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January 10 Hearing to Be a “Pivotal” Point in the NFL Concussion Settlement

NFL Concussion Settlement Hearing January 1, 2019
January 4, 2019
Sheilla Dingus

On January 2, Judge Anita B. Brody issued an order scheduling a hearing to finally determine the fate of the settlement’s “generally consistent” standard, and with it the fates of hundreds, or possibly thousands of retired NFL players. This is the first record of the issue on the public docket, however the preliminaries leading to the hearing began in the summer of last year.

Law360’s Ryan Boysen reported the story for the first time nationally shortly after the order was issued.  I’ve been reporting story developments since August 2018 and appreciate the Law360 credit for breaking the story.

Two appeals are awaiting determination.  The hearing will focus on the “generally consistent” standard of evaluation for pre-effective date and MAF claims as opposed to the rigidly settlement designed BAP program.  The other appeal in process relates to the use of appeals panel specialists (AAP) and whether their use should be mandatory or discretionary regarding MAF diagnoses.  Should the NFL prevail in these appeals, the settlement will be radically altered.

The Law360 piece incorporated numerous quotes from attorneys both inside and outside the settlement as well as explaining the issues concisely, so I’ll I’ll borrow heavily from it as I attempt to present the issues in a relatively brief manner.

Generally Consistent

Attorney Patrick Tighe of X1 Law expects that the issue will be appealed to the Ninth Circuit, regardless of how Judge Brody rules.

excerpt 1

Tighe went as far as to say if the NFL wins the appeal, he may try to find a way to opt his player-clients out.

Both matters at issue were decided favorably to players, as rulings of fact by Special Master Wendell E. Pritchett, and should not be appealable, but the NFL has couched its appeal as a dispute of points of law, in order to be heard by Judge Brody.

Paul Anderson quote

On the surface the uncapped settlement appears to be a success—as of December 21, 736 claims for monetary awards worth $597,756,768 were approved, and paid claims are beginning to catch up with approvals at 523 awards totaling $410,476,250.  A closer look shows a much different picture, however.

Initially a $675 million settlement[1] was negotiated and presented to the court.  The settlement was rejected by Judge Brody and the parties came back with an uncapped settlement with stronger fraud prevention and audit procedures which the NFL has weaponized to try to keep the settlement capped at the original figure.  Figures in the Vasquez Report, that was used to estimate settlement payouts grossly underestimated how sick the retired NFL population is, and how young the players are being affected by brain damage.  Figures from the report are shown below.

Vasquez Report

A very small window of CTE deaths are covered in the settlement—players who died between July 7, 2014 and April 22, 2015 and received a post-mortem pathology diagnosis qualify for compensation.  The Vasquez Report predicted compensation for 46 CTE deaths in the amount of $64.9 million.  As of December 2018, 72 Death with CTE awards have been approved in the amount of $89,005,814.  This is really an alarming figure and disturbing in that as of 2016 Boston University had examined 111 brains of deceased NFLers, 110 of which tested positive for CTE.  It’s unknown how may additional brains have been examined since then as well as those examined by Mayo Clinic, or other examiners outside BU.  Many settlement class members are tied to a settlement in which they have a legitimate claim for CTE but are not compensable because of the narrow settlement terms.  The earliest CTE diagnoses, beginning with Mike Webster in 2011 and all who died prior to July 7, 2014 are ineligible for compensation, as well as those who died after April 22, 2015.  One class member’s claim was denied because they did not receive the pathology report within 270 days of the players death, even though his family had no control in the matter.

Only 18 players were projected to have or be compensated for ALS over the course of the 65-year settlement term; instead, 44 ALS claims have been submitted and 35 approved for monetary awards totaling $92,466,616.  Only one ALS claim has been denied, therefore, eight more appear to be in the cue.  Apparently, the actuaries only counted players who’d gone public grossly underestimating the prevalence of ALS in the retired NFL population.

These two categories compose 6% of claims filed but account for 30.4% of monetary awards issued.  As many experts predicted as the registration and claims processes opened, dementia claims have been hardest hit by the NFL’s attempt to mitigate its losses, with Alzheimer’s disease following closely behind.  Why?  These diagnoses are more subjective than CTE pathology, or an indisputable diagnosis of ALS or Parkinson’s disease.

These three categories compose 82% of claims filed but only 53% of compensation dollars.  Removing Alzheimer’s from the picture, since those diagnoses are rendered completely outside the settlement designed BAP which presents numerous obstacles to a compensable dementia diagnosis, using only the most stringent of qualifications not generally employed in normal medical practice, the numbers become even more dismal.  Levels 1.5 and 2 Neurocognitive Impairment (dementia) make up 64% of claims filed and only 32% of approved claims.  Through these appeals, the NFL wants to halt approvals and backtrack on those that haven’t yet been paid.  A ruling favorable to the NFL could even potentially endanger settlement awards that have already been paid, should the NFL decide to contest their legitimacy.

Mass tort litigator Timothy O’Brien, who is not involved in the concussion settlement told Law360, “Effectively they’re attempting to treat this as litigation still, even though it’s the executory phase of a settlement.  It’s very strange.”

