April 9, 2018
Sheilla Dingus
“It is tragic that the victims of alleged deceptive practices by the NFL Parties, the Retired NFL Players, are being looked at with suspicion in a settlement that was supposed to help them,” writes the Law Offices of Hakimi & Shahriari, a firm representing over 250 retired players, in a detailed letter to the Special Masters overseeing the concussion settlement, which Advocacy for Fairness in Sports has obtained.
The fifteen-page letter, supplemented with 140 pages of exhibits takes an in-depth look at the shrouded in secrecy practices of Claims Administrator BrownGreer, and demonstrates how NFL biased actuaries are being used to derail legitimate settlement claims.
In Part 1 of this series, I wrote about how the current climate of MDL litigation, which comprises 36 percent of the federal court caseload, has created a perfect storm in which defendants gain closure, lead plaintiffs’ lawyers gain immense paydays and often the plaintiffs seeking relief are compromised and in many cases left out in the cold. The NFL Concussion Settlement is a prime example of this.
Co-Lead Class counsel Chris Seeger, who has been referred to by other settlement counsel as a “dictator” in the MDL, has recently gone on a media blitz[1] to herald the success of the settlement he negotiated and attempting to rebut media reports of how it is failing the players it was designed to compensate.
Chris Seeger stated at a recent hearing, “I think people who have attempted to game the system have to take some responsibility for the delay that was caused in sorting out the potential fraud problem. If the fraudulent claims were paid out, you’re talking more than one billion dollars.” This statement is rather telling in two ways. First, the players with illnesses for whom Seeger purportedly negotiated the settlement he now refers to as fraudulent and “gaming the system.” Second, he states that the claims threaten to exceed the billion-dollar estimated value of the uncapped settlement. Instead of seeing this as a success, he appears to view this, along with the NFL as a liability. Even Judge Brody in her remarks said, “They [NFL] have an interest now. Let’s be very clear. If it’s a capped settlement, they put in the money and they don’t care what happens. But the NFL has a legitimate interest, in view of the fact that it’s uncapped, to challenge any request that may be fraudulent.” While this argument has surface merit, a closer look at other MDL’s as referenced in Part I have seen unused money reimbursed to defendants when claims were vigorously attacked and the set-aside not depleted, so this would tend to water down Judge Brody’s argument as well as Seeger’s as an attempt to defend a failed process.
In his justification of fraud prevention, Seeger cites in his press release, “For example, the Court-appointed Special Masters disqualified one physician who reviewed 153 claims after her “examinations” were found to not meet the standard of care. According to their report, some former players were sent cross-country to visit this physician, who also claimed to have conducted 134.5 hours of examinations during one 48-hour period.” In this instance Seeger refers to players who were examined by Dr. Serina Hoover, who has since been disqualified from the settlement process. I’ve interviewed several players who were disqualified because of the Hoover exams and independently each has stated that his neuropsych test lasted between 6 and 8 hours, which is typical, but instead of being performed personally by Dr. Hoover, the test was administered by one of her associates, with Dr. Hoover checking in periodically. Both questionable and reputable law firms referred players to Dr. Hoover, once an NFL Disability Board “neutral” physician, and neither the referrals nor the fact that players were examined by her points to actual fraud. In fact the only measure which might be considered fraudulent is that Dr. Hoover prepared all of the medical reports and probably took some shortcuts in doing so because of the volume her office handled, but again, this is not a reflection of ill-intent on the part of the players who were examined by her nor the firms that utilized her services.
In comments to Newsday Seeger stated that the court-appointed claims administrator uses ‘analytics that were designed to catch what would be fraud.” The letter from Hakimi and Shahriari to Special Masters sheds light on how the NFL, aided by Co-Lead Counsel Seeger and the Claims Administrator, have used inaccurate actuarials in order to push the fraud prevention measures forward and defeat often legitimate claims.
Two actuarial reports dated 2012 are identified in the letter, the Vasquez Report and the Segal Report, and while the former was prepared for Co-Lead Class Counsel Seeger Weiss and the latter prepared for the NFL, both were used to support a capped settlement which was rejected by the Court, and both present a picture favorable to the NFL. “The Reports should not be treated as fact,” the law firm points out.
