September 14, 2018
On Wednesday, Judge Brody issued an order that will likely be the death knell to most dementia claims in the NFL Concussion Settlement after the Special Masters in charge of settlement operations made a request to the Court.
In April, the NFL filed a motion requesting a special court-appointed fraud investigator, claiming that massive fraud was holding up valid claims. A hearing on the motion was held in May, and on July 18, Judge Brody issued a notice stating that she would defer ruling on the motion unless either Claims Administrator BrownGreer of the Special Masters made the request. I was present at the hearing and it seemed that the Claims Administrator and Special Masters were opposed at the time. No reason for reversal of that opinion was stated in the Special Masters’ request, leaving one to speculate as to their changed position.
Unlike the NFL’s bumbling of player discipline, anthem policy, domestic violence and an inability to define a catch, it has successfully deployed a single strategy on brain injury that has served the league very well for decades, to the detriment of those who built the NFL’s vast fortune and popularity. The strategy is one of creating doubt.
As science began to gather more and more information about the dangers of repeated blows to the head, the NFL created its own science to counter emerging research and continued to tell its players and the public there was no long-term harm in concussions or repetitive non-concussive collisions that are inherent to the game.
Then along came Mike Webster, Dr. Bennet Omalu, and CTE. Then came more suicides and more CTE riddled brains. League of Denial and Concussion made their appearances on screens large and small, and finally people started asking questions and demanding answers.
Lawsuit after lawsuit was filed by survivors of the deceased and the living who finally came to realize why they were suffering. The NFL appeared to change gears at this time and entered into settlement negotiations. Most people thought the NFL had finally shifted gears but instead, they stuck to the old playbook with a few trick plays added for cover.
The NFL reminded plaintiffs’ counsel, players and the Court of their mighty success with an LMRA preemption defense and the high bar of proving causation, causing most attorneys and retirees to agree to the $765 million the NFL offered. What the NFL managed to do as part of their settlement strategy was to again, create doubt. While preemption was a distinct possibility, a recent Ninth Circuit decision proves that it’s neither inevitable nor immutable. Regarding causation, decades worth of strong evidence demonstrating both the medical science the NFL should have been aware of as well as decades of concealing the same had been developed without conducting any discovery against the league at all. What might have surfaced should discovery have been forced upon the NFL? We may never know the answer to that question, and the simplest explanation for this is the NFL’s ability to create doubt, which in turn breeds fear.
Some players and attorneys realized the inherent flaws in the settlement primarily in its exclusion of CTE compensation outside a small number of players who fit within a specified time, but the sickest players—guys like named plaintiff Kevin Turner who suffered from ALS—were leveraged to shame others into accepting a flawed deal.
2013: “This case has always been about securing the funds… as quickly as possible,” said Seeger. “The NFL expressed a genuine desire to help.” Remember when they used Kevin Turner, dying of #ALS (now dead), to pressure other players to settle quickly? https://t.co/bMzhR6nHJO pic.twitter.com/Tus8Mtcymv
— Chris Nowinski, Ph.D. (@ChrisNowinski1) March 21, 2018
Judge Brody refused to accept the settlement, stating concern that the initial payout might not be sufficient, so the parties went back to the table. They emerged with an uncapped settlement, which sounded like a good deal for players, but this perceived advantage was mitigated by the broad audit authority granted to the NFL, which it now uses to create doubt that many of the submitted claims are legitimate.
Take a look at this excerpt from the Fairness Hearing held prior to settlement approval, and then consider it as you evaluate the representation of the settlement contrasted with the reality.
Most of the players suffering from depression, mood swings, emotional volatility and even suicidality realized these conditions would not be compensated under the settlement’s exclusion of CTE, but many of the men dealing with those CTE symptoms took both Co-Lead Counsel Chris Seeger and the NFL at their word when they assured the Court that early and mild dementia would be covered. They decided to settle for that since they were also having problems with memory and most just wanted the litigation to end. Little did they realize at the time how the NFL would backtrack, and even use the most common symptoms of CTE they endured against them to discredit their dementia claims.
Fast forward to the present.
As legal experts and objectors predicted, the NFL would compensate, without a great deal of opposition, the most high-profile claims of ALS and death with CTE, at least the deaths that occurred between July 7, 2014 and April 22, 2015 as defined in the settlement agreement. What the NFL didn’t expect, at least according to their pre-settlement actuaries, was that these high-dollar claims would be much more voluminous than anticipated or at least admitted publicly.
Less than two years into settlement implementation 42 ALS claims have been filed, already exceeding the projected number of 36 for the entire 65-year settlement term. Actuaries predicted 46 Death with CTE claims would be paid. Instead, 85 claims were filed resulting in 68 approved CTE death claims. Likewise, the incidence of Parkinson’s disease was gravely underestimated. Actuaries predicted 25 claims over 65 years. Instead, in under two years, 119 have been submitted and 87 approved.
