NFL Concussion Suit Fee Expert Must Be Deposed, Court Told

Posted on Thursday, December 21, 2017

This article originally appeared on

By Darcy Reddan

Law360, New York (December 20, 2017, 1:45 PM EST) -- A group of firms representing individual class members in the NFL concussion suit asked a Pennsylvania federal court on Tuesday to allow them to depose Harvard Law School professor William B. Rubenstein, telling the court that it's unfair to limit response to expert testimony that recommends capping the potential fee awards.

In two separate motions for reconsideration, the firms contend that an order from earlier this month that denied them the ability to depose the expert who recommended the court capcontingency fees for individual attorneys at 15 percent is unfair and denies them chances to examine flaws in the report. One of the motions also request the court extend time to respond to the report by 60 days, given the lengthy period granted to the expert compiling the report.

U.S. District Judge Anita B. Brody appointed Rubenstein in September to review questions over the attorneys' fees emanating from the class settlement as the court considers whether to approve the $112.5 million in attorneys' fees and costs sought by the co-lead class counsel firms Seeger Weiss LLP and Anapol Weiss.

The co-lead attorneys set the sought fees amount at just over 9 percent, 9.6 percent when including the costs, of the estimated $1.16 billion total settlement, which includes a $950 million monetary award fund.

But Rubenstein reasoned that the fees and costs are actually 15.6 percent of the total settlement when looking at its net present value, which factors in the lower value of the amount over time as it will be distributed over a 65-year period.

In both motions, the firms take issue with the Dec. 11 order that withdrew a Sept. 14 order, which allowed affected parties to depose Rubenstein.

The September order appointed Rubenstein as an expert and also said that interested parties would have the chance to depose him. The December order withdrew that opportunity based on the notion that the 47-page report presented it "is sufficiently comprehensive and detailed," according to the motion by the Locks Law Firm.

Locks contends that the in-depth nature of the report does not negate the need for an approved deposition because the "court must surely have expected professor Rubenstein to produce comprehensive and detailed reported," according to the filing.

In a separate motion, a host of firms contend that Rubenstein should also sit for deposition because he has a perceived conflict of interest with co-lead counsel for the class Anapol Weiss that has gone unaddressed. They claim in the motion that he privately told the court about the conflict, but did not address it in his report.

In addition to the deposition concerns, the group of firms takes issue with the time frame allotted to respond and page limits imposed on that response.

The firms claim that the order placing a page limitation and a Jan. 3 deadline to file the response will significantly prejudice them by giving them a third of the time to respond to an expert report that took two and a half months to compile.

In addition to the disparity between time they have to respond, the firms note that the upcoming federal holidays place further burden on them and request an extension of 60 days to respond.

"An inadequate opportunity to conduct that meaningful review is likely to spawn prophylactic responses rather than reasoned responses," the firms claim in the motion. "And, as every legal writer knows, writing a short response requires much more time than writing a long response."

The Locks Law Firm and Washington & Associates PC, the Canady Law Firm, Lubel Voyles LLP and Provost Umphrey Law Firm LLP filed the motions.

The settlement class is represented by co-lead counsel Seeger Weiss LLP and Anapol Weiss.

The NFL is represented by Brad S. Karp, Bruce Birenboim and Lynn B. Bayard of Paul Weiss Rifkind Wharton & Garrison LLP.

The case is In re: National Football League Players' Concussion Injury Litigation, case number 2:12-md-02323, in the U.S. District Court for the Eastern District of Pennsylvania.

--Editing by Katherine Rautenberg.

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