May 11, 2019
About the only thing that the claims administrator and class counsel seemed to agree on at an April 7 hearing on changes related to MAF Physicians was that more doctors are needed to examine players for benefits in the NFL Concussion Settlement, and an April 10 submission by Locks Law Firm demonstrates how doctors have been blindsided leaving a void for retired player exams.
As I reported, previously, attorney Gene Locks passionately defended the players and told the court that rules created by Claims Administrator Orran Brown were in direct conflict with the agreed upon provisions and balances in the adopted settlement. At the conclusion of what seemed to be a contentious hearing, Judge Brody called Locks, NFL Counsel, and Orran Brown to her chambers (although Brown did not report to chambers immediately and granted me a brief interview in the interim.)
During the hearing, both Locks and David Langfitt from the same firm told the court they felt suitable rules could have been developed had they and other attorneys who actually represented players been allowed to participate in the process. On Friday, Locks and Langfitt submitted a supplemental memorandum with proposed rule revisions that are much more player and doctor friendly.
The memorandum emphasized that the rules proposed by Brown are in violation of both the settlement agreement and the court’s final approval order.
The memorandum states that class counsel spoke with Brown following the hearing and offered examples of suggested edits to the rules, and later that day emailed him a copy. The exhibits attached to the memorandum contain the submissions to Brown. They state that their proposals do not amount to a revision of the settlement agreement and if they are granted leave to work with the claims administrator and special masters on an acceptable compromise they may consider withdrawing the motion for consideration.
(Note: I’ve shown the additions suggested by Locks Law Firm highligted in blue to compare with Orran Brown’s version.) The following is an addition to Rule 1, and shows the significance of MAF physicians to the program.
Rule 3(a) which authorized an AAP Leadership Council was stricken in the Locks submission.
Rule 3(e) was only modified slightly, adding “an independent” exam.
Rule 9 was the rule that was found to be most threatening to the class, and as you can see, the Locks version is a complete revision.
Instead of requiring a player to select a MAF physician within 150 miles, the proposed edit states that “The claims administrator and special master encourage players to seeks a physician close to their primary residence.” The revision suggests several reasons why a player may find benefit in choosing a doctor closer to him. As such the restrictions and reasons for exceptions were replaced with reasons a player might wish to choose a MAF physician within 150 miles.
In rule 10, which sought to mandate the use of a neuropsychologist within 50 miles of the neurologist, the language was changed from “must refer” to “should use.”
Rule 10(b) was a complete re-write with terms removing the mileage specifications and with terms much less restrictive to the examining neuropsychologist.
Provisions 10(c) and (d) were simplified but not materially changed regarding the handling and evaluation of neuropsychological testing by the MAF physician.
Rule 11 incorporates privacy safeguards for retired NFL players.
Rule 13 “Questionable Practices” had a few modifications favorable to class members and less restrictive to attorneys.
Provision (c) places permission on the class member rather than the claims administrator. Provision (g) permits certain administrative work to be done under the oversight of the MAF provider, and Provision (k) requires permission for a class member to use a provider that has done unrelated work for his attorney rather than prohibiting use of the physician.
At the conclusion of the Rule 13 provisions, the following is included in both Class Counsel and BrownGreer’s rule revisions.
In Class Counsel’s Exhibit 2 mark-up, this language follows, however:
provided the Claims Administrator first distributes the material it receives to the Qualified MAF Provider and to Co-Lead-Class-Counsel and Counsel for the NFL Parties, which shall keep all information received strictly confidential and provided the Qualified MAF Physician, Co-Lead-Class Counsel and Counsel for the NFL Parties have had fair opportunity to be heard before any termination becomes final. Notwithstanding anything else in these Rules, the Claims Administrator shall not publicly damage in any way whatsoever the reputation of a Qualified MAF Physician, except to the extent the behavior of the Qualified MAF Physician is criminal or fraudulent, in which case a complaint may be filed with the State Medical Board.
It is unclear if this was meant to be included in Locks’ final proposal, but seems to be an appropriate safeguard of physicians, many of whom have declined to participate for fear of damage to their reputations should their diagnoses fall into dispute.
Rule 17 changes “reviewed or relied upon” to “reviewed and relied upon” regarding medical records submitted to the examining MAF physician.
Rule 18 adds “attorney” after “authorized representative.”
As I stated in my previous articles, and as brought out in court by Mr. Locks and Mr. Langfitt, many of these rules, as well as other prior actions give the appearance of trying to neutralize private attorneys and even non-lead class counsel to as much extent as possible. Hopefully, the April 7 hearing will begin to turn the tide.
Rule 20 substitutes “must provide in writing, in the method prescribed by the claims administrator and to the satisfaction of the claims administrator, any deviation from the BAP diagnostic criteria and must obtain information from the Examining Neuropsychologist as necessary to provide a complete explanation” with “must explain in his or her diagnostic report why in his or her judgment the diagnosis rendered is generally consistent with the BAP diagnostic criteria and BAP neuropsychological test protocol. It reminds the court and claims administrator on the definition of “generally consistent” adopted by the court and special masters.
In the Locks recommendation, there are only provisions a – c instead of a – e as in the BrownGreer version.
