May 4, 2019
Sheilla Dingus
With a hearing scheduled for May 7, Claims Administrator Orran Brown filed a defensive response on Friday evening, to Class Counsel’s motion for reconsideration of Judge Brody’s order adopting his newly created rules governing MAF physicians in the NFL Concussion Settlement.
As I detailed in a previous article a recent court order seeks to implement new, restrictive rules in the troubled settlement that will severely restrict players’ ability to seek monetary awards for qualifying diagnoses. The motion for reconsideration filed by three class counsel firms, Locks Law, Podhurst Orseck, and Anapol Weiss asserts that the changes, if adopted, amount to an amendment of the settlement agreement they signed and are not permissible under FRCP 23, which governs class action settlements. Co-Lead Class Counsel Christopher Seeger filed a partial joinder with other counsel seeking only a modification of two rules—those which proposed mileage restrictions on the MAF doctors players are allowed to consult for their exams.
Orran Brown presents himself as a neutral claims administrator.
Orran Brown is not neutral. He makes his living administrating mass tort claims and his allegiance is to the parties who stand to offer him lucrative work administrating settlements they’ve entered into. Brown has served as the claims administrator for Chris Seeger for numerous settlements, and above all else, it is Seeger that Brown must seek to please. Additionally, Paul Weiss attorneys who represent the NFL are also repeat players on the defendant’s side of the board. Both plaintiff and defense counsel must agree on the appointment of a claims administrator, so in this sense, he also feels an obligation to handle claims in a manner pleasing to the NFL.
Brown claims in his response that the rules are merely procedural. I disagree and say that Brown has spent too much time in the Wild West of uncertified MDLs if he feels these changes are acceptable in a certified class-action.
Background
Brown accurately recalls the events leading up to the changes he proposes to limit MAF doctors, who, as the settlement progresses will provide (or not) a path for injured players to receive the monetary awards they were promised when enticed to join the settlement.
Note that prior to withdrawing their appeal of the seven awards Brown references, each approved claim had been individually appealed by the NFL and their appeal was denied by the Special Masters because they failed to present clear and convincing evidence that the players’ MAF diagnoses were in error.
Unwilling to accept that the players were neurologically impaired, the NFL filed a bulk objection to Special Master Wendell Pritchett’s decisions of initially six claims. Pritchett held that his initial determination was correct.
Because the objections were based on a finding of fact rather than a conclusion of law, according to the terms of the settlement agreement the NFL had reached the end of the line, but the league was not deterred and illegally, according to settlement terms, appealed to Judge Brody, who agreed to hear their appeal.
Then, on the eve of the scheduled hearing, a private conference took place between NFL Counsel, Chris Seeger, and Judge Brody at which the NFL agreed to withdraw the appeal, therefore canceling the public hearing as moot. As apparently negotiated by the parties, Judge Brody issued a sua sponte order that prompted the changes drafted by Orran Brown.
Mileage Restrictions
Rules 9 and 10(b) limit players to seeing a MAF provider within 150 miles of their primary residence and if a neuropsychological exam is required, a neuropsychologist within 50 miles of the MAF neurologist. Numerous reasons were stated regarding the importance of players having a choice of physicians. Brown downplays all the concerns stating that players may request an exception.
Note that a player may not simply request an exception but must tell the claims administrator why he wants to see a particular doctor. This is an invasion of privacy. People have very personal reasons in choosing a doctor and for players who are embarrassed about their impairment, this only adds another layer of humiliation. Players have already been humiliated more than enough.
They were deceived and never warned their careers could cost them their minds. Knees, backs, ankles, shoulders and such were the risks they understood, but they never signed on for dementia and the host of other issues football-related brain injury can inflict over the course of time.
What if the player fills out the exception form and the claims administrator doesn’t like his reason? Will he then be forced to see a doctor that he has decided isn’t right for him and be forced to shell out between $6,000 and $8,000? What constitutes a valid reason in the mind of the claims administrator? His reply brief infers that finding a friendly and sympathetic doctor who may be more likely to understand his problems and render a qualifying diagnosis isn’t a valid reason but is seen by the claims administrator as an attempt to defraud the system. For example, Brown wrote:
One thing I’ve learned as I’ve studied the settlement for the past two and a half years and spoken with numerous players and members of their families is that player recommendations go a long way. Most players are more apt to trust another player over their lawyer, an advocate, or generally anyone else. While the advice isn’t always the best, it is what many players are most comfortable with and it totally explains why large numbers of players tend to visit certain doctors. While Brown tends to consider large numbers of players seeing a particular doctor, especially one outside their geographic area as an attempt to defraud the NFL, it is instead one of the few areas where neurologically impaired retired players feel a sense of control and security in resting on the counsel of their alumni brethren. For a man who feels his mind slowly slipping away, and with it control over his life, it is an act of cruelty to rob him of one of the few areas in which he feels he does have a degree of control.
