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Tough call for judge in NFL case

PHILADELPHIA -- For the lawyers who negotiated the proposed settlement of the NFL's massive concussion litigation, the agreement is "historic," it is a "landmark" and it is "groundbreaking."

For the lawyers who object to the settlement, it fails to compensate players suffering from the "industrial disease of football," and it allows the NFL to escape the concussion crisis without any determination of whether the league concealed the effects of head injuries from its players.

For the judge who must decide whether the agreement is "fair, adequate and reasonable," it will be a difficult decision. The judge, Anita Brody, listened to four hours of detailed legal arguments on every aspect of the proposal in federal court Wednesday and then told the lawyers that she wanted written briefs before she could make a decision.

Players first sued the league over brain injuries in 2011; more than 5,000 former players and their families joined in, alleging the league covered up and denied the dangers of concussions. On the eve of the 2013 season, attorneys for the NFL and the players announced a proposed $765 million settlement that would include all former players, but Brody rejected it over concerns there was not enough money to cover all players suffering cognitive issues. After further negotiations, the parties announced an uncapped deal, which the judge preliminarily approved. Some players and lawyers split from that deal, though, and formally filed objections with Brody. Those objections were heard during Wednesday's "fairness hearing."

One of the lawyers for the players questioning the settlement, Thomas Demetrio, did not hesitate to confront Brody, who is 79 years old, with the importance of her decision, asking: "What is your legacy going to be?" Brody was not happy with the challenge and responded to Demetrio with an icy glare.

As she ponders her decision, Brody can rely on thousands of pages of recently filed legal briefs, reports from at least 13 experts on the damage that concussions can cause, and actuarial studies that analyze the situation and reach conflicting conclusions. Nearly 7,000 documents have now been filed in the litigation that began in 2011.

The lawyers who negotiated the settlement between the NFL and players tried hard during Wednesday's hearing to show confidence in their deal. But they showed concern about the dissenting players by tossing personal insults at the objecting lawyers, something rarely seen in the clubby world of federal courts.

Defending their work, the NFL's and the players' attorneys insisted that they wanted to help suffering players who needed immediate help and that their proposal was based on the difficulty of litigating with an enterprise as rich and as powerful as the NFL. In addition to the NFL's long-established pattern of aggressive litigation, the settlement lawyers emphasized what they viewed as a serious problem of "causation." Causation is a legal term that is used to describe the cause-and-effect connection between the blow to the head and the brain damage.

Causation, according to the settlement lawyers, would be difficult, even impossible to prove because medical science has not yet made the connection between football concussions and chronic traumatic encephalopathy (CTE) and brain damage. Causation is a key issue in any litigation over injuries and compensation, and its uncertainties frequently lead to settlements, as they did in the NFL concussion cases.

The attorneys for the players who question the settlement reject the warnings on causation, though, arguing that recent research by Dr. Robert Stern at Boston University and others clearly shows a connection between football and brain damage. Brody was particularly interested in the research and had obviously studied the material filed to the court from Stern. At one point, in a discussion of the various stages of brain damage caused by concussions, Brody asked Steven Molo, the lead attorney for the objecting players, how researchers knew of the various brain damage symptoms and when they developed.

Molo replied that the scientists conducted detailed interviews with the family members of deceased players to establish the pattern of the developing damage. Later in the hearing, the judge was clearly interested in a chart that showed the progress from depression into more serious and disabling symptoms.

The agreement reached by the players and the league does not provide compensation for players who are suffering from CTE, the most common affliction among retired players.

Christopher Seeger, who led the settlement negotiation for the players, argued that the early mood and behavior disorders of CTE are common "in the general population and would be difficult to connect to football." Attempting to explain why these conditions will not be compensated in the settlement, he stated that "we drew a line in the various stages of CTE as part of a compromise and obtained awards for the more serious stages."

Molo replied that other conditions that were compensated in the proposal (Alzheimer's disease, Parkinson's disease and ALS) are also found among people who have never played football and would also be difficult to connect to football concussions.

In what could become a turning point in the consideration of the settlement, Molo suggested that if the NFL would not pay for CTE, then the players should not give away their rights to sue the NFL for CTE in the settlement. The settlement as written includes a broad "release" that would prevent any NFL player from ever suing the league for damages from CTE. It is an idea that could easily become a part of Brody's decision and lead to additional negotiations.

The objecting players also raised other issues that will make the judge's decision difficult. To qualify for awards with a diagnosis of dementia, the players must go through a battery of at least five tests. The tests are rigorous and could take as long as five hours. Relying on impressive research from Stern, the head of the Boston University CTE Center, the objecting players assert that the tests required in the settlement are rigged to prevent them from qualifying for awards. It is the kind of issue that could lead to an additional hearing with testimony from Stern and other experts.

In addition to the difficulty that Brody will face as she makes her decision, the settlement proposal has been a difficult issue for players and their families. Eleanor Perfetto, the widow of Ralph Wenzel, an offensive lineman for the Steelers who died after a long bout of dementia, told Brody that she chose not to opt out of the settlement in order to be able to speak at the hearing and to explain that the proposal caused "confusion among many wives and widows."

Perfetto, an epidemiologist, said there had been a "detection bias" in years past that caused doctors to fail to find CTE because "they were not looking for it." Because it was not detected early and the NFL "was hiding the information on concussions," Perfetto said, older players and their families "were deprived of early diagnosis and treatment."

Brody worked hard on Wednesday to move the hearing along, displaying impatience with Perfetto and other family members and refusing to allow Tregg Duerson, the son of Dave Duerson, a victim of CTE and suicide, to talk. But, as she pushed the hearing to its conclusions, she also asked the lawyers for additional briefs. She knows she has a difficult decision to make.