NFL Players Concussion Injury Litigation v. ( 2022 )

BLD-046 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-2441
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IN RE: NATIONAL FOOTBALL LEAGUE PLAYERS
CONCUSSION INJURY LITIGATION
Alain Kashama,
Appellant
*(Pursuant to Rule 12(a), Fed. R. App. P)
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-12-md-02323)
District Judge: Honorable Anita B. Brody
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Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
December 8, 2022
Before: AMBRO, KRAUSE, and PORTER, Circuit Judges
(Opinion filed December 28, 2022)
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OPINION*
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PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Alain Kashama appeals from an order of the District Court denying his objection
to his individual monetary award pursuant to a settlement agreement in this class action.
We will affirm.
Kashama was a professional football player who spent a few seasons playing in
the National Football League (“NFL”). Like many other players, he incurred serious head
injuries. Kashama was a member of a class of plaintiffs who sued the NFL to compensate
them for these injuries and resultant chronic conditions. That class of plaintiffs was
certified pursuant to Federal Rule of Civil Procedure 23 and the parties reached a
negotiated settlement. We affirmed the District Court’s certification of the class and
approval of the settlement. See In re Nat’l Football League Players Concussion Injury
Litig., 821 F.3d 410, 420 (3d Cir. 2016).
Class members were given an opportunity to opt out of the settlement, and those
who chose not to opt out are bound by the agreement’s terms. See Settlement Agreement
§ 14.2, ECF No. 6481-1. As part of the settlement, class members agreed to release,
among other things: (1) any claims that “could have been asserted in the Class Action”
and (2) any claims relating to “head, brain and/or cognitive injury,” “concussions and/or
subconcussive events,” and “CTE” that could have been asserted against the NFL. Id.
§ 18.1(a). The release provision was expressly incorporated into the District Court’s
judgment. See Amended Final Order & Judgment ¶ 10, ECF No. 6534.
Under the Settlement Agreement, a class member must take certain steps to
receive a monetary award. In brief, the class member must: register to participate in the
settlement; undergo neurological and neuropsychological examinations to diagnose that
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individual’s level of neurocognitive impairment; and submit a claim package to the
designated Claims Administrator. See generally Settlement Agreement arts. IV, VI, VII.
The Claims Administrator then reviews the claim package to determine the amount of the
individual monetary award, pursuant to an agreed framework. See id. §§ 6.3, 6.6, 6.7, 9.1.
A Special Master oversees the Claims Administrator and provides the District Court with
supporting information as needed. See id. § 10.1 A class member may appeal an
individual monetary award to the District Court and, on review, the “decision of the
[District] Court will be final and binding.” Id. § 9.8. We have previously held that the
Settlement Agreement’s opt-out and claims processes are reasonable. See In re NFL, 821
F.3d at 441.
Here, Kashama did not opt out. He registered to participate, received a diagnosis
of neurocognitive impairment at “Level 1.5” under the Settlement Agreement, and
submitted a claim package to the designated Claims Administrator, who determined the
amount of his monetary award to be just shy of $500,000. Kashama appealed his award
and the Special Master affirmed. Kashama objected to the Special Master’s decision; the
District Court denied his objection. Kashama filed a notice of appeal. Our Clerk alerted
Kashama that his appeal was subject to possible dismissal under 28 U.S.C. § 1915 or
summary action. Kashama has filed a brief and documents in support of his appeal.
The District Court had continuing jurisdiction after the parties settled because the
terms of the Settlement Agreement were expressly incorporated into the judgment. See
Amended Final Order & Judgment ¶¶ 8, 17, ECF No. 6534; see also Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 381–82 (1994). The District Court’s order
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denying Kashama’s objection to his individual award “finally resolved the particular
claim at issue,” so it is a final, appealable order under 28 U.S.C. § 1291. In re Diet Drugs
Prods. Liab. Litig., 543 F.3d 179, 184 n.10 (3d Cir. 2008). We review an order
administering or implementing a class action settlement for abuse of discretion. Id.Kashama asserts that he is entitled to a greater amount than was awarded to him
because of his “special damages” totaling $22.8 million, arguing that his award is not
sufficient to cover his lost wages and medical expenses arising from his head injuries.
See CA3 ECF No. 13 at 16. These are precisely the kinds of claims that are covered by
the Settlement Agreement’s release provision, which we have already affirmed. See In re
NFL, 821 F.3d at 425, 443–44. Moreover, the documents that Kashama submitted in
support of his appeal show that his claim proceeded according to the terms of the
Settlement Agreement. While Kashama disagrees specifically with the assessment of his
injuries under the claims process, and generally with the thresholds for compensation that
were developed under the Settlement Agreement, he does not identify any actions by the
District Court that “rest on a clearly erroneous finding of fact, an errant conclusion of
law[,] or an improper application of law to fact.”1 In re Diet Drugs, 543 F.3 at 184 n.10
(internal quotation marks and citations omitted).
1
Kashama’s documentation makes passing references to racial bias in the structure of the
claims process. See, e.g., CA3 ECF No. 13 at 21. However, Kashama has not explained
how his claim specifically was affected by racial bias. Moreover, the parties agreed to
amend the Settlement Agreement for the express purpose of eliminating the identified
“race norming” in March 2022. See Order, ECF No. 11648. Those amendments provide
an avenue for recalculating monetary awards affected by racial bias, and Kashama has
not alleged that those amendments are inadequate to address his concerns.
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Accordingly, Kashama’s appeal does not present a substantial question, and we
will summarily affirm the District Court’s order. 2 See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
2
Kashama’s motions are denied.
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