Yet, Orran Brown cites numerous examples of players traveling long distances to doctors and accuses them of forum shopping.
It’s noteworthy to point out the examples Brown finds extreme are pre-effective date claims. Perhaps he has forgotten that players were encouraged by Seeger to get examined prior to the settlement effective date as evidenced in this letter excerpt dated July 19, 2016.
At the time, players were assured that the settlement would present a level playing field not stacked in favor of the NFL and if they had been diagnosed with a qualifying condition at the time the settlement became effective, they would be promptly compensated. Players and their attorneys took Seeger at his word and began scheduling examinations. Many exams were scheduled by attorneys, and those representing numerous players found it more convenient to establish a relationship with one or two neurologists who could bill them for players who’d been referred. For most attorneys having to deal with invoices from dozens, or possibly hundreds of doctors, and retrieving medical records from them would have been a logistical nightmare. Brown apparently confuses efficiency with fraud.
Brown gives examples of players who traveled substantial distances and says “there was no credible reason for the Retired Players to travel such great distances…” Incorrect. I just provided two very credible reasons in addition to those cited by class counsel. Brown states the players received results that were not medically correct. That opinion is likely based on review by the NFL-friendly AAP, who, like Brown, seem clueless as to how attorneys tend to schedule exams, and having never examined a player, tend to doubt their diagnoses should they drive, dress themselves, or show indications of having any lucidity at all.
Serena Hoover – Posterchild
If fraud was as prevalent as the NFL and claims administrator like to infer it’s odd they continue going back to the two-year-old disqualification of neuropsychologist Serena Hoover time and time again instead of providing fresh examples.
Dr. Hoover, a few years back had been retained by the NFL as a neutral physician for the Disability Plan. They apparently didn’t like that she was neutral and qualified players for disability rather than seeking reasons to deny them. Because Hoover did render favorable diagnoses (that were supported by the player’s own private physician’s medical records) prior to termination from the disability program, she earned a good reputation among retired players, who, as I stated earlier, prefer recommendations from players over just about any other source. It seems natural that players found her trustworthy and sought her out for exams. I’ve spoken with several players who were examined at Hoover’s clinic and they related that their exams were conducted by one of Dr. Hoover’s associates, with Hoover checking in periodically. There is nothing untoward about this, and some of the BAP providers utilize assistants in conducting the required tests.
Dr. Hoover was disqualified for three reasons. First, she examined a lot of players who were found to be impaired. Strike one. Many of the players traveled substantial distances for their exams. Strike two. And she examined more players in a business day than was technically possible (no leeway for associates.) Strike three. While I certainly don’t have access to all of the players examined at Dr. Hoover’s practice, those I am aware of received testing from another doctor and the results were similar to those rendered through the Hoover exams. While I’ve lost track of many of the players two-years hence, I am aware of at least a few who received monetary awards. So much for the unreliable diagnoses.
What only Class Counsel not named Seeger and private attorneys acknowledge is the NFL is using a very old playbook plagued with denials and doctor shopping of their own in the disability plan to find doctors who would not find the players disabled. As noted in Dom Cosentino’s recent article, despite plan doctors finding Mike Webster and Jesse Solomon to be disabled, the board members picked away at their diagnoses, as well as those of their private physicians and denied their disability claims for what can only be seen as arbitrary reasons. Webster and Solomon are two of many and represent the rule rather than the exception when it comes to the NFL’s disability plan. The disability plan, however, is not the focus of Cosentino’s article.
The primary focus of the article is a lawsuit filed by a physicians group alleging that the NFL told Cigna to deny their claims because players were using the medical records to support disability claims.
In view of this, and the claims administrator, as well as Seeger’s ambivalence, any not-specifically-bargained-for concessions reek of appeasement of the NFL.
Brown attempts to maneuver past the settlement language to portray his limitations on doctors as merely procedural.
Should this rule become effective, it will the most recent of a long line of misrepresentations to players as to how the settlement they were encouraged to accept is not the one described to them, as “procedures” such as these tend to strip away the rights they were assured of.
A final note on distance requirements
While most attorneys I’ve spoken with have anticipated that if no other objections are accommodated that Chris Seeger’s request for substituting “must” for “should generally” likely stand a reasonable shot of acceptance by Judge Brody. This is also passively opposed by Brown. He tips his hand as to his bias in this respect in stating, “Here, getting approval before acting is better than acting and then hoping to get approval,” inferring that regardless of how the court might rule, he intends to show bias against players who travel beyond 150 miles for their neurological examinations. The court should firmly prohibit this.
