NFL Players’ Concussion Injury Litigation-Emerging Trends in Multidistrict Litigation

05/30/2012 / Melissa L Hagstrum

In July 2011, seventy-five former NFL players and fifty-one spouses filed a lawsuit against the NFL, NFL Properties, and Riddell and Easton-Bell related companies that design, manufacture, distribute, and sell football equipment, including helmets. This first lawsuit was filed in California state court. Over the next ten months, eighty similar lawsuits were filed across the country by other former NFL players and their spouses. To date, the lawsuits involve more than 2,200 former NFL players and many of their spouses.

 

Product designers and manufacturers are watching the former NFL players’ concussion injury litigation closely for emerging trends in multidistrict litigation. Product liability litigation is one of the two most prevalent types of litigation where separate lawsuits pending in different federal district courts may be consolidated into a single federal district court for pretrial proceedings. Upon completion of pretrial proceedings, the cases are transferred back to the different federal district courts for trial. 

 

United States Judicial Panel on Multidistrict Litigation (the MDL Panel)

 

The United States Judicial Panel on Multidistrict Litigation, known informally as the MDL Panel, was created by an Act of Congress in 1968. Seven federal judges, each from a different federal judicial circuit, serve on the MDL Panel. 

 

The MDL Panel has two responsibilities. See An Introduction to the United States Judicial Panel on Multidistrict Litigation, published by the United States Judicial Panel on Multidistrict Litigation, available at https://www.jpml.uscourts.gov. First, the MDL Panel must determine whether civil actions that are pending in different federal district courts should be transferred to one federal district court for coordinated or consolidated pretrial proceedings. Id. Second, if the MDL Panel determines that multiple civil actions should be transferred to one federal district court for coordinated or consolidated pretrial proceedings, the Panel must select the court and the judge(s) assigned to conduct the pretrial proceedings. Id

 

In appropriate cases, the MDL Panel hopes that transferring civil actions from different district courts to a single district court will centralize pretrial proceedings. Id. This centralization is intended to avoid duplication of discovery, prevent inconsistent pretrial rulings, and conserve the resources of the parties, counsel, and the court. Id

 

Since its creation in 1968, the MDL Panel has centralized more than 393,000 civil actions for pretrial proceedings. See Annual Statistics of the United States Judicial Panel on Multidistrict Litigation, January through December 2011, available at https://www.jpml.uscourts.gov. Among those centralized cases, more than 315,000 cases terminated during pretrial proceedings before reaching trial. Id. More than 12,000 cases completed the centralized pretrial proceedings and were transferred back to the district court from which they were transferred for trial. Id.

 

The exceptionally wide range of cases to come before the MDL Panel includes everything from claims arising out of single accidents (oil spills, airplane crashes, train wrecks, hotel fires), to mass torts (asbestos, pharmaceutical drugs, contaminated food), to patent validity and patent infringement, to antitrust price fixing, to securities fraud, to employment practices. Id. Currently, the most prevalent types of litigation the MDL Panel considers for centralization involve products liability litigation and sales practices litigation. Id. Last year, the MDL Panel’s most significant centralization determinations involved products liability litigation related to the Darvocet/Darvon pain management drug and the DePuy Orthopaedics ASR hip implant. Id

 

Civil Actions Transferred for Coordinated or Consolidated Pretrial Proceedings

 

Federal law allows separate civil actions that are pending in different district courts to be transferred to any single district court for coordinated or consolidated pretrial proceedings if the actions involve one or more common questions of fact. 28 U.S.C. § 1407(a). At the conclusion of the coordinated or consolidated pretrial proceedings, each action must be transferred back to the district court from which it was transferred for trial. Id

 

A party to a civil action or the MDL Panel itself may initiate proceedings to transfer an action for coordinated or consolidated pretrial proceedings. 28 U.S.C. § 1407(c). At any time during coordinated or consolidated pretrial proceedings, the MDL Panel may elect to separate out any claim, cross-claim, counter-claim, or third-party claim that it feels should be transferred back to the district court from which the case was transferred. Id. The multidistrict litigation may retain the remaining claims until the pretrial proceedings are concluded and the case is transferred back to the district court from which the multidistrict litigation received it. Id.   

 

To determine whether to coordinate or consolidate pretrial proceedings for separate civil actions that are pending in different district courts, the MDL Panel considers: (1) whether the cases involve one or more common questions of fact; (2) whether coordinating or consolidating pretrial proceedings will be convenient for the parties and the witnesses; and (3) whether coordinating or consolidating pretrial proceedings will promote the just and efficient conduct of the cases. 28 U.S.C. § 1407(a). 

 

The First Four Former NFL Players’ and Spouses’ Concussion Injury Lawsuits Filed

 

The product designers and manufacturers sued in the former NFL players’ concussion injury litigation vigorously, and ultimately unsuccessfully, opposed consolidation of the lawsuits for pretrial proceedings. The MDL Panel’s decision to consolidate these separate concussion injury lawsuits provides some insight into emerging trends in multidistrict litigation involving product liability claims.