“They were prepared by interested parties trying to justify a settlement rejected by the Court, but now are being proffered as objective science, which they are not. The manner and purpose for which the Actuarial Reports were produced cast doubt on the integrity and veracity of the conclusions of these reports. A brief history as to how and why these reports were developed is helpful to show that reliance on the Actuarial Reports in the current claims administration is unreasonable and highly detrimental to the Class Members.”
These reports appear to differ little from the now debunked “research” that the NFL promoted for decades denying dangers of concussion and brain injury in relation to football. As with most research funded by the NFL, it appears a desired conclusion is pre-determined where researchers work backward to supply data to support that conclusion rather than working independently to determine the facts, regardless of where those facts might lead.
The letter describes the domino effect of events which allowed this to take place. Players and their families did not want to be tied up in endless litigation which made a flawed settlement seem more favorable than it was in reality. Attorneys were concerned about the success the NFL has had with its preemption argument and many found the prospect of a settlement far less risky than opting out and trying to see the lawsuits through to trial. Seeger allegedly kept other Class attorneys in the dark in regard to the implications of the appeal and audit clauses that were slipped into the settlement after it was uncapped. The NFL saw settling as a means in which to avoid damning discovery and quiet the ever-increasing volume as to how brain injuries are destroying the players who built the game of professional football.
A year in to claims processing the NFL is successfully using its bargained for tool of audit authority to impede claims both before during and after review by the Claims Administrator, and even after claims have either been approved or denied they have placed claims in audit with no deadline for removal in order to delay and hopefully circumvent payment of approved claims and delay appeals of those denied.
Both sets of actuaries that are believed to be in use were developed using criteria from the general population rather than the affected population of NFL football players. This would be akin to trying to predict lung disease in smokers by evaluating a non-smoking population. They have used this tactic extensively in regard to players diagnosed with dementia or Alzheimer’s disease in their 30’s and 40’s as this is not characteristic of the general population which has not experienced up to 20 years of damaging cranial impacts. The reality of the Settlement is that players are both younger and sicker than the NFL biased actuaries indicated.
Per the letter:
“One immediate example of how the unreliable actuarial information is harming the Class Members is the practice of mass audits, which is depriving a large portion of the Class the bargained for timeline assured by the Settlement Agreement. BrownGreer relies on ‘data analytics’ to determine if claims are statistically improbable and should therefore be subjected to an audit investigation. If the ‘data analytics’ are based on unreliable actuarial reports that grossly underestimate the prevalence and seriousness of neurocognitive injuries suffered by Retired NFL Players, then many meritorious claims will unjustifiably be subjected to long, drawn-out audit investigations with no temporal limitations, putting the affected Retired NFL Players in limbo.”
“Another impact of the Actuarial Reports is evident in that almost no dementia (i.e. Level 1.5 and Level 2 Neurocognitive Impairment) claims that have been paid. Over twenty thousand (20,000) claimants registered to participate in the Settlement, almost nobody has received a dollar for dementia. As of the March 5, 2018 Monetary Award Claims Report published by BrownGreer, of the one thousand and ninety-seven (1,097) dementia claims filed by Class Members, only six (6) have been paid to date! Many of these dementia claims were filed almost one (1) year ago as the claims submission process opened.”
“As more fully set forth herein, the Actuarial Reports are unreliable and grossly underestimate the prevalence and seriousness of neurocognitive injuries suffered by Retired NFL Players…”
As a result of the extra bargaining power of the NFL, nearly 50% of submitted claims have been subjected to audit, while the Settlement Agreement recommends a random audit of 10% of claims but does not limit audits to that percentage. The NFL has admitted to scorched earth litigation in the past[2] and this appears to be more of the same.
Hakimi and Shahriari point out several indications of the actuarials which have undisputedly proven false. Both the Vazquez and Segal reports greatly underestimated the number of Class Members who would enroll in the settlement. They also grossly underestimated the number of players with ALS and Death with CTE claims.
