By Saranac Hale Spencer, From The Legal Intelligencer

Three weeks after the settlement between the National Football League and its former players who suffered head injuries while playing for the NFL got final approval, challenges to it are getting under way.

Two appeals have been filed this week and more are expected.

The settlement’s failure to compensate players who have chronic traumatic encephalopathy, or CTE, is the primary objection to the deal.

It is structured to compensate former players who are diagnosed with Alzheimer’s disease, dementia and other neurocognitive diseases, but it only compensates for CTE if the player had died before the date of final approval, April 22.

At this point, with research on the disease still in its infancy, CTE can only be diagnosed after death.

Plaintiffs’ lawyers in the case have been at odds with each other about the deal, with dozens of them saying the settlement isn’t a fair one.

U.S. District Judge Anita Brody of the Eastern District of Pennsylvania, who has handled the case, rejected the first deal the parties struck for $760 million just over a year ago and sent them back to the drawing board. The lead counsel for the plaintiffs and the lawyers for the NFL came back last summer with a second deal that did away with the $675 million cap on the fund from which injured former players would draw—that was the judge’s chief concern with the first settlement, that there wouldn’t be enough money in the fund to compensate all eligible players over the 65-year life of the fund.

Getting rid of the cap and making other, smaller changes answered her concerns.

Following the judge’s preliminary approval of the settlement last July, Steven Molo of MoloLamken in New York brought the first appeal in the case, asking the U.S. Court of Appeals for the Third Circuit to review the case on an interlocutory basis.

But the Third Circuit declined to exercise its jurisdiction on that unusual approach to appellate review through Federal Rule of Civil Procedure 23(f), which allows for an appeal of an order granting or denying class certification. The threshold issue in the case was whether the July order from Brody granting preliminary approval of the settlement and granting conditional certification of the class for settlement purposes would even trigger the Third Circuit’s right to review. The appeals court didn’t take it up.

Now that approval of the settlement is final, though, it can be appealed.

“The settlement doesn’t offer anything to my clients,” said John Pentz, the Sudbury, Massachusetts, lawyer who represents 10 former players and filed an appeal Thursday afternoon.

His clients haven’t been diagnosed with any of the diseases covered in the settlement, but some are displaying symptoms of CTE, he said.

Pentz likened the disparate medical conditions of the class members in the NFL case to the situation in Amchem Products v. Windsor, the 1997 decision in which the U.S. Supreme Court vacated the class certification of potentially millions of people who had been exposed to asbestos, finding that a common issue didn’t predominate. That case had originated in the Eastern District of Pennsylvania.

In the NFL case, all of the thousands of former players got concussions while playing in the league, Pentz said, but they don’t all suffer from the same effects.

There’s “no unity among the class,” he said.

After all of the appeals have been filed, which is set to happen by next month, the Third Circuit is expected to consolidate them.

Christopher Seeger and Sol Weiss, the co-lead counsel for the plaintiffs who have been at odds with other plaintiffs’ lawyers in the case and have stood staunchly behind the deal they struck with the NFL, had called on lawyers who are critical of the deal not to appeal it.

After the first appeal was filed Wednesday, they said in a prepared statement, “We are extremely disappointed and perplexed that an objector would file a notice to appeal the court’s final order, even though this decision means thousands of retired NFL players suffering from devastating neurocognitive injuries, and those concerned about their future, will now be forced to wait many months for the immediate care and support they deserve.”

Photo: Flickr user hyku via Wikimedia Commons

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