Product Liability & Toxics Law News

NFL Fends Off Hernandez Concussion Claims Brought by Daughter

Feb. 15, 2019, 3:08 PM

The daughter of former New England Patriots tight end Aaron Hernandez is barred from bringing personal injury claims stemming from the loss of her father outside the NFL concussion settlement, a federal court ruled.

Hernandez’s six-year-old daughter Avielle Hernandez was a member of the $1 billion NFL class settlement and she failed to take advantage of the time window for opting out of the class, the U.S. District Court for the Eastern District of Pennsylvania said Feb. 14.

As a result, Avielle was bound by the settlement, which bars all outside claims by non-opt-out spouses and children for injuries arising from players’ concussions.

Hernandez argued her tort claims could proceed because her father wasn’t a “retired football player” within the meaning of the settlement, but the court disagreed.

It is the court’s second decision in the last month barring claims by dependents of former National Football League players.

Judge Anita S. Brody, who oversees the NFL concussion settlement, similarly ruled in January that the settlement barred Cynthia Phillips, who was married to retired NFL player Joseph Phillips from 1992 to 1998, hadn’t opt-out of the deal and therefore was bound by it.

Donated Brain

Avielle Hernandez alleged the loss of her father’s support and affection after his suicide was the result of the NFL’s civil conspiracy, fraudulent concealment, and negligence.

Aaron Hernandez played for the Patriots for three seasons beginning in 2010 before he was convicted and imprisoned for the murder of a semi-professional football player in 2013. He committed suicide in his cell in 2017, and his family donated his brain to the Boston University School of Medicine CTE Center in Boston.

Boston University researchers said in 2017 that Hernandez had a severe form of chronic traumatic encephalopathy, or CTE, one step below the highest diagnostic level.

Avielle alleged that her father, who didn’t opt-out of the settlement, wasn’t covered by the agreement because he hadn’t given up on returning to the NFL despite his release from the Patriots in 2013 and subsequent imprisonment.

“Retired football players” under the NFL settlement include those who aren’t under contract and are “not seeking active employment as players” with an NFL team.

Hernandez met that definition because he had been imprisoned without bail for a year while awaiting trial, a fact that was “squarely inconsistent” with seeking active employment, the court said.

The Brad Sohn Law Firm PLLC represented Hernandez. Paul Weiss Rifkind Wharton & Garrison LLP represented the NFL.

The case is In re Nat’l Football League Concussion Litig., E.D. Pa., Nos. 12-md-02323; 18-cv-00464, 2/14/19.

To contact the reporter on this story: Steven M. Sellers in Washington at ssellers@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; C. Reilly Larson at rlarson@bloomberglaw.com

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