NCAA Concussion Suits Merger Sought Even With Differences
Ex-football players’ head-trauma lawsuits against the National Collegiate Athletic Association, unlike National Football League cases consolidated by federal judges and later settled for $765 million, defy easy grouping.
Former student athletes have filed 10 class-action suits -- two of them this week -- accusing the NCAA of failing to protect them from concussions and, in the first of the cases, seeking to represent all current and former students who participated in contact sports. One case includes two football helmet makers as defendants.
Elizabeth Fegan, an attorney for one-time Eastern Illinois University football team captain Adrian Arrington who filed the first class action against the association two years ago, argued before a panel of judges today that the later-filed cases should be consolidated with hers for pretrial proceedings in Chicago.
“We have expended nearly 8,000 hours conducting discovery,” including review of evidence and taking depositions, Fegan told the Judicial Panel on Multidistrict Litigation at a hearing today in federal court in Las Vegas.
The most-recent version of the complaint filed by Arrington, who played strong safety, already incorporates claims from a second lawsuit filed in Chicago. A request to certify two classes of plaintiffs has already been filed with U.S. District Judge John Z. Lee there, she said.
Fegan’s consolidation request was supported today by an attorney for the Indianapolis-based NCAA. Lawyers for other student athletes opposed grouping the cases in Chicago, as did lawyers for the football-helmet makers named as co-defendants with the NCAA in an Indianapolis case.
Combining lawsuits as multidistrict litigation increases the efficiency of evidence exchanges before trial in cases with similar claims filed in multiple districts. Multidistrict cases have included claims against BP Plc (BP/) over the 2010 Gulf of Mexico oil spill and lawsuits against Toyota Motor Corp. (7203) related to alleged sudden unintended acceleration of some vehicles.
The lawsuits seek findings that the NCAA was negligent in its handling of player concussions leading to brain trauma that now requires medical monitoring.
Similar allegations lodged by pro football players against the NFL resulted in a $765 million settlement in August, which included a medical monitoring program.
Ten former National Hockey League players sued that organization last month, accusing it of concealing the risk of severe brain injuries. That complaint, filed in federal court in Washington, seeks medical monitoring plus unspecified money damages.
The NCAA, in an answer filed to the Arrington complaint on March 21, denied allegations it failed to implement regulations that would “properly protect student athletes from the risks associated with concussions” or manage risks and consequences associated with repeated concussions.
In the same filing, the NCAA said it had about $749.8 million in revenue in 2009-2010 school year.
“The association has specifically addressed the issue of head injuries through a combination of playing rules, equipment requirements, and medical best practices,” Stacey Osburn, an NCAA spokeswoman, said yesterday in an e-mail. “We continue to believe our policies and rules address student-athlete safety, and do not believe the individual or proposed class action allegations are appropriate.”
Lawyers for the college athletes who also sued the helmet makers Riddell Inc. and and Kranos Corp., which does business as Schutt Sports in addition to the athletic association, oppose the combining of their case with the Chicago proceeding.
That group is led by one-time University of Oregon and University of Washington quarterback John DuRocher.
“Our case is a little different,” David Franco, a lawyer for DuRocher, told the six judges appearing on the panel today.
“Although each action relates to concussive injuries of NCAA athletes, each action involves different classes across different states bringing different claims involving different sports against different sets of defendants,” lawyers for that group said in a court filing.
The DuRocher complaint proposes a class of all former NCAA football players who suffered concussion-like symptoms while playing football at an NCAA school and later developed symptoms including chronic headaches, dizziness, dementia or Alzheimer’s disease.
Arrington’s attorneys, in an Oct. 16 filing with the panel, said their proposed “core issues” class of claimants included “all present or former students listed on a college team roster at any NCAA institution during the period 2004 through the present who participated in the contact sports of football, wrestling, basketball, field hockey, ice hockey, lacrosse or soccer.”
Attorneys for the helmet makers said the case involving claims against them should be handled separately.
“You’ll have to build another highway” for the helmet litigation, said Paul Cereghini, a lawyer for Riddell.
Judge John G. Heyburn, chairman of the MDL panel, told Cereghini that if that body votes to consolidate the cases, the judge who receives them will look at all the claims.
“It’s not inconceivable” Heyburn said, that the helmet makers will be made part of the overall litigation.
“We don’t think that would be efficient,” Cereghini replied, adding that while the NCAA claims turn on whether the athletic association was negligent in its concussion prevention and management, claims against Riddell and Kranos allege product liability.
Those latter claims have nothing to do with the NCAA’s actions, said Kranos attorney Charles Toomey, calling the different liability theories “apples and oranges.”
Toomey and Cereghini each asked the court to withhold the DuRocher claims from any consolidation plan and not to leave the question of their separation to the judge who receives the cases.
Roger Orlando, an attorney for former players in a suit filed in Atlanta, asked that the cases be moved there, in part because the federal Centers for Disease Control, which has been studying head trauma, is based in that city.
“No matter where we centralize, if we centralize, some judge is going to have to make sense of where we go from here,” Heyburn said.
The panel will issue a ruling later.
The case is In Re National Collegiate Athletic Association Student-Athlete Concussion Injury Litigation, MDL 2492, Judicial Panel on Multidistrict Litigation (Las Vegas).
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