“In the Vasquez Report, Mr. Vasquez projects that there will be a total of forty-six (46) cases of Death with CTE, and since Death with CTE is only covered for those who died prior to the Class Certification Order that all of these claims will be made through the end of 2020. However, as of February 21, 2018, the first nine (9) months of the Settlement, seventy-eight (78) claims alleging Death with CTE have already been filed and fifty-six (56) monetary award letters have been issued. We’re at the beginning of 2018 and sixty-seven percent (67%) more Death with CTE claims than were assumed by Mr. Vasquez to be filed through the end of 2020 have already been filed, and twenty-one percent (21%) more Death with CTE claims than were assumed by Mr. Vasquez would be paid through the end of 2020 have already been paid!”
“In the Vasquez Report, Mr. Vasquez projects that there will be a total of thirty-six (36) cases of ALS throughout the entire 65-year term of the settlement, and that only thirteen (13) of those claims will be made through the year 2020. However, just as of February 21, 2018, the first nine (9) months of the settlement, thirty-six (36) claims alleging ALS have already been filed and twenty-five (25) monetary award letters have already been issued…”
“Similarly, the Segal Group grossly underestimated the prevalence of ALS amongst the Class Members. The Segal Group projects a total of thirty-one (31) cases of ALS throughout the entire 65-year term of the settlement…It should come as no surprise that the Segal Group’s projections are far more favorable to the NFL Parties, as the Segal Group are the hired ‘expert witnesses’ of the NFL Parties. They were paid to be biased.”
If these reports can be so far off-base in the definitive pathology of CTE and the indisputable diagnosis of ALS, then it would stand to reason that other conditions were vastly underestimated as well. The diagnosis for Alzheimer’s disease or dementia is more subjective than CTE or ALS. Additionally, the Settlement construes a very narrow definition of these diseases for BAP and MAF standards. Diagnoses pre-dating the settlement were not supposed to be subject to these rigid standards, with instead, “generally consistent” diagnoses purportedly accepted. This has not happened. The use of post-settlement effective date criteria coupled with statistical anomalies based on an unaffected population has served the NFL’s purpose well in denying and delaying legitimate claims.
The complete letter from Hakimi and Shahriari to Special Masters along with the actuarial reports is embedded below and highly recommended reading.
It is troubling that over a month after submission Special Masters have not acknowledged or responded to this letter. It is also fortunate that Advocacy for Fairness in Sports was able to obtain it. In MDLs and class action settlements, the implementation phase, unlike the negotiation phase is barely visible to the public. During settlement negotiations, all filings are entered into the ECF systems of the various federal courts and available on those sites or Pacer. After a settlement is reached and implementation begins, most filings take place in secrecy, available only to the court and Special Masters of the settlement, and even shrouded from many of the lawyers who have interest in the outcomes, far from the public and media’s eye.
This document provides a glimpse into a largely hidden part of the justice system and one that demands transparency in the interest of securing parity for members of large MDL’s and class action lawsuits. It is both telling and disheartening that Special Masters have ignored such a vital piece of information that sheds light on how the defendant NFL has been able to circumvent the purpose of the settlement to the detriment of the victims of brain injury who trusted it.
MDL’s serve a useful purpose to the courts in that they consolidate what would otherwise amount to dozens, hundreds, and possibly thousands of cases that would otherwise have to be individually litigated, bogging down the courts for years. They also minimize the risk of circuit splits which would place an extra burden on the Supreme Court to clarify. But, it is the belief and opinion of this writer that judicial efficiency must not give way to the ultimate ideals of the American justice system – a system in which smaller players are to have equal access to justice as more powerful entities. This is far too easily compromised when powerful plaintiffs’ attorneys who represent few if any individual clients in a lawsuit are allowed to repeatedly control negotiations of others’ lawsuits in the interest of merely securing a settlement and the hefty payday that accompanies it. Justice would be much better served if those who have an actual stake in the post-settlement outcome were given greater roles as a counter to dangerous compromises made to powerful defendants.
In a rare public filing of this nature, a motion submitted by Locks Law Firm seeks to wrestle administrative control of the NFL Concussion Settlement from the unilateral control of Chris Seeger, who seems more aligned with the NFL’s interest than that of the Class of Retired NFL Players he was appointed to represent and has thus far failed.
The full motion and its exhibits are embedded below. While it is lengthy, it is important reading in that it demonstrates how justice can and has become obscured through exposing the tactics of the NFL in its aggressive battle against almost all claims, legitimate or not and the complicity of Mr. Seeger in allowing this to happen.