 

The NFL brought the concussion injury lawsuits to the MDL Panel’s attention when it filed a motion to transfer and coordinate or consolidate the first four lawsuits to centralize pretrial proceedings. The MDL Panel considered the NFL’s request in early winter 2011 and issued its decision to transfer and coordinate or consolidate the litigation in the U.S. District Court for the Eastern District of Pennsylvania on January 31, 2012.      

 

The MDL Panel considered whether to consolidate and transfer the first four concussion injury cases filed by former NFL players and their spouses for the purposes of conducting centralized pretrial proceedings. See Transfer Order In Re: National Football League Players’ Concussion Injury Litigation, MDL No. 2323, filed January 31, 2012. At the time the MDL Panel reviewed these first four cases, three of the cases were venued in the U.S. District Court for the Central District of California and the fourth case was venued in the U.S. District Court for the Eastern District of Pennsylvania. Id.

 

Maxwell, et al. v. National Football League, et al.

Superior Court of California, County of Los Angeles

July 19, 2011

(Later removed to U.S. District Court for the Central District of California on October 11, 2011)

C.D. California Case No. 2:11-cv-08394

 

Seventy-five former NFL players and fifty-one spouses filed a lawsuit against the NFL; NFL Properties; Riddell, Inc. doing business as Riddell Sports Group, Inc.; All American Sports Corporation doing business as Riddell/All American; Riddell Sports Group, Inc.; Easton-Bell Sports, Inc.; Easton-Bell Sports, LLC; EB Sports Corporation, and RBG Holdings Corporation. 

The Riddell and Easton-Bell related companies design, manufacture and sell football equipment, including helmets. 

 

The former players and their spouses allege that the NFL failed to protect its players, misrepresented that there was no link between concussions and later-life cognitive/brain injuries, fraudulently concealed the risks of head injuries, and conspired to discount and reject the causal connection between concussions and the long-term effects of those injuries. They allege that NFL Properties failed to ensure that the equipment licensed and approved for players’ use was sufficient to protect players against the risks of concussive brain injuries. 

 

The former players and their spouses allege that the Riddell defendants are strictly liable for design defects and manufacturing defects because the helmets designed, manufactured, sold, and distributed by the Riddell defendants were unreasonably dangerous and unsafe for their intended purposes because they did not provide adequate protection against the foreseeable risks of concussive brain injuries. They allege that the Riddell defendants failed to warn of substantial dangers involved in the reasonable and foreseeable use of their helmets and failed to provide adequate safety and instructional materials to minimize the risks of concussive brain injuries. 

 

The spouses allege that they have been deprived of their husbands’ earnings, services, and companionship and have spent, and will continue to spend, money for their husbands’ medical care and household care. 

 

Pear, et al. v. National Football League, et al.

Superior Court of California, County of Los Angeles

August 3, 2011

(Later removed to U.S. District Court for the Central District of California on October 11, 2011)

C.D. California Case No. 2:11-cv-08395

 

Forty-seven former NFL players and thirty-two spouses filed this lawsuit against the NFL, NFL Properties, and Riddell and Easton-Bell related companies. This lawsuit contains claims identical to those in the Maxwell lawsuit (described above).   

 

Easterling, et al. v. National Football League, Inc.

U.S. District Court for the Eastern District of Pennsylvania
August 17, 2011

E.D. Pennsylvania Case No. 11-cv-05209

 

Seven former NFL players and five spouses filed a lawsuit against the NFL in the United States District Court for the Eastern District of Pennsylvania on August 17, 2011. The NFL is the only defendant named in this lawsuit. This lawsuit does not contain any product liability claims.

 

The former players and their spouses allege that the NFL concealed facts and information which caused them to be exposed to harm, conspired to discount and reject a causal connection between concussions and chronic long-term effects of those injuries, and negligently failed to warn of risks, failed to disclose risks, misrepresented and concealed facts, and failed to adopt and enforce rules to minimize risks to players. 

 

These former players and their spouses also seek certification of a nationwide medical monitoring class consisting of: “All former NFL players who sustained a concussion(s) or suffered concussion like symptoms while in the NFL league, and who have, since leaving the NFL, developed chronic headaches, chronic dizziness or dementia or Alzheimer’s disease and/or other physical and mental problems as a result of the concussion(s) suffered while a player;” and “All current and future NFL players who from the date this lawsuit is filed and into the future suffer a concussion or concussion like symptoms.” Certification of such a class would enable specialized medical testing for everyone in the class to promote early detection of the long-term effects of concussion injuries.

 

Barnes, et al. v. National Football League, et al.

Superior Court of California, County of Los Angeles

August 26, 2011

(Later removed to U.S. District Court for the Central District of California on October 11, 2011)

C.D. California Case No. 2:11-cv-08396

 

Fifteen former NFL players and four spouses filed a lawsuit against the NFL, NFL Properties, and Riddell and Easton-Bell related companies. This lawsuit contains claims identical to those in the Maxwell lawsuit (described above). In addition, this lawsuit includes a wrongful death claim brought on behalf of one of the former players’ spouses, alleging that the defendants caused the former player’s multiple brain injuries that resulted in his November 2009 death.

