Timothy Epstein is quoted in an article on Law 360 entitled, "Third Circuit Puts An End To Objections In NFL Concussion Deal" written by Zachary Zagger

Third Circuit Put An End To Objections In NFL Concussion Deal.

Law360, New York (April 18, 2016, 10:36 PM ET) -- The Third Circuit on Monday backed an uncapped settlement between the NFL and a class of retired football players over concussions and head injuries over protests from the class, in what attorneys say likely puts an end to the objections and could help the NFL avoid even further scrutiny over its handling of head injuries.

In an opinion joined by all three judges on the panel, the Third Circuit said the district court properly certified the proposed class of potentially over 20,000 retired football players who allege they have suffered a variety of neurological ailments, from memory loss and dementia to Alzheimer's disease and amyotrophic lateral sclerosis, or ALS, all caused by repeated head injuries and concussions during their days in the NFL.

At the center of the objectors' challenge is the highly publicized degenerative brain condition called chronic traumatic encephalopathy, or CTE. Objectors claimed the settlement fails to do enough for those who suffered from the condition, which can only be diagnosed after death. Though the settlement does provide payouts of up to $4 million to the families of those who died after suffering from CTE, the deal excludes those who pass away after a cutoff date.

The Third Circuit did not find the deal to be unfair, ruling that "the bargain struck ... amid the fog of litigation ... will provide significant and immediate relief to retired players living with the lasting scars of a NFL career."

"The NFL saved itself millions in legal fees and potentially billions in adverse judgments, but more importantly, the NFL saved itself the embarrassment and fallout from some revelations of deceiving its own labor force and its fans on the long-term effects of repeated head trauma," said sports and entertainment litigator Timothy L. Epstein of Duggan Bertsch LLC.

U.S. District Judge Anita Brody had approved the uncapped settlement last year in massive NFL concussion multidistrict litigation, which will provide at least $765 million in relief for retired NFL players. The final approval came after months of revisions amid objections from many of the 5,000 player plaintiffs, including the estate of former Chicago Bears player Dave Duerson, who was diagnosed with CTE after his 2011 suicide.

The revisions moved the cutoff date to the date of final approval last April, pulling in cases such as Duerson's, whose estate dropped its objections. However, since then, former Oakland Raiders quarterback Kenny "The Snake" Stabler passed away, and researchers discovered he had suffered from CTE as well, perhaps the most high-profile NFL player found to have suffered from the condition.

Under the deal, class members with Alzheimer's can receive as much as $3.5 million, and families of those who suffered from CTE can receive $4 million, while those with ALS can receive as much as $5 million, the highest of the possible payouts.

"While it is easy to understand the ploy of many of the objectors to the settlement agreement — particularly those arguing against it not providing reimbursement for players determined to have been suffering CTE after the cutoff date hits — it really makes the most sense to move forward with the settlement as is," said sports attorney Joseph Hanna of Goldberg Segalla. "It's one of those 'not everyone is going to be happy in the end' situations, and I think the majority of the objecting class members would understand compromises needed to be made, and this is the best deal they've gotten so far."

The appeal became more difficult for the NFL as it prolonged the league's exposure on its controversial handling of CTE and head injuries. The league has dismissed claims of a direct link between CTE and football, pointing to a lack of scientific evidence.

However, some objectors latched onto comments made by the NFL's executive vice president of health and safety policy, Jeff Miller, at a U.S. House Energy Subcommittee on Oversight and Investigations roundtable that they claimed were an admission that there is a direct link between the sport and the brain condition. The league said the statements were taken out of context, but the objectors pointed the Third Circuit to Miller's statements in a court filing, arguing that the league's "failure to compensate present and future CTE is inexcusable."

The Third Circuit addressed the comments, saying that even if the NFL is now admitting there is a direct link, "many more questions must be answered before we could say that the failure to compensate the diagnosis was unreasonable."

Christopher Seeger of Seeger Weiss LLP, who is representing the settling plaintiffs, also dismissed the comments in a conference call with reporters on Monday.

"I think if you look at a lot of the filings, even by the NFL, they always came pretty close to saying similar things that Miller did. Miller might have said it more succinctly," Seeger said. "Miller's comments didn't surprise me, and I didn't expect them to have any real influence on the Third Circuit."

The Third Circuit's decision now paves the way for the class members to be compensated, possibly within a few months, depending on whether the objectors continue to push their issues. The plaintiffs have 14 days to decide whether to seek a rehearing en banc and 90 days to seek U.S. Supreme Court review.

But attorneys said those options don't have a high chance of success as the 69-page decision thoroughly considered the objections, and the opinion was unanimous.

"The settlement at the district court level was determined to be fair and reasonable, and on appeal, those decisions are given considerable discretion since they are fact-dependent," said litigator J. Philip Calabrese of Porter Wright Morris & Arthur LLP. "In that regard, such fact-based decisions, unless there is some other compelling legal reason, are considered the province of the district court. The arguments of objectors are often viewed skeptically."

In the meantime, the NFL still must deal with those who opted out of the settlement, as well as a new lawsuit involving Stabler's wife. But the decision will still allow the league to start moving forward.

"In the end, the NFL will be paying out more than $1 billion in reimbursement benefits, not an insignificant number," Hanna said. "It will have an effect on the way the league handles injuries, particularly head trauma, moving forward. The NFL will hopefully be more open with the players and the public, working with everyone to make the game safer ... as opposed to trying to keep things hidden."

The appeals are In re: National Football League Players' Concussion Injury Litigation, case numbers 15-2206, 15-2217, 15-2230, 15-2234, 15-2272, 15-2273, 15-2290, 15-2291, 15-2292, 15-2294, 15-2304 and 15-2305, in the U.S. Court of Appeals for the Third Circuit.

--Editing by Katherine Rautenberg and Christine Chun.

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