Wrongful Death Lawsuit Against the NCAA Settles

From CBSSports.com, Jon Solomon –

On the eve of trial, a wrongful death lawsuit brought by the family of a Division III football player against the NCAA is getting settled, according to a court filing Thursday in Rockville, Maryland. The Derek Sheely trial against the NCAA, ex-Frostburg State employees and helmet manufacturer Schutt Sports had been scheduled to start Monday and last 24 days.

On Thursday, the court docket showed a joint line saying the case is being stayed for 60 days “to complete the settlement process.” Terms of the settlement were not disclosed. Sheely attorney Paul Anderson said in a statement: “The trial has been postponed to allow the parties to complete the process of settling this matter.” The NCAA declined to comment beyond the court filing.

Sheely was a Frostburg State football player who collapsed during a 2011 practice after suffering a head injury and later died. Two years later, his family sued the NCAA, head coach Tom Rogish, running backs coach Jamie Schumacher, trainer Michael Sweitzer Jr., and Schutt Sports. The Sheely family claimed the Frostburg State employees missed multiple opportunities to treat their son’s head injury, and the NCAA failed to implement concussion rules or investigate his death.

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The NCAA argued in court that it has no legal duty to protect players because it’s a sports organization. But in a sign of how concussions are evolving before the courts, Montgomery County Circuit Judge David Boynton denied the NCAA’s motion for summary judgment in April, setting the stage for a potential trial. Boynton determined that the NCAA has a “special relationship” since its mission statement is to protect college athletes and the type of head injury that allegedly killed Sheely — second-impact syndrome from multiple concussions — is not a known inherent risk of playing football.

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Class Action Settlement Granted Preliminary Approval

On January 26, 2016, the Klamann Law Firm won preliminary approval of a class action settlement resolving claims that Progressive Casualty Insurance Company (“Progressive”) wrongfully offered insured individuals less than they were entitled under its UM and/or UIM policy provisions. Specifically, it is alleged that Progressive offered those who made a claim for wage loss benefits their actual gross wages less 20% to account for income taxes. Plaintiff argues that the relevant policies do allow for the reduction and that insured are entitled to their actual gross wages, rather than net, after tax, wages.

Although Progressive denies these allegations and does not admit liability, Progressive agreed to the settlement to put this controversy to rest.

The settlement provides that Progressive will pay to each Class Member the difference between their actual Gross Wage Loss Benefit (as defined in the Settlement Agreement) and the amount of the wage loss benefit previously paid to each Class Member by Progressive. In other words, Progressive will make up for the 20% reduction it made in determining the wage loss benefit. Accordingly, the total amount paid to Class Members is uncapped, as each valid, properly submitted Claim will be paid 100% of the additional UM/UIM wage loss benefits due to the class member as a result of the benefits provided under the settlement.

The settlement applies only to individuals who were insured under Missouri private passenger automobile insurance policies underwritten by Progressive and all other subsidiaries of The Progressive Corporation.

For more information, please visit www.MOWageSettlement.com or call 1-877-208-0243.

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Kansas Federal District Court Issues Comprehensive Memorandum and Order Certifying a Consumer Class Action in Nieberding v. Barrette Outdoor Living, Inc. and Home Depot USA, Inc.

On September 8, 2012, Judge Daniel Crabtree, US District Judge for the District of Kansas, certified a class of consumers who purchased outdoor railing products with defective plastic brackets designed by Barrette Outdoor Living Inc. and sold by Home Depot USA Inc.  See Memorandum and Order.  The lawsuit alleges that defendants (1) breached the implied warranty of merchantability under K.S.A. 84-2-314; (2) willfully omitted a material fact about the railing in violation of the Kansas Consumer Protection Act (“KCPA”) under KSA 50-626; and (3) committed unconscionable acts in violation of the KCPA under KSA 50-627.

What follows are specific, notable holdings:

  • A Defendant May Not Defeat Class Certification Simply by Choosing Not to Keep Records of the People who Purchase its Defective Product.

