Seeger.

“That settlement agreement we filed is pretty comprehensive. It tells everybody what they really need to know about this settlement.”

Michael Kaplen, a New York attorney who practices brain injury law, opposes the settlement.

“To some extent, it surprises me (so few opt outs), but to a larger extent it saddens me because of the reasons you don’t see many people opting out,” he said. “No. 1, the players don’t understand the import of what it means to opt out or not to opt out. They have been given some very confusing information and they haven’t really been given enough information to make an informed decision.

“Most players don’t understand what if anything they’ll get in terms of compensation from the settlement, when in fact most will get nothing. They have nothing to lose at all by opting out. … It might be worth taking for a very small minority of players who fall within what they call the grid.”

The settlement would provide awards of up to $5 million for a diagnosis of Lou Gehrig’s Disease, $3.5 million for Parkinson’s and Alzheimer’s and up to $3 million for such conditions as dementia.

“Most players are never going to get anything,” said Kaplen.

He said there would be no compensation for players with seizure disorder and traumatically induced epilepsy and players who have a stroke following a brain injury. “Traumatic brain injury is a known risk factor for stroke,” he said..

Kaplen objects to reduction in compensation based on length of a players’ NFL career. He said he also objects to no compensation for players moving forward who are diagnosed with CTE: “If they die after the provisional settlement date in July, they’re not eligible for anything under this settlement.”

On Nov. 18, the judge will hold a hearing on whether to grant final approval to the settlement.

“It’s my hope that when the court looks at the entire picture, looks at what is wrong with the settlement … the court will send the parties back to the drawing board and just reject the entire settlement,” said Kaplen.

On Oct. 6, seven former players, including Alan Faneca and Sean Morey, filed a court objection to the settlement.

“A fair settlement is a compromise with each side giving and getting,” their objection said. “But here, the real benefits run to the NFL, which gets a near-absolute release without providing adequate and reasonable compensation in return. … A settlement under these terms is no compromise. It is capitulation.”

Pleasantville Couple Leads The Way In Brain Injury Law

By:  WestFaironline.com

You have to have a good brain to be a good lawyer, but it takes more than a good brain to be a good brain-injury lawyer.

In Pleasantville, partners at De Caro and Kaplen L.L.P. have built one of the nation’s top practices in the area of brain injury law, and it’s not something the firm’s husband-and-wife team necessarily set out to do.

But as Michael Kaplen and Shana De Caro embarked on their legal careers and focused their practice on representing plaintiffs in personal injury cases, they found that few lawyers had expertise in representing patients with traumatic brain injuries.

Shana De Caro and Michael Kaplen.
“It’s a very complex field,” said De Caro, who is chairperson of the traumatic brain litigation group of the American Association for Justice, an industry group representing trial attorneys. “On top of the legal aspect, there’s the medical aspect as well, so you have the complexity of law combined with the complexity of the field of neurology.”

In the course of their practice, they found that clients who had been injured had healed well to outward appearances, but as time went on, evidence of brain injuries that would require long-term care crept out.

“They went back to work and they had a whole host of different problems that weren’t apparent until they started to use their brains,” said Kaplen, who teaches a course in brain injury law at George Washington University Law School in Washington, D.C. “They couldn’t do the normal day-to-day things. This is an injury that you can’t see just by looking at someone.”

Often, people with traumatic brain injuries face issues in their daily lives that Kaplen says are overlooked — issues regarding insurance coverage, access to care and housing and civil rights.

“It’s not only what you think of with cognitive functions,” De Caro said. “They have memory issues. But they often also have emotional issues that interfere with their relationships with their families and co-workers. There are all kinds of things that affect people’s functioning on a day-to-day basis.”

In addition to representing clients, De Caro and Kaplen also consult with other attorneys in cases where clients have suffered traumatic brain injuries — cases ranging from domestic violence to car accidents to the current class-action litigation pitting the National Football League against its former players.

In domestic violence cases, matrimonial attorneys often don’t have a deep understanding of brain injuries, Kaplen said. “But if they had a client who was a victim of domestic violence, 90 percent of those victims have a traumatic brain injury.”

And in domestic violence victims, De Caro said, “Ninety percent of the injuries are from the neck up.”

When people suffer injuries in vehicle accidents, they often suffer brain injuries, but according to Kaplen, the average lawyer isn’t prepared to represent them.

In one case, Kaplen and De Caro represented three girls who were on a trip sponsored by a church to Pennsylvania. When the driver fell asleep, the van they were riding in rolled over. The mothers of the girls noticed that “something was off,” they were staring into space and the girls were acting abnormally.

“The girls had a type of epilepsy caused by trauma … and they got comprehensive treatment at NYU,” Kaplen said. “They received the treatment they needed and graduated from great universities. The settlement we obtained for them, multiple millions of dollars, paid for their treatment, paid for their educations and has set money aside if they need it for further care.”

The partners are constantly adding to their knowledge base, teaching and advocating for victims of traumatic brain injury.

“The public gets the impression that this is something that only happens on a football field,” De Caro said. “But you can slip and fall and hit your head and have a traumatic brain injury. You can be in a car wreck and have a traumatic brain injury.”

