“Correct the Injustice or Dirty Laundry will air at the Third Circuit”
August 27, 2019
Amon Gordon was a defensive lineman for 9 seasons in the NFL, shuffling from team to team as his injuries began to accrue. He never entered the higher echelon of the pay NFL pay scale and often worked for league minimums as he battled through surgeries for various orthopedic injuries and rehab became a way of life. What did he get for his time in the NFL aside from a whirlwind tour of 11 cities with repeat stops in Nashville and Seattle over the course of his 9 years in the league?
Sadly, the answer to that question is a pain-wracked body and substantial brain injury that led the Stanford graduate to a diagnosis of dementia at age 33. I chronicled his medical saga and the limited options men who play on the fringes due to excessive injuries like Gordon have compared to guys like Andrew Luck, who walked away from the game on his own terms this past weekend. You can read about the two very different NFLs here:
Andrew Luck and Amon Gordon are two Stanford alumni whose NFL options were very different. Over the weekend Colts’ quarterback, Andrew Luck startled the NFL world with his decision to retire at the relatively young age of 29. As Ken Belson writes, in the New York Times, “Luck belongs to a young generation more carefully weighing the dangers of the game against the financial rewards.
Despite a definitive dementia diagnosis dating back to 2015, Gordon, whose claim was initially approved, stood scrutiny with the AAP, fell into a random audit and emerged intact. He faced denial of his award due to an NFL appeal that claimed, because of his superior IQ his scores aren’t generally consistent with the settlement engineered BAP protocols. Gordon’s attorney Wendy Fleishman of Lieff Cabraser filed an objection to the Special Master’s decision which favored the NFL, but Judge Brody upheld the denial and in doing so, effectively eliminated the distinguishing factors between pre and post-effective date claims as well as failing to recognize that Gordon’s decline is generally consistent with BAP scores when adjusted for superior intelligence.
Following Brody’s denial, Fleishman took Gordon’s appeal to the Third Circuit Court of Appeals and shortly afterward hit something of a hiccup. Because of the “final and binding” clause of district court decisions in the settlement agreement, the appeals court asked for briefing from all parties as to why the Third Circuit would have jurisdiction. All of the parties responded but Fleishman added a surprise element to her brief—along with her response brief she filed a motion requesting a stay of the appeal and for leave to file a Rule 60 motion before the district court, essentially offering Judge Brody a do-over. The strategy in this appears to be the leverage implied in the graphic: “Correct the mistake or the dirty laundry heads to the Third Circuit for washing.”
On Thursday, Fleishman filed 22 documents with the district court. Chief among the documents were a Rule 60 motion, “To correct a mistake in the application of the Settlement Agreement to Plaintiff’s Claim” and a supporting memorandum of law.
Amon Gordon Memorandum of Law Supporting Motion to Correct Mistake – Rule 60
In addition to these briefs, fifteen evidentiary exhibits were filed along with a proposed order to aid the court in correcting its mistake.
The artfully pled brief crafted by Fleishman discreetly points out the errors of the court that led to Amon Gordon’s wrongful denial. She recaps the plentiful medical records submitted to support Gordon’s Level 1.5 Neurocognitive Impairment diagnosis, and that they clearly meet the settlement criteria for pre-effective date claims.
After Gordon’s claim was approved by both the claims administrator and AAP, Fleishman writes, “On day 32 after the monetary award was initially granted, A.G. was advised that his claim was the subject of a random 10% audit by the Claims Administrator.” As asked, during the audit, Gordon produced five years’ worth of medical records and all other evidence requested. The Claims Administrator interviewed Dr. Lobatz, who explained in detail how he based his diagnosis ” on the radiographic evidence of significant brain bleeds caused by trauma to the head as well as his long history as A.G.’s doctor of four years to formulate his opinion that A.G. suffered from a Level 1.5 Qualifying Diagnosis.” Dr. Lobatz also referenced dozens of other medical records he’d reviewed that support his conclusion. Though Gordon’s claim was once again approved following the audit, the NFL contested the diagnosis and prevailed on appeal.
Fleishman’s next point sums up most of the settlement’s early problems in one sentence: “The NFL’s objection confuses and conflates the Generally Consistent Standard with ‘Identical.’” Since claims first started being submitted, the NFL relentlessly attacked pre-effective date claims as not being “generally consistent” with the post-effective date BAP, but instead of accepting the Special Masters’ definition of having more things in common than differences, the NFL has demanded that generally consistent means identical. This seems to be an instance of “if you say sometimes enough times, people will start to believe it.” Apparently, the NFL finally convinced the Special Master and the Court.
Fleishman points out that at the time of Gordon’s diagnosis, the BAP hadn’t even been created.
She also reminds Judge Brody of her own ruling stating that “generally consistent is not identical.”
The following section is not only instructive for Amon Gordon’s claims but for all practical purposes, characterizes the state of the settlement broadly.
In Amon Gordon’s case, he was penalized because of being a highly intelligent person with an IQ in the superior range. Because of the way the BAP is structured, there’s no verbatim T-score range for those of pre-morbid superior intelligence levels. His scores, did, however, drop from the expected scores of people in a superior range generally consistent with drops for those of average or slightly above average intelligence.
For the NFL, rigid adherence with test scores that are widely debated as to their relevance in academic literature, coupled with imposing severe restrictions on functional ability in the areas of personal hygiene, home and hobbies, and social activity were the provisions the NFL installed in order to keep their payouts at a minimum. In Amon Gordon’s case, it was his pre-morbid intelligence that the NFL attacked.