No Experts
On a similar note, Brown seems intent on neutering attorneys in any manner that he can identify. Perhaps this is because he’s accustomed to administering uncertified MDLs, known as the Wild West of legal practice where rules of procedure seldom apply, and the attorneys who participate in the non-class settlements are pressured to abandon their ethical duty to their clients to support the settlement unconditionally. University of Georgia School of Law Professor Elizabeth Chamblee Burch wrote a primer for plaintiffs in mass torts. In it she identified some of the ways attorneys are often pressured to compromise their clients.
Most mass-torts are uncertified MDLs, as opposed to class-action settlements like the NFL concussion case, and this is the environment in which both Brown and Seeger are accustomed to working. In respect to settlement terms, those of the concussion settlement are not nearly as compromising as those typical to uncertified MDLs, where often attorneys are forced to dump non-settling clients, recommend the settlement to all clients regardless of it’s in their best interest (this provision did make it into the NFL deal), and private representation outside of leadership is sometimes disallowed. Seeger and Brown are accustomed to making up their own rules as they go along. (In fact, Seeger devised many of the rules that are now commonplace.)
This explains why it seems that both Brown and Seeger would prefer to get those pesky attorneys that actually do represent their clients’ interest out of the way. Without the private attorneys, including those in leadership who filed the motion for reconsideration, as bad as this settlement has been, it would likely have been much worse.
Brown writes, “The integrity of the Program must be beyond reproach.” This is laughable. The settlement provides that players may not utilize doctors who have been used by their attorneys as experts for an Opt-Out case, but Brown maintains, “The Settlement Agreement does not say that is the only ethical rule the Qualified MAF Physicians are to follow. The Settlement Agreement cannot be read as giving a lawyer or his or her client the absolute right to be examined for benefits by a physician who views that lawyer as a source of income on other matters.” As I stated, Brown and Seeger like to make it up as they go along.
The NFL would have it, if a doctor agrees to testify as an expert in any litigation whether against the NCAA, NHL, or even a personal injury lawsuit involving brain injury the doctor is disqualified from examining that attorney’s clients. Never mind that the NFL vets, trains, and funds the AAP, since they make it harder to get a claim approved rather than easier, and on information and belief, most, if not all, have never even examined a brain-injured player. Talk about a double standard.
Tightening Generally Consistent
Brown’s single directive in Judge Brody’s order was to clarify the handling of “generally consistent,” which the NFL seeks to make identical with BAP protocols, thus eliminating any doctor flexibility.
Hopefully Brown will keep his word, but doctors should probably have Miranda read prior to submitting a diagnosis, knowing that they must choose their words with exceeding care, or they will be twisted, contorted, or taken out of context to be used against them.
The AAP Leadership Council
In my reading, this is nearly tied with the mileage restriction as the most detrimental change regarding how players’ claims are handled.
I won’t spend a great deal of time on review since I’ve written extensively on the AAP’s bias toward rigidity and NFL perceptions of impairment, which frequently differ from the perception of the doctor who physically examined a player.
Briefly, the settlement provides AAP consultation as mandatory for pre-effective date claims and discretionary use for post-effective date claims by the court and special masters when an award is appealed.
While the settlement doesn’t provide for AAP consultation during initial claims evaluation, Brown claims it’s acceptable since the settlement doesn’t prohibit it. Likewise, the settlement doesn’t prohibit players from seeing the MAF physician of choice, but he chooses to go the opposite direction there, apparently since choice is viewed as more favorable to players than to the NFL. The settlement also doesn’t prohibit shooting the claims administrator, but I wouldn’t view that as permissible or advisable.
Brown claims “In this, as in any settlement program, it would be far better for Settlement Class Members to clean up these issues on the front end of a claim, rather than on the back end.” This seems like a nice way of saying if we have all the player’s defense up front they can likely be shot down in short order. As I explained in my previous article, in order to prevail on appeal the appellant must present clear and convincing evidence that the decision by the claims administrator was incorrect, therefore, a player has approximately a 90% better chance of prevailing on an approved claim challenged by the NFL than a denied claim which forces him to find clear and convincing evidence that the claims administrator and AAP were wrong.
Orran doesn’t see the problem
Brown devotes over three pages of discussion to MAF physician duties and descriptions before he addresses the settlement changes he wishes to implement.
