One of the struggles in mass tort litigation arises from the economic conflicts of interest between current and future claimants. The issues can arise in multiple places: class actions, mass tort bankruptcies (which are de facto class actions), and current claims seeking punitive damages that realistically could exhaust the assets of defendants that lack deep enough pockets.
The conflict between future claimants and current claimants, and more, will be central to the NFL concussion class action argument this week in the 3rd Circuit. A cogent summary of the issues is provided by Paul Anderson at the NFL Concussion Blog in a November 15, 2015 post. The issues include a sharp focus on conflicts between the current and future claimants as to the brain injury known as CTE. Incredibly, the current claimants propose to leave future CTE victims without a remedy. The point is explained as follows in the opening brief of the objectors.
“So the NFL wanted an end game: It would pay those with present injuries, including families of players who had already died with CTE. In exchange, the NFL would secure a sweeping global release of all former players’ future CTE claims, without paying any of them. This bargain would result in a stark disparity: The family of a player who dies with CTE before the class-action settlement’s approval gets up to $4 million. But an identically situated player who dies a day after the settlement’s approval releases his claim and gets paid nothing—for the exact same diagnosis.”
Happily, objecting claimants are 1) pointing out the mistreatment of the...