As I wrote in “Please Don’t Drink the Kool-Aid,” over $500 million in claims has been approved, but almost $235 million, or 44% of that figure has gone to ALS, Parkinson’s and Death with CTE claims which compose only 12% of the 1,999 claims filed as of September 10, 2018.
By far, the largest number of claims have been for dementia, categorized in the settlement as Levels 1.5 and 2.0 neurocognitive impairment. Of 1,999 claims filed, 1,286 represent dementia diagnoses. Of these, 247 have resulted in approved claims and only 86 have been paid to date. The NFL seems to want to keep it that way.
The fraud investigator that was requested and approved will be placing dementia claims under the microscope to discover any possible means of discrediting the claim and establishing grounds for denying it. While stringent audits have been taking place since the claims process began, and the NFL has vigorously fought claims through the appeals process, the investigator will give them an additional and more powerful weapon with which to defeat many, if not most dementia, and some Alzheimer’s claims which rely on more subjective testing than ALS and Parkinson’s.
The implementation of a fraud investigator runs parallel with another development that Advocacy for Fairness in Sports reported on last week. Off the record documents acquired by Advocacy for Fairness in Sports reveal that the NFL is seeking to have AAP doctors, who have been vetted and possibly coached by the league evaluate all claims appealed by the NFL, as opposed to settlement terms which grant Special Masters the option of bringing in the AAP if they feel it is necessary. This could possibly factor into the Special Masters’ position reversal as to the need for a fraud investigator. Perhaps they are tired of the NFL breathing down their necks as they try to balance their responsibilities to the settlement with their regular employment as professors of law. Or, perhaps the NFL’s strategy of creating doubt finally affected them, causing them to either doubt the legitimacy of claims or their own ability to determine if a claim is legitimate. Most NFL appeals that were examined strictly by Special Masters resulted in affirmation of a player’s claim. Those in which AAP was consulted have mostly resulted in reversal and denial.
An excerpt from the NFL letter, indicates in no uncertain terms that the NFL has no intention of paying all of the players who are diagnosed with neurological impairment.
Let’s dissect this paragraph. The most obvious takeaway is the NFL flatly insists that “not every player with cognitive or neurological issues” is entitled to an award. In reading between the lines one can deduct that the “carefully calibrated and negotiated result” is the original $765 million figure at which they endeavor to cap their expenditures despite the uncapping of the settlement. In order to accomplish the ruse, the league again uses the doubt factor to their advantage. They state an intention to compensate players who meet the diagnostic criteria.
Diagnostic criteria, as the NFL interprets it must then be examined.
Players who have learned to exercise caution when dealing with NFL approved doctors, anticipated problems with the BAP but figured if they already had diagnoses made by their own personal physicians or received a diagnosis from an independent doctor prior to the settlement’s effective date they would be okay due to the “generally consistent” with the BAP clause pertaining to diagnoses rendered prior to the date the settlement was finalized. So did their attorneys, and this position has been vigorously maintained by independent counsel. The NFL has fought against this interpretation with equal vigor, claiming that if deviations are made for pre-effective date claims, the criteria would be stacked unevenly favoring those who were diagnosed outside the BAP, again creating doubt as to how the settlement should be interpreted while seeking to stack the interpretation clearly in their own favor.
Now that the bulk of the pre-effective date claims have been processed, the NFL now seeks to discredit diagnoses rendered by MAF and BAP doctors who were retained by mutual consent of the NFL and Co-Lead Class Counsel Chris Seeger.
Despite statements in the fairness hearing and subsequent enrollment drive for settlement participation of mild and early dementia as a qualifying diagnosis, the NFL is using accusations of fraud and attempting to leverage the AAP to discredit medical diagnoses by “proving” through internet and social media searches, that players don’t meet the functional requirements of the settlement as presented in Exhibits A1 and A2 of the final agreement.
In short, for a Level 1.5 (early/mild dementia) diagnosis in accordance with BAP standards a player must show evidence of a moderate to severe cognitive decline from a previous level of performance in two or more cognitive domains (complex attention, executive function, learning and memory, language, perceptual-spatial), provided one of the cognitive domains is (a) executive function, (b) learning and memory, or (c) complex attention domains outlined in the Neurocognitive Disorders section of the 5th Edition of the Diagnostic and Statistical Manual of the American Psychiatric Association. For Level 2.0 impairment (moderate dementia), the requirements are the same, except the degree of decline must be in the severe range. Curiously omitted from admissible criteria is a sixth domain—that is normally used in medical evaluations—that of social cognition—an area in which many players struggle.
