A judge’s order that called for a clarification of the physicians’ rules for the NFL concussion settlement will not affect the standard those physicians must use to issue a qualifying diagnosis, thus ostensibly making it easier for former players to qualify for settlement money, according to a lawyer who represents the settlement class.
The order, issued Jan. 9 by Senior Judge Anita B. Brody of the U.S. Eastern District of Pennsylvania, who oversees the settlement, appeared to mandate that a stricter diagnostic criteria be used for dementia claims, which I framed as a loss for the players. But Christopher Seeger, the co-lead class counsel for the players, insisted to me in an interview that Judge Brody’s directive was simply an administrative adjustment, rather than a change that fundamentally rewrites the terms of the settlement itself, as some individual plaintiffs’ lawyers had feared.
The only change, according to Seeger, of the New York City-based firm Seeger Weiss, is that a group of physicians given wider latitude to make a dementia diagnosis must now explain their reasoning when that diagnosis deviates from a stricter standard used by another set of doctors.
“This is an administrative issue,” Seeger told me. “It’s not substantive. It doesn’t alter any rights.”
Much of the settlement’s implementation has been fraught from the beginning, in part because of the opacity of Judge Brody’s oversight. To the consternation of numerous attorneys representing individual players, she has kept nearly all questions about the claims process out of open court while also limiting most arguments to the primary parties involved (i.e., the NFL and the class counsels). Seeger’s description of the backstory behind Judge Brody’s Jan. 9 ruling—which he said sprang from an agreement reached during a pre-hearing conference call—is another example of that murkiness.
More than $600 million in settlement claims have been approved, with more than $425 million in payments issued, according to the latest report by the claims administrator, BrownGreer of Richmond, Va. Most of those payments have been large monetary awards for Parkinson’s, Alzheimer’s, ALS, and Death with CTE, all of which are relatively easy to diagnose. But the byzantine process of navigating the settlement has been especially vexing for dementia claimants, who make up the majority of the settlement class. Though dementia claims account for 1,490 of the 2,256 claims submitted (66 percent), just 302 (20.2 percent) have been approved, with only 168 (11.2 percent) having been issued payments.
The settlement’s uncapped dollar figure, coupled with a greater-than-anticipated number of early claims for Alzheimer’s and Parkinson’s, have incentivized the NFL into limiting its exposure by aggressively appealing and auditing dementia claims, which are trickier to diagnose.
Individual plaintiffs’ attorneys have also filed several motions in the past 11 months essentially alleging that Seeger Weiss isn’t doing enough on behalf of the settlement class. Judge Brody has rejected most of these entreaties. The gargantuan fees Seeger Weiss stands to collect is another issue entirely. Last week, Houston attorney Lance Lubel filed a to-be-determined motion alleging that the class counsels have already depleted 90 percent of the $112.5 million the settlement had set aside for lawyers’ fees. Class counsels were granted $85.6 million, with $52 million of that going to Seeger Weiss. And Seeger Weiss has filed two fee petitions seeking an additional $12.6 million for work done from the settlement’s implementation in January 2017 through November 2018. Two weeks ago, Judge Brody approved the first of those petitions, in the amount of $9.4 million.
Brody also approved the appointment of a fraud investigator to look into the NFL’s allegations that some players and lawyers are trying to game the system. Seeger described this as a real issue.
“The problem is that early on, there were so many pre-effective date diagnoses of dementia that had the earmarkings of something wrong, okay?” Seeger told me. “Call it fraud, call it a suspicious doctor, call it whatever you want to call it, but it led to hundreds of those claims being put in audit. That really did slow down the processing of the [dementia] claims for months. And we are now finally starting to get on track.”
To suggest fraudulent claims were clogging the system is an odd argument for a lawyer representing claimants to make. But Seeger said some claims—medical records with the same vital signs/heights/weights/blood pressures for 50 to 60 different players, records suggesting a doctor worked literally around the clock, a lawyer flying dozens of players across the country to see one doctor—were too hinky to be ignored. In court papers, Seeger did not oppose the NFL’s request for an investigator, but he did ask that its scope be limited to an investigatory (rather than a determinative) role, and he’s satisfied the court did just that.
“When I say these things looked suspicious, it didn’t take a rocket scientist to figure out what was going on,” Seeger told me. “Anybody looking at them would say, ‘Red flag.’”
