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Judge orders concussion cases to mediation

Gavel AP

Judge Anita Brody is putting the squeeze on the parties to the concussion lawsuits.

Previously expected to issue on July 22 a ruling on the key threshold question of whether more than 4,000 claims against the NFL will be dismissed in deference to the arbitration process created by the various labor deals between the league and the NFLPA, Judge Brody has ordered the parties to mediation, according to Daniel Kaplan of SportsBusiness Journal.  Retired federal judge Layn Phillips has been appointed to preside over the effort.

Judge Brody has instructed the parties to report back to her by September 3, and she won’t issue a ruling on the pending motion to dismiss before then.

“I held an informal exploratory telephone conference with lead counsel,” Judge Brody wrote in the order directing mediation.  “As a consequence, I order [the] parties, through their lead counsel, to engage in mediation to determine if consensual resolution is possible.”

On one hand, it’s possible that the lawyers said something during the call suggesting that a settlement could be negotiated.  On the other hand, it’s possible that none of the lawyers wanted to appear to be unreasonable or unwilling to at least press pause on the litigation and consider a resolution that could be reached without Judge Brody issuing a ruling on the motion to dismiss.

Regardless, the pending ruling provides an obvious point for the parties to attempt to reach their own result before Judge Brody reaches one for them.

“We respect and will comply with the Court’s order regarding mediation and will be available to meet with Judge Phillips at his direction,” the NFL said in a statement issued to Kaplan.

Requiring parties to submit to mediation doesn’t mean the parties will be required to settle the case.  They’ll be required to participate in the process in good faith, but if they don’t want to settle the case, they won’t.

It will be very hard to settle the cases, given the number of plaintiffs involved.  And the NFL won’t want to settle with some of the plaintiffs.  The NFL will want to settle with all of them, or with none of them.

And the NFL isn’t in the habit of settling with anyone.  With multiple strong defenses at their disposal, the league may want to let this play out a bit longer before breaking out the checkbook.

Still, it’s possible that Judge Brody’s decision will be driven by the reasonableness, or lack thereof, that Judge Phillips detects during the mediation process.  The potential connection between a bad attitude at mediation and a bad outcome to the pending motion dismiss could be enough to spark both sides to take this situation seriously, which could nudge the case toward settlement even if neither party wants to settle it.

Either way, every case has a dollar value at every step of the litigation.  The challenge is getting the two sides to get to the point where they apply the same value to the settlement of the case.

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15 Responses to “Judge orders concussion cases to mediation”
  1. gb4mn0 says: Jul 8, 2013 6:27 PM

    This is all fine and dandy but hows is this gonna help the vikequeens get back the Lombardi they claim was stolen from them in 2010?

  2. thegreatgabbert says: Jul 8, 2013 6:50 PM

    Judge actually ordered the concussion cases to “medication”. She was going to say “take two pills and call me in September”, but she didn’t want to seem flippant about the matter.

  3. roadtrip3500 says: Jul 8, 2013 7:11 PM

    Judge Brody’s order to mediate sounds a lot like reverse (plaintiff) pre-trial diversion. She may think the plaintiffs’ case has merit, but insufficient evidence to deny the NFL’s motion for full dismissal – mediation would then be the most effective way for the plaintiffs to get something.

  4. turdfurgerson68 says: Jul 8, 2013 7:15 PM

    The former players deserve their day in court!

    The NFL covered up the concussion data for years AND they’re guilty of gross negligence for allowing the players to use inferior equipment and letting them play on that awful 1970s era artificial turf (‘fuzzy concrete’).

  5. maxkingpin says: Jul 8, 2013 7:15 PM

    Someone expects upwards of 4,000 people to agree in about 2 months time? You just know their are some plaintiffs hoping for the big lottery jackpot win against the NFL.

  6. fc187 says: Jul 8, 2013 7:18 PM

    Well ain’t that a kick in the head.

  7. ravenmuscle says: Jul 8, 2013 7:22 PM

    This seems impossible to settle in the players favor. What football player hasn’t got a concussion if the played in high school, college, & the NFL????
    Plus, the NFL would require brain scan evidence for every player claiming brain damage from a concussion. You can’t expect the NFL to dish a million dollars to each & every player who said he got a concussion from playing in the NFL.

  8. justintuckrule says: Jul 8, 2013 7:58 PM

    This is great news for the plaintiffs! Judge is essentially telling the NFL to settle now before she rules against it and adds 50x the value to the case. No matter how nicey nice the attorneys respond to mediation suggestions, if the NFL was truly at a “no pay” position they could have told the judge that “with all due respect, we’re too far apart”.

    Its not the other way around either because the risk/reward is infinitely greater on the NFL than on any individual of the 4,000 plaintiffs.

    Awesome! Hopefully the NFL will be gone in a few years and a great, new, league without Goodell, spoiled silver-spoon fed greedball owners and touch ff rules will rise forth from the ashes.

    You all should thumbs up this post if you truly want affordable, hard hitting football back. Think about it for more than 2 seconds.

  9. briang123 says: Jul 8, 2013 8:21 PM

    This is standard practice in courts, state and federal. Nothing to see here. Every case I’ve ever litigated is ordered to mediation.

  10. tbutler704 says: Jul 8, 2013 9:28 PM

    It’s shady how these players are suing NFL over concussions. FOH it’s football not tennis.

  11. defscottyb says: Jul 8, 2013 10:17 PM

    Football is a violent contact sport… don’t like it then do something else for a living. Concussions are part of the risks, a hazard of the job and you knew the risks. Pathetic money grab from players who blew all their money because they are irresponsible with money and looking for a cheap payday all of a sudden.

  12. patsbrat says: Jul 8, 2013 10:58 PM

    So basically the news here is that we were expecting news on July 22, but now there will be no news until September.

    That’s ok, at least it’s a story on a significant topic that is not about AH.

  13. jimmylions says: Jul 9, 2013 5:07 AM

    “every case has a dollar value at every step of the litigation. The challenge is getting the two sides to get to the point where they apply the same value to the settlement of the case.”

    Truth.

  14. djstat says: Jul 9, 2013 6:57 AM

    turdfurgerson68 says: Jul 8, 2013 7:15 PM

    The former players deserve their day in court!

    The NFL covered up the concussion data for years AND they’re guilty of gross negligence for allowing the players to use inferior equipment and letting them play on that awful 1970s era artificial turf (‘fuzzy concrete’).
    ______________________________________

    Wow. So NFL owners covered up concussion data? Really? You think the owners were able to, across the board convince doctors to cover up data? Why do you think helmets have labels on them warning of concussion and brain injury risks? The players often p;alyed injured and didn’t say anything because they are worried about their spot. The players chose money over health

  15. w0rkh0lic1 says: Jul 9, 2013 7:59 AM

    Soon construction workers will be suing their companies because they didn’t know they might hit their thumb with a hammer. I’m waiting for someone to sue Ford because they were injured in a car accident and the car company didn’t do enough to warn them about the risks. Every one of those players suing the league was either stupid from the day they were born or is playing dumb now. My sisters 3 year old knows enough to know that getting hit in the head is a bad thing. You wanted to play football? Live with the consequences… Otherwise you should have taken up Golf. Soon Racecar drivers will be suing NASCAR and catchers in baseball will be suing MLB because “they didn’t know they might get hurt.” Setting this precedent would be bad

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