The Locks motion with its exhibits aptly demonstrates how legitimate claims are being derailed and doctors and other competent medical personnel discredited. A motion filed by Co-Lead Counsel Sol Weiss describes in detail the plight of one of his very ill clients and how the claim was mercilessly delayed for over a year.
Reactions by Chris Seeger, the NFL, and perhaps even the Court are very telling as to how far they will go in order to further their own interest at the expense of those who are suffering. In response to Mr. Weiss’s motion, the Radloff claim was finally approved – within hours of filing his motion, forcing him to withdraw it as moot – BUT at a dollar amount less than half of what was expected forcing the Radloffs’, who have already lost their home, to accept meager compensation or be further delayed by an appeal.
Reactions to the Locks motion have resulted in a multi-pronged effort to deflect the allegations. A handful of dementia claims were rapidly approved immediately after this motion was filed. Based on past reactionary measures by the NFL, this writer believes that the claims were approved in order to squelch media stories in progress that have focused on dementia denials.
Claims have been removed from audit in order to deter attorneys from filing a joinder response to the Locks motion, only to be placed in a pit of “preliminary review” after the deadline for filing had passed. A pro se Class Member’s motion of joinder was inexplicitly rejected by the court, even though Advocacy for Fairness in Sports has confirmed that all Eastern District of Pennsylvania protocols regarding pro se filing were in compliance. Likewise, a letter supporting the Locks motion signed by nearly 200 Class Members which requested posting on the public docket has been ignored.
Some readers may question the relevance of this and other sports-related litigation to “average folks” and day by day events and claim they don’t care what happens to professional athletes past or present. This is a position of apathy and ignorance because the high-profile nature of sports law cases tend to highlight problems that permeate the justice system on every level and can impact anyone. Cases such as those of Tom Brady, Adrian Peterson and Ezekiel Elliott — even the NFL Painkiller lawsuits tend to show how a labor agreement can be turned upside down against a union worker — even one who has long since retired. The court’s strong deference to arbitration agreements that became focal points in the Brady and Elliott cases affect almost every adult in the United States. If you have a bank account or credit card, or have contracted with a provider such as a nursing home, you have almost certainly signed an arbitration agreement, and should you ever be forced into arbitration can easily find the odds stacked against you from the onset. Recent cheerleader lawsuits focus on another widespread problem – gender equality in the workplace. Equally important, if you should ever find yourself harmed by medications or medical devices, or should you find yourself the victim of unsafe working conditions, or if your child should sustain serious cognitive or physical impairment as the result of organized sports participation, the odds against your recovery of damages can be daunting as evidenced in the NFL Concussion Settlement.
When justice is thwarted and obscured, it is everyone’s problem. It is the hope of Advocacy for Fairness in Sports that by shining a light on and explaining sports law cases that the public might see their relevance, support the athletes in their quest for justice, and in doing so, protect their own rights should they find themselves in a similar situation.
To see how opportunity, motive, and precedent come into play, see Part 1: “Why Does Chris Seeger Sound More Like a Mouthpiece for the NFL than Advocate for Players in the Concussion Settlement?.”
[1] See Locks Motion at Exhibit H.
[2] Seeger penned an op-ed entitled “The NFL Concussion Settlement is on Track” in the Washington Post in response to a Post article, “Dementia claims in NFL concussion settlement are going unpaid, lawyers say.” by Rick Maese; He also procured a rebuttal article in Newsday in response to a strong piece entitled, “NFL stalling on Concussion Settlement payouts, Players Say .” Additionally, Advocacy for Fairness in Sports obtained a press release from Chris Seeger that was sent to major media in wake of these and other articles, which reads in part, “For Immediate Release: March 28, 2018: NFL concussion settlement claims approvals exceed $380 million in first year; value surpasses NFL’s five-year estimate-Philadelphia, PA – More than $380 million in monetary awards have been approved as part of the NFL concussion settlement since the claims process opened one year ago, according to the latest report released yesterday by the Court-appointed Claims Administrator. The NFL, in a report submitted to the court as part of the settlement approval process, had estimated it would pay $298 million in the first five years of the settlement. In addition, more than 5,500 Baseline Assessment Program appointments have been scheduled, with more than 3,900 attended.”
