August 30, 2019
Last week Judge Anita B. Brody denied a motion filed in February by attorney Patrick J. Tighe asking the court to limit audits on concussion settlement class members to one per claim, as many of the players he represents emerged from one audit only to be plunged into another shortly afterward. Whenever a claim enters an audit, processing of the claim stops. The claims administrator requests whatever information he feels is relevant to the audit and interviews doctors and pretty much puts every aspect of the claim as well as every person associated with it under a magnifying glass with no timetable for completion of the audit.
Tighe argued that the settlement agreement provides for “an audit” (singular) of a claim, not multiple audits of the same claims over and over again. In addition to provisions to random audits of 10 percent of approved claims, Tighe pulls the following language from the settlement agreement that mandates and audit to make his point.
Tighe said that numerous players he represented were swept into an audit where they remained for months. After they were removed with no finding of wrongdoing, they went back into the claims process and were denied. The players appealed (which cost them $1,000 each while there is no cost for the NFL to file an appeal) and the NFL responded. Just before a decision from the Special Master was expected the claims were swept into yet another audit putting the claims process on hold. Tighe asserted that if a claim is audited and no indication of fraud is found, then it should be processed in accordance with the settlement agreement and not placed in perpetual audits delaying decisions for players with no reasonable hope of finality.
Claims administrator Orran Brown responded in disagreement.
Even the title of his response brief is misleading in that Tighe attempted to address misuse of the settlement agreement’s audit positions to keep class members, including his clients, in perpetual audits, but since he is private counsel, he is unable to file a motion on behalf of the class and Brown focused specifically on Tighe’s clients and attempted to paint his motion as seeking to game the system rather than correct an implementation error.
Initially, his claims were filed with diagnoses performed by a MAF physician for records review essentially a review of records is what the Appeals Advisory Panel (AAP) does on the backend when the Special Master inquires of them during an appeal. Tighe had uploaded his file information to the portal prior to submitting any claims and he took down the original doctor’s certification in favor of the MAF’s, then proceeded to submit the claims originally and for the first time with the MAF diagnosis.
The original diagnosing physician certificate that was signed by the MAF neurologist was submitted and audited. During the audit, Orran Brown and Chris Seeger instructed Tighe to get his players examined by the MAF or submit them under the doctor who’d initially examined the players. Tighe did as instructed and decided to put in the original physician certificate with the same underlying medical records that were always in the claims portal. Brown claims the first audit was based on the diagnosis (which was actually a records review) by the MAF doctor and the second audit was on the diagnoses rendered by the examining neurologist. Therefore, the medical records never differed. The very same diagnosis was submitted supported by the very same medical records that two different board-certified neurologists had signed off on under penalty of perjury.
While Tighe’s main argument was that the settlement agreement does not provide for the claims administrator to conduct multiple audits of the same claim, Brown says that various implementation procedures grant him that authority. He first references Rule 10 governing audits:
As an additional authority, Brown cites a judicial order that issued in response to a motion filed by a different law firm when their claims were placed on audit for the first time.
The claims administrator goes so far as to state that he has the authority to audit a claim at any time, even after it has been paid.
The NFL could not have asked for a claims administrator intent on pursuing their interest nor a judge more favorable to their position than the ones they drew in this settlement. This rendering gives absolutely no finality to any class member, even after his claim has been paid, and since the settlement has begun to resemble the perverse disability plan model, which has sought to claw back money awarded to players, one wonders if this isn’t far behind in the settlement. I’ve been told this has been attempted at least once in the settlement but have no documentation to confirm.
Tighe filed a response.
The Claims administrator filed an amended response:
Then X1Law replied:
The summary of all this boils down to Tighe’s assertion that the authority Brown claims is not derived from the actual settlement agreement, and he points out that Brown has offered no argument to the contrary.
Orran Brown seems to operate under a presumption of guilt and weaponizes the audit process to force players, doctors, and attorneys to prove they are innocent of fraud rather than proceeding with a presumption of innocence and allowing the adversarial process of appeals to determine if a claim is valid. In fact, it seems the claims administrator and the NFL have ganged up on players to scrutinize every area and aspect of their lives to find any shred of evidence that they don’t meet the verbatim protocols outlined in the Baseline Assessment Program (BAP).
As an example, if a player says he doesn’t drive, and doesn’t as a general rule, but is caught making a rare trip to the corner store, his claim will be declared fraudulent. In alignment with another ruling by Judge Brody that instituted stricter Monetary Award Fund (MAF) physician rules, players suffering from dementia are now being asked to recall almost every activity they may have participated in over the past five years. Should the claims administrator’s audit or the NFL’s investigators find anything that appears to conflict with their statements, the NFL is seeking to permanently disqualify the player from participation in the settlement program and seek a criminal indictment on felony fraud charges.