While the settlement provides two paths for obtaining a qualifying diagnosis, the NFL, through these appeals, seeks to effectively close the door to most non-BAP claims, and through examination of the filings, it seems not even these are completely safe.  If Judge Brody rules in favor of the NFL, players will have only the stringent, BAP criteria, which doctors have stated is not based on normal medical practice.  Coupled with their insistence of mandatory AAP consultations—consultations with doctors seemingly predisposed to favor the NFL’s arguments, only the sickest of players in the final stages of dementia progression would be compensable.

If this is allowed to happen, players will not receive funding for medical care that could slow down the progression of dementia, nor will their families have financial security when wives are forced to give up their own jobs to become full-time caregivers.

It's not fair

Another important factor noted in the Law360 article was that players only receive one free BAP exam.  After that, their only option for obtaining a qualifying diagnosis is through the MAF program, that is under attack by the NFL.  If players do use their free BAP exam and fail to get a diagnosis qualifying them for a monetary award, and if they don’t have the money to pay for a MAF exam, there will be no way for them to file a compensable claim.  Early in the process, most attorneys were willing to upfront the cost of neurological exams, but fewer and fewer attorneys are able to continue this practice due to the NFL’s attack on claims and the number of diagnoses that are rejected.  Attorneys are only able to take on a certain amount of risk, and many now feel its too risky to invest in exams that will be fought tooth-and-nail by the NFL.

Law360 points out another major difference in the MAF and BAP programs:

major difference

As pointed out by Law360, “Their methods must only be ‘generally consistent’ with the BAP physicians’, according to the hard-fought language of the settlement agreement.”  This is at the crux of the appeal which will be argued January 10.  The arguments will center on these opposing viewpoints:

two viewpoints

Attorney Pat Tighe stated, “NFL is trying to bastardize ‘generally consistent’ to mean that a doctor can’t rely on their own discretion.  “This would just make the BAP standard the standard for the MAF as well,” Tighe explained, “making it much more difficult for many players suffering from dementia to receive a qualifying diagnosis. “It would materially alter the heart of the settlement.”

Tim O'Brien quote

It seems obvious based on Mr. O’Brien’s remarks that this appeal objection should have never gone this far, and one might speculate as to why it has.

One indicator could be that Judge Brody isn’t fully aware of the intricacies of the medical issues.  She has not allowed attorneys representing individual players to speak in her courtroom since the settlement became final; therefore, it’s likely she isn’t getting the full picture.  The NFL’s attorneys are highly competent and present arguments that look good on the surface.  Judge Brody has often ruled favorably to their requests.

While Mr. Seeger’s arguments in the motions leading up to the hearing were well pled, he doesn’t represent many players individually, and because of this, has had much less interaction that would help him to understand how the players are impacted.  If he isn’t one-hundred-percent clear on this aspect, it’s fair to ask if he will be able to clearly explain the intricacies to the judge.  This is something that individual attorneys should be permitted to address and explain, and I find it troubling they’ve not been given this opportunity.  No player or member of his family has been able to directly address the court since the settlement became final, leaving the observer to wonder how much Judge Brody truly understands.  For the players’ sake, I hope Mr. Seeger can present clearly, the arguments that need to be made.

Still, as Mr. O’Brien stated, from a purely contractual standpoint, you just don’t go in and alter a signed agreement.  This concept seems to stand on its own and it’s puzzling as to why Judge Brody would even entertain the thought of allowing this to take place.

The generally consistent standard will for all practical purposes be on trial next week.

AAP Review

Judge Brody also must rule on mandatory use of AAP, but it doesn’t appear she’ll be addressing this at the scheduled hearing.  She may rely on motion practice alone, or another hearing could be scheduled.

Per settlement language, the special master is only required to consult AAP for pre-effective date diagnoses made completely outside the settlement.  The NFL seeks to alter the agreement once again by making AAP consultation mandatory for MAF diagnoses, as well.

O’Brien aptly compares the AAP to the Trojan horse of Greek mythology.

O'Brien - Trojan horse

How these two appeals are decided will dictate whether the settlement will be a benefit or liability to injured players.  If Judge Brody should rule in favor of the NFL, it will also set dangerous precedent of a defendant being permitted to unilaterally alter a contract, or settlement agreement after court approval, and no provisions for the plaintiffs in opting out.  As Mr. Tighe stated, these issues could easily make their way to the Third Circuit, and because alteration of a settlement agreement is at the crux of the issue, perhaps even the Supreme Court.  It will probably be a long time before players have a final answer.

I’ve linked to my previous work on this subject for those who are reading about the appeals for the first time.  The public document including Judge Brody’s order and some of the prior arguments is embedded at the bottom of the page.

Advocacy for Fairness In Sports prior coverage:

These articles are indirectly related:

[1] With interest over the 65-year term of the settlement, total compensation was estimated to be $933 million, as shown in table 2.2 of the Vasquez Report.

Judge Brody’s January 2, Order with supporting documents:

Editor at Advocacy for Fairness in Sports | Website

Sheilla Dingus founded Advocacy for Fairness in Sports in October 2016, after a stint with Defenders of the Wall, a New England Patriots based blog where she dived deep into the legal aspects of Deflategate. Along the way, she observed many inequities in sports and felt a need to address some of the under-reported stories in sports law. She draws from her background as a former professional dancer, who like many of the athletes she writes about, took an early retirement due to orthopedic injuries. After a return trip to college she worked for a legal software company, with seven years as a Project Manager and Analyst. She brings her analytical skills to the table in breaking down complex lawsuits, and enjoys pursuing her longtime interest in journalism.

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