PROTECTING THE NET: Mass Torts and Professional Sports: What You - PowerPoint PPT Presentation

PROTECTING THE NET: Mass Torts and Professional Sports: What You Need to Know About Concussion and Prescription Drug Lawsuits and Related Insurance Litigation Wednesday, March 4th, 2015 By Noel Paul & Ron Boynar

Oswald Specialty: Professional Athlete Personal Insurance Advocate • More than 30 years experience • 300+ professional athletes and coaches across all major leagues • World-class personal insurance products and concierge services • Annual risk evaluations and assessments • Pre-loss preparation and post-loss claim advocacy • Comprehensive policy auditing Ron Boynar Business Development service Athletes & Entertainers 216-367-4936 Twitter @ #OswaldSpecialty.com rboynar@oswaldcompanies.com

Noel Paul, Reed Smith LLP: Notable Sports Coverage Law Authority • Commercial litigation attorney with the law firm of Reed Smith LLP in Chicago. • Represents policyholders in resolving disputes with their insurance carriers. • Specializes in sports, entertainment, and financial industries. • Notable sports coverage law Noel C. Paul authority; regularly quoted by Attorney major media outlets including Reed Smith LLP 312-207-2403 Yahoo! Sports and Risk & npaul@reedsmith.com Insurance.

Concussion Lawsuits What’s the issue? • Sports leagues being sued by thousands of former athletes for the long-term effects of concussions. Why now? • Critical mass of studies/medical science. • Aging population of retired players. • Growing media attention: – New York Times series — Derek Boogard : A Brain ‘Going Bad’” (2011 ). – Frontline — “League of Denial: The NFL’s Concussion Crisis” (2013 ). Why it matters? • Settlements/rulings will affect most sports from youth teams to professional leagues. • Determining how and when athletes must make claims.

NFL Class Action Lawsuit • More than 5,000 former players filed separate suits against NFL. • Lawsuits allege that NFL is liable to players for chronic injuries and health problems resulting from concussions. – NFL encouraged violent play by glamorizing “big hits”. – NFL concealed risk of injuries to players by downplaying research showing concussion effects and sponsoring other research suggesting no correlation. • Players allege range of concussion-related health effects, including: depression, anxiety, sleep loss, dementia, “CTE,” Parkinson’s disease, and ALS.

NFL Class Action Lawsuit (cont.) • Judge signaled NFL might lose; NFL agreed to settle case. • Court rejected settlement agreement with $675 million cap because of concern that money was not enough to compensate settlement class. – More than 20,000 retired players. – Conditions progressively degenerate over many years. – Fund must be able to provide payments for 65 years. • Court approved agreement once cap was removed. – NFL must spend $75 million on program to test retired players for neurological problems. – NFL must make payment to retired players diagnosed with covered conditions, without showing that concussions “caused” injury. • Early dementia ($1.5M); moderate dementia ($3M); Alzheimer’s and ALS ($3M +).

NFL Class Action Lawsuit (cont.) • No waiver of claims against NCAA. • More than 200 retired players (including estate of Junior Seau) are opting out of settlement to preserve right to file individual lawsuit. • Players who “opted out” will face uphill climb in court: – Big obstacle – proving symptoms/disease resulted from play during NFL career. – Key misconceptions of settlement: – Treatment/money not available to active players. – Retired players must show injury to receive treatment/money. • Depression, anxiety, sleep loss, emotional distress not covered.

NHL Concussion Lawsuit • Consolidated in federal court in Minneapolis. • Alleges NHL downplayed risks of playing hockey, promoted violent play, and concealed information showing long-term injuries resulting from concussions. – Key accusation: NHL promoted violence by not banning fighting, unlike NCAA and most other leagues. • NHL responded in November arguing that: – Health issues are governed by Collective Bargaining Agreement and preempted by labor laws; and – Teams, not NHL, contracted to provide medical care with players. • Players respond that NHL “held itself out” as being responsible for player safety, so took on the duty of player safety voluntarily.

Concussion Lawsuits by Soccer Players • Class Action suit filed in California federal court in 2014 against US Soccer, FIFA, and American Youth Soccer asking for preventative measures, related to substitution rules and concussion protocols, to avoid long-term injuries from concussions. • Individual lawsuits by former MLS players: – Former DC United player Bryan Namoff filed suit in D.C. Superior Court in 2012 seeking $12 million against DC United, his former coach, the team doctor and athletic trainer. • His suit alleged that defendants were negligent in “management, care and treatment” after his injury in a game. Namoff allegedly played three days later and then never played again. – Former Portland Timbers forward Eddie Johnson filed a lawsuit in Oregon state court earlier this year against the Timbers and its medical staff alleging similar claims and injuries.

Concussion Lawsuit by “Wrestlers” • Vito LoGrasso and Evan Singleton, two former wrestlers, sued World Wrestling Entertainment, Inc. (WWE) in Philadelphia federal court in January 2015. • Suits allege WWE engaged in a “campaign of misinformation and deception to prevent its wrestlers from understanding the true nature and consequences of the injuries they have sustained.” • In a public statement, WWE claims it is “well ahead of sports organizations in implementing concussion management procedures and policies as a precautionary measure as the science and research on this issue emerged.”

NFL Players Prescription Drug Lawsuit • Lawsuit filed in California federal court alleging league illegally supplied players with painkillers to conceal injuries and mask pain. • Players allege addictive drugs were administered without proper prescriptions, in illegal doses, without medical supervision and with little or no explanation of risks and dangers. • Case dismissed in December on grounds that issues were governed by NFL’s Collective Bargaining Agreement and preempted by federal labor law. • Drug Enforcement Agency and US Attorney’s Office for Southern District of New York now performing surprise investigations of team’s prescription drug practices.

Insurance for Concussion Lawsuits • Battleground in NFL lawsuit has moved to insurance: • NFL and other insurance cases will help resolve key insurance coverage issues that could impact coverage for concussion claims involving high school, college, and professional sports for years to come. • NFL sued insurers in California; insurers sued NFL in New York. – Insurers won procedural battles and case is proceeding in New York. • NHL’s insurers sued the league in New York.

Insurance for Concussion Lawsuits (Cont.) • Insurers’ defenses to coverage are common in both suits: – Insurers argue that NFL/NHL knew about problems resulting from concussions and cannot be insured for injuries that were “expected or intended ”. • Argument will likely be rejected, as courts find that the actual injuries (here – dementia, Alzheimer’s, etc.), not just concussions, must have been expected/intended by the NFL and NHL. • Also, other claims alleging negligence avoid this exclusion. – Insurers argue that since concussions took place years before their policies began, there can be no coverage. • Argument also likely will be rejected, as courts more likely to apply a “ continuous trigger” theory to cases, whereby policies in place from the time of concussion- related incidents to the manifestation of brain-trauma symptoms to the onset of disease are all triggered. • “Continuous trigger” theory more appropriate/realistic in light of progressive nature of injuries.

Insurance for Professional Leagues Against Mass Torts Lawsuits • Insurers likely to fight NFL/NHL for quite some time: – Insurers perceive New York as favorable venue, and are likely to attempt to resolve these issues on more favorable ground than risk litigating them in another court. – Insurers concerned about creating precedent, as many of these issues are common to other sports, leagues, and levels of competition. – Upshot: insurers want to avoid covering concussion-related litigation in the event it spirals into next big mass tort.