NCAA Concussion Suits Merger Sought Even With Differences
By Andrew Harris - Dec 5, 2013 2:48 AM ET
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.
The 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. At least one case includes two football helmet makers as defendants.
Lawyers for Adrian Arrington, a former Eastern Illinois University team captain and strong safety who filed the first class action against the association in 2011, argue the cases have enough in common to be combined in federal court. They’re set today to ask the seven-member Judicial Panel on Multidistrict Litigation to consolidate the cases for pretrial proceedings.
“There is no need for absolute uniformity among claims,” Arrington’s attorneys said in a Sept. 4 filing. “The related actions share overarching common elements which show consolidation is appropriate.”
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.
Arrington’s lawyers want the lawsuits to be handled by a judge in Chicago, where their case is pending. Consolidation is opposed by other athletes and by the helmet makers, Riddell Inc. and Kranos Corp., which does business as Schutt Sports.
The NCAA has told the judicial panel meeting today in Las Vegas that it supports treating the cases as a group. “All parties will realize benefits from centralizing this litigation in one forum,” the Indianapolis-based organization’s attorneys said.
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 a group of college athletes who sued Oct. 1 in Indianapolis oppose the consolidation. That group, led by one-time University of Oregon and University of Washington quarterback John DuRocher, also sued the helmet makers.
“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.”
Schutt Sports’ lawyers assert the product liability claims don’t belong in the combined NCAA concussion lawsuits. Lawyers for Riddell raised similar objections in a separate filing, calling the DuRocher case distinct from the others.
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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