Players looking to file a settlement claim have the option of using one of two sets of neurologists and neuropsychologists from a list that’s been pre-approved by both the league and the class counsel. One set, the Baseline Assessment Program (BAP), is free for the players, but they only get one examination, and the visit and the doctor are chosen by BrownGreer. The other program, known as the Monetary Award Fund (MAF), allows players to pick their doctor and to arrange the time and location of the appointment. Players who choose to go the MAF route must pay for the visit themselves (or via insurance, if applicable). In a December court filing, the NFL asserted that “over 70 percent” of payable dementia diagnoses came via the MAF. During our chat, Seeger said he wasn’t sure how the split broke down.
As explained in greater detail by Law360's Ryan Boysen, doctors in both programs use the Clinical Dementia Rating scale, which scores patients based on six factors: memory, orientation, judgment and problem solving, community affairs, home and hobbies, and personal care. The settlement requires the BAP doctors to rely heavily on the last three areas of that CDR scale, which can work against patients who can still drive or hold down a job or groom themselves. The MAF doctors, by contrast, abide by a less strict standard that weighs all six CDR scale factors plus their clinical judgment. For a player to qualify for a payout, an MAF doctor’s diagnostic criteria must be “generally consistent” with the BAP’s stricter standard, according to the terms of the settlement.
That “generally consistent” standard was at the heart of the NFL’s appeal. A hearing for that appeal had been scheduled for Jan. 10 in Philadelphia, but the league withdrew its appeal the day before. Judge Brody’s Jan. 9 order announced that withdrawal while also stating the following:
The Court directs the Claims Administrator to develop for review and approval by the Court a clarification of the existing Rules Governing Qualified MAF Physicians. The clarification should require that Qualified MAF Physicians who make a Qualifying Diagnosis of Level 1.5 Neurocognitive Impairment or Level 2 Neurocognitive Impairment by deviating from the BAP testing protocols or diagnostic criteria provide a written description in their reports as to why, in such doctor’s medical judgment, the evaluation and evidence is “generally consistent” with the BAP diagnostic criteria.
The wording of that order does not seem to limit any clarification to having doctors provide written descriptions of their “generally consistent” assessment. Judge Brody appeared to be giving the league even more than it wanted, by potentially creating an opening for the “generally consistent” standard to be redefined. This is what led Patrick Tighe, a West Palm Beach. Fla., lawyer who represents roughly 90 players, to file a motion last week asking the judge to reconsider. But Seeger maintained that wasn’t what the ruling meant. For one thing, Seeger said, there was a conference call in the days before the NFL withdrew its appeal between him, Judge Brody, and lawyers for the league. During that call, according to Seeger, the judge articulated as much.
“All she is saying is that if you come up with a diagnosis of dementia, but you deviated from what we required in the BAP, you have to just explain what you did,” Seeger said. “What test did you use, and why do you think, even with that deviation, it still supports a diagnosis? This is being done by eight out of 10 doctors right now; they are already doing it. There were a couple of files where she just had nothing in there. So she felt it was important that the claim administrator, who collects the records, lets the MAF doctors know.”
It should be noted that the original MAF physicians’ manual did not include any kind of requirement for MAFs to explain why a dementia diagnosis deviates from the BAP. Similarly, the form the MAFs use to certify their diagnoses does not include a space to explain any reasoning other than why certain testing protocols might have been unnecessary.
That this arrangement was hashed out privately has many other plaintiffs’ attorneys skeptical. Seeger’s only public comments on it before this interview were in a statement that said Judge Brody’s order would “streamline the approval and payment of claims, and curtail unnecessary appeals by the NFL.” But having MAF doctors explain their reasoning might open the door for the NFL to lawyer what those doctors write, which could work as an end-around toward a tighter diagnostic standard. Seeger insisted any such appeals wouldn’t get past the special masters assigned to be the final arbiters of claims appeals or the court, just as the seven claims specifically affected by the judge’s ruling didn’t; indeed, that ruling also lifted the stay on the league’s appeal of those seven cases, thus clearing the way for them to be paid once and for all.
“I can tell you right now that if the doctor does something like that, they’re not going to get second-guessed by the special masters or the court because that’s exactly what ‘generally consistent’ was designed to get at,” Seeger said. “That’s it. It does no more. And I was on the phone calls with the NFL and the judge when she was telling them, basically, ‘This is a bullshit appeal.’ I don’t know what more I can do on this other than to say why don’t you take a little bit of a wait and see approach? You’re going to see that the way this plays out is it’s a non-issue.”