By P.J. D’Annunzio, From The Legal Intelligencer

Three more former professional football players have appealed the settlement between the National Football League and its former players who suffered head injuries while playing for the NFL.

Jimmie H. Jones, Ricky Ray and Jesse Solomon claimed in their appellate brief that the settlement, approved by U.S. District Judge Anita Brody of the Eastern District of Pennsylvania in April, is flawed because it provides compensation to former players diagnosed with chronic traumatic encephalopathy before Brody’s final approval date, but denies compensation to players diagnosed with CTE after that date, even if the diagnosis is made in an autopsy.

Specifically, the settlement 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 April 22. At this point, with research on the disease still in its infancy, CTE can only be diagnosed after death.

The appeals of Jones, Ray and Solomon to the U.S. Court of Appeals for the Third Circuit come after two prior appeals that were filed in May—two weeks after the settlement was approved. The attorney for the three plaintiffs, Dwight P. Bostwick, did not return a call seeking comment. Lynn Bayard, an attorney for the NFL, also did not return a call seeking comment.

“The compensation offered to future claimants for dementia is much lower than the compensation offered to current claimants for CTE,” which the plaintiffs argued has a wider array of symptoms. “Because of its high prevalence among former NFL players and the particularly close association between CTE and repeated head injuries, the exclusion of future CTE claims creates a fundamental disparity between the treatment of present and future claimants,” the objecting plaintiffs’ papers said.

The three also argued that in not listing CTE as a “qualifying diagnosis” in the settlement, Brody failed to protect the interests of future claimants during settlement negotiations.

“The [plaintiffs’ steering committee] negotiated the settlement as a unitary entity, and the creation of informal subclasses as an afterthought and without judicial oversight did not assure that future claimants were adequately protected,” the objecting plaintiffs’ papers said. “The district court failed to recognize that the inclusion of a cap on future claims in the original settlement was a symptom of inadequate representation, and its after-the-fact ratification of the subclass structure did not remedy the failure to adequately protect the interests of future claimants.”

In a statement sent to The Legal on behalf of Christopher Seeger, the co-lead counsel for the non-objecting plaintiffs, Seeger said, “These appeals are heartbreaking news for injured retired NFL players who will now be forced to wait many months longer for the care and financial support they desperately need. Judge Anita Brody considered objections to the settlement at the fairness hearing last November, and overruled them in an extremely thorough opinion granting final approval to the settlement. With over 99 percent participation, it is clear the retired player community overwhelmingly supports this agreement. We look forward to offering a forceful defense of the settlement in the court of appeals.”

The case has been marked by discord among the plaintiffs’ lawyers in the case, dozens of whom said the deal isn’t a fair one.

Brody, who has handled the case, rejected the first deal the parties struck for $760 million almost a year-and-a-half 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 in July 2014, Steven Molo of MoloLamken in New York brought the first appeal in the case, asking 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 2014 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.

Photo: Flickr user hyku via Wikimedia Commons

For more on this story go to: http://www.thelegalintelligencer.com/id=1202734944517/More-Appeals-Filed-in-NFL-Concussion-Settlement#ixzz3jB4NwEug