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The NFL Concussion Settlement Just Keeps Getting Worse And Worse

Photo: Rich Schultz (Getty)

In what plaintiffs’ attorneys view as a total disaster, the federal judge overseeing the NFL concussion settlement on Thursday denied a motion to reconsider rules changes for physicians she had approved last month. Those changes, as noted earlier, stand to make it even more difficult for players to get paid and represent an enormous victory for the NFL.

The ruling by Senior Judge Anita B. Brody came as no surprise. It followed a court hearing that took place last week in Philadelphia at which Brody’s tone and line of questioning indicated her belief that the primary issues affecting the settlement’s claims process remain the potential for players, lawyers, and doctors to defraud the system—even as hundreds of claims are still getting denied, being appealed, or languishing in audit.

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One plaintiffs’ attorney, on condition of anonymity, told me a number of lawyers are considering ways to educate and inform Judge Brody about the substantial, confounding problems with the claims process. This attorney did not elaborate. But another lawyer, Lance Lubel of Houston, has already filed notice to the Third Circuit Court of Appeals of his intention to appeal the implementation of the new physicians’ rules.

The settlement is a mass tort involving thousands of former players who seek compensation from the NFL for its manipulation and denial of the science of repetitive head trauma. More than $663 million in claims has been approved, and nearly $500 million has been paid, according to the latest claims report. Those figures appear to give Judge Brody the impression that the settlement is working properly. While many of the most obvious, serious claims have been approved—for death with CTE, ALS, Alzheimer’s, and Parkinson’s disease—there’s a deeper story here, about which Judge Brody seems to be completely in the dark, as was clear at last week’s hearing: Of the 2,787 claims submitted, 62 percent are for early or moderate dementia, and only 20 percent of those early and moderate dementia claims have been approved, and only 14 percent have been paid. In addition, 43 percent of all claims for all diagnoses have already been audited.

A big part of the problem is that the settlement has its own definition of what constitutes early and moderate dementia that’s rooted in legalisms rather than in medical science, thus creating an opening for the NFL to lawyer away at a substantial number of diagnoses. Sufferers of early and moderate dementia are also frequently clear-headed, which can make it tricky to distinguish their functional and cognitive abilities.

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Another problem is that the May 7 hearing was the first time any issues with the claims process had been discussed in open court since February 2017, one month before the settlement took effect (other than a hearing last May that was specifically about the appointment of a special fraud investigator). This has created an echo chamber whereby the NFL has been able to set the tone of the discussion with what numerous attorneys describe as only token pushback from Christopher Seeger, the New York–based co-lead class counsel who has run point on behalf of the settlement class. Seeger, who has almost always been the only attorney to present in front of Judge Brody, and who has had frequent closed-door meetings with the judge and lawyers from the NFL, also stands to collect the bulk of the more than $100 million from the common benefit fund that was set aside for attorneys’ fees.

Neither Seeger nor his publicist immediately responded to a request for comment, though the publicist did pass along a statement a few hours after this story was published. It appears below.

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As has been the case since the settlement took effect, there was no place at the hearing for anyone like the wife of a 50-year-old former player who had played in the NFL for most of the 1990s. The wife told me her husband has been approved for the NFL’s own disability plan and for total and permanent disability through Social Security, only to have his settlement claim denied.

The wife did not want me to use her name due to fears her husband’s NFL disability would be taken away—a common refrain from players and families struggling to navigate the settlement system. She said her husband spends most of his days sitting in a chair in front of the television. “He doesn’t really watch it—it’s really on, and he’s just staring at the wall or the ceiling,” she said. Her husband is also forgetful, she said, and more prone to anger than he used to be. She said he’s been this way for the last decade.

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“There are times I would try to call my husband, and he wouldn’t answer and I knew he wasn’t in a great way at certain times, and I’d be out with my kids and I’d come home, and I would have to give them something to do, like, ‘Go check the mailbox’ so I could go in the house first to make sure my husband wasn’t dead,” the wife said. “That’s how it feels. People don’t understand that.

