March 14, 2019
In a 28-page response to Patrick J. Tighe of X-1 Law’s motion seeking court intervention for multiple audits of a single settlement claim, Claims Administrator Orran Brown asserts that he has the right to audit a claim as many times as he deems appropriate.
I wrote about Mr. Tighe’s motion shortly after it was filed on behalf of 30 retired players he represents that have been audited multiple times. He says most of the claims were submitted in August 2017 and flagged with notices of deficiency which was then changed to “preliminary review.” Shortly afterward, all of his claims were placed in audit and removed in March 2018 with a statement from the claims administrator concluding, “there was no reasonable basis to support a finding of misrepresentation, concealment, or omission of material fact.”
He says that a week after these claims were removed from audit, they were placed in preliminary review again with a request for the same information that had been requested and provided in the first notices of preliminary review, which he calls a “repackaged deficiency notice.” Shortly thereafter, the claims were denied.
Afterward, he says, several of the players paid the fee of $1,000 and filed an appeal of the denials. The NFL responded to these appeals, but then, just days before a decision from the Special Master was expected, the claims were placed in audit for a second time. He asserts 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.
Brown, on the other hand, disagrees. He claims audit authority through Rule 10 of settlement rules regarding audits.
As additional authority, Brown cites a judicial order that issued in response to a motion filed by a law firm when their claims were placed on audit for the first time.
At the time the Neurocognitive Football Lawyers’ motion was filed and denied by Judge Brody, the claims process was only half-way through the first year, and these claims were under audit for the first time, and at that time no claim had been placed in audit, been removed from audit, and then audited a second time.
It’s well known by now that additional audit protection was the trade-off with the NFL for uncapping the settlement, and through pushing for these audits it seems more than clear the league intends to do all within its power to re-cap it.
Why the “neutral” claims administrator is working overtime to help them succeed in their mission seems, for lack of better terminology, “not-so-neutral.” I don’t believe the NFL could have asked for anything more league-friendly than this statement:
“Any time in the claims process, even after they are paid.” Does this mean that no one will ever be safe? If a man is seen on a golf course after receiving an award, or if he is seen serving dinners at his church, or on the sideline of a ballgame, or maybe driving to the corner store does this mean the NFL can request another audit, and then possibly sue to take back his award? Consider this statement by the NFL in an appeal requesting mandatory AAP review that has yet to be decided.
While I have no documentation to confirm this, a source has indicated that the NFL is, in fact, attempting to pry back one award that was issued and paid to a player, and on information and belief, the situation has yet to be resolved.
The NFL clearly states that it has no intention of paying every neurologically impaired player.
Orran Brown seems to concur.
These statements leave open questions as to who really does qualify for an award, and if only the most severely debilitated players are the only ones deemed eligible, was the settlement misrepresented to players in order to entice them to join in, instead of opting out or objecting?
Crunching the Numbers
It appears both the claims administrator and the NFL are jointly purposed in keeping awards away from players who don’t “properly qualify” for the sake of “legitimacy” to “ensure this carefully calibrated and negotiated result.” It also seems reasonable to believe that the “carefully calibrated and negotiated result” was the projection presented in the Vasquez or Segal reports that were used to justify the previous settlement cap. Numbers in both reports were quite similar so I’ll use the Vasquez report that was prepared on the plaintiff side, for a comparison of projections with reality.
The high-dollar claims are key. Death with CTE, ALS, and Parkinson’s claims have all, within the first two years of claims processing, far exceeded 65-year projections. ALS has already doubled the 65-year projection. 28 more Death with CTE claims have been approved than were anticipated, averaging $1.25 million each. Parkinson’s claims are more than 8.2 times the 65-year projection, costing the NFL $73.4 million rather than the anticipated $3.2 million, and this is in 2 versus 65 years.
Though Alzheimer’s looks lower, Vazquez predicted that many dementia claims would progress to Alzheimer’s and Level 1.5 would progress to Level 2, therefore he omitted Level 1.5 from his calculations. According to the March 11 Summary Report, of the 2,701 claims presented thus far, 2,101 claims have been for Alzheimer’s or dementia; only 571 have been approved totaling $370.3 million. Even with only a 27% approval rate for Alzheimer’s and dementia, (If dementia claims are separated, 317 of 1,652, or 19% have been approved) this is over 45% of the 65-year projection of $815.9 million. The NFL planned to fund $675 million over the first 24 years and already, two years into the settlement is committed to $633.3 million in compensation.
Even in removing Death with CTE claims, since the filing deadline has passed (although 8 additional ones are in process) the NFL used approximately 75% of its 65-year budget. Assuming most claims are filed during the first 20 years, and discounting for no more additional CTE claims, at the current rate of $270.4 million per year, the NFL would be paying $5.4 billion—over $4 billion more than the highest 65-year estimate for the duration of the settlement. The settlement, which is widely referenced as a “billion dollar” settlement will easily cost the NFL at least three times that amount according to some attorneys.
I firmly believe the audits are the NFL’s anticipated method of damage control. Objectors projected numbers much closer to the reality of the settlement before it was finalized but were silenced in order to get the deal done. Experts with no role or stake in the settlement predicted that the NFL would attempt to mitigate its damages through dementia claims because diagnoses for dementia are more subjective than for the neuromuscular illnesses of ALS and Parkinson’s disease. They appear to have been correct.
A Trojan Horse
The criteria for the settlement approved and designed Baseline Assessment Program (BAP) and interpretation of what is generally consistent with it is the NFL’s strategic weapon in trying to keep dementia awards to a minimum. It was presented to players as a gift—free exams—but the evaluation methods for those exams are not the same methods a competent doctor in clinical practice would use.
