A Closed Hearing is Convened in Judge Brody’s Chambers as Players Seek Transparency
November 15, 2017
Monday a motion for reconsideration was filed by X1 Law and Loren Kean Law, just prior to a closed hearing convened by Judge Brody with only Co-Lead Class Counsel Christopher Seeger (by name) along with NFL Counsel and Special Masters on the judge’s guest list.
The prestigious legal publication Law360 picked up the story. From their article:
Former NFL players urged a Pennsylvania federal court on Monday to overturn, in light of new evidence, a claims administrator’s changes to how claims are processed under a settlement agreement for brain injuries in multidistrict litigation.
The 16 retired players who filed the motion said the court should reconsider its Nov. 2 decision that they can’t interfere with the claims process in light of a Nov. 7 agreement between National Football League counsel and co-lead class counsel requiring raw neuropsychological test scores not called for in the original settlement, as well as other recent developments they say are “directly related to the issues raised in the motion.”
“The result is manifest injustice where the issues could easily be vetted now as the issues have been identified and can be addressed globally rather than in individual appeals,” the filing says.
The retired players first asked the court in August to ensure claims were being properly administered per the settlement agreement, arguing the claims administrator has altered the implementation of the original settlement. For example, the claims administrator reinterpreted “corroborated by documentary evidence” to mean “corroborated by documentary evidence that existed before the date of the qualifying diagnosis,” thereby altering the requirements for qualifying for a monetary award, they said.
The former players argued Monday the court should reconsider their motion after counsel for the parties decided neuropsychological testing records submitted for certain claims must now include raw test scores.
“The claims administrator, co-lead class counsel and counsel for the NFL parties cannot be allowed to make substance changes that materially alter claimants’ rights for the worse without proper notice to the class and approval by this court,” the retired players argued.
The raw score testing requirements are particularly problematic because many players who were diagnosed early – some more than a decade before settlement approval do not have these scores as part of their medical record, since they are only one of several tools available to a neurologist in detecting Alzheimer’s disease and dementia. Even more troublesome for the players is the fact that should the court require these scores verbatim and if they don’t exist in the original diagnosis, the diagnosis date would be pushed back to the first available scores potentially resetting it one, two, three, ten, or more years later than that of the player’s own physician. Settlement award amounts are determined by age at diagnosis, so this requirement could and likely will, if as it stands, cost individual players tens of thousands of dollars and save the NFL millions.
More from Law360:
They also referenced a Nov. 10 Washington Post article that reported former players are having difficulty with the claims process, an open letter to the court seeking support for the class members, and sworn affidavits by class counsel purportedly opposing Seeger Weiss LLP’s allocation of attorney fees. The affidavits allegedly indicate other attorneys are “more familiar with the issues raised in the motion and more capable of addressing these issues to the court and finding a working solution,” the filing says.
The “open” letter from players referenced in this filing was found by the law firms on our website, where it collected signatures from Class Members and their families over the past weekend. The letter was prompted by news of the closed-chambers hearing scheduled on Monday to address claims processing and administration and also by news of the addition of raw score requirements to the settlement. It was delivered to Judge Brody’s office by way of a process server approximately two hours before the hearing took place. Numerous emails to the Court from distraught players and their families were also sent over the course of the weekend.
Judge Brody did respond to the players’ letter indirectly. Her clerk called to acknowledge receipt of the letter. While the hearing remained closed and audio of the hearing was not done, Judge Brody did record an approximate three-minute message to the Class and made it available through the court’s ECF system.
In part, Judge Brody said:
I have made it very clear that it is the Court’s duty to ensure a good faith attempt by all the parties to implement the settlement.
That is my commitment to all the players.
The claims administrator will make public reports including the following, that I receive on a weekly basis:
The registration reports
The monetary award claim report
A report on appeals
A report on audit of claims
All future conferences addressing settlement administration will be public
Many players and their families have expressed gratitude for Judge Brody’s acknowledgement, and all eyes are now upon the court to see how the promises unfold. Meanwhile, more claims are facing unseemly denials.
The first joint status report from Co-Lead Class Counsel and NFL Counsel since June was issued November 3. It is only the second status report to be released since the claims process began in March.
Only generalized and scanty figures were released:
20,354 Registration Notices received
12,591 Settlement Class Members eligible to participate in the Baseline Assessment (BAP) Program
1,421 Monetary Award Claim packages received
140 Approved claims with Notices of Monetary Award Claim Determination issued (worth a gross value of approximately $195 million with $99,916,866.66 actually paid out)
20 claims under appeal (including 12 appeals by Class Members and 8 approved claims appealed by the NFL.)
53% of Claimants have filed pro se without independent legal representation.
The following can be assumed, however, based on those figures:
Less than 10% of submitted claims have been approved
5.7% of approved claims have been appealed by the NFL
Much more important than numbers, however is the fact that each one of these numbers represents a human being that has already had to endure devastating illness or loss of a loved one coupled with years of difficult litigation that still, seems to have no end.
Brandi Winans is one face among many dealing with the frustrations and disappointments of the settlement. Her husband, Jeff, who was a tight end for six NFL seasons died in 2012 and was posthumously diagnosed with CTE. Her death with CTE claim is one of the previously approved claims that the NFL has appealed. Though NFL disability recognizes his six credited seasons in the league, because he spent two of them on injured reserve, they have said that he does not qualify for a claim. Not only do they dispute his credited seasons, but also the pathology report done by the renowned Boston University pathologist and CTE pioneer, Dr. Ann McKee.