Fleishman references the “flawed record” and then tactfully asks Judge Brody to correct it. “This Court has prided itself throughout this long and difficult process with requiring the most accurate data to be sure the player class members are best served by the Settlement. That was not presented to the Court here and this Court should request to be presented with these facts once again in order to make a fair determination applying the Settlement Agreement as stated.” Written much more graciously that this writer is capable of phrasing it, but then again, Fleishman likely believes that there is more to be gained through tact backed with the possibility of an appellate review than a less generous assessment of the situation, and she is probably correct.
Fleishman then points out the impropriety of an AAPC neuropsychologist who’s never examined the patient discarding the diagnosis of a world-class board-certified neurologist who’s treated Gordon for four years. “Plaintiff appealed to Judge Brody who upheld the denial based on improper flawed information placed before the Court,” Fleishman writes.
She then zeros in on a very troubling aspect of Gordon’s claim denial, “There is no clear explanation why the claim was denied.” The supposed transparency demanded by a Rule 23 class action settlement requires a clear answer. “However, speculation suggests that the Special Master denied the claim because A.G.’s T scores in the complex attention/processing speed domain fell below 35, as required under the BAP, while the learning and auditory and visual memory tests reflected scores of 40, 40, 44, 47, 57, and 50.” An attorney should never have to speculate as to why an appeal was lost. Her client deserves an answer and she should not be placed in the awkward position of speculating in her communications with that client. If her speculation is correct, and there is nothing on the record to indicate any other reason, then the drop-off in these scores from what would be expected from a person with an IQ of 122 would most certainly be generally consistent with BAP drop-off’s for those with lower IQ’s, and some scores completely in line with those of average intelligence, denoting a severe decline in cognitive ability.
“And, the Special Master held Section 1(a)(iii) was not satisfied without explanation, despite the findings that there was documentary evidence and evaluations demonstrating functional impairments, depression and anxiety that are generally consistent with the criteria set forth in the National Alzheimer’s Coordinating Center’s Clinical Dementia Rating Scale…in the area of Community Affairs, Home and Hobbies and personal care.” This is an important observation. Functional impairment deviations from the rigid BAP have been the NFL’s mainstay in seeking denial of dementia claims, to the point of placing players under surveillance to catch them appearing functional and unimpaired. This isn’t even a factor for Amon Gordon. Nor is substance abuse or untreated sleep apnea since his medical records reflect testing for this and a negative result.
“The NFL argued below only that the diagnoses did not satisfy what it argues is the governing standard – those spelled out for diagnoses through the BAP because of the deviation in the scores,” Fleishman writes, therefore Amon Gordon was improperly denied because his pre-morbid intelligence wasn’t factored in or for some other reason the Gordons and their attorney were never made aware of. If the latter, this flies in the face of every semblance of judicial procedure and due process.
There is no question that A.G. satisfied all four prongs of Section 1(a)(i)-(iv):
Reminder: To be generally consistent with the BAP the court’s accepted definition is to have more things in common than differences. It would seem impossible to refute the evidence summarized above and supported by dozens of pages of medical records. It’s extremely troubling that the court failed to see past the NFL’s smokescreens on a clearly meritorious claim.
The motion is filed in accordance with FRCP Rule 60 which is purposed for the court to correct a mistake that results in manifest injustice.
Fleishman points out that parts 1-3 and 6 are all potentially applicable here, and I would lean heavily toward 3, in that the NFL, who was brought to court for defrauding players of their health now seeks to defraud them again in deceiving the court and denying compensation promised to them.
Fleishman points out the manifest injustice and extreme hardship further delays will impose on Amon Gordon and his family, by extension. Judge Brody’s seemingly flippant dismissal of this hardship in stating that he is able to submit another claim at a later date is cruel. It’s unconscionable to keep a cognitively impaired person in a constant state of stress and uncertainty and the court has already left Gordon in this position for over two years. If Judge Brody fails to grant the Rule 60 motion, Gordon will again fall into another cue as he waits his time to be heard in the appellate court, and to start the process all over again would almost certainly diminish the award that according to clear settlement terms he is entitled to.
Cryptic Guessing Games
Judge Brody’s order denying Amon Gordon’s claim was cryptic in almost every respect, but especially here.
In discussing Brody’s order with other attorneys, no one had any idea what she was talking about, and apparently even Ms. Fleishman doesn’t have a clue. What did Judge Brody mean by “The Court is troubled by the events leading to this objection and has looked into the matter. The Special Master and Claims Administrator has assured the Court that the events leading to this objection will not be repeated.” What events?
In my initial article about the Gordon appeal, I tried to examine this question and every potential answer I could conceive was troubling.
Was Judge Brody incensed that Ms. Fleishman had the audacity to file an objection on the public docket as should be the case in a Rule 23 class action? If so, she should be immediately removed from the case if her fear of a transparent docket is so strong. What would the court need to go to such extreme lengths to conceal?
Was Judge Brody upset that prior to Amon Gordon’s claim, the settlement agreement had been followed at least to some degree in that pre-effective date claims, especially those with diagnoses that predated the settlement agreement and the settlement engineered BAP were understood to not have to be identical to those post-effective date claims that are guided by the BAP protocols? Judge Brody has seemed much more concerned about the NFL having to spend its money than players finding relief from the trauma induced by the NFL.
I can’t think of any other events that she could even remotely have referenced and if I’ve identified the “event” then the settlement is in dire trouble.
I wrote about Amon Gordon’s appeal to the Third Circuit that is presumably going to be stayed while a decision is issued on the Rule 60 motion detailed here. There are a number of possible outcomes that I looked at in the earlier article, but hopefully, for the sake of the Gordon family and all the other players who are relying on the settlement to be administered fairly, the court will correct the mistake and allow the players to find the justice they were promised.
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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.