NFL Insurers Seek to Avoid Reimbursing the NFL for Concussion Settlement Due to Missing Discovery

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Insurers for the National Football League (NFL) petitioned a New York state court judge on June 14, 2019, demanding “underlying documents” from the NFL’s litigation and settlement in the class-action lawsuit involving over 1,000 former professional football players and their families regarding concussions and chronic brain trauma. The insurers are seeking to escape reimbursing the NFL, which could prompt further litigation. In oral arguments, a coalition of 28 insurers claimed that the NFL did not produce adequate discovery during litigation after its concussion settlement in 2015, which is estimated to exceed $1.4 billion.

“There simply was no discovery done before that settlement,” said Heather Simpson, counsel for the insurers. The insurers argued for Justice Andrea Masley to allow them to serve 32 subpoenas for NFL teams in 22 states. Mitchell Dolan, counsel for the NFL, strongly denied the notion that it did not produce adequate discovery and documentation throughout the legal proceeding, claiming that it produced over 750,000 documents to the insurers. Seth B. Schafler, who represents non-party NFL teams, called this a threat for “nationwide litigation.”

The battle between the NFL and its insurers has escalated recently. ESPN’s Outside the Lines discovered in a January 2019 investigation that there is an evaporating insurance market, which could ultimately lead to the NFL facing potentially devastating financial consequences. Although the NFL no longer holds general liability on head injuries,  there is only one insurance carrier that is willing to provide workers’ compensation coverage for NFL teams. Before concussion litigation began in 2011, at least a dozen carriers occupied the NFL market, according to legal experts and a report by ABC News.

According to the ABC News report, insurers are increasingly reluctant to cover any sport that is associated with traumatic brain injuries. Insurers are also hesitant to cover football helmet manufacturers, leaving those companies with few options for coverage. Dr. Julian Bailes, Pop Warner’s medical director and a member of the NFL’s Head, Neck and Spine Committee, told Outside the Lines “insurance coverage is arguably the biggest threat to the sport.” Declining youth football participation rates have also contributed to shared uncertainty regarding football’s future.

A USA Today report in October 2018 noted that former NFL players and their families were displeased to find that their settlements were inadequate and contrary to their understanding of what they were being compensated in the class-action suit. Some even reportedly received notices that show negative pending payments. Craig Mitnick, a lawyer whose firm co-represents more than 1,000 players in the class-action, said he now regrets publicly supporting the agreement when it was first announced. Mitnick claimed “the settlement was not what we thought it was.”

The NFL has addressed concerns regarding head trauma in football through revised concussion protocol and safety provisions, including on-field penalties and practice stipulation, to protect players from dangerous and extensive contact. The NFL recently eliminated various high-contract drills from training camp, including drills such as the infamous “Oklahoma drill,” to further ensure safety among players.

At the hearing on Friday, the NFL also rebutted the insurer’s efforts to overturn a ruling which allows the NFL to gain access to insurers’ communications with reinsurers to determine whether they declined to endorse the concussion settlement in bad faith.

Judge Masley reserved judgement on the motions and we will continue to follow this matter as more information emerges.

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