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Law and Politics

NFL, insurers ask judge to intercede in concussion case

The NFL, and dozens of insurers suing the league, asked the federal court judge overseeing the pending concussion settlement to intercede in their dispute over whether league executives and medical advisers should be deposed over what they knew about the risks of head injuries from playing football.

The insurers sued the league in 2013 in New York state court, seeking to avoid covering the coming federal settlement, but the state lawsuit has been informally stayed as the concussion deal winds its way through the federal courts, where it is on appeal. The insurers now want to jumpstart the process and will argue to a New York state court judge next week that the case should move forward.

The league contends that if discovery begins in the insurance case, it could torpedo the settlement and interfere with more than 150 individual concussion cases brought against the NFL by retirees who opted out of the larger deal.

“The insurers are contending that the NFL parties ‘expected or intended’ the underlying plaintiffs (retirees) injuries and will seek discovery concerning the NFL’s alleged knowledge of the purported long-term effects of concussions, a subject as to which plaintiffs in the [opt-out cases] will also seek discovery,” NFL outside counsel John Hall of Covington & Burling wrote last month to U.S. federal court judge Anita Brody. “[T]here is no question that the persons the insurers would seek to depose are the core witnesses in the underlying cases — the NFL executives and medical advisors involved in these issues.”

Judge Brody last spring approved the concussion settlement, which could cost the NFL more than $1 billion, without ordering discovery or requiring the NFL to admit fault. That has rankled many who contend the league should have to divulge what it knew about the risks of concussions, a point made at the end of the new movie “Concussion” starring Will Smith.

The insurers allege the league is working hard to avoid discovery.

“The insurers should not be prejudiced by the lapse of time and loss of evidence simply because the NFL prefers to continue to delay its day of reckoning as long as possible,” Christopher Carroll, an attorney for the insurers, wrote to Judge Brody last month. “The Insurers consider proceeding with discovery on the coverage action to be critical to their ability to protect their interest and must respectfully object to any informal approach to that issue such as is contemplated by the NFL.”

It is not clear if Judge Brody has responded, or will respond. Lawyers for the NFL and insurance companies did not respond to questions about the federal judge. And a law clerk in Brody’s chambers said she would pass on a message to the judge, who did not respond by deadline for this story.

The NFL contends that under New York state law the insurance case should be stayed until the settlement is approved and the opt-out cases proceed. And the state judge overseeing the insurance cases, Jeffrey Oing, appeared sympathetic to that position during oral arguments in November.

“If I let you go forward with discovery here,” he told the insurance counsel, “at the end of the day the Third Circuit is going to say, ‘I’m not going to approve this because guess what, they’re doing discovery.’”

The Third Circuit heard an appeal of the settlement in November and has yet to rule.

Hall told Oing, “They want discovery that goes to the claims that are at issue in the underlying litigation. Did the NFL intentionally seek to harm players? That’s the core defense of the insurers.”

If the settlement survives appeals, then the more than 20,000 players who did not opt out would have no recourse if information came out during the insurance discovery that the NFL hid medical information about the connection between head injuries and playing football, a connection the league had strenuously denied until the last few years.

Only those players who opted out might be able to utilize such information, unless the NFL can delay the insurance case until all opt-outs are finished, or keep the insurance discovery tightly under seal.

The league also will argue the opt-out cases do not belong in federal court but are arbitration eligible under the collective-bargaining agreements the retirees played under.

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