Defendants argued that the class is not ascertainable because “there is no way to identify the in-store purchasers of the Railing System based on Home Depot’s business records.” Defendants argued that because Home Depot does not keep records of the identities of its customers who purchased the Railing System, the court should deny class certification since it would be difficult to ascertain who the class members are. Judge Crabtree observed in his Order that “[e]ssentially, then, defendants argue that a retailer who sells a defective product could immunize itself from class certification by merely choosing not to keep records of the people who bought the defective product.” (p. 7.) Rejecting defendants’ contention, Judge Crabtree noted that plaintiff had proposed a feasible alternative to determine class membership: “simply requiring that all class members complete a claim form with proof of purchase (i.e., receipt, photos, etc.), which is required by Barrette’s Warranty program and is almost universally done in class action cases.” (p.7.)

  • In a Product Defect Case, Plaintiff Need Not Prove the Existence of a Defect as a Prerequisite to Class Certification.

Defendants alleged that Plaintiffs had provided little, if any, evidence that the product was, in fact, defective. They argued that evidence of a defect must be presented as a prerequisite to class certification. The Court disagreed and noted that Defendants “misunderstand the role of the merits of a plaintiff’s claim at the class certification stage.” (p. 11.)  Since the existence of a defect was the central issue common to the entire class, the Court need not delve into the merits of the claim to decide whether Plaintiffs satisfied Rule 23.

  • The Existence of Personal Injury Claims Does Not Create a Conflict of Interest with Class Members where Plaintiff Seeks Certification of Only Economic Damages Claims.

Defendants asserted that because Plaintiff’s son suffered a personal injury for which a claim was made, he cannot adequately represent the class in his separate claims for economic injury. Home Depot postulated, for example, that Plaintiff might accept an inadequate settlement offer on the class claims in exchange for a larger settlement of the personal injury claim. (p. 14.) The Court held, however, that personal injury claims do not create the type of “fundamental” conflict that renders Plaintiff unable to serve as class representative. (Id.) Moreover, since the Court would review any class settlement for fairness, Defendants’ concern over that Plaintiff might put his own interest above those of the class are unfounded. (p. 15.)

  • Proof of Breach of the Implied Warranty of Merchantability May be Made on a Class-Wide Basis.

Defendants claimed that proof of breach of the implied warranty of merchantability would require individualized inquiry because “each purchase’s intended and actual use of the product” bears on the issue. “This argument,” the Court observed, “misapprehends the governing legal standard for merchantability claims.” (p. 16.) “[W]hether the allegedly defective bracket rendered the railing products unfit for their ordinary purpose is judged objectively,” the Court held, “and not on each purchaser’s individual expectations.” (p. 17)(emphasis added.)

  • In Kansas, a Defect Need Not Manifest Itself to Give Rise to a Claim for Breach of the Implied Warranty of Merchantability.

Defendant Barrette Outdoor Living argued that an alleged defect must manifest itself before a claim for breach of the implied warranty of merchantability may be made. Since the proposed class consists of members who Railing System has not failed, thus manifesting the defect, Barrette asserted that a class action cannot be certified. The Court disagreed. First, the Court observed that in this case, unlike those relied upon by Barrette, the defect in Plaintiffs’ own product did manifest itself. Second, since K.S.A. § 84-2-725 provides that “[a] cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach,” actual manifestation of the defect is not required to justify certification of a class action. (p. 17.)

  • The Notice Requirement in K.S.A. § 84-2-607 Does not Bar Certification of a Class Action Since the Filing of the Class Action Complaint Gave Notice of the Defect on Behalf of All Potential Class Members.

K.S.A. § 84-2-607 requires that a “buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of the breach or be barred from any remedy.” Defendants argued that § 84-2-607 required that notice be provided prior to filing suit and that proof of notice cannot be made with class-wide evidence. The Court held otherwise.

“Plaintiff gave notice about the alleged defect on behalf of all potential class members when he filed his initial complaint on June 5, 2012,” the Court held. (p. 19.) “Taking into account the ‘totality of the circumstances’ —lack of bad faith and prejudice to defendants and the effect of requiring an individual inquiry—the Court concludes that the Kansas Supreme Court would find that the notice given by plaintiff’s Complaint satisfies K.S.A. § 84-2-607. (p. 20.)

