Judge Rules NFL Must Release Evidence in Concussion Coverage Cases to Insurers

National Football League executives may for the first time have to testify about what they knew of concussion risks after a judge cleared the way for questions from insurers who are suing to avoid paying more than $1 billion in costs for lawsuits over head injuries.
A New York state judge on Friday said the league must make its officials and doctors as well as relevant documents available to the insurance companies. The league has previously argued that doing so would undermine its $765 million settlement with thousands of retired players.

The decision could force the NFL to reveal exactly what it knew, and when, about the effects of concussions on professional football players, said Mark Conrad, an associate professor of law and ethics at Fordham University in New York. The league has only recently acknowledged a link between football and chronic traumatic encephalopathy, a brain disease that can only be diagnosed posthumously.

“We are now possibly going to see what evidence there may be on the shelves, in the crevices, deep in the recesses of the record in this matter, that could prove how much or how little the NFL knew or didn’t about the issue of concussions,” said Conrad, who isn’t involved in the case.

Brian McCarthy, a spokesman for the NFL, declined to comment on the ruling. Christopher Carroll, an attorney for the insurers, didn’t immediately return a message seeking comment.

The NFL had sought to keep lawsuits by insurers, including  Travelers Cos. and Markel Corp.’s Alterra America Insurance Co., on hold while it resolved claims covering more than 20,000 retired players who accused the league of negligence and failing to inform them of the link between repeated head trauma and brain injury.

Earlier this month, a federal appeals court in Philadelphia found the settlement between the NFL and retired players imperfect but fair, upholding a lower court ruling. About 1 percent of the players opted out of the settlement, and some who objected to the deal asked the appeals court on Thursday to review its decision.

While the NFL’s settlement is valued at $765 million, there’s no cap on a $675 million compensation fund that’s part of the deal. The NFL also removed a cap on a $75 million fund for medical monitoring. The league estimates it will have to pay no more than $900 million, according to court records.

Alterra America filed the first suit in August 2012 seeking to avoid paying for the cost of concussion lawsuits. The NFL fired back with its own suit in California state court the same month, saying that a dozen of its insurers were refusing to provide coverage and seeking to force more than 30 of them to reimburse its concussion defense. The California case was put on hold pending the outcome of the New York suits.

The NFL had urged the judge to delay the pre-trial discovery, saying the evidence turned over to insurers could eventually be provided to players who opted out of the settlement.

All players claims over concussions were consolidated in the Philadelphia case. Before the settlement was approved, the judge in that case had rejected the players’ request to question NFL executives, according to court records.

The questioning, which will likely be confidential during pre-trial depositions, will come after the NFL provides the insurers with requested documents during the discovery process. If the case doesn’t settle, the executives’ testimony may be made public during legal arguments before the trial or at a trial. The league may object to requests for depositions of certain executives.

“Having to provide that kind of information to their insurers would open a Pandora’s box,” for the league, said Daniel Wallach, an attorney with Becker & Poliakoff in Fort Lauderdale, Florida, and an expert on sports business law.

The insurers said in court papers that there may be a number reasons why they’re not required to cover claims, including the possibility that the NFL failed to comply with insurance policies. They said their request for evidence was reasonable considering the “substantial defense costs” associated with the settlement.

There is also the risk of evidence being lost as the suits allege conduct that goes back several decades under policies that date back to the 1960s and there’s a chance documents could be destroyed, memories could fade and individuals with relevant information could die, the insurers said.

New York State Supreme Court Justice Jeffrey Oing agreed after a conference on Friday, saying the case needs to move forward.

“I can’t stop this anymore,” Oing said.

The cases are Alterra America Insurance Co. V. NFL, 652813/2012 and Discovery Property & Casualty Co. V NFL, 652933/2012, both in New York State Supreme Court, New York County.

(With assistance from Scott Soshnick).