I realize this evaluation is rather dry and technical, but please try to bear with me as I attempt to condense a large volume of information, which in my opinion is meant to be so challenging that few if any players, their wives, and possibly even some attorneys would understand it, down to its most basic elements.
Advocacy for Fairness in Sports has examined approximately 50 case files of challenged claims and these criteria have been met, however, this is only the beginning of what the NFL interprets as the requirements players must meet to satisfy “the diagnostic criteria for a Qualifying Diagnosis.”
According to the settlement’s BAP criteria, functional impairment generally consistent with the criteria set forth in the National Alzheimer’s Coordinating Center’s Clinical Dementia Rating (CDR) scale in the areas of Community Affairs, Home & Hobbies, and Personal Care must also be presented with scores of “1” for Level 1.5 or “2” for Level 2. Per the Settlement Agreement, “Such functional impairment shall be corroborated by documentary evidence (e.g., medical records, employment records), the sufficiency of which will be determined by the physician making the Qualifying Diagnosis.”
This is the most prevalent area in which the NFL seeks to create doubt. Through the request for AAP evaluation, they seek to undermine the judgment of the diagnosing physician by presenting a hodgepodge of “evidence” gathered from the internet which they claim discredits the diagnosis if a player appears to be caught in moments of lucidity or is seen looking like a “normal” person as opposed to one who is visibly dirty and disheveled.
Any doctor who has treated dementia patients or a person who has lived with a person suffering from dementia, would testify that there are good days when the patient seems almost normal and bad days when the patient has difficulty with very rudimentary tasks. Long-term memory is typically one of the last cognitive skills to deteriorate, so a guy who might not remember what he had for breakfast, or even if he had breakfast, could potentially discuss football X’s and O’s without much difficulty. He might also forget to shower on a daily basis and live in mismatched clothing at home but still have the capacity to recall that he should clean up when he goes out and take extra care to button his shirt properly or avoid the need for buttoning by wearing a pullover. The NFL appears to require that a player is constantly at the low end of the cognitive roller coaster rather than acknowledging the variations in day-to-day function that are characteristic of dementia.
Should a player manage to meet the home and hobbies, personal care, and community affairs requirements, there is, however an additional hurdle for him to clear.
Despite the NFL’s agreement that causation does not have to be established, the above clause negates that to a degree, and in many cases when a player has qualified according to all criteria to this point, his problems are sometimes blamed on medication in NFL appeals. On appeal, the NFL has even expanded upon this to include psychiatric conditions such as depression and anxiety, or medical conditions such as sleep apnea, essentially using reverse engineering to force proof of causation by eliminating possible non-football factors contributing to cognitive decline in order to qualify for an award. Will those who disagree with this assessment be deemed guilty of fraud going forward? In my opinion, it’s a distinct possibility.
Until now, rules established by Special Masters indicated that should a question regarding omissions or misrepresentations in a claim arise, intent did not have to be established by the claims administrator. While rules on audits do make allowances for intent, based on testimony at the May 30 hearing on the NFL’s motion for appointment of a special fraud investigator, it appears that any questions or even disqualifications have not resulted in actual charges of ill intent. The authority to determine and act upon intent was a big part of the NFL’s push for an investigator vested with that authority.
It stands to reason that having an investigator with authority to charge players, lawyers and doctors with criminal intent will have a chilling effect on claims. A difference of opinion as to how diagnostic criteria and results are interpreted could result in any or all of the following:
Paid claims are not exempt from audit scrutiny.
If a claim is suspected of fraud, additional audits of claims from the lawyer, law firm, claims service or physician are subject audit.
Adverse findings can result in disqualification of the lawyer, law firm, claims service or doctor and/or Settlement Class Member from further participation in the Settlement.
Referral of the lawyer, law firm, claims service or healthcare provider to their professional disciplinary boards.
Referral to federal authorities.
In other words, doctors and lawyers could reasonably be intimidated and threatened with loss of their careers and livelihoods should they cross some imaginary line at which their advocacy is viewed as fraud.
Even prior to the order to appoint an investigator doctors have left the program because their professional judgment and ethics have been questioned. Attorneys who once represented numerous players have transferred or are attempting to transfer their clients to other firms because they don’t feel the risk versus reward ratio of litigating claims is in their favor or best interest.
While appointment of the fraud investigator is a done deal, the mandatory use of AAP doctors for appeals has not yet been decided.
On information and belief, attorneys for the players conducted a conference call for development of strategies to defeat this unauthorized modification of the settlement agreement, but details of the conference are unknown.
Advocacy for Fairness in Sports will endeavor to provide updates as information becomes available.