Law360: Claims agent defends new rules in NFL concussion deal

Posted on May 06, 2019

May 6, 2019 UMV: 1,536,967
By Ryan Boysen
Law360 (May 6, 2019, 4:22 PM EDT) — The claims administrator for the NFL’s landmark concussion
settlement has come out in defense of new medical rules that sparked opposition from players’ attorneys,
calling them only tweaks that will help claims “glide through” the process and further underscoring the gap
between both sides’ rhetoric.
In his Friday motion, claims administrator Orran L. Brown of BrownGreer PLC said the new rules were
intended only to clamp down on possible fraud and to reduce delays, which have borne “the brunt of
considerable criticism” from lawyers, players and the media.
“In this, as in any settlement program, it would be far better for settlement class members to clean up [any]
issues on the front end of a claim, rather than on the back end,” Brown said. Claims that do so, he continued,
“can glide through the claims process without delay.”
A hearing on player attorneys’ challenges to the new rules has been scheduled for Tuesday morning.
The new rules were released early last month. Among other things, they say that the 15,000 or so players still
covered by the uncapped deal can see doctors only through the Monetary Award Fund program if they’re
within a 150-mile radius of where the players live, and require those doctors to provide additional justifications
for their diagnoses.
The MAF program includes one of two groups of doctors players can see to obtain a so-called qualifying
diagnosis that then entitles them to a monetary award. The other group, the Baseline Assessment Program, is
governed by much stricter guidelines than the MAF. The MAF doctors can use their clinical judgment when
diagnosing players’ conditions as long as their methods are “generally consistent” with the stricter BAP
Brown played the lead role in formulating the new rules following a contentious Jan. 9 order from U.S. District
Judge Anita B. Brody that directed Brown to “clarify” the settlement’s medical guidelines after the NFL abruptly
backed down from an appeal that sought to challenge them head on.
Several attorneys who represent players blasted the new rules almost immediately, claiming they allowed the
NFL to achieve its goal of throwing up more roadblocks for players despite having withdrawn the appeal that
sparked the rules change in the first place.
A formal motion for reconsideration followed roughly a week later, with three powerful firms — Locks Law
Firm, Anapol Weiss and Podhurst Orseck PA — arguing the new rules “materially altered the bargain.”
“It moves the entire agreement closer to what the NFL always wanted, but the class rejected: something akin
to the [NFL’s] benefits plans, with a multi-layered set of reviews and a process that provides multiple
opportunities to reject a player’s claim,” those firms said.
Seeger Weiss LLP, the most powerful firm in the settlement on the plaintiff’s side of the docket, asked that the
court overturn the new 150-mile rule but did not criticize the other new rules in its joinder to the motion for
In Friday’s motion Brown defended the new 150-mile rule as a straightforward way to fight fraud by preventing
players’ attorneys from exploiting MAF doctors who might bend the rules to hand out qualifying diagnoses, as a
handful have been accused of doing. He also said the new rule would cut down on travel costs for players.
The three firms that filed the motion for reconsideration blasted that new rule as curtailing players’ freedom to
choose their own doctors, calling that freedom one of the “fundamental” rights for players enshrined in the
settlement and arguing that ample fraud prevention is already built into the settlement.
Some MAF doctors have different specialties from others, the firms said, while some players may be ashamed
to admit their cognitive infirmities to a doctor who practices in their own community.
Brown describes the new rule that requires MAF doctors to explain in writing how their methods are “generally
consistent” with the stricter BAP protocols as a commonsense way to reduce delays and misunderstandings.
The three firms, on the other hand, said the new requirement would essentially force MAF doctors to write up a
document that the NFL could very well use to “litigate against” them, until the “generally consistent” standard is
“effectively rolled back or eliminated altogether,” as the NFL had sought to do in its withdrawn appeal.
Brown also defended a new rule that would let the Appeals Advisory Panel weigh in on claims from the get go.
The AAP is a panel of eight neurologists tasked with evaluating diagnoses made before the settlement was
struck in 2015 and helping to arbitrate appeals, or challenges, to claims lodged by the NFL. Many player
attorneys have accused the panel, whose members do not evaluate any players directly, of being
compromised by the NFL.
Brown said that giving the AAP the option to weigh in early on, as the new rules allow, would help to smooth
over potential disagreements on medical procedures at the beginning of a claim.
But the three firms said the problem with letting the AAP into the process earlier is not so much a medical
problem as a legal one. If the AAP is only brought in on the NFL’s appeal of a previously approved claim, the
legal standard the NFL must meet to overturn that claim is very high.
If, however, the AAP gets a say early on and causes a claim to get denied, then the player must meet an
extremely tough standard to overturn that denial.
Brown said such concerns were misplaced, because the new rules do not mean the AAP “will review every
claim package resting on a qualifying diagnosis from a qualified MAF physician. Far from it.”
Brown and representatives for the NFL, Seeger Weiss and the three firms that filed the motion for
reconsideration did not respond Monday to requests for comment.
BrownGreer is represented by its own Orran L. Brown Sr.
The NFL is represented by Brad S. Karp, Theodore V. Wells Jr., Bruce Birenboim and Lynn B. Bayard of Paul
Weiss Rifkind Wharton & Garrison LLP, and Sean Fahey of Pepper Hamilton LLP.
Seeger Weiss LLP is represented by its own Chris Seeger.
Locks Law Firm is represented by its own Gene Locks and David D. Langfit.
Anapol Weiss is represented by its own Sol Weiss and Larry Coben.
Podhurst Orseck is represented by its own Steven. C. Marks, Ricardo M. Martinez and Stephen F. Rosenthal.
The case is In re: National Football League Players’ Concussion Injury Litigation, case number 2:12-md-02323,
in the U.S. District Court for the Eastern District of Pennsylvania.