Additionally a reading of the Locks proposal presumes legitimacy on the part of the player and physician whereas the BrownGreer version seems to have concluded wrongdoing from any deviation, such that a player and his physician must overcome in order for the player to qualify for a monetary award and for the doctor to avoid professional ridicule for using his years of medical experience to diagnose instead of relying solely on a rigid check the boxes format. An analogy I find as an appropriate comparison is that of Social Security disability.
When a disabled person first applies, his or her application is sent to an agent who merely checks off boxes. If all the boxes get a check, the person is approved, but if even one box doesn’t, the person is denied. Typically the only people who frequently qualify on their first disability try are those who’ve been in a catastrophic accident and suddenly became fully disabled. For people whose disabilities overtook them gradually or have multiple conditions, none of which would totally qualify the person, whereas the cumulative should, are denied until their appeal is heard by an administrative law judge. The administrative law judge, in a manner similar to a MAF physician, is allowed to use reasonable judgment as to a person’s impairment based on all pertinent factors and his or her experience.
The claims administrator’s “clarifications” closely align with the NFL’s attempt to do away with the generally consistent standard, forcing the MAF program to become a clone of the BAP. Just as with Social Security Disability, most truly disabled persons would not qualify if not for the role and flexibility of the administrative law judge. In the same vein, the unique character of the MAF, which most players will rely on for relief cannot be manipulated to deny all but the textbook cases of a condition that is anything but textbook.
The Locks version of proposed MAF Rules regarding “generally consistent” concludes with the following paragraph:
Locks’ proposal for Rule 23 does away with the NFL-friendly AAP at the onset of the claims review process and replaces it with a review of other MAF physicians should the claims administrator find a medical opinion useful.
Rule 24 is essentially the same in Locks Exhibit 1 and the BrownGreer rule.
Locks Exhibit 2, however, includes some additional language:
The powers and responsibilities of the MAF Steering Committee shall be limited in a manner similar to that of the AAP Leadership Counsel whereby assistance may be provided on medical issues only, and shall be non-anonymous and any affected Claimant, his personal representative, his doctors, and his attorneys shall have full access to information, full transparency, and an opportunity to be heard.
Locks Rule 25 provides a counterbalance to the aggressiveness of the BrownGreer version. (In Exhibit 2, as I believe was intended for Exhibit 1, the AAP Leadership Council was struck, permitting consultation with the MAF Steering Committee only.)
The Locks version also limits the MAF Steering Committee to consultation on “medical issues only” and stipulates, “at no time shall any member of the MAF Leadership Council or MAF Steering Committee attempt to pressure the Qualified MAF Physician or second-guess a clinical determination.”
Locks version of Rule 25(b) provides additional safeguards to doctors.
It seems reasonable that in the Locks submission AAP Leadership Council should have been stricken from the text, but I am presenting it as filed. The additional language added by Locks gives the MAF physician a right of appeal should he or she come under pressure to change a diagnosis.
Rule 26 is essentially the same except for an additional stipulation in the Locks submission.
The Locks addition reads:
except that the Claims Administrator may not damage the reputation of the Qualified MAF Physician or former Qualified MAF Physician except to report any criminal or fraudulent behavior to the State Medical Board.
In view of the damage, the NFL attempted to inflict on Dr. Bennet Omalu’s reputation, and other statements made regarding doctors removed or disqualified from diagnosing players within the NFL settlement, this is an essential safeguard. Without it, it would seem only doctors desperate for work as opposed to well-qualified professionals would even consider taking the risk of participation in the MAF program.
Rule 27 contains the same language, with additions proposed by Locks.
The Locks proposed amendment affords terminated MAF physicians due process in adding:
as determined by the Special Masters after the Qualified MAF Physician has had fair opportunity to be heard.” It also provides additional safeguards to retired NFL players in stating, “In the event of fraud, the Claims Administrator must notify any Claimant who is affected by the determination and give the Claimant, his personal representative, and his attorney the option to either withdraw his Claim or permit review, in accordance with the above Rules, by the Claims Administrator.
The Locks revision also prevents the confiscation of a paid award in stating:
Any Monetary Award claim that has been paid already may not be reviewed or disturbed.
This is a very important inclusion because, on information and belief, the NFL has attempted to claw back at least one paid award, and to the best of my knowledge, there has been no final resolution on the matter. Players should not have to live in fear that they will be forever stalked and should they show a moment of lucidity, worry that their awards will be taken away leaving them in a worse position than they were in prior to obtaining the award.
The NFL has done all within its power to humiliate, intimidate, and deny benefits to injured and deserving retirees. It is my hope that the court and the claims administrator will finally take heed and understand this is the NFL’s typical modus operandi, and implement the rules suggested by Locks in order to deliver on the promises made to the class of NFL retirees. Should the court fail to do so, it is also my hope that class counsel will continue to fight on behalf of the players at the Third Circuit and beyond if necessary, in order to curb the abuses. Attorney Lance Lubel has already appealed Judge Brody’s determination to the Third Circuit, with the appeal dropping on the docket just hours prior to the Locks revisions.
Abuses are common in multidistrict litigation and sometimes even when protected by FRCP Rule 23 as a class action settlement. While it’s desirable that action beyond the Eastern District of Pennsylvania will not become a necessity, should the violations of Rule 23 fail to be corrected at the district court level, I hope that widespread plaintiff protective reforms are the result of any appeals that might happen to play out.