By Saranac Hale Spencer, from The Legal Intelligencer

The federal judge handling the case over concussions in the National Football League has suggested minor changes to the settlement before she grants it final approval.

The proposed settlement, which got preliminary approval last July after the judge rejected the first deal a year ago, has been maligned by lawyers for some of the former players.

The five suggestions made by U.S. District Judge Anita Brody of the Eastern District of Pennsylvania don’t address the major criticism of the settlement from some of the plaintiffs’ lawyers, which is that it doesn’t compensate players who have chronic traumatic encephalopathy, or CTE.

The terms of the settlement allow for cash awards to the families of players who die with CTE before the date of preliminary approval of the settlement, which was at the beginning of July.

In her three-page order issued Monday, Brody suggested that coverage for death with CTE should go through the date of final approval of the settlement.

She also suggested that the settlement should include some credit for eligible seasons played in the World League of American Football, the NFL Europe League, and the NFL Europa League; it should have reasonable accommodations for class members who don’t have medical records due to “force majeure-type events”; it should include a hardship provision for the appeal fee for class members; and it should ensure that all eligible players who comply with all of the deadlines should have access to the baseline assessment examination, which tests former players’ neurocognitive functions to establish whether they have a diagnosis that qualifies for a recovery under the settlement, regardless of any potential funding limitations.

The last suggestion has the same tenor as the reason that she rejected the first agreement last January.

She rejected that deal, which included a $675 million fund from which injured former players would draw, making clear that she was troubled by the lack of empirical support for the figure and that she was unsure that there would be enough money to cover all of the players with potential claims.

That move drew praise from lawyers for some of the former football players who alleged that they had been kept in the dark on the details of the deal.

At the fairness hearing for the settlement held in November, Chris Seeger, co-lead counsel for the plaintiffs who worked on the deal with the NFL’s lawyers, told Brody that the issue now before her—when she is weighing final approval of the settlement—is “not whether it’s perfect,” but, rather, whether it is fair, reasonable and adequate. He noted that Third Circuit precedent entitles the settlement to a presumption of fairness.

He characterized the objecting lawyers as wanting to structure the settlement their way, by having various subclasses of plaintiffs rather than the two that are included in the settlement.

Bruce Birenboim of Paul, Weiss, Rifkind, Wharton & Garrison, who is on the NFL’s defense team, framed the issue of deciding which CTE-related ailments to cover this way: “Is the line that was drawn here fair and reasonable; given the science and, we think, given the causation issues and given the infancy of the research in the area, the line is clearly a fair line.”

Seeger, Birenboim and Brad Karp, who is another Paul Weiss lawyer on the NFL’s defense team, all repeatedly emphasized that players don’t have to prove causation in order to collect for their qualifying injuries under their proposed settlement. Proving that the players’ neurocognitive ailments were caused by head injuries they suffered while playing in the NFL had loomed as one of the major obstacles the plaintiffs would have to overcome if the case went to litigation.

Karp characterized the criticisms of the settlement for its lack of coverage for CTE as a deliberate and fundamental misunderstanding of the settlement and its scope. Mood disorders and depression, both of which some objectors list as symptoms of CTE, are also distributed across the general population and “have nothing in the world” to do with football or CTE, Karp said.

Regarding Brody’s suggestions for changes to the settlement, Seeger said in a prepared statement, “We will work with the National Football League to promptly address the issues raised in Judge Brody’s order, and remain confident this settlement will receive final approval. We are grateful to Judge Brody for her guidance and continued efforts to protect the rights of all class members. We look forward to finalizing this agreement so that retired players can begin taking advantage of its benefits.”

For more on this story go to: http://www.thelegalintelligencer.com/id=1202716805552/Judge-Asks-for-Changes-to-NFL-Concussion-Settlement#ixzz3Qgz6ccUk