“They try to say that doctor Ann McKee didn’t have enough as evidence in order to make that statement that Jeff had CTE, but she signed a qualifying diagnosis under purjury that Jeff had CTE in Jan 2014,” Brandi said. “Their thing is they’re trying to protect everything from fraudulent claims that are being sent but they keep changing what’s required all the time.”
Fraud prevention, while certainly necessary, seems very excessive, to the point few legitimate claims are being approved. But fraud prevention at least on the surface appears to be a tactic to delay and deny. Insurance companies have measures in place to detect fraud but are seldom caught up in the kind of unseemly delays that have become synonymous with the Concussion Settlement. As one observer phrased it, “Why the obsession with fraud? This is a known small class of injured employees, not a cattle call class action.” Indeed. Many “cattle call” class actions have gone much more smoothly.
Most concerning, however is the fact that Co-Lead Class Counsel Christopher Seeger seems to have forgotten who he is allegedly working for and tasked by the court to represent. Thus far he has, side by side with the NFL, opposed every motion that has been placed before the court that might give relief to neuro-cognitively damaged NFL retirees. Equally troubling is the fact that Chris Seeger has the ability to challenge NFL appeals and there has been no indication of him doing so.*
(c) Co-Lead Class Counsel may submit a written statement in support of or opposition to the appeal no later than fifteen (15) days after receipt of the Appeals Form or an appellee’s written opposition. This written statement must not exceed five (5) single-spaced pages in length. The Court will not deem the lack of a statement to be an admission regarding the merits of the appeal. The appellant and appellee(s) may each submit a reply.
It appears more people are beginning to take notice of the problems plaguing the settlement. Recent articles in The New York Times and Washington Post highlight many of the obstacles facing players and their families. A You Tube channel has also emerged with videos of contradictory statements of those involved in administering the settlement, such as the ones below:
I’ve sent two emails to Mr. Seeger and Mr. George as an attempt to clarify number of deficiencies and reasons for the additional records but have received no acknowledgement or response.
An email from a Class Member, and response from Scott George of Seeger Weiss on November 1, which was obtained by Advocacy for Fairness in Sports attempted to secure similar information:
The response from Mr. George appears to vaguely address the Class Member’s concern, however he used the term “generally consistent” which has been the area disputed in the motions asking the court to administrate the settlement as written. Currently players are being subjected to the process designed for later claimants which is more stringent as later doctors would have the benefit of the criteria they must meet in order to render a qualifying diagnosis. The additional documentation that is being requested from players was not defined in the actual settlement agreement and pro-se Class Members such as the one who sent this email are still left with minimal guidance.
This Class Member asked generalized questions as well as questions specific to the family’s claim. None of the general questions were addressed aside from this note at the end of the correspondence.
The same Class Member, in a call to the Claims Administrator reports that when presenting generalized questions in regard to the number of claims in deficiency status and number of approved claims for the various qualifying diagnoses defined in the settlement an agent identified as, “Amanda” said the numbers would not be released “because this is a high-profile case.”
One might counter this logic with the opposite conclusion; that a high profile case should command more transparency and greater reporting than an obscure one. Nevertheless, solid figures are extremely well protected and difficult to obtain. Since 1,281 of 1,421, or 90% of claims have not been determined, according to figures that were released, it seems reasonable to assume a majority of these claims are in some state of delay. Perhaps the weekly postings that Judge Brody promised in her audio file as well as a notice dated November 15 will shed a bit more light. Or perhaps not.
The Class Member noted above questioned their deficiency in late October and received a response on November 1.. The player’s diagnosis had already qualified him for the NFL’s 88 Neuro-Cognitive Benefit Plan.
On November 8, the claim was denied because it lacked the raw score data described earlier which was adopted on November 7, but apparently withheld from Class Members prior to his date. This requirement certainly was not made known in Mr. George’s correspondence with the Class Member, nor did Amanda at claims provide any information in this regard.
For now, at least, anxiety and depression seem to be the prevalent mindset of many in the retired NFL community. This and fear. I’ve spoken to dozens of players or their wives and it seems many want to tell their stories, but when I circle back, a wave of fear; fear of the NFL; fear of Seeger Weiss; and an over-all fear of retaliation in the claims process engulfs them and causes them to retreat. Two weeks ago I had to abort an article because the players who spoke to me had second thoughts about revealing their names – or even their stories due to fear of retaliation. This might be expected when it comes to the NFL, but players should not have to fear the court appointed counsel representing them nor the person in charge of administrating their claims.
I’ve tried reaching out to a number of law firms to validate that circumstances are as dire and extensive as my evaluation of court documents and interviews with Class Members has led me to believe. While none would go “on the record” for various reasons – not the least of which is concern of retaliation – all agreed that the deficiency problem is both pandemic and highly frustrating. Among firms that have not filed motions to address the problem the general consensus seems to be that they are going to do their best to comply with any demands, however unreasonable, and attempt to navigate through the murky waters ahead. A few have held off filing claims in hope that the “mess” will soon be sorted out. That certainly seems to be the hope of everyone involved with the settlement to date, outside of Mr. Seeger, at least, who at least on September 19, felt the process was “working perfectly.”
*Update: 11/15/17 8:45 PM – It has come to my attention that Seeger has written at least a couple of briefs in support of denied claims.