Duerson family objects to settlement

ByMark Fainaru-Wada and Steve Fainaru via ESPN logo
Wednesday, October 15, 2014

The family of Dave Duerson, the former Chicago Bears defensive back who committed suicide by shooting himself in the chest to preserve his brain for study, filed an objection to the NFL concussion settlement Tuesday.

The objection, like a similar one filed on behalf of seven other former players, blasts the deal as unfair for limiting payouts for chronic traumatic encephalopathy (CTE), the neurodegenerative disease that sparked the NFL's concussion crisis.

Attorneys for Duerson and nine other ex-players argue that the settlement "disenfranchises the families who will inevitably suffer the horrific ramifications of CTE" by not compensating players who are diagnosed with the disease after July 7 of this year -- the date the settlement received preliminary approval from U.S. District Judge Anita Brody.

The concussion lawsuit has followed a circuitous path to this point. The first cases against the league were filed in 2011, and since then, more than 5,000 former players and their families have sued the NFL, alleging the league covered up and denied the dangers of concussions. On the eve of the 2013 season, attorneys for both sides announced a proposed 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 a few months ago, despite persistent complaints from some lawyers. Brody has scheduled a fairness hearing for Nov. 19 in Philadelphia, where the CTE issue surely will be debated.

CTE has been discovered in the brains of at least 76 deceased NFL players since 2005, all posthumously. However, several researchers are working to develop a test that would diagnose the disease in living players, and some believe a reliable test will be available soon. The settlement also will not compensate the families of players diagnosed with CTE before Jan. 1, 2006 -- eliminating the first cases that set the issue in motion, most notably Hall of Fame center Mike Webster.

"Duerson did not kill himself for CTE to be forever eviscerated from the NFL's lexicon," wrote attorney Bill Gibbs of Corboy & Demetrio. "The proposed settlement is an insult to his legacy. ... The NFL's denial continues."

Duerson's is actually one of about 50 cases that stand to be compensated for a CTE diagnosis. His family would receive approximately $2.6 million, minus legal fees. The Duersons' other option for fighting the settlement would have been to opt out and continue pursuing a lawsuit, but by objecting, they avoid the many hurdles to suing the NFL and preserve the possibility of collecting from the settlement pool.

The motion, filed Tuesday, raised several other points of objection and came on the last day players were permitted to object or opt out of the proposed settlement. Previously, the family of Junior Seau, the former San Diego Chargers great who killed himself in 2012, announced it was opting out of the settlement and would continue pursuing its lawsuit against the NFL.

Despite earlier opposition that suggested there could be widespread opt-outs, it appeared that most of the nearly 20,000 players eligible were going to stay in the deal. Ten other objections were filed on behalf of dozens of players to meet Tuesday's deadline. Early last week, Christopher Seeger, the lead counsel for the players, said only eight players had opted out; on Tuesday, a spokesman for the plaintiffs said they would not have updated numbers until they were released by the claims administrator.

Duerson's objection follows one initially filed by seven former NFL players, including concussion activist Sean Morey. That 125-page formal objection came last week and contended that the settlement is nothing less than a "sell-out of an otherwise strong case" that is "designed to dramatically reduce the number of claims on which the NFL must pay." The filing included a declaration by Robert Stern, a Boston University professor of neurology and one of the leading experts on CTE, who concluded that players "who suffer from many of the most disturbing and disabling symptoms of CTE would not be compensated under the settlement." Duerson's lawyers adopted the Stern affidavit for their objection.

The symptoms Stern laid out include behavioral and mood disorders such as depression, impulsivity and rage "resulting, in part, from ... repetitive head impacts in the NFL." As seen in former players like Seau, Duerson and Webster, who died in 2002, those disorders can lead to financial instability, substance abuse and suicide.

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