One of the struggles in mass tort litigation arises from the economic conflicts of interest between current and future claimants. The issues can arise in multiple places: class actions, mass tort bankruptcies (which are de facto class actions), and current claims seeking punitive damages that realistically could exhaust the assets of defendants that lack deep enough pockets.

The conflict between future claimants and current claimants, and more, will be central to the NFL concussion class action argument this week in the 3rd Circuit. A cogent summary of the issues is provided by Paul Anderson at the NFL Concussion Blog in a November 15, 2015 post. The issues include a sharp focus on conflicts between the current and future claimants as to the brain injury known as CTE.  Incredibly, the current claimants propose to leave future CTE victims without a remedy. The point is explained as follows in the opening brief of the objectors.

“So the NFL wanted an end game: It would pay those with present injuries, including families of players who had already died with CTE. In exchange, the NFL would secure a sweeping global release of all former players’ future CTE claims, without paying any of them. This bargain would result in a stark disparity: The family of a player who dies with CTE before the class-action settlement’s approval gets up to $4 million. But an identically situated player who dies a day after the settlement’s approval releases his claim and gets paid nothing—for the exact same diagnosis.”

Happily, objecting claimants are 1) pointing out the mistreatment of the future claimants, and 2) arguing the class outcome cannot bind future claimants if it abrogates their rights. If due process means anything, the rights of future claimants certainly cannot be cut off while the science is very new and still undergoing material evolution. To that end, one of the arguments of the objectors is to “keep the science open.” More specifically, the objectors argue, among other things: “the settlement could authorize objective committee of scientists to approve changes and “keep pace with the changing science and medicine.” Georgine, 83 F.3d at 630-31.”  That particular line of argument is towards the end of the opening brief of some of the objectors, at 55-56. The full brief is online and open access.  

Three of the key paragraphs from the brief are pasted below, including the argument to “keep the science open.”

“Exclude future claims from the release

The parties might also narrow the terms of the release to permit class members who develop CTE-related injuries in the future to press their claims and seek compensation. In Super Spuds, Judge Friendly refused to endorse a view of Rule 23 or due process that would allow named plaintiffs to give up different claims of absent class members. 660 F.2d at 17. Here, because the named “futures” representative declined to press a CTE claim, the scope of any release of future claims could be so limited, and future CTE claims could be excluded. See In re Oil Spill by Oil Rig Deepwater Horizon, 295 F.R.D. 112, Case: 15-2272 Document: 003112053952 Page: 62 Date Filed: 08/24/2015 56 125 (E.D. La. 2013) (approving release that would not cover later-manifested physical conditions arising from exposure).
Compensate CTE with evolving diagnostic criteria.

A third option would be to create a CTE qualifying diagnosis. This would allow players who are later diagnosed with CTE to get compensation. To account for the changing science, the settlement could establish a framework for constant reevaluation of the diagnostic criteria related to CTE. And unlike the current settlement—which gives the NFL a unilateral veto—the settlement could authorize an objective committee of scientists to approve changes and “keep pace with the changing science and medicine.” Georgine, 83 F.3d at 630-31.

Provide back-end opt-out rights

Finally, the use of “sturdy back-end opt out rights” has been recognized as a “rational[]” means for future-only class members to protect “distant recoveries,” Amchem, 521 U.S. at 610, and “safeguard their ultimate right to resort to the tort system,” In re Asbestos Litig., 90 F.3d 963, 972-73 (5th Cir. 1996); see, e.g., Bowling v. Pfizer, Inc., 143 F.R.D. 141, 150 (S.D. Ohio 1992). 7 In the recent BP/Deepwater Horizon Medical Settlement, for example, all class members had the right to a back-end opt-out regardless of 7 This mechanism has been embraced by several scholars. See John C. Coffee, Jr., Class Action Accountability, 100 Colum. L. Rev. 370, 433 (2000); Richard A. Nagareda, Autonomy, Peace, and Put Options in the Mass Tort Class Action, 115 Harv. L. Rev. 747, 800-01 (2002); Samuel Issacharoff, Governance and Legitimacy in the Law of Class Actions, 1999 Sup. Ct. Rev. 337, 368-70 (1999); John C. Coffee, Jr., Class Wars, 95 Colum. L. Rev. 1343, 1448-53 (1995). Case: 15-2272 Document: 003112053952 Page: 63 Date Filed: 08/24/2015 57 whether they recovered in the present. There was “no ‘future’ injury released by the Settlement”—and hence no concern that absent class members’ undeveloped claims would be extinguished. See In re Oil Spill, 295 F.R.D. at 140. Because all class members retained the opt-out right, even those with current claims had “every incentive to protect the interests” of futures-only claimants—a point with which Dean Klonoff (who was also an expert there) agreed. Id”