I’ve learned that Judge Brody has ruled on this NFL objection but documents are difficult to come by. All I’ve been able to determine at this point is that she ruled in favor of one player who was caught up in the objection and against the other four. Thankfully, I’m hearing that no players so far have been disqualified as a result of the objection and no criminal charges have been filed. I’ve also been told that the class members have been instructed to submit new claims and told to clarify the areas in which “misrepresentations” were found. This seems to be a positive development if it holds. It seems significant that Judge Brody deferred on making a general ruling or “implementation decision” and elected to individually rule on the set of claims caught up on the NFL objection. This likely means the players escaped a bullet this time, but the question now is will she defer a decision indefinitely or will she wait until months or even a year later to rule as she did on the NFL’s request for a special fraud investigator?
Last week Judge Brody’s order denying the audit motion and her explanation leaves more questions than it answers.
She prefaces her order by writing:
She then writes that because of the extended term of the settlement agreement that the Court is placed in “relatively uncharted territory.” This much may be true, but Judge Brody’s navigation system seems a bit askew based on her next statement.
On a cursory reading, this might appear reasonable and even fair, but in looking between the lines and taking into consideration her prior implementation decisions there’s cause for concern when attempting to unwrap the court’s apparent holdings on what exactly is “fair” and “honorable.”
First, and this is vitally important, she states, “the Court is not guided by Rule 23…” The components of Rule 23 of the Federal Rules of Civil Procedure are the accepted policies and procedures designed and adopted by the courts to ensure that class action settlements are fair, and that class members receive adequate notice and ability to opt-out of agreements that are not favorable to them. The rules were structure for this to occur prior to a settlement effective date, however, it should also be a protection against changing the terms once the opt-out period has expired.
As the settlement went from preliminary to final approval, Rule 23 was followed precisely for the most part, although in retrospect it seems doubtful that class members dealing with neurocognitive deficits (Alzheimer’s disease, and Levels 1.5 and 2 Neurocognitive Impairment or dementia) as opposed to those suffering from neuromuscular disease (ALS, Parkinson’s) were adequately represented. While the settlement has been of great benefit to the latter, the former more often than not have been treated like criminals intent on fraud as opposed to impaired class members seeking promised compensation.
Perhaps this is due to inadequate representation since the two named class representatives were Shawn Wooden, who represented a sub-class of presently unaffected players and Kevin Turner who suffered from ALS who represented a sub-class of impaired players. Perhaps the second sub-class should have been split into two subclasses: players afflicted with neuromuscular disease and payers afflicted with cognitive impairment.
Even if this is correct, it’s not too late to correct these problems but Judge Brody’s view tends to echo that of the NFL and the Claims Administrator who seems determined to help the league achieve its goal of loss mitigation and deference to this is far from “honorable.” The settlement was achieved, after all, because thousands of players sought accountability from the NFL for defrauding them of their brain health.
Perhaps in one respect, it’s easy to imagine why Judge Brody, a conservative Bush appointee might see things in this manner. Brad Karp, Richard Tarlowe, and Bruce Birenboim, who represent the NFL strike a commanding presence in the courtroom. They work for a white-shoe law firm and present themselves immaculately groomed and attired as penultimate professionals. While one may debate the morality of representing a monster, they uphold the ethics of their profession in providing vigorous representation of their client NFL. Perhaps these white men in their expensive business suits seem more trustworthy to the judge than the predominately black retired players who compose the settlement class. Could it be a predisposition to favor corporate and business interest over that of workers plays a role? Perhaps she views the settlement in a similar vein as entitlement programs which conservatives tend to disfavor.
This, of course, is speculation aside from the fact she is a Bush appointee. Players, attorneys, and onlookers have struggled to figure out why Anita B. Brody rules in the manner she does, and I’ve heard theories ranging from concern that she may be suffering dementia at age 84 to some who think she’s on the take.
I tend to believe the problem likely rests more closely in her ideologies and related subconscious biases that appear to infect her reason rather than overt wrongdoing.
Fitting within this viewpoint, she writes, “Safeguarding the integrity of this claims process is crucial to implementing the Settlement honorably,” and refers to audits as a “central piece” of the program.
Note her use of the word, “intentional.” Early in the implementation of the settlement, the focus seemed to be on determining if misrepresentation, omission or concealment occurred, but not in determining intent. This began to change in April 2018 when the NFL filed a caustic motion requesting a special fraud investigator with the authority to determine intent and impose punishment. I went deep on this subject shortly after the motion was filed, and if you’re new to following the concussion case, it might be worth the time to examine the background.
