May 17, 2019
If there was any doubt previously, an order issued by Senior Judge Anita B. Brody of the Eastern District of Pennsylvania on May, 16, removes what lingering questions that may remain that the so-called NFL Concussion Settlement is about compensating brain-damaged players. In her order, she denied a motion for reconsideration of rules that will severely inhibit the compensation of impaired players, instead, focusing her attention on protecting the NFL from alleged, but greatly exaggerated fraud.
Last year Judge Brody once remarked that Chris Seeger was the “face of the settlement.” Several wives of former players took offense to that statement and said, “No, our husbands, the guys who were deceived and damaged by the NFL are the face of this settlement.” I hate to inform them that it appears they never really mattered to the court, and despite high payouts for Death with CTE, ALS, Parkinson’s disease, and Alzheimer’s, if their husbands suffer from dementia, like the majority of suffering men who will file claims, they are merely an inconvenience, and a way for the NFL to mitigate its losses on the high-dollar, high-profile claims — the cost of quelling litigation for 65 years.
Deadspin’s Dom Cosentino interviewed the wife of a former player for his article about the denial, and her words are chilling.
I’ve spoken to many wives with the same fears. I’ve prayed for the safety of a wife whose husband would sometimes succumb to rage and threaten to kill them both. I’ve heard from a wife whose husband failed to receive a compensable diagnosis in the BAP program but did receive a warning that he was likely dangerous and it wasn’t advisable to leave their young children with him. The neuropsychologist recommended placing him in adult day care while she worked and tried to support their family, but, with only a modest job, and her husband’s Social Security Disability, there was no way for her to pay for it. Wasn’t that supposed to be what the settlement was for?
I’ve lost count of the men on NFL disability, Social Security Disability or both for neurocognitive impairment, whose claims have been denied on trivialities such as proper grooming, driving a little, catching a fish, hitting a golf ball, or maybe playing with his children. Single guys have been penalized for trying to work, even if their efforts are unsuccessful and they’re unable to hold a job for any length of time. Maybe the background check shows the player owns a business. What it doesn’t show is that the player has never earned a dime from it but was most likely conned by a scam artist seeking to take what little money he might have left from his career as a football player. Perhaps he’s able to speak coherently. Never mind if he doesn’t remember anything about the conversation the next day. Sticky notes are many players’ best friends and how they function day to day. So far I haven’t seen anyone denied for writing himself a note, but even that wouldn’t surprise me.
I could go on and on, because it seems like the NFL has conditioned the claims administrator to latch on to any small amount of functionality they maybe are able to identify through an internet or background search, and even if the information is a few years old, consider it sufficient to override a diagnosis by an experienced neurologist.
After more than a year of difficulty for players in navigating the complex and demanding settlement, and despite the NFL’s obstruction a few dementia claims qualifying for a monetary award, last summer the NFL upped its game by challenging not only a single claim, but groups of claims, in an effort to eliminate the “generally consistent” standard of evaluation accepted in the MAF exam program while concurrently trying to force review of all claims by NFL biased AAP review doctors. All of this was taking place on a shadow docket, or portal, with even the attorneys representing impacted players unaware until late last summer when the claims administrator notified them via email. Briefs were filed on the portal and the special master denied the NFL’s appeal, but in conflict with the clear language of the settlement prohibiting appeals or objections to the court on factual determinations, the NFL appealed to Judge Brody, and she agreed to hear their arguments.
On the eve of a hearing scheduled to argue the “generally consistent” appeal, the NFL, abruptly withdrew the appeal after a closed chambers conference with the Judge and Co-Lead Class Counsel Chris Seeger, and Judge Brody issued a sua sponte order authorizing the claims administrator to rewrite the rules. In a second order, she denied the NFL’s AAP motion and then de facto granted it in a separate ruling with which she authorized a very restrictive set of rules crafted as a result of her prior order.
Class Counsel Gene Locks, David Langfitt, Steven Marks and Sol Weiss filed a motion for reconsideration which was argued last week. Seeger filed a tepid partial joinder objecting to some of the verbiage.
During the hearing it was apparent that Judge Brody wasn’t interested in the arguments of Locks, Langfitt, or even David Buchannan of Seeger Weiss. This was the first public hearing discussing settlement implementation issues at which anyone outside Seeger and NFL counsel were allowed to speak, aside from a hearing on the NFL’s request for a fraud investigator last May, which Judge Brody granted. As Cosentino wrote in his article, “The May 7 hearing, which was limited to the motion filed by attorneys representing the settlement class, played out entirely on NFL-friendly terms. Judge Brody showed deference to the claims administrator, Orran Brown of BrownGreer of Richmond, Virginia, while responding to and questioning the arguments made by the class attorneys with much skepticism. It was all indicative of how little Brody seems to know about the difficulties many brain-addled ex-players and their families have had with navigating the claims process.”
It doesn’t appear that she wants to know. On information and belief, some attorneys had hoped to bring players to the May hearing that was canceled. At last week’s hearing, Gene Locks argued passionately on behalf of the players, stating that their plight was “personal” for him having played football in college and through becoming close with some of his settlement clients who are suffering tremendously. Locks argued that few doctors who’ve been retained as MAF physicians specialize in the correct specialties that players require and that an entire class should not be punished for the misdeeds of a few. Langfitt tried to persuade the judge to allow attorneys who actually represent players in the settlement to work with the claims administrator in creating rules for the settlement, but was abruptly cut off by Judge Brody.
