Fleishman Motion 1/8/19
Fleishman Motion 1/8/19
Fleishman Motion 1/8/19
respectfully submits this Objection to the Special Master’s May 31, 2018
Ruling (the “Ruling”), which erroneously granted the NFL’s untimely appeal with no meaningful
explanation. Ex. 1. In making the Ruling, the Special Master cryptically stated that the “Special
Master was assisted by a member of the Appeals Advisory Panel and/or an Appeal Advisory
Consultant.” (Id.). There is no indication what the analysis from either member of the AAP or
AAC to the Special Master was or why it was different from numerous prior approvals of
claim – award approvals from the Claims Administrator; the Advisory Physician
Panel; the audit process and the Claims Administrator again. As a matter of law, this Court did
not establish the position of Special Master in order to provide another opportunity for the
Claims Administrator to audit its own decision. The Court created a clear schedule of
assignments and responsibilities under the Court’s authority to oversee this class action
settlement. This schedule of assignments is governed by the Settlement Agreement, and the
rules of the road should not change now after that agreement was carefully negotiated and agreed
upon.
1569669.3
Case 2:12-md-02323-AB Document 10094 Filed 06/21/18 Page 2 of 10
Here, claim had already passed the increased scrutiny of an initial review
by the Claims Administrator, including an internal review by the Advisory Physicians Panel;
then, followed by a full audit by the Claims Administrator in which the diagnosing neurologist
was interviewed and five years of medical records and employment records were reviewed.
claim passed all three of these rigorous reviews and his claim was approved a second
time after providing a litany of further information. The NFL then challenged the monetary
award on grounds that are not stated in any description of the underlying Settlement Agreement,
and now introduces a new set of requirements to monetary awards under the settlement that were
never negotiated by the Class Counsel and the NFL and were never approved by the Court.
Nevertheless, the Special Master, charged with review of the NFL’s appeal, then
inexplicably requested records from one disability provider previously hired by NFL to contest
advice from an undisclosed member of the AAP and reversed the twice- approved award without
any explanation.
The Special Master unilaterally declared that this “adopted” determination amounted to a
“factual determination and is final and binding.” However, the only objection raised by the NFL
Settlement Agreement. Because this is the NFL’s only objection, then it was the only objection t
that could properly be considered by the Special Master. However, this objection does not on its
face seem to bear any relation to the objection raised by NFL in its Appeal. If the Court upholds
this Ruling by the Special Master, it will be contradicting every system the Settlement
Agreement put into place to make a determination on this claim – the Claims Administrator; the
1569669.3 -2-
Case 2:12-md-02323-AB Document 10094 Filed 06/21/18 Page 3 of 10
The Special Master did not have the authority to invite this other participant in the
process to participate in the Appeal determination. There is no basis in law of fact for the
Special Master’s determination. This ruling is against the weight of the law and is capricious
and arbitrary and therefore, is an improper “conclusion of law that” this Court must review de
FACTS
Class Member is a thirty-six year old man with a nine year history in the
NFL as a defensive lineman playing for multiple teams1. On April 11, 2017, Class member
neurological report and opinion that suffered from 1.5 deficit (mild-moderate
dementia) as a result of the repetitive head trauma suffered as a professional football player. The
July 10, 2015 report was authored by Michael A. Lobatz, M.D.2, a world renowned expert in
psychological report by Dr. Laura Hopper, using an accepted set of measurements also
The claim first was analyzed and approved by the Claims Administrator and then it was
sent to a second level of approval by the Appeals Advisory Panel4, pursuant to Section 5.13 of
2
Dr. Michael Lobatz is a neurologist in Carlsbad, California and is affiliated with multiple hospitals in the area,
including Scripps La Jolla Hospitals and Scripps Memorial Hospital-Encinitas. He received his medical degree from
University of Illinois College of Medicine and has been in practice for more than 20 years.
3
It is attached as Ex. 2.
4
Appeals Advisory Panel “means a panel of physicians,
composed of, in any combination, five (5) board-certified neurologists, board-certified
neurosurgeons, and/or other board-certified neuro-specialist physicians agreed to and
jointly recommended by Co-Lead Class Counsel and Counsel for the NFL Parties, and
appointed by the Court, any one of whom is eligible to advise the Court or the Special
Master with respect to medical aspects of the Class Action Settlement and to perform the
other duties of the Appeals Advisory Panel set forth in this Settlement Agreement.” Section 2.1 (g).