 

Product Designer and Manufacturers’ Opposition to Transfer and Consolidation

 

The Riddell and Easton-Bell related companies opposed the NFL’s request to transfer and consolidate the former NFL players’ concussion injury lawsuits. The NFL sought to consolidate the first four lawsuits filed related to concussion injuries. The Riddell and Easton-Bell related companies were named as defendants in three of the four lawsuits. The fourth lawsuit was filed only against the NFL and contained no product liability claims whatsoever.

 

The Riddell and Easton-Bell defendants opposed transfer and consolidation for four reasons. First, these defendants argued that transfer was premature as motions were pending to dismiss the three cases in the Central District of California. Second, these defendants argued that consolidation and common treatment of the lawsuits’ claims was inappropriate because the former NFL players’ injuries, medical histories, products used, and claimed resultant injuries involved highly individualized factual issues for each of the 136 players, who played for different teams, at different times over a period of time extending for more than fifty years, and suffered different injuries in different ways, at different times, and in different places. Third, these defendants contended that centralization would not promote convenience, economy or efficiency because the three lawsuits in California were all assigned to a single judge, the defendants were represented by national counsel, and the plaintiffs were represented by a handful of law firms working in conjunction with one another on these cases. Fourth, these defendants opposed the Eastern District of Pennsylvania as the proposed forum for centralized pretrial proceedings because the plaintiffs live all over the country and these defendants have no base of operations in Pennsylvania, nor were they defendants in the lawsuit pending in the Eastern District of Pennsylvania.

 

The Riddell and Easton-Bell defendants’ opposition to transfer and consolidation highlights the complexities and challenges that product designers, manufacturers, distributors, and sellers face when they are involved in consolidated pretrial proceedings where the plaintiffs’ claimed injuries, medical histories, products used, and claimed chronic long-term resultant injuries relate to widely disparate facts. In multidistrict litigation, a single court (and often, a single assigned judge) will oversee the discovery process, resolve discovery disputes. The product designers, manufacturers, distributors, and sellers can be left to defend against a collection of claims which involve different products and arise out of different events.  

 

In Re: NFL Players’ Concussion Injury Litigation – U.S. District Court for the Eastern District of Pennsylvania

 

The MDL Panel issued its decision to centralize the former NFL players’ and spouses’ lawsuits for coordinated or consolidated pretrial proceedings on January 31, 2011. At that time, the MDL Panel effectively transferred the first four actions to the U.S. District Court for the Eastern District of Pennsylvania.

 

The MDL Panel emphasized the benefits of centralizing pretrial proceedings in a single court: it eliminates duplicative discovery, prevents inconsistent trial rules, and conserves the resources of the parties, their counsel and the courts.

 

The MDL Panel concluded that the four lawsuits were appropriate for transfer and consolidation of pretrial proceedings in a single court because the lawsuits shared common factual issues arising from allegations against the NFL related to: (1) injuries sustained while playing professional football; and (2) damages resulting from the permanent long-term effects of concussions suffered while playing professional football. The MDL Panel supported its decision by pointing to the fact that the majority of the parties (all except the Riddell and Easton-Bell defendants) supported transfer and consolidation. In addition, since two additional actions had been filed against the Riddell and Easton-Bell defendants by the time the MDL Panel was considering the request to transfer and consolidate the concussion injury lawsuits, including one more in the Central District of California and one in the Eastern District of Pennsylvania, the MDL Panel determined that the Riddell and Easton-Bell defendants would have to litigate in the Eastern District of Pennsylvania even if the actions weren’t transferred and consolidated.

 

The MDL Panel selected the U.S. District Court for the Eastern District of Pennsylvania as the appropriate court to conduct pretrial proceedings in this litigation and assigned the Honorable Anita B. Brody as the judge. At that time, six concussion injury actions were pending in the Eastern District of Pennsylvania in before Judge Brody, who has the experience to handle the litigation.

 

Each new lawsuit filed by former NFL players and their spouses alleging concussion injury related claims may filed in the Eastern District of Pennsylvania or file elsewhere and request transfer for coordinated or consolidated pretrial proceedings in the Eastern District of Pennsylvania. At the conclusion of pretrial proceedings, any lawsuits that remain unresolved will be transferred back to the district court from which they were transferred, and trial will be held in the original district court.

 

Implications for Product Liability Actions in Multidistrict Litigation

 

For product designers and manufacturers, the MDL Panel’s multidistrict litigation approach In Re: NFL Players’ Concussion Injury Litigation provides some insight into the Panel’s willingness to transfer and consolidate actions that involve different products designed, manufactured, and used by different players at different times and under different circumstances. The former NFL players’ and spouses’ claims involve different helmets, injuries, medical histories, chronic long-term resultant injuries, teams, rules of play, and times over a period of more than fifty years. The factual issues to be explored in each case will unfold during pretrial proceedings overseen by a single court. All discovery disputes and pretrial motions in these cases will be decided by a single judge. Product designers and manufacturers now operate with a heightened awareness that claims related to different products used by different individuals at different times and under different circumstances could end up in consolidated multidistrict litigation.