The concussion settlement left the league with a $1.4 billion tab, of which it wants carriers to pay more than $1 billion.getty images
Insurers in legal strife with the NFL over the concussion settlement have begun filing litigation in state courts to compel each of the 32 clubs to honor long-standing subpoenas for all of their historical records on head injuries. In response the league last week asked the court for a temporary restraining order.
The insurers and the NFL are embroiled in an eight-year legal case, with the risk companies arguing that the league knew about the dangers of head injuries. As a result, the insurers contend they should not have to cover the roughly $1.4 billion settlement, of which the league is seeking more than $1 billion from its carriers.
For roughly two years the insurers and the NFL have debated what types of discovery are permissible. The move by the insurers to accelerate the subpoena process underscores that those talks were fruitless.
“In April 2019, without a forewarning … the insurers began filing actions across the country to compel enforcement of the subpoenas to the non-party teams,” Seth Schafler, an attorney with the league’s outside counsel, Proskauer, wrote to the court. He cited several cases in which the insurers are seeking state courts to compel production of documents, including one in Indianapolis in which that court ordered the Colts to turn over information within 30 days. The Colts are preparing an appeal, he wrote.
A copy of a subpoena to the Buffalo Bills was attached as an exhibit to the NFL’s temporary restraining order motion, and it lists 36 categories of documents the insurers are seeking.
Some are obvious, such as correspondence tied to NFL player safety committees and communications about the settlement.
The subpoena also asks for all communications tied to the movie “Concussion,” the book “League of Denial,” and ProCap, which was a padded helmet product no longer on the market.
In response to the NFL’s motion, the insurers in a seven-page letter to New York State Supreme Court judge Andrea Masley, who is overseeing the case, charged that the league has been uncooperative.
“Over 20 months ago, the Insurers began issuing valid state-issued subpoenas for documents to each of the 32 NFL member teams from each team’s home state court,” wrote the insurers’ attorney, Christopher Carroll, a partner with Kennedys CMK. “After several meet and confer telephone conferences and letters regarding the Non-Party Teams’ failure to produce documents, the Insurers and Non-Party Teams were at an impasse. Given the delay and the fact that most teams have failed to produce ANY documents whatsoever (and the minority of teams produced a few, mostly insurance and other ministerial documents), the Insurers began filing motions to compel in each of the states from which the subpoenas issued. The Non-Party Teams now cry foul and come to this Court seeking the extraordinary—and baseless—relief of a TRO.”
A June 14 hearing is scheduled on the NFL’s restraining motion.
