Federal court judge Anita Brody, in what lawyers called a rare if not unprecedented appearance, urged the NFL in a New York state court room to settle about 150-160 individual personal injury cases brought by retirees who opted out of the broader concussion settlement. Brody was there to listen as an observer as the NFL argued that it needed to stay discovery in a four-year-old case brought by insurers, who are seeking to avoid covering the concussion settlement that Brody approved. In the insurance case, New York state judge Jeffrey Oing said by next week he would almost certainly issue an order lifting the current stay, and that he would not allow a stay if the league appealed.
This means discovery for the first time could begin on what the NFL knew about the risks of concussions. No discovery was conducted in reaching the up to $1B concussion settlement, which is on appeal to the Supreme Court. Brody told lawyers after the insurance hearing that the league had thought she was “a lovely little grandmother” when she first got the concussion settlement case, but the NFL quickly learned otherwise. She is overseeing the opt-out cases, which are in early stages and could take many years to litigate.
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Brody noted to the insurers and the NFL that arbitrator
Ken Feinberg could help mediate their insurance dispute, saying she discussed it with him at a birthday party they both attended. However, Feinberg filed an amicus brief in the Deflategate case decrying the NFL’s arbitration process, so it is unlikely the league would agree to that. Asked about the league’s apparent poor day in court and the next legal move for the league, NFL Senior VP & Chief Litigation Officer
Anastasia Danias said, “We are just waiting for the order.”
Oing has ordered discovery before, only to see it delayed by NFL objections. Lead insurance company lawyer Chris Carrol called the hearing “groundhog day.” Motioning toward the NFL lawyers, he said, “Today is 50 months since the suit was filed so everyone should get a round of applause for doing nothing.” But Oing seemed determined to start discovery, questioning the NFL’s argument that the insurers should not start discovery before the opt-out cases concluded. “Discovery in this case has to be discoverable in other cases,” Oing said. “There would be judicial efficiency.”
NFL outside counsel John Hall argued that the insurers should not be allowed to hand over to litigants in the opt-out case discovery, but Oing said there is always “tension” like this in insurance cases. And in any event, Oing added, much of what the insurers are looking for are documents, and not depositions of key witnesses. One source close to the insurance carriers said they might seek depositions soon of aging members of the Mild Traumatic Brian Injury committee, the mid-'90s NFL committee that is widely viewed as having at best downplayed the risks of head injuries.