  • In a Claim for Willful Omission Under K.S.A. § 50-626, Proof of Causation is Necessary, But May be Made on a Class-Wide Basis.

Defendants claimed that under the Kansas Consumer Protection Act, individual inquiry is necessary to prove causation. The Court, however, held that individualized showings are not required in an omission case. (p. 25)(emphasis added).

To prevail on an omission claim, the Court noted, plaintiff must show that the defendant had a duty to disclose a “material” fact. (Id.) A material fact is one “which a reasonable person would attach importance in determining his or her choice of action.” (Id.) Thus, in an omission case, because the focus is on the objective, reasonable person, objective (i.e. class-wide) proof is sufficient.

“Based on a review of § 50-626 of the KCPA and to give effect to the class action provision under § 50-634,” the Court opined, “the Court concludes that the putative class may prove causation by showing that the objective, reasonable person would have been harmed by the omission.” (p. 26.) Thus, individual issues do predominate the causation inquiry. (Id.)

  • To Make a Claim of Unconscionability under the KCPA, Plaintiff Need Not Prove that Each Class Member was Unable to Receive Any Material Benefit from the Subject Transaction, Only that the Price of the Product Grossly Exceeded the Price at which Similar Products are Readily Obtainable in a Similar Transaction by Similar Customers.

Defendants argued that to make a claim of unconscionability under the KCPA, Plaintiff would have to prove that every member of the class was unable to receive any benefit from the subject Railing System. This is not so, the Court held.

To prove unconscionability, the Court held, Plaintiff may show that as a result of a defect, the price of the product grossly exceeded what was readily obtainable in a similar transaction. (p. 27.) Moreover, proof that the price of the product grossly exceeded what was readily obtainable in a similar transaction can be made on a class-wide basis, since the inquiry is objective. (Id.)

  • A Statute of Limitations Defense that May Require Individualized Inquiry Does Not Render the Case Unsuitable for Class Certification.

Defendants argued that because the KCPA claims have a three-year statute of limitations while the breach of warranty claim has a four-year statute of limitations,  individual inquiry is necessary to determine who, among the class, is barred by the three-year statute of limitations. The Court agreed. However, the Court held that while individual inquiry may be necessary, the question is “not difficult to resolve” since it would require that class members simply demonstrate that they purchased their railing products three years prior to the filing of the suit.  Such an inquiry “does not mean that individual issues predominate over common issues such that plaintiff cannot satisfy Rule 23(b)(3),” the Court held.

  • The Possible Need for Individual Inquiry into Damages does not Bar Certification of All other Issues.

Citing the Supreme Court’s recent decision in Comcast v. Behrend, 133 S. Ct. 1426 (2013), Defendants argued that individualized damage calculations predominate over common issues such that certification cannot be granted. Since the measure of damages will necessary depend, in part, on the price each class member paid for the defective product, the Court agreed that individual inquiry may, indeed, be necessary. (p. 31.) However, the Court that, consistent with Rule 23(c)(4), the issue of damages may be bifurcated from remainder of the issues and reserved for determination at a later date. (Id.) Thus, even where damage calculations may require individual inquiry, all issues apart from damages may be certified and resolved on a class-wide basis.

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Judge Orders that NCAA President Dr. Mark Emmert be Deposed in Concussion Lawsuit

A Maryland judge has ruled that NCAA President Mark Emmert be deposed in a lawsuit brought against the NCAA and others over the death of Derek Sheely. Derek collapsed during an August 2011 practice drill at Frostburg State University while suffering from Second Impact Syndrome. He later died from his injuries. At the time of his death, Derek was a vibrant 22-year old, two-time Academic, All-Conference Senior football player.


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Sports Columnist Views Green Case as Having the Potential to Discover the Truth about the NFL and Concussions

Will the NFL have to reveal its secrets in open court?


