Judge fears $765 million concussion settlement not enough

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For months we have heard that the $765 million dollar proposed settlement between the NFL and over 4,500 retired players, who sued the league for hiding the dangers of concussions, is not enough. Today, Judge Brody agreed.

Judge Anita B. Brody of the United States District Court for the Eastern District of Pennsylvania rejected the proposed settlement because the league and the plaintiffs’ lawyers had not produced enough evidence to convince her that $765 million would cover the potential costs for 18,000 retirees over the 65-year life of the agreement.

“I am primarily concerned that not all retired N.F.L. football players who ultimately receive a qualifying diagnosis or their related claimants will be paid,” Brody wrote.

The players’ lawyers have said that economists and actuaries they hired said that there would be sufficient money available.

“Unfortunately, no such analyses were provided to me in support of the plaintiffs’ motion,” Brody said. “In the absence of additional supporting evidence, I have concerns about the fairness, reasonableness and adequacy of the settlement.”

See, NY Times Article.

From here, if nothing else, the initial payments to the retired players will be delayed. The NFL and the plaintiff’s lawyers will need to provide evidence showing that the proposed settlement amount is sufficient to pay the retired player’s claims. A Special Master will likely review the documents and advise the Judge of his/her opinion. If those efforts are unsuccessful, the two sides will be forced to rework the agreement by adding more money to the settlement or adjusting the payout categories.

Either way, there is still much work to be done in this groundbreaking case. The decisions made here “will provide a framework for the settlement of other concussion-related lawsuits, including those brought by former hockey players against the N.H.L. and by former college football players against the N.C.A.A.” Today’s order shows that Judge Brody is well aware of the implications and wants to ensure that this is done correctly.

Farewell to the Delaware Way

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I originally wrote this piece in June of 2013. Its application is just as important today, as it was then.

“If opposing counsel request a reasonable extension of a deadline you give it to them.” This was perhaps one of the first lessons bestowed upon me early in my legal career. For as long as I can remember, common practice in Delaware was for attorneys to work with one another with regard to deadlines. Many reasons were given for providing such accommodations. One simple justification was to give the courtesy so that if ever you needed the same one would likely grant it to you. Of course, the likelihood of working with the same counsel at some point again in your career is highly probable within Delaware’s small legal world.

On January 2, 2013, all of this changed. This practice, while readily used and accepted among practicing lawyers was causing problems for the courts. Lawyers would quickly grant request for extensions and permit opposing counsel to submit discovery late but as the trial date approached the consequences of extensions would have greater effect.

For example, counsel may grant an extension for opposing counsel to submit discovery. Later, when discovery is presented, counsel that granted the extension realizes that this piece of evidence alters the nature of the case. As a result, counsel request for the trial to be rescheduled so that they may adequately prepare. The trial court must then decide whether counsel that granted the extension would be prejudiced by the shorter time period. This is where the problems arises…

Because these friendly extensions do not adjust the scheduling order or trial date, lawyers would grant extensions but file motions to exclude discovery filed too close to trial because of the inability to prepare within the shorter time period. In Christian, et al v. Counseling Resource Associate, Inc. et al, counsel granted an extension, this continued for quite some time until counsel finally submitted the required discovery. Afterwards, Counsel that originally granted the extension filed for a continuance to allow time for them to adequately prepare. Counsel argued that the shorter time period put his client at a disadvantage in preparing for trial; however, the trial court would not entertain a motion to review the scheduling order or adjust the trial date. As a result, counsel filed a motion to deny admittance of the late discovery. The trial court granted the motion finding that the admittance of the evidence would overly burden the party in preparing for the trial and adjusting the trial date was not an option. Consequently the case was dismissed since that discovery was necessary to continue.

Trial Courts have a grave responsibility to keep trials on schedule. But, they also must balance the equities in the interest of both parties. Forcing a party to prepare for trial in a shorter time period because of accommodations they granted for another is not fair, but neither is rescheduling the trial…

This led to the Delaware Supreme Court’s ruling in *Christian“,. This opinion modifies all previous accommodations given under the ”Delaware Way.“ From this point forward, ”counsel that grants any extensions is prohibited from later requesting relief from the court.” One extreme example given is where the day before trial a party presents new discovery. If opposing counsel previously granted a request for extension then that party may not seek relief from the court.

The Court made it clear that litigants who grant discovery extensions to opposing counsel without court approval, do so at their own risk.

“If the party chooses not to involve the court, that party will be deemed to have waived the right to contest any late filings by opposing counsel from that point forward. There will be no motions to compel, motions for sanctions, motions to preclude evidence, or motions to continue the trial. It is entirely possible, under this scenario, that some vital discovery will not be produced until the day before trial. Still, the party prejudiced by the delay accepts that risk by failing to promptly alert the trial court when the first discovery deadline passes.”

The Court also noted that extensions to deadlines granted by the trial court should not alter the trial date except in “unusual” circumstances.

Now, attorneys will likely deny all request made for extensions and require opposing counsel to file a motion with the court. The Supreme Court acknowledges that this will lead to an increase in the filing of these types of motions, but they also feel that it will lead to greater consistency. Alleviating a large number of issues that the trial courts face.

I look forward to witnessing this change of practice, for it will surely be remembered and forever connected to one of my first legal lessons…

Cite: Christian, et al. v. Counseling Resource Associates, Inc., et al.