Levels 1.5 and 2 Neurocognitive impairment don’t exist outside the BAP. The NFL seeks to use raw scores from neuropsychological testing as THE indicator of impairment, with little weight given to other factors that a doctor would normally consider in forming a diagnosis. Things like driving, certain types of work, golfing, having a social media account, or just about anything that requires any cognitive ability are also seen as disqualifying factors by the NFL, despite the fact that about 1/3 of Alzheimer’s patients drive and experts seem to agree (at least in published literature) there is no bright line determining when a person with dementia should cease driving. The same goes for certain types of employment, with coaching seen as basically doable and beneficial up to a certain point. Nichelle Nichols of Star Trek fame has been diagnosed with Alzheimer’s disease, but she still lives independently and with the help of an assistant, travels to Trek conventions and engages with fans. Despite a legitimate diagnosis, if she were a former NFL player seeking compensation in the settlement, by the NFL’s narrow standards, she would not be sufficiently impaired as to qualify for a monetary award. Most of the audits seem to focus on issues such as these.
While two paths to a qualifying diagnosis are provided within the settlement agreement, both the NFL and BrownGreer seem to favor the BAP. The NFL, in its appeal of the Special Master’s ruling on “generally consistent” writes:
Although the NFL withdrew its appeal, it is still is pushing for both paths to merge and for the somewhat more relaxed MAF path to rigidly mimic the BAP in order to be generally consistent with it. They imply that players who take the MAF path are buying a diagnosis when they decline to participate in the BAP.
While there may be some surface logic to the NFL’s argument, it’s essential to realize that the diagnostic standards demanded by the NFL are not the same diagnostic standards represented to players when they had to decide whether or not to participate in the settlement. It’s also worth noting that while a player may file an unlimited number of claims, he is only given one set of BAP exams, at which point his only path is the MAF, which is costly and unless the player has sufficient means to pay for it or can find an attorney willing to upfront the cost, he is out of options. Early on, most attorneys were willing to pay for their clients’ examinations, but, because of the court’s cap on contingency fees coupled with the extreme amount of time and effort required to litigate each single claim, fewer and fewer attorneys are willing to accept the risk leaving the most vulnerable players at greatest risk, since Medicare and Medicaid exams won’t help them.
How we got here:
Orran Brown’s response to X1 is very instructive as to the mindset of the auditor, and this will be more closely examined in part two, however, it’s beneficial to understand a bit more about how we got here before fully critiquing Mr. Brown’s brief.
If you re-read the NFL’s arguments regarding the generally consistent standard, these statements should stand out:
“Co-Lead Class Counsel responded that these specific criteria provided a reliable, objective testing regime that was both reasonable and supported by relevant medical science… Not a single objector nor Co-Lead Class Counsel argued that the criteria for the BAP testing battery could be evaded—and more relaxed criteria substituted… Co-Lead Class Counsel, however, have now changed their tune in argument to the Special Masters.”
In fairness to Mr. Seeger, he did argue strongly that two paths were an important part of the negotiation and that generally consistent was a hard-fought and essential provision.
“The parties, in drafting the Settlement Agreement, recognized the importance of the ‘generally consistent’ standard and foresaw the possibility of the NFL’s current argument with respect to the application (or non-application) of ‘generally consistent’ to Qualifying Diagnoses made outside of the BAP. That is why the parties added the following language to the Settlement Agreement: ‘For the avoidance of any doubt, the review of whether a Qualifying Diagnosis is based on principles generally consistent with the diagnostic criteria set forth in Exhibit 1 (Injury Definitions) does not require identical diagnostic criteria, including without limitation, the same testing protocols or documentation requirements.’”
Several attorneys have indicated that they were in the dark regarding the high bar players presumably, at least according to the NFL, must clear in order to qualify for a monetary award. This is further evidenced by the feeding frenzy of lawyers, claims services, and lenders who competed for players prior to the implementation phase of the settlement, contrasted with some firms dumping their clients when they began to realize the difficulty in qualifying a claim.
It’s unclear how much Co-Lead Class Counsel Chris Seeger and Sol Weiss or Judge Brody truly understood regarding the medical battery. Grant Iverson was a curious and questionable choice, given his position on CTE, as a person to design it. Was Iverson a Trojan horse brought by way of the NFL or a compromise in order to get a deal done, or were Class Counsel truly clueless regarding his positions? The truth isn’t likely to surface.
What is known, however is that Seeger and NFL Counsel had been engaged in negotiations prior to the formation of the MDL. Both parties were motivated to get a deal done. The NFL was taking a major PR hit and discovery could have made things much worse. Seeger was unsure of how Judge Brody would view the preemption arguments which the NFL used as strong leverage for early dismissal.
Judges tend to gravitate between two schools of thought when it comes to mass tort proceedings. A minority of judges view their responsibility as to simply adjudicate the case whereas most, including Judge Brody feel compelled to resolve the dispute. Judge Brody sent NFL Counsel and Plaintiffs’ Counsel to a mediator and expected resolution by way of a settlement. This pressure, not to mention, growing outcries from players to bring quick relief resulted in a less than optimal result. Some observers have remarked that the payouts to date have exceeded their expectations based on their analyses of BAP protocols.
The expectations have apparently exceeded those of the NFL as well. While Orran Brown, as claims administrator, is portrayed as a neutral, his livelihood depends on securing the administration of as many settlements as possible and in order to accomplish this, he must have the goodwill of both plaintiffs and defense counsel who make repeat appearances in mass tort litigation. In this instance he doesn’t seem to want to make an enemy of Paul Weiss, the firm representing the NFL, and apparently doesn’t feel his aggressive audits will harm his relationship with Seeger Weiss on the plaintiff side.
Orran Brown’s brief is quite instructive as to the mindset of the man in charge of the audits, and since the prelude has now been addressed, part two will get into the specifics of the audit procedure.