With the NFL concussion litigation having raised awareness about traumatic brain injuries, Kaplen and De Caro have consulted on the case.

Recently, De Caro and Kaplen wrote an opinion piece for The National Law Journal, arguing that the second proposed settlement in the case should be rejected because it was insufficient to satisfy the claims of all the class members.

“This latest proposal purports to generously provide financial stability for players with traumatic brain injury, but a closer look reveals a systematic design to exclude most players from participation and to reduce payments to the small group who meet arbitrary criteria,” the pair wrote in the July 21 piece. “It imposes unfair and illogical restrictions on the categories of compensable injuries and requires NFL participation for excessively long periods.”

Players are suing the NFL arguing that the league knew or should have known that playing professional football leads to neurological trauma and concealed that knowledge from players.

“The underpinnings of this lawsuit were the deliberate, long-standing NFL misrepresentations concerning the known health risks associated with concussions,” they wrote. “This proposal changes nothing. The court has an obligation to protect all class members. Any settlement that fails to should be rejected as fundamentally unfair and contrary to the best interests of the majority of class members.”

From day one, effort has been the key to success for De Caro and Kaplen.

“You really have to be willing to devote the time and energy, because this is an area of medicine — forget about the legal aspect — that is developing every day,” De Caro said.

“You have to really care about your client as a whole human being and not just about the particular case. You have to be willing to devote that much time and attention to it.”

Concussion Lawsuit Seeks to Force Rule Changes in Soccer

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By BEN STRAUSS AUG. 27, 2014

A group of soccer parents and players filed a class-action lawsuit Wednesday morning against FIFA, the sport’s international governing body, over its handling of concussions. Filed in United States District Court in California, the suit also names American soccer organizations, including U.S. Soccer and the American Youth Soccer Organization, charging that they and FIFA have been negligent in monitoring and treating head injuries.

The plaintiffs do not seek financial damages but ask for changes to the sport’s rules, such as limiting headers for children and altering FIFA’s substitution protocols. With the N.F.L., the N.H.L. and the N.C.A.A. involved in concussion litigation, soccer’s governing bodies are the latest to face a lawsuit over head injuries.

“There is an epidemic of concussion injuries in soccer at all levels around the world, including in the United States, from youth to professionals, from elite players to children playing for the first time, women and men, girls and boys,” the filing reads. “FIFA presides over this epidemic and is one of its primary causes.”

The suit seeks an injunction that would change the way soccer is played at all levels. Children under 17 would be limited in how many times they could head the ball. The suit also seeks to require professional and other advanced leagues, which are currently limited to three substitutions a game, to allow temporary substitutions while a player is examined for a head injury. Medical testing would also be available for soccer players who competed as long ago as 2002 and are now coping with the effects of concussions.

A FIFA spokesman said the organization had no comment because it was unaware of the suit as of late Wednesday morning.

According to legal experts, the crux of the case could be a matter of jurisdiction. While FIFA is based in Zurich, the plaintiffs’ lawyer, Steve Berman, contends the organization is vulnerable to a suit in the United States because many American leagues are affiliated with FIFA and its Laws of the Game are cited by nearly every soccer organization. FIFA posts guidelines about preventing and treating concussions, but it does not have rules regarding their treatment.

“There are going to be questions about standing, jurisdiction and venue and if these are the right plaintiffs and the right defendants,” said Gabe Feldman, the director of Tulane Law School’s sports law program. “Parents and children who are playing soccer are playing by the rules set forth for the most part by FIFA. Whether that leads to legal liability is another question.”

Berman, who also represents players in a concussion suit against the N.C.A.A., said: “Every U.S. organization follows the Laws of the Game. If FIFA made the Laws of the Game different, they would be different at every level.”

Others, though, were skeptical of the case’s chances.

“These rules need to be changed to protect the children, but I don’t think they’re going to be successful in this particular route to do it,” said Michael Kaplen, a professor at the George Washington University Law School who specializes in issues involving traumatic brain injuries. “I don’t think the court is empowered to provide this injunction because none of the plaintiffs have alleged a specific injury. The case they are trying to make is about medical issues they might have in the future.”

Plaintiffs in the case include Rachel Mehr, a former youth club soccer player; several parents whose children have played in youth leagues; and Kira Akka-Seidel, a former club player at the University of California, Santa Cruz.

According to the filing, nearly 50,000 high school soccer players sustained concussions in 2010 — more players than in baseball, basketball, softball and wrestling combined. The recent World Cup in Brazil had several high-profile incidents involving head injuries, which Berman said had helped galvanize the case. In a semifinal match, Javier Mascherano of Argentina banged his head against a Dutch player and was on the sideline for only two minutes before returning to action (medical research suggests six or seven minutes are necessary to provide a full neurological test). Christoph Kramer of Germany sustained a blow to the head in the final against Argentina and was allowed to continue playing for about 15 minutes in a dazed state before he was helped off the field.

FIFA and the other defendants have 60 days to respond to the filed complaint, after which a judge will decide if the case may go forward.