The family of deceased professional football player Aaron Hernandez filed a $20 million lawsuit against the National Football League and the New England Patriots in Boston federal court, but there’s a chance the case may end up before the federal judge in Pennsylvania who is overseeing a nearly $1 billion settlement already in the works aimed at compensating former players for their brain injuries.
And that’s just one of several hurdles attorneys involved in class action and ongoing concussion-related litigation said the lawsuit may face.
Hernandez’s fiancee, Shayanna Jenkins-Hernandez, acting as guardian for their daughter Avielle Hernandez, filed the lawsuit Sept. 21 in the U.S. District Court for the District of Massachusetts, alleging the NFL and the Patriots knowingly exposed the former tight end to repeated head injuries, which led him to develop chronic traumatic encephalopathy, or CTE—a condition linked to violent behavior and suicide. Hernandez, who played professional football between 2010 and 2013, was convicted of murder in 2015 and committed suicide while in prison in April 2017.
The complaint, filed by attorney George Leontire of the Baez Firm in Boston, lodges a single count of loss of parental consortium.
Neither the plaintiff’s lawyer nor the NFL returned a message seeking comment, but one attorney familiar with concussion-related litigation said it is very likely the NFL will seek to have Hernandez’s case brought into the class action settlement that U.S. District Judge Anita Brody of the Eastern District of Pennsylvania is handling.
“Their argument is going to be that it’s part of the class,” Coral Gables, Florida, attorney Bradford Sohn said.
Sohn is handling a case that is in many ways similar to the lawsuit Hernandez’s family filed.
Sohn is representing the family of Adrian Robinson, a defensive lineman for the Pittsburgh Steelers and Denver Broncos, who committed suicide at age 25. Robinson, according to the lawsuit, also suffered from CTE.
The Robinson suit was initially filed in state court in Philadelphia, but the NFL removed the suit to the Eastern District of Pennsylvania where it was brought into the class action settlement. Sohn has since been seeking to have the case severed from the class settlement so it can proceed on its own litigation track.
The class action settlement, approved in 2015, is intended to compensate players suffering from concussion-related injuries, such as Parkinson’s disease, Alzheimer’s disease and severe dementia. The settlement also covers CTE, but only for deceased players, since the condition can only be diagnosed during an autopsy. The accord also caps damages at $5 million for individual players.
Although many former players specifically opted out of the settlement, Hernandez was not one of them.
“The NFL’s position will be, everything was wrapped up in the terms of the settlement. This is what we agreed to in our deal,” Sohn said.
Adam Hoeflich of Bartlit Beck Herman Palenchar & Scott, who focuses on class action litigation, said whether the case is eventually brought into the class action will be a question of law for the courts hinging on the language of the release and the definition of the class.
However, he noted that, even if the case proceeds on its own litigation track, the plaintiffs will face an uphill battle.
“It strikes me that they have a lot of hurdles to jump over,” he said, noting the plaintiffs will need to establish not only that Hernandez suffered from CTE, but that he had developed the related symptoms and that those issues led him to allegedly murder someone and then commit suicide while in jail. “There’s a lot of ground you need to tread before you’re able to establish liability on the part of the Patriots of the NFL.”
Steven Pachman of Montgomery McCracken Walker & Rhoads, who concentrates on defense in CTE-related litigation, said that, while the court of public opinion has linked football with CTE, some neuropathologists dispute that the two are causally related. The defendants, he said, will likely raise that issue as well if the case proceeds on its own.
“One of the primary defenses is going to be, we do not know yet what causes CTE,” he said.
If the case is pulled into the class action settlement, the Hernandez plaintiffs may face additional hurdles as well.
Sohn noted that Hernandez was incarcerated during the class action registration period, and said that, if Hernandez didn’t take steps to register, the NFL could seek to argue he is entitled to nothing. This, Sohn said, may spark questions about what happens to the recovery rights of family members when players are unable to act on the class action settlement.
“If his family gets absolutely nothing, is it legally allowable to say his family has released any and all rights to bring litigation against these parties that he’s supposedly settled with?” Sohn said. “I do think there’s a very open and unanswered legal question there.”