PDH Files NCAA Concussion Case

Pittman, Dutton & Hellums attorney Chris Hellums, along with Columbia, South Carolina attorney John Nichols, filed a class action lawsuit against the NCAA last week. The lawsuit claims that the NCAA was negligent in protecting its football players from the dangers of head trauma and brain damage from concussions. The lawsuit seeks medical monitoring and damages.

The named Plaintiff in the lawsuit is Stanley Doughty. Stanley’s story is compelling. A native of Amite, Louisiana, Stanley was recruited to play football at the University of South Carolina and did so for three years. Unfortunately for Stanley, he experienced repeated head impacts which affect him today. He decided to forego his senior year at South Carolina and signed as an undrafted free agent with the Kansas City Chiefs.

Before he could even begin training camp, the Chiefs’ doctors told Stanley that they would not medically clear him to play on account of injuries he sustained while playing football in college and that he would need surgery. Thereafter, Stanley was released by the Chiefs, and has still not received his needed surgery.

Meghan Walsh, writing for The Atlantic magazine, published an excellent story on May 1, 2013, chronicling Stanley’s life. That story can be found at this link: http://www.theatlantic.com/entertainment/archive/2013/05/i-trusted-em-when-ncaa-schools-abandon-their-injured-athletes/275407/

There are a number of class action lawsuits filed throughout the country against the NCAA on behalf of former student athletes with similar stories to Stanley’s. There are sharp differences between these lawsuits but the main allegations are common: the NCAA possessed information about the severity of concussions, ignored the information, and took no affirmative action to protect the very people they are charged to protect.

The Doughty case has received significant press. Various news outlets in South Carolina and across the country have been following the story. Click on the links below to read these stories.

http://www.wltx.com/news/national/article/253928/2/Former-Gamecock-Files-Concussion-Suit-Against-NCAA

http://www.al.com/sports/index.ssf/2013/10/ex-south_carolina_football_pla.html

http://www.postandcourier.com/article/20131023/PC20/131029727

Below is the complaint, in PDF format, filed on behalf of Stanley Doughty and others similarly situated:

https://drive.google.com/file/d/0B6r88NEsiI1ca1ZzOGo2THNhbHc/edit?usp=sharing

NCAA Loses Another Battle in O'Bannon Case

U.S. District Judge Claudia Wilken denied the NCAA's request to dismiss the Ed O'Bannon antitrust lawsuit and concluded that a 1984 U.S. Supreme Court ruling used by the NCAA to preserve amateurism is inapplicable.

 

Judge Wilken found that none of the NCAA's arguments for dismissal provides grounds for dismissing the claims "at this stage." Wilken has not ruled as of yet on the class certification issue which was argued before her this summer. The NCAA has previously said it will fight all the way to the Supreme Court.

 

John Solomon, of the The Birmingham News-al.com, who has covered the O'Bannon case extremely well, posted an article on the ruling late last week. Included in the article is the opinion. Click on the link below for the post.

 

http://www.al.com/sports/index.ssf/2013/10/judge_denies_ncaas_motion_to_d.html

FRIDAY DEADLINE TO FILE CLAIMS FOR CHINESE DRYWALL SETTLEMENT

This Friday, October 25th, is the deadline to file claim forms for the Chinese Drywall settlement. The settlement is being administered through the MDL out of New Orleans. If you have not filed a claim by Friday, you will be barred from participation in the settlement.

Article on Supposed "Law Suit Abuse"

I found a great article this morning from a post on LinkedIn. It is written by Steve Phillips, the president of the Illinois Trial Lawyers Association. Below is the link:

http://www.sj-r.com/opinions/x452545810/Steve-Phillips-Lawsuit-abuse-is-a-myth?goback=%2Egde_3247974_member_278430561#ixzz2gUSB7wYk

Some great points and facts he brings up are that, " injury cases make up just 6 percent of all lawsuits," and "lawsuits rank 71st out of 75 issues small businesses find important, according to a recent survey by the National Federation of Independent Business."

Settlement Reached in California ASR Trial

Johnson & Johnson subsidiary DePuy Orthopaedics has agreed to settle a DePuy ASR hip lawsuit on the eve of trial. The case would have been the first “bellwether” trial in a California state court consolidation of ASR cases.  The Plaintiff, Mr. Robert Eugene Ottman, was set to begin presenting his case in less than two weeks in San Francisco. (Ottman v. Johnson & Johnson Services, et al., No. CGC-12-517391; Calif. Super. Ct., San Francisco Cty.)

 

The details of the settlement, including what the amount of the settlement is, are not yet available but have been confirmed in a statement by the Mr. Ottman’s attorneys. The Court has given the parties two months to file the necessary dismissal of the complaint.

 

Depending on the amount and terms of the settlement, including medical subrogation and future costs, this development appears to be a good thing. In the consolidated cases in California alone, there appears to be approximately 2,000 cases filed. This does not include the Federal MDL, in which there are close to 8,000 cases pending. The Federal MDL docket, which is centralized in the Northern District of Ohio, is still awaiting its first bellwether trial. That bellwether has been postponed twice already and will commence sometime before January 2014. The California settlement will most likely have some impact on that bellwether trial.