“You will never be able to unhear me saying to you that I have to go in the house before my kids to make sure my husband didn’t kill himself.”

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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 with navigating the claims process. Several attorneys have told me Seeger hasn’t done enough to stand up to the NFL and to alert the judge to a lot of the problems faced by players. Seeger did not appear at the May 7 hearing; another lawyer from his firm, David Buchanan, spoke instead, as did lawyers Eugene Locks and David Langfitt of the Philadelphia-based Locks Law Firm, which represents an estimated 1,100 players.

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Most of the arguments at the hearing zeroed in on a rule change mandating that players who opt to see an approved doctor of their choosing—a program known as the Monetary Award Fund (MAF), which has looser diagnostic standards than the one in which the doctor is chosen for the player—must live within a 150-mile radius of of that doctor.

Brown contended that 91 percent of settlement class members lived within 150 miles of at least one of the 121 MAF doctors enrolled in the program. However, only 68 of those 121 MAF doctors have issued qualifying diagnoses of early and moderate dementia claims. Gene Locks maintained that there are as many as 30 subspecialties of neurology, and that not every MAF doctor is suited to evaluate all of his clients. Locks also emphasized that there aren’t enough doctors in the program to begin with—a point with which Brown agreed.

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Brown also told the judge that four MAF doctors who had been dismissed from the program were responsible for $46 million in claims, including half of all MAF approvals for early and moderate dementia, and that a provision like the 150-mile rule might have allowed him to catch that problem sooner. Brody was clearly sympathetic to this argument.

“A few were brought to my attention where we had a lawyer from Pennsylvania and a player from Florida going to a doctor in Texas,” she said. “And that was a red flag. I don’t know how many examples like that you have, but it’s my recollection that it wasn’t insubstantial, and that’s my concern when it comes to this kind of restriction.”

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Locks told the judge that the new rules would amount to “changing the fundamental agreement” that was struck when the settlement was negotiated. From the players’ perspective, Locks also said, a fundamental aspect of the settlement is that “you can always go to the doctor you want.”

In her denial, Judge Brody granted some exceptions to the mileage rule:

The Claims Administrator may grant an exception to these rules if there is no physician available within the mileage limit, if the wait time to see a physician within the mileage limit is over 100 days, or for any other circumstances the Claims Administrator, in its discretion, determines warrant an exception. For example, the Claims Administrator may grant an exception if a Retired Player has an existing relationship with a MAF Physician, the Retired Player desires to see a MAF Physician with a particular specialty, or if the MAF Physicians within the 150-mile radius do not accept the Retired Player’s insurance.

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It’s easy to see how these exceptions will add another layer to what is already a complex process. Besides, the settlement already has anti-fraud provisions, and Judge Brody had previously approved the appointment of a special investigator to ferret out fraud. And Brown noted that doctors who appeared to be bad actors had already been weeded out. Nonetheless, the new rules—which were also enacted without the consultation of the co-lead class counsels—will go into effect.

Another rule change that was contested was a provision that MAF physicians put their reasoning in writing when their qualifying diagnoses differs from a stricter standard used by another program; some plaintiffs’ attorneys saw this as an avenue for the NFL to litigate those doctors’ diagnoses. BrownGreer was also granted the ability to consult with members of what’s supposed to be an appeals panel on medical aspects of the settlement, which leads to fears the appeals panel will have a say in the claims process.

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Update, 3:48 p.m. ET: Seeger has since sent along the following statement:

“The success we’ve had—$663 million in approved claims over two years—has led the NFL to more vigorously challenge how the settlement is implemented. And while we have fended off the majority of these challenges, the reality is that a small number of individuals who attempted to game the system have given the NFL ammunition to raise issues with the court.

“While we are disappointed with the Court’s order, we will closely monitor the implementation of these rules and continue fighting on behalf of former NFL players so they receive every benefit they are entitled to under this settlement.”

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You can read Judge Brody’s denial of the motion to reconsider below:

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About the author

Dom Cosentino

Dom Cosentino is a staff writer at Deadspin.