In a post fairness hearing supplemental memorandum filed today Public Citizen's Allison Zieve argues as amicus curiae that concussion injury class plaintiffs Kevin Turner and Shawn Wooden cannot represent fairly and adequately the many conflicting interests among NFL players and retirees. The relatively limited pot of approximately $765 million has many potential claimants. Although Class Counsel, led by Chris Seeger tried to be fair and balanced it was an impossible task argues Zieve, quoting Justice Ruth Ginsburg in the landmark Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997):
“The settling parties, in sum, achieved a global compromise with no structural assurance of fair and adequate representation for the diverse groups and individuals affected. Although the named parties alleged a range of complaints, each served generally as representative for the whole, not for a separate constituency.”Fair and adequate representation as compelled by FrCvP 23 requires perhaps a dozen sub-classes says Public Citizen, a leading public interest law firm. Turner who played over five years has ALS while Wooden who also played over five years has no currently diagnosed condition. He qualifies only for medical monitoring while Turner could get a large award. But there are many kinds of post-concussion injuries and conflicting claims among those with different diagnoses such as ALS and Parkinsonism. Some suffer from Chronic Traumatic Encephalopathy which can be diagnosed only by autopsy at present. No living player will be able to recover for that condition. Also varying years of exposure and play in Europe create wide variations in risk among former players who will contend for shares of any recovery.
Federal Judge Anita B. Brody heard argument at a "fairness hearing" on November 19. She has reserved decision. Although as a worker advocate I favor an early and substantial settlement, I have felt, and am bolstered by Public Citizen's view that this settlement cannot meet the concerns identified by Justice Ginsburg in Amchem.