 

Two other trials involving DePuy ASR lawsuits have already concluded at the state court level. In March, a plaintiff was awarded more than $8 million after a Los Angeles Superior Court jury found that the hip implant was defectively designed. (Kransky v. DePuy, BC456086, California Superior Court, Los Angeles County). This case was not a part of the consolidated California docket. However, a jury in Chicago found for Johnson & Johnson in a second trial just one month later. (Strum v. DePuy, 2011-L-9352, Circuit Court of Cook County). Both of these results have been covered on my blog and you can read my earlier posts regarding these outcomes.

 

Trials also are scheduled in state courts in San Francisco in October; in Hackensack, New Jersey, in October and January; in West Palm Beach, Florida, in November; in Chicago in December; and in Los Angeles in January 2014.

If you or a loved one have had hip replacement surgery and have been implanted with a defective DePuy hip, you may be entitled to compensation for medical bills, pain and suffering, lost wages and other injuries. Our firm is currently investigating claims for those people who have been implanted with DePuy hip replacement devices, both ASR and Pinnacle. If you would like a free case evaluation, please contact Booth Samuels at toll free 1-866-515-8880 or at booths@pittmandutton.com.

Open Window For Those Who Failed To Register Before Deadline in CDW Settlement

If you did not register before the July 8, 2013 Registration deadline and still wish to participate in the Class Settlements, you may file a Provisional Registration on or before October 18, 2013. 

To file a provisional registration, you must go to https://www3.browngreer.com/Drywall/Un-Secure/RequestAccess.aspx and complete the Provisional Registration process.  You can email CDWQuestions@browngreer.com if you have any questions about the Provisional Registration process. 

If you do not have internet access, you may request a Provisional Registration Form by calling 1-866-866-1729 or by correspondence to U.S. Mail to P.O. Box 25401, Richmond, Virginia 23260. 

If you intend to file a Provisional Registration, you must do so on or before October 18, 2013. 

Alabama Supreme Court Recent Decision on Bad-Faith Leaves Little Left

            In what was a major decision by the Alabama Supreme Court, the tort of bad-faith has almost been cut to the bone in Alabama. The case is State Farm Fire & Cas. Co. v. Brechbill, No. 111117 (Ala. Sept. 27, 2013), and the holding will adversely affect bad-faith-failure-to-investigate claims when the insurer obtained a report from an engineer prior to its denial of the claim. They basically have given every insurance company a plausible denial defense.

            The facts of the case are as such: Brechbill claimed that his home suffered interior damage due to a windstorm event.  State Farm’s retained engineer generated reports stating that the interior damage was due to other non-covered causes, for example, settling and poor construction.  Brechbill sued State Farm claiming both normal bad faith and abnormal bad faith.  When State Farm sought a summary judgment as to the normal bad-faith claim, Brechbill offered no “serious” opposition and the trial court granted the requested summary judgment because there was “no genuine issue of material fact about whether or not State Farm had a reasonably legitimate or arguable reason for refusing to pay the claim.”  The trial court denied State Farm’s request for a summary judgment as to the abnormal bad-faith claim, as well as, State Farm’s JML motions during the trial.  The jury found abnormal bad faith and awarded Brechbill $150,000 as to that claim.

            On appeal, the Alabama Supreme Court held that, if the insured could not prove “the absence of any reasonably legitimate or arguable reason for that refusal (the absence of a debatable reason),” then, the insured cannot prevail on a failure-to-properly-investigate claim.  “State Farm may or may not have perfectly investigated (or reinvestigated) Brechbill’s claim to his satisfaction, but perfection is not the standard here.  ‘Alabama law is clear:  … regardless of the imperfections of the insurer’s investigation, the existence of a debatable reason for denying the claim at the time the claim was denied defeats a bad faith failure to pay the claim.’”

            A failure-to-investigate claim is apparently limited to situations where the insurer conducts no investigation prior to its denial of the claim.  An insurer cannot create a debatable reason post-denial.

 

 

5th Circuit Drops Major Decision in BP

The 5th Circuit today issued an opinion basically tossing out the settlement agreement agreed to by the Plaintiffs and the Defendants and approved by District Judge Barbier. The 2-1 decision was written by Judge Clement.

 

The Ruling had three major instructions:

 

1.      Requesting the Claims Administrator to confirm to the District Court that he is not ignoring the “accrual-basis” accounting method for companies using such method;

 

2.      Remand to the District Court to develop a more complete factual record to determine whether the settlement agreement intended to require a claimant to convert from a “cash-basis” accounting method to an “accrual-basis” accounting method; and

 

3.      Stay all payments to claimants until the District Court Judge can clarify these two issues.

 

Once Judge Barbier in the District Court takes up these issues on remand, we will have a better understanding of the type of claims that will be approved and administered.

Although I have not had a chance to digest the entire opinion, one citation in particular stuck out to me:

            “It makes no difference that a defendant may bargain for global peace by agreeing to allow claimants with no colorable legal claim to recover from the settlement fund. A class settlement is not a private agreement between the parties. It is a creature of Rule 23, which authorizes its use to resolve the legal claims of a class “only with the court’s approval.”