1569669.3 -3-
Case 2:12-md-02323-AB Document 10094 Filed 06/21/18 Page 4 of 10
the Amended Settlement Agreement. According to the Amended Settlement Agreement, after the
Appeals’ Advisory Panel approved the submission, the decision should be “final and binding”:
Based upon the final and binding determination of the Appeals Advisory Panel, the
Claims Administrator agreed that suffered a 1.5 deficit and made a monetary award
finding that he is entitled to recover under the settlement and that he currently qualifies for a 1.5
recovery. Ex. 3. Under the Agreement, the NFL had 30 days (until August 21, 2017 because
August 20 is a weekend) to appeal. The NFL did not appeal at that time.
was advised that his Claim was the subject of a random 10% audit by the
Claims Administrator. As part of the audit, on September 7, 2017, the produced 5 years
of medical records and 5 years of employment records. The Claims Administrator interviewed
Dr. Lobatz. During the interview, Dr. Lobatz made clear that he did not rely on the Hopper
report to formulate his opinion that suffered from a 1.5 deficit. Dr. Lobatz explained
to the Claims Administrator’s representatives that his opinion was independent of Dr. Hopper’s
testing. In his written opinion, he refers to multiple bases for his opinion including, Dr. Hopper,
a psychiatric evaluation in December 2014, the Amen Clinic, Dr. Fink, and the Crosby Center
“document evidence of functional impairments, depression and anxiety that are generally
consistent with the criteria set forth in the National Alzheimer’s Coordination Center’s Clinical
1569669.3 -4-
Case 2:12-md-02323-AB Document 10094 Filed 06/21/18 Page 5 of 10
Dementia Rating Scale (CDR) 1.5 (Neurocognitive impairment) in the areas of Community
Dr. Lobatz’s opinions are also based on the CT scans of brain, the medical
records, medical exams and testing Dr Lobatz performed over a four year period. The Lobatz
On December 4, 2017, for the second time (and three separate reviews consisting of the
Claims Administrator, the AAP, and an audit) claim was approved. He was,
Appeals of Claims Determinations purport to govern the appeals’ process. Rule 34 of those
Rules state:
Rule 34. Claim in Audit. If the Claims Administrator places a Claim in Audit at any
time, the processes on Appeal and any time periods in these Rules applicable to the
Appeal will be suspended until the conclusion of the Audit.
Despite having no pending appeal to “suspend,” because August 21, 2017 (30 days
following the initial Claim award) had come and gone, the NFL, nevertheless, filed a novel
ARGUMENT
The NFL needed to appeal the initial claim by August 21, 2017, and it did not. Rule 34
only suspends time periods for appeals that are pending. It even states that “any time periods in
these Rules applicable to the Appeal will be suspended.” Rule 34 (emphasis added). An appeal
that has not been filed cannot be “suspended.” Thus, the NFL’s purported appeal on January 3,
5
counsel offered to let the Special Master interview Mr. Lobatz to answer any
questions under oath in its response to the NFL’s claim objection. The Special Master did not
take up the offer, apparently opting to talk to a member of the AAP in private.
1569669.3 -5-
Case 2:12-md-02323-AB Document 10094 Filed 06/21/18 Page 6 of 10
2018, is untimely as a matter of law and it should be rejected and dismissed. award
Claim with anything more than the opinion of a Board Certified neurologist or Board Certified
requirement for anything other than the report of a Board Certified neurologist or other medical
doctor. There is no mention of a requirement for a neuropsychological report, let alone one
using a certain set of T scores for analytical purposes. The NFL is unlawfully inserting
requirements into the settlement agreement that simply do not exist. That is not a factual issue –
The NFL refers to a BAP test that has nothing to do with a Pre-effective Claim. Under
the precise terms of the Amended Settlement Agreement, the claimants who submitted Pre-
effective Date claims were not required to undergo a BAP test. That comparison is illogical
here, since the Claimant is asked to follow the instructions as set forth in the Amended
The Settlement Agreement does not require a neuropsychologist report or T scores for a
Pre-effective Date submission. The NFL is trying (again) to change the terms of the deal to
make it more difficult for players to get paid under the settlement. That is certainly not what was
envisioned by counsel who negotiated this settlement or the Court who approved the Agreement.
