Insurers sue NFL for access to concussion-related documents

Insurers are suing the National Football League to obtain “relevant factual information,” such as depositions of league officials and third-party physicians, to help them build defenses against the uncapped class action settlement approved by a federal appeals court last month.

Christopher R. Carroll, a member of Carroll, McNulty & Kull L.L.C., on Thursday sent a letter to New York Supreme Court Justice Jeffrey K. Oing on behalf of more than 30 insurers, such as Alterra America Insurance Co. and Discover Property & Casualty Insurance Co.

The letter states that “insurers do not seek to 'join forces' with the underlying plaintiffs,” but they do wish to “pursue discovery of relevant factual information and to defend themselves with respect to the NFL's request for substantial defense costs and, ultimately, indemnity funding for a class settlement that is uncapped in amount.”

Releasing all concussion-related claims against the NFL, the settlement could cost the league $1 billion since it's expected to cover more than 20,000 retired football players over the course of 65 years, according to the April ruling by the 3rd U.S. Circuit Court of Appeals in Philadelphia.

The settlement includes an uncapped, inflation-adjusted monetary award fund that will remain in place for 65 years and provide compensation for retired players with certain diagnoses; a $75 million baseline assessment program that provides eligible retired players with free examinations of their objective neurological functioning; and a $10 million education fund to teach players about injury prevention, records show.

Mr. Carroll's letter goes on to say “the insurers have a right to discovery in this action … More fundamentally, the insurers have due process right to build their defenses and be heard before the court, which trumps any desire by the NFL to defer litigation of the coverage dispute until a time most favorable to its interests.”

Meanwhile, a Wednesday letter to Justice Oing filed by John E. Hall, counsel for the NFL, states that the insurers “do not dispute that the discovery they will seek — including depositions of league officials and third-party physicians — is precisely the same as that which the plaintiffs can be expected to see in the opt-out cases. Nor do they contend that their objectives in taking such discovery would differ in any material respect from those opt-out plaintiffs. Given this acknowledged overlap and the obvious adversity, the NFL parties object to allowing such discovery to proceed ahead of the tort cases.”

A judge on Friday said the NFL must make such information available to the insurers, according to media reports.

Of the more than 20,000 estimated class members, who are living NFL football players who retired before July 7, 2014, 234 initially asked to opt out from the settlement and 205 joined 83 written objections, according to the ruling by the 3rd U.S. Circuit Court of Appeals.