When the National Football League and retired players settled a class-action lawsuit about brain damage in 2015, the agreement raised as many questions as it answered.
The $1 billion question: What did the league know?
Because the settlement was reached without the evidence-gathering process known as discovery, the NFL did not have to reveal what it knew about the long-term effects of repeated head blows that players experience over the course of a football career.
But the NFL is now being challenged to fess up, after New York Supreme Court Judge Jeffrey K. Oing ordered the league to open up its records to insurance companies that would have to pay for the class-action settlement, according to The New York Times .
“I’m not surprised by any of this. It’s always the way the case should’ve been handled,” said Pittsburgh lawyer Jason Luckasevic, the first attorney to have brought a concussion suit against the NFL.
The NFL reached a settlement with more than 5,000 class-action plaintiffs in August 2013 worth an estimated $765 million. That figure grew to about $1 billion by the time it was approved by a judge in April 2015. The NFL sought to have insurance companies cover the claims, but those insurance companies sued the league, asking to see what it knew about the long-term risk of concussions and head trauma at the time it bought its various insurance plans.
“Plaintiff insurers have waited long enough and have indulged me,” the judge wrote in an order posted on The New York Times website . “The time is now. Under these circumstances, I find that the NFL entities have failed to demonstrate that a stay of discovery is warranted.”
The fact that the class-action settlement was reached in the first place without discovery was unprecedented, Mr. Luckasevic said.
“I have not found a single one where this has happened in a class-action settlement,” he said. “This case was unlike anybody else that ever had a case against a corporation, and I’m sure you know why, and the only guess or suspicion I have is look at the political power of the NFL.”
The settlement already is pending because several players have filed a petition with the U.S. Supreme Court questioning the lawsuit’s treatment of future claimants.
Mr. Luckasevic called those petitions a “last-ditch effort” to try to improve the settlement for all players, not just those who were part of the original litigation.
“There are still many out there that believe that the settlement isn’t right, and they have argued that there are certain issues and aspects of it that should be either rewritten or started all over again,” said Mr. Luckasevic, a lawyer with Goldberg, Persky and White.
The lawyer is a close friend of Bennet Omalu, who discovered chronic traumatic encephalopathy in the brains of former Pittsburgh Steelers while working in the Allegheny County coroner’s office. Urged on by the pathologist, Mr. Luckasevic brought the first concussion suit against the NFL in 2011.
While he was certain that a discovery process would reveal that the NFL long hid what it knew about the long-term effects of repeated head trauma, Mr. Luckasevic was pessimistic that the league will ever have to reveal such evidence. The NFL is expected to appeal the judge’s order, according to The New York Times.
“My position is nobody will ever see those documents, ever, in any case, in any place, anywhere,” he said.
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Source: www.post-gazette.com
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