Media outlets are reporting as news that some 2,000 ex-NFL players are suing the league over concussions. But it isn’t really news. So what’s really going on?
Pending before the Honorable Anita B. Brody in the United States District Court for the Eastern District of Pennsylvania are at least 60 lawsuits concerning a single subject: whether the National Football League is liable for injuries that players sustain while playing professional football and, particularly, for the long-term effects of concussions.
How did they all get before Judge Brody? Sometimes, a large number of people file very similar lawsuits all around the same time. Generally plaintiffs aren’t required to sue together, so they often file separately. Federal law allows similar cases to be grouped together in something called multidistrict litigation (MDL). A group of judges known as the judicial panel on multidistrict litigation (JPML) decide whether or not to group similar cases together. If the cases have a lot of common factual issues and might see a more efficient outcome if they were grouped together, the panel can transfer the case to a single federal judge for pretrial matters. After all the pretrial matters, like motions to dismiss and discovery, are complete, and if the cases haven’t settled, they’re transferred for trial back to the federal court where each was filed.
In February 2012, the JPML approved an MDL for what in a brief order it called In re National Football League Players’ Concussion Injury Litigation. And Judge Brody asked the parties to file a “master complaint.”
Each individual case filed has its own complaint, and with 60 or more lawsuits pending, that’s 60 or more complaints to worry about. In complex cases, it’s not uncommon for a federal judge to ask the plaintiffs to file a consolidated complaint, which will streamline the litigation. That way, going forward in a case like this, the NFL as a defendant knows what evidence it has to disclose based on just one set of allegations, and the court can more easily manage the case.
Today, the plaintiffs filed an 88-page master complaint. Most of the counts are against the NFL; a few are against helmet maker Riddell. According to the court, the NFL will have until August 9 to file a motion to dismiss; a decision on that likely won’t be reached until 2013.
Will the plaintiffs succeed? Maybe. In litigation, it’s usually too early to have much certainty when all we have are the allegations that each side trades. Maybe the NFL knew about the long-term effects of concussions on players and kept quiet — that would be similar to the allegations made against the tobacco industry years ago. Or maybe the NFL did its best with the science it had, and the former players are upset that their labor contracts didn’t include enough post-career provision for them.
But one thing is almost certain: These claims will probably settle in the years ahead. The NFL doesn’t want a long public trial showing the grim realities of concussions and head injuries, and the players don’t want to risk that they could be left without any compensation. As to how soon it settles depends on how quickly Judge Brody urges the litigation along.
— Derek T. Muller is associate professor law at Pepperdine University.