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District Court Rules that Former NFL Players’ Concussion-Related Claims are NOT Preempted by CBA

On May 14, 2014, the United States District Court, Eastern District of Missouri, issued an Order remanding Green v. Arizona Cardinals Football Club, LLC, 4:14-cv-00461-CDP (E.D. Mo.) (“Green”), to the Circuit Court for the Twenty-Second Judicial Circuit, St. Louis, Missouri, from which it was removed. Doc. #33, 4:14-cv-00461-CDP. The District Court denied defendant’s motion to stay proceedings and remanded Green over the defendant’s objections.

In Green, the Court held that the players’ claims were neither created by nor require the interpretation of a CBA. Id, at p. 13. As for the negligence claim, the Court held as follows:

“Unlike the negligence claim in Gore [v. Trans World Airlines, 210 F.3d 944 (8th Cir. 2000)], here the duties arise out of the common law based upon the employer-employee relationship and not out of any particular terms in the CBAs. The reasonableness of the Team’s actions towards [Plaintiff] Scott cannot depend upon an interpretation of a CBA, as Scott was never bound by the contract. It stands to reason, then, that the other plaintiffs’ negligence claims do not necessarily depend upon an interpretation of the CBAs, so far as the duties owed them and the standards applied to their claims derive from the same source as for Scott.” Id. at p.

As for the negligent misrepresentation and fraudulent concealment claims, the District Court held that, “[a]s with their negligence claims, the plaintiffs’ negligent misrepresentation and fraudulent concealment actions arise independent of the CBAs as a function of the common law and thus are not preempted.” Id. at pp. 16-17.

“Because the plaintiffs’ claims can be determined without interpreting the CBAS,” the Court stated, “I do not have subject-matter jurisdiction over this case.” Id.

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Court Approves Cy Pres Distribution of More than $250,000.00 to Legal Aid of Western Missouri

In the case captioned “Armon v. United Financial Casualty Company,” 1016-CV38265, Judge Grate, Circuit Judge in Jackson County, Missouri, at Independence, approved the distribution of $265,547.78 to Legal Aid of Western Missouri. Legal Aid provides free civil legal assistance to people in Missouri who need it the most and can afford it the least. The cy pres distribution is the result of a class action settlement previously approved by the Court.

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On December 6, 2013, the Circuit Court of Jackson County, Missouri, at Independence, Entered an Order Approving the Class Action Settlement. It is expected that settlement checks will be mailed to class members on or around the third week of January, 2014.

Final Approval Order

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Five Former Players Sue the Kansas City Chiefs

The Klamann Law Firm, together with the Popham Law Firm and the law firm of Humphrey, Farrington & McClain, have sued the Kansas City Chiefs on behalf of five former players for damages relating to brain injuries that each now suffers as a result of their careers with the NFL and the Kansas City Chiefs.  A copy of the Petition can be found by clicking on the link below.

Cooper et al v. KC Chiefs

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An individual Plaintiff insured under a “MISSOURI COMMERCIAL AUTO POLICY,” issued by a company d/b/a as Progressive Insurance Company (“Progressive”), sued Progressive claiming that it failed to correctly calculate and pay him the amount due under the policy when it was determined by Progressive, after an accident, that his vehicle was a “total loss.”  Plaintiff alleged he was owed the “Stated Amount” of his vehicle which he was required to provide to Progressive when applying for insurance. Progressive paid an amount other than the Statement Amount, minus the deductible, contending that pursuant to the policy it was to pay the lesser of the “actual cash value” of the “Stated Amount.”

Third Amended Petition

The Court certified the lawsuit as a class action on behalf of all individual persons, corporations, partnerships, associations and other entities who insured a vehicle during the Class Period beginning January 1, 2006, under a “MISSOURI COMMERCIAL AUTO POLICY,” issued by Progressive, and who suffered a “total loss” of said vehicle, as defined in the policy, and who recovered from Progressive for such loss an amount that was less than the “Stated Amount” for said vehicle minus any applicable deductible.

Order Granting Plaintiff’s Motion for Class Certification

Following certification of the class, Plaintiff and Progressive agreed to settle the above-captioned lawsuit and the Court has preliminarily approved the settlement (hereinafter “the Settlement Agreement”).

 Settlement Agreement

The preliminarily-Approved Settlement Agreement covers all persons who do not Opt Out. 

Order Preliminarily Approving Settlement


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