After a brief introduction of what MAF neurologists can diagnose he emphasizes that all MAF doctors are jointly approved by Chris Seeger and NFL counsel, with either party having veto power. He apparently presumes that if Chris Seeger is satisfied with the neurologist then anyone should be, however, given Seeger’s tentative approach toward the NFL, it’s unlikely that he vets the doctors as stringently as his counterpart at Paul Weiss. For instance, last year Gene Locks made mention of a highly credentialed doctor he’d recommended for the AAP. The NFL vetoed the doctor because he was a “CTE believer.” While CTE isn’t a compensable diagnosis, many players believe their neurological deficits, whether characterized as dementia, Alzheimer’s, etc. are rooted in CTE, therefore, I think I can safely say that most, if not all players would prefer to see a doctor who believes the condition exists and isn’t adversarial to viewing symptoms as related—which was the bargain struck—at least that’s what players were told, when CTE was not included as a qualifying diagnosis. While CTE can only be definitively diagnosed post-mortem, players don’t want to be stuck with a doctor who delivers an eye-roll if a player tells him he thinks his problems stem from CTE.
Brown writes, “We have 121 Qualified MAF Physicians serving in 40 major cities and metropolitan areas. We have nominated 52 candidates who were not appointed, as Co-Lead Class Counsel did not approve nine of them, the NFL Parties did not agree to 36 and both Co-Lead Class Counsel and the NFL Parties have disapproved of seven.” It does indeed appear that the NFL is extremely picky about the doctors chosen. Odd, since Brown earlier stated that all MAF candidates “are board certified and must possess extensive education, training, licensing and insurance coverages.” If the NFL is so demanding as to reject 36 of 52 candidates considered qualified by the Claims Administrator, and this doesn’t toss a red flag under Brown’s watch then why should a player not have the opportunity to pick and choose from the doctors who did make the cut without having to justify the reason he chose that particular doctor?
Orran Brown goes on to write, “We want more Qualified MAF Physicians in the network.” He states that 64 MAF neurologists withdrew from the program for various reasons. Four neurologists were terminated from the program “because of irregularities in their exams and diagnoses,” according to Brown. He said that 22 neurologists that had been contacted decided to serve only in the BAP. This is probably because they realized that should they render a generally consistent diagnosis not to the claims administrator’s liking, or to the liking of the NFL and AAP that their integrity and professionalism would come under fire. This was the first thought that came to mind when I read, “We constantly search for ways to remove obstacles to participation, drum up enthusiasm in the medical community for serving and cultivate long-lasting relationships with highly skilled and trained physicians.”
When the new MAF rules were first introduced through Judge Brody’s order, I emailed Dr. Randolph Evans, a highly regarded neurologist who was terminated from the program. I sent him a copy of the new rules and asked for his thoughts. Here’s what he said:
Apparently, myself and the 2 (?) other neurologists whose contracts were terminated last year did not solve the NFL’s problems of retired players being impaired.
The biggest problem I have is an incorrect understanding of cognitive impairment. They want neurologists to go back over work and social histories in more detail which is difficult without a private investigator as information provided by claimants, their families and friends may underreport and overreport their abilities. The fundamental problem is still present with an over-dependence upon the non-validated CDR and use of affidavits. Again, I frequently see people with mild and even moderate Alzheimer’s who drive, work and engage in social activities.
I haven’t checked to see how many claimants remain to be tested but suspect the increasing number of rules and training will discourage some neurologists from participating and increase delays until claimants can get appointments. If neurologists follow the “preferred” methods outlined, they would accept health insurance and lose money for every claimant they see because of the increasing demands.
It’s truly mindboggling to try to comprehend that the claims administrator and NFL would believe that some of the top neurologists in the country along with highly respected law firms are intent on committing fraud. It basically comes down to what Dr. Evans said about not solving the NFL’s problem of impaired players. Brown conceded that some doctors declined to participate in the program because they were “put off with the contract,” which meshes with Dr. Evans’ observations in the last paragraph of his statement. Brown also said some doctors don’t want to sign on because they “have strict rules against getting involved in anything sounding like litigation.” This is likely correct in some instances, but I find it more probable than not the doctors have had discussions with doctors who were formerly in the program and didn’t want to subject themselves to the indignity and possibility of accusations if someone didn’t agree with their diagnosis. I was told by the wife of a retired player, during the first hiring push for MAF doctors that her husband’s neurologist was approached and he declined, telling her, “I want nothing to do with the NFL.”
It’s extremely unlikely that anything will be decided at Tuesday’s hearing, but it will be interesting to view the arguments and rebuttals and attempt to gage Judge Brody’s reactions. Hopefully, regardless of how the judge eventually decides, class counsel will keep the fire underneath these issues, especially the mileage limitations and AAP review. If they fail to prevail, it appears the players will get Disability Plan 2.0 instead of the settlement that promised to compensate them for their injuries and not to fight them to the death.
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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.