Because this error involves contract enforcement of clear terms, this is a matter of law for the
intercession by the Court. See Doe v. The Trustees of the University of Penn., 270 F. Supp.3d
799, 811 (E.D. Pa. 2017)(“The meaning of an unambiguous written instrument presents a
1569669.3 -6-
Case 2:12-md-02323-AB Document 10094 Filed 06/21/18 Page 7 of 10
Univ. of the Holy Ghost, 777 A.2d 418, 430 (Pa. 2001).
The Settlement Agreement specifically states that “[t]he decision of the Appeals
Advisory Panel member as to whether the Retired NFL Football Player has Level 1
Impairment, or none, will be final and binding” under Section 5.13. “Final and Binding” means
without question and unable to be appealed in this instance. Under the terms of the language in
the Amended Settlement Agreement, the NFL should not be permitted to come before this Court
That section of the Agreement reserves the right of the NFL to question the monetary
award. But, the monetary award is based on a number of factors including: playing time, time on
a roster, playing with a recognized team. The NFL does not appeal those findings. There is no
basis for the NFL’s Appeal of the Qualified Diagnosis 1.5, which the Appeals Advisory Panel
The NFL’s Appeal is not warranted based on the terms of the Amended Settlement
Agreement. There is not and never was a requirement that the Pre-effective date claims have
support from neuropsychological testing. To now claim otherwise and attack a 2014 report
psychological report prepared before the settlement became effective is inexcusable. The NFL
has failed to make a showing by clear and convincing evidence, as required by Section 9.8 of the
Agreement, that the Appeals Advisory Panel and the Claims Administrator were wrong when
they accepted the opinion of Dr. Lobatz that suffered from mild to moderate
dementia (qualifying as 1.5). These opinions are diagnostically consistent with that which is
1569669.3 -7-
Case 2:12-md-02323-AB Document 10094 Filed 06/21/18 Page 8 of 10
required under Section 6.4(b) of the Agreement. Therefore, the NFL’s ground for reversal of the
The NFL knows and has reason to know that those suffering from repetitive head trauma
decline over time. Dr. Lobatz has cared for for more than four years and the doctor
told the Claims Administrator who interviewed him during the second large audit that the doctor
had clinically observed a neurocognitive decline in over the period of time he had
treated him. And, that in his opinion based to a reasonable degree of scientific certainty,
suffered from neurocognitive deficits attributable to his repetitive head trauma suffered
while playing professional football. Dr. Lobatz highlighted the fact that suffered
significant and visible bleeds on the brain consistent with the trauma suffered. And, he
explained to the Claims Administrator that the neuropsychological analysis, while interesting,
was not as clear evidence of specific brain trauma as were those brain bleeds and the growing
symptoms he observed over four years. Dr. Lobatz’s opinion was in fact strengthened and
As a matter of law, the NFL appeal raises no argument or evidence that could ever meet
the “clear and convincing” legal standard. Thus, this Court must vacate the Special Master’s
A member of the AAP has no authority to advise the Special Master to read new terms
into the Settlement Agreement. It is unclear what analysis was adopted by the Special Master
The only issue that could be considered by the Special Master on appeal was the precise
issue raised by the NFL in its appeal. The only way to agree with the NFL would be to re-write
1569669.3 -8-
Case 2:12-md-02323-AB Document 10094 Filed 06/21/18 Page 9 of 10
the Settlement Agreement or interpret it in an unlawful way. This Court should not set a
precedent of claims being determined behind closed doors with no way of knowing how the
determination was made or who made it. The Special Master’s ruling should not be permitted to
stand.
CONCLUSION
For all of the stated reasons, the Special Master’s Ruling should be vacated and the NFL
Appeal should be denied. Class member should be entitled to receive his full
By:
Wendy R. Fleishman
1569669.3 -9-
Case 2:12-md-02323-AB Document 10094 Filed 06/21/18 Page 10 of 10
CERTIFICATE OF SERVICE
______________________________
Wendy R. Fleishman
1569669.3