Judge Brody’s recitation of the “facts” is disturbing. Attorney Tighe and Claims Administrator Orran Brown gave two very different perspectives on the background of the X1 Claims under audit.
Judge Brody has accepted the Claims Administrator’s version of the “facts” as accurate without any acknowledgment of Tighe’s assertions and no known attempts at clarification whatsoever. To my knowledge, nothing was done to determine the particulars—just an unequivocal acceptance of Brown’s word over Tighe’s. Judge Brody has shown deference to NFL counsel, Mr. Brown, Mr. Seeger, and virtually no one else. How can any semblance of due process prevail if one of these parties is in disagreement with another party? Will that party’s testimony be discarded as not credible? This is certainly the appearance she’s putting forth and if this is even more pervasive off the docket and hidden on the portal, then there’s no wonder why she fiercely opposes all attempts at transparency.
As written earlier, Tighe stated this is an inaccurate representation. He says all documents were filed and made available to the claims administrator, and the only change was the Diagnosing Physician Certification Form by the MAF Neurologist who performed the records review. The original physician records had never been removed since the MAF diagnosis was simply confirmation of those records. There appears to be a genuine, unresolved controversy surrounding the facts of the audits and her order resembles a summary judgment decision, without an attempt to make any independent determination.
Brody refers to the Diagnosing Physician Form as “the defining element” of the claim package but the focus should instead be on the medical records themselves. The form only certifies them to be correct
It appears that Brown conducted an audit to see if the MAF physician was acting in a fraudulent manner without even examining the underlying medical records that he reviewed. When it was concluded that the MAF neurologist had not committed fraud, the claims were removed from audit and then placed in audit again to attack the diagnoses of the doctors who performed the in-person examinations.
Perhaps they could, had this occurred, but in the case of the X1 claimants, Tighe says this did not occur. The very same medical records were part of the claim record from the beginning and the determination that a MAF physician is not authorized to provide a review of records or a second opinion based on that review does not preclude the original medical records on which the claim was based.
Settlement agreements are generally considered to be contracts and contracts are interpreted in accordance with the text that is contained in the document. With only one exception, I’m unaware of any reading of the settlement agreement and subsequent “interpretation” that has been favorable to class members. In fact, a “narrow reading” is how most attorneys assumed the settlement would be implemented and as such they recommended it to their clients. I don’t think anyone involved on the plaintiff side anticipated the many administrative changes that have completely altered the balances bargained for. I’m aware of no instance in which the actual terms of the settlement would prevent the payment of meritorious claims, but many instances of how the court’s interpretations have done so.
Judge Brody’s next statement seems most problematic of all.
Had this been as Brody saw it based on the claims administrator’s assessment, the inference would be reasonable. Had a new claim package been entered that included different medical records this would have been a valid concern. Not necessarily cause for an audit, but perhaps an extra look to see if anything seems amiss. However, this could become circular. Something is added or replaced in audit number one so that new information triggers audit number two. New information is added in audit two, so that triggers audit three, and so forth. As long as this type of process is permitted, a player could enter an endless circular cycle with no way out.
If a claim is audited, then let it proceed. The NFL has a right of appeal, and should they present clear and convincing evidence, the claim would be reversed. They’ve demonstrated that if they don’t like the special master’s decision, they’re more than willing to exercise their options before Judge Brody.
Whenever you have to emphasize that a party is “neutral” or “independent” that’s typically a red flag that they aren’t. I’m sure the claims administrator’s office is compensated for their hourly output and what better way to increase compensable work than conducting repeated audits? As the song says, “Nice work if you can get it,” but Judge Brody needs to stop the infinite audit machine and instruct the claims administrator to evaluate every element of a claim the first time. Then he can evaluate any new information as the claim proceeds and approve or deny accordingly rather than keeping impaired and often emotionally volatile men on edge for months, or in some cases years at a time.
One player I know compared the NFL to the fable about the scorpion and the frog.
He said, the NFL is the scorpion. It’s the scorpion’s nature to sting everything in its path. Retired players have felt the sting for decades. Active players have felt the sting through punitive and seemingly arbitrary punishments. Colin Kaepernick has felt the sting as he finds himself unemployed because of his protests of police brutality against people of color and systemic racism. Cities have felt the sting through stadium subsidies and team relocations for failure to pay up.
Presently the scorpion seeks to sting players suffering from dementia, but while the claims administrator and Judge Brody may feel immune from the scorpion’s sting since they have offered to carry it across the river, they too will eventually be stung when their deeds are discovered. should they fail to awaken to the nature of the scorpion who would drown before abandoning the power of its sting. The scorpion knows no loyalty—only an insatiable desire for control.
“It’s in their DNA,” said Gene Locks in a motion more than a year ago. It’s simply the nature of the beast.
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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.