Buchannan told Brody “the NFL looks for stuff to appeal,” but Orran Brown argued that his rules must be implemented to “eliminate even an appearance of impropriety,” as he complained that four out of 121 MAF doctors had submitted half the diagnoses for levels 1.5 and 2 neurocognitive impairment, or early and moderate dementia, respectively. The four doctors were kicked out of the program although there was no finding of wrongdoing. Brown also stated that of the 121 neurologists retained that only 68 had submitted qualifying diagnoses.
Imagine being a player forced to pay $6,000 – $8,000 to see one of the 53 who’ve never submitted even one qualifying diagnosis because he’s the only neurologist within 150 miles of your residence! Considering that many players are barely surviving on a shoestring I think it’s reasonable to believe that they’d give up without even scheduling an appointment. Of course, that’s exactly what the NFL wants—the only thing better than defeating a diagnosis, for them is not having one at all. Brown insists the mileage restriction is necessary to prevent “forum shopping.” Buchannan countered that a proper diagnosis is valid regardless of where it is rendered and pointed out that it’s common for people to travel long distances for specialized care, citing cancer centers as one example.
At the hearing, both Langfitt and Locks explained that the only reason players joined the settlement was the assurance that they could choose their own physician. He explained how many had been denied disability benefits due to the “neutral” NFL disability plan physicians, who prompted the cry, “Delay, deny, and hope we die.” Apparently, the NFL feels this is a good plan.
The mileage limitation rule was the one that received the most floor-time at the hearing, but also detrimental to players was the appointment of an AAP Leadership board to assist the claims administrator, shifting the balance drastically in favor of the NFL, who has freely admitted that the AAP has denied numerous claims by holding them to extremely strict protocols. A “carefully calculated and calibrated result,” as they described it their appeal mandating AAP consultation.
The standard of evidence required to overturn an appeal in the concussion settlement is “clear and convincing.” This is a much higher bar than “preponderance of evidence” typical of civil cases, and only a slight notch below “beyond a reasonable doubt” in criminal cases. The settlement bargained for AAP review on the back end of a claim at the discretion of special masters when deciding an appeal. In that instance, the NFL would have to present something more substantial than circumstantial or anecdotal evidence such as the photo of a fish in order to reverse a claim award; the evidence would have to be clear and convincing.
If a claim is denied, perhaps based on the fish photo with the AAP determining that a man who’s able to put a pole to the pond isn’t sufficiently impaired to merit an award, the burden would be placed on the player to prove through clear and convincing evidence that the AAP got it wrong, and if the reports of the neurologist and possibly neuropsychologist weren’t given validity by the AAP, then how does a player prove he is impaired? If his doctors are denounced and discredited, he has only his word.
Based on appeal figures thus far in the settlement, if the NFL appeals an approved award, they’ve only succeeded in overturning it 6% of the time. Players appealing a denied claim have only prevailed in 3% of their attempts, so use of the AAP on the front-end effectively takes them from a 96% chance of winning an appeal to 3%.
Locks emphatically stated that he was part of the negotiating committee and that a player’s choice in doctors and only limited AAP review were bargained for. “We told them they could always go to the doctors they want,” Locks said, raising his voice and jumping to his feet following Brown’s emphasis on fraud prevention, pleading that rules must be reasonable and done in good faith.
“This is good faith too,” Judge Brody said, cutting him off. “I take exception to that,” Locks fired back, reminding the court that players are paying premium prices for these exams.
Conspicuously absent from the hearing was a single word of concern or indication of compassion for the players from Brown or Brody. Their single-minded purpose seemed intent on making sure the NFL didn’t spend one more dime than absolutely necessary. Apparently, the court has forgotten that the settlement exists because of the NFL’s misdeeds against their players.
Following the hearing Locks and Langfitt submitted a brief suggesting modification to the rules constructed by the claims administrator, stating that they would consider withdrawing their motion for reconsideration should the court consider a compromise.
Instead, Judge Brody flatly denied the motion, hawking the NFL’s carefully calibrated line of processing “all meritorious claims as efficiently as possible, while ensuring that non-meritorious claims are not paid.” Obviously there are fundamental differences of opinion as to what constitutes a meritorious claim, and what doesn’t. Judge Brody has taken the same hard line as the NFL.
In her order, Brody insisted that the rules are merely “administrative,” counter to the statements of Locks, Langfitt, and Buchannan, who testified that the changes are substantive, and the opposite of the balances bargained for changing the entire dynamic.
So much for “the honorable implementation of the settlement,” she spoke of in her order.
I tweeted Dom Cosentino’s article shortly after it published and these were a couple of responses:
— Joe O’Malley (@jomalley1964) May 17, 2019
But the lawyers got paid, and isn’t that what counts? https://t.co/gz8NoZEkzL
— (((tedfrank))) (@tedfrank) May 17, 2019
I’ve attempted to find out if class counsel will appeal Judge Brody’s ruling, but lips have been sealed tighter than a submerged submarine. Ryan Boysen of Law360 reported that Seeger “said he was ‘disappointed with the court’s order,’ but ‘will closely monitor the implementation of these rules and continue fighting on behalf of former NFL players.” This comes on the heels of his defense of Judge Brody’s order requiring Brown to revise the rules, and a lukewarm partial joinder on the class counsel motion, likely indicating that he plans no further action.
Attorney Lance Lubel appealed the order adopting the new rules on the same day Locks and Langfitt filed their supplemental brief seeking compromise, but they did not respond to requests for comment from Law360, Deadspin, or myself.
A settlement used to be considered a contract and a contract wasn’t changeable after the signatories had signed on. What happened? Some players and members of their families have suggested Judge Brody is on the take, but I don’t believe that’s the reason for her alignment with the NFL. An upcoming article will delve into some systemic problems that I feel are responsible for the grave injustice manifesting in the NFL Concussion Settlement, and beyond.
You can read the full text of Judge Brody’s order here: