Case 2:12-md-02323-AB Document 10516 Filed 04/01/19 Page 1 of 9

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IN RE: NATIONAL FOOTBALL
LEAGUE PLAYERS’ CONCUSSION
INJURY LITIGATION

Case No. 12-md-2323 (AB)

Kevin Turner and Shawn Wooden,
on behalf of themselves and others
similarly situated,

Hon. Anita B. Brody

MDL No. 2323

Plaintiffs,
National Football League and
NFL Properties LLC,
successor-in-interest to NFL Properties,
Inc.,
Defendants.

THIS DOCUMENT RELATES TO:
ALL ACTIONS
AMENDED REPLY TO CLAIMS ADMINISTRATOR’S RESPONSE TO RETIRED NFL
PLAYERS’ MOTION TO STOP MULTIPLE AUDITS OF SETTLEMENT CLASS
MEMBERS THAT VIOLATE THE SETTLEMENT AGREEMENT
Retired NFL Players Identified by their SCM Program ID’s in their Motion (collectively
“Movants”) file this Amended Reply to the Claims Administrator’s Response (the “Response”)
[ECF No. 10488] and Amended Response [ECF No. 10503] to the Motion for Court Intervention
to Stop Multiple Audits of Settlement Class Members that Violate the Settlement Agreement and
incorporated Memorandum of Law (the “Motion”), and in support state as follows:
I.

The Claims Administrator’s Response fails to cite authority that allows it to conduct
multiple audits of the same Claim.
The Claims Administrator’s1 twenty-eight page Response can be summarized by the fact

1

The defined terms in this Motion have the same meaning as the defined terms in the Settlement Agreement.

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that it fails to identify a single sentence in the Settlement Agreement or Rules Governing the Audit
of Claims (the “Audit Rules”) that permits multiple audits of the same Claim. No such authority
exists or was provided to the Claims Administrator. The Response purports to explain the process
and cites rules and sections of the Settlement Agreement in an attempt to muster support for its
misapplication of the clear terms and conditions contained in the Settlement Agreement and Audit
Rules. However, not one term of the Settlement Agreement or Audit Rules provides authority for
multiple audits. The Response sometimes postures as though there is support, citing a ruling by
the Special Master or an Audit Rule, but none provide the authority asserted by Claims
Administrator.
While lacking authority, the Response contains numerous misstatements of fact regarding
X1Law that were not corrected by the Claims Administrator’s Amended Response. The Response
(and Amended Response) further misstates the relief requested by Movants and paints advocacy
as dissention, as attempts to “circumvent established processes.” These are all distractions from
the heart of the issue – the Claims Administrator’s application of the Settlement Agreement and
Audit Rules are not “mere processes” for the administration of Claims. Movants are not required
to blindly follow this misapplication of the Settlement Agreement. Multiple audits of the same
Claim is a substantive change to the Settlement Agreement and eliminates Movants due process
rights.
II.

Movants only request that the Settlement Agreement be followed.
The Claims Administrator asserts in the Response that: “On February 24, 2019, X1Law

filed its present Motion asking that we be prohibited from auditing Doctor 1.”
Administrator’s assertion is false.

The Claims

X1LAW’s motion request that the Court: “(a) compel

administration of the SA according to its terms; (b) prohibit multiple audits of the same claim; (c)

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require disclosure of the specific factual basis upon which an audit is warranted in any pending
further audits; (d) require the suspension from the MAF list any MAF Physician who is under
investigation….” Movants further requested “that the Court require that the Settlement Agreement
be enforced according to its terms and enter an order directing the Claims Administrator to release
Movants’ Claims from Audit and precluding the Claims Administrator from conducting multiple
Audits of the same Claim.”

This Court has consistently ruled in favor of enforcing the plain

language of the Settlement Agreement and, in certain instances, prevented parties from stretching
the language to create new rights that do not exit.
In this instance, the Section 10.3(h) of the Settlement Agreement explains what happens
after an Audit. Nevertheless, the Claims Administrator repeatedly states in the Response by
supposition, conjecture and unsupported assertion that it has authority to do things that are not
provided for under the Settlement Agreement but fails to cite to the language that provides such
authority. Moreover, in all 28 pages of the Response, the Claims Administrator failed to address
Section 10.3(h):
(h) If, upon completion of an audit, the Claims Administrator determines
that there has not been a misrepresentation, omission, or concealment of a
material fact made in connection with the claim, the process of issuing a
Monetary Award or Derivative Claimant Award, subject to appeal, will
proceed.
See Settlement Agreement, ECF No. 6481-1, p. 61.
On page 21 of the Response, the Claims Administrator cites the Motion implying that
Movants took an unsupported position: “When the Claims Administrator concludes an audit of a
claim without making a determination of fraud, the audit process ... is over” and “[t]he process of
issuing a Monetary Award is not subject to a second audit of the claim, or a re-audit of the same

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records and information . . ..” Contrary to the implication, Movants paraphrase Section 10.3(h)
which states exactly what happens at the end of an Audit.
The Response feigns outrage at Movants’ audacity for suggesting that the Settlement
Agreement means what it says, if there has not been a determination of fraudulent behavior then
the Claims Process proceeds, subject only to appeal. Sections of the Response are carefully crafted
to invite the reader to question reality and second-guess what she knows to be true, to consider
whether the sun actually rises in the west and sets in the east. Unfortunately, many of the assertions
contained in the Response are factually incorrect and none of them bear on the issue before the
Court – whether the Settlement Agreement provides that the Claims Administrator is empowered
to conduct multiple audits of the same claim.
III.

Rebuttal of certain inaccurate claims regarding X1Law
Lacking any authority under the Settlement Agreement to conduct multiple audits, the

Response attempts to discredit X1Law as a renegade firm, rogue operators taking every
opportunity to cheat the Settlement Program, throw one past the Claims Administrator and
generally game the system. The Response (which lacks a single exhibit, supporting evidence or
anything other than the Claims Administrator’s bare “allegations”) contains numerous
misstatements of fact and, even worse, implication that actions not at all precluded under the
Settlement Agreement are impermissible heresy.

The Claims Administrator’s inaccurate

assertions are too numerous to address each but can be addressed in further detail is the Court so
requires.
a.

Inaccurate allegation that X1Law changed the Claims:

The Claims Administrator asserts that X1Law “would like to exempt a once-audited claim
from any further scrutiny, even if the claim changes after the first audit, as its claims did, and even

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if we learn new information completely unrelated to the first audit.” X1Law did not “change the
claims” or provide new information or attempt to bamboozle the Claims Administrator. X1Law
contacted the Claims administrator and was discussing these very issues, which were not clear, in
July and August of 2017 as demonstrated in the Declarations of Claims Administrator in
September 2017. See 9/28/17 Brown Declaration, ECF No. 8432-1 and 9/28/17 Smith Declaration,
ECF No. 8432-2.
X1Law followed the direction of the Claims Administrator and selected one of the two
options specifically identified by Orran Brown, Esq. in his Declaration. See Declaration of Orran
L. Brown, Sr., ECF No. 8432-1, p. 3. X1Law added DPC’s from Doctor 1 in the portal, prior to
claims submission, took them down when it determined to take a different course with their claims,
used DPC’s by Doctor 2, were instructed this was not allowed, were directed by the Claims
Administrator how to remedy the problem, remedied the problems and submitted the claims. The
Claims Administrator is manipulating the sequence of events (which were accurately identified in
the Motion) to imply the appearance of wrongdoing and lend creditability to the unauthorized
practice of conducting multiple audits of the same Claim.
The Claims Administrator further asserts on page 24, paragraph 2 of the Response: “[T]hat
is especially true when a law firm changes key elements of its claims to avoid the issue raised in
an audit investigation.” Again, this is simply not true and if the Court finds this relevant X1Law
requests an evidentiary hearing to disprove any assertion that the key elements of any claim were
changed.
Moreover, the Claims Administrator is anything but forthcoming with respect to
identifying the basis for an audit. Movants would need to understand the basis or focus of an Audit
to avoid that the issue raised. Unlike the instant Motion heading that clearly identifies the subject,

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an Audit is merely named “audit” without any identifying information as to the focus of the audit.
The audits in question requested employment and/or health care history and there was no
disclosure as to the concerns underlying an audit. David Smith, Esq. of Claims Administrator
stated the following in his Declaration:
Audit Notice Issued to X1Law Client. Mr. Tighe began the call asking about the
Notice of Audit of Claim X1Law received on August 11, 2017, for Settlement
Program ID 100006825 (“Player A”). He wanted to know why Player A was
selected for audit, stated that he believed only eligible claims could be audited, and
asked whether this claim was eligible for compensation. I informed Mr. Tighe
that Player A’s claim had not yet been found eligible, the Claims
Administrator can audit claims under Section 10.3(b) of the Settlement
Agreement at any time, and that he was confusing Section 10.3(b) with the
mandatory ten percent audit of payable claims required by Section 10.3(c). Mr.
Tighe asked why Player A’s claim was selected for audit. I responded that I
did not know the exact reason at that time but would find out from the audit
team. I reminded X1Law that it must respond to the audit notice or the claim could
be denied for non-cooperation under Section 10.3(b)(ii). The Response Date on the
Notice of Audit of Claim was September 11, 2017, and the firm timely responded
with the requested materials.
See 9/28/17 Smith Declaration, ECF No. 8432-2.
X1Law did not change the Claims, Doctor 1’s diagnosis was the basis for Doctor 2’s
diagnosis. When no other options were available X1Law followed the instruction of the Claims
Administrator, nothing more.
b.

Implication that X1Law improperly promoted Doctor 1:

On page 10, subsection C(2) of the Response the Claims Administrator alleges as follows:

The Claims Administrator insinuates that referral of a physician to serve as an MAF was
somehow untoward. X1Law had a professional relationship with Doctor 1 and recommended him
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to the Claims Administrator as a possible MAF Physician. Emails between X1LAW and the
Claims Administrator, support X1Law’s position.
X1Law also recommended several other physicians to the Claims Administrator for the
MAF program. The attached emails demonstrate complete transparency with the Claims
Administrator and demonstrate that the Claims Administrator thanked X1Law. The Claims
Administrator reached out to Doctor 1 and began the process to qualify him as an MAF Physician.
On pages 10 and 11 of the Response, the Claims Administrator cites two actions against Doctor 1
that it found concerning and asserts those as reasons why Doctor 1 was not selected as an MAF
Physician (and further comments on bad reviews).
The Claims Administrator fails to acknowledge that both incidents occurred over 30 years
before submission of Doctor 1’s application to the Claims Administrator. The Qualified MAF
Physician’s Manual further sets forth requirements for MAF approval:

Doctor 1 was never convicted of a crime of dishonesty and his medical license had not
been subject to any disciplinary action or any restrictions within the past five years. So, two

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incidents over 30 years ago, and one or two bad yelp reviews (most of the reviews are positive for
the doctor and the negatives are regarding office staff, not him personally), resulted in
disqualification of Doctor 1 as an MAF Physician.
If the Claims Administrator’s stated criterion for identifying Qualified MAF Physician’s
(or disqualifying Doctor 1) was applied uniformly then it stands to reason that no MAF who was
granted the position had similar issues in her history as Doctor 1. Regardless, the Claims
Administrator invited referrals from IRPA’s of physicians to serve as MAFs and X1Law
responded. Any implication that X1Law’s actions were untoward are not accurate. To the extent
any of this is relevant, the Court would need to conduct an evidentiary hearing to discern the facts.
IV.

Conclusion
The Claims Administrator is not allowed to conduct multiple audits. It has other powers

to investigate fraud and take measure to protect the process but it cannot apply the Settlement
Agreement in a manner which eliminates due process rights.
Dated: April 1, 2019
Respectfully Submitted,
Patrick J. Tighe
Attorneys for Plaintiffs/Movants
X1LAW, P.A.f/k/a Patrick J. Tighe, P.A.
721 US Highway 1, Ste 121
North Palm Beach, FL 33408
Phone: 561-537-3319
Fax: 561-537-7193
Pat@X1LAW.com
Florida Bar No. 568155

Attorneys for Plaintiffs/Movants
MGS LAW, P.A.
601 Heritage Drive, Suite 141
Jupiter, FL 33458
Phone: 561-620-5460
michael@mgs2law.com
Florida Bar No. 0783471
s/ Michael St. Jacques
Michael G. St. Jacques, II

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CERTIFICATE OF SERVICE
I hereby certify that on April 1, 2019, the foregoing document was electronically filed with
the United States District Court for the Eastern District of Pennsylvania via the Court’s CM/ECF
system, and that the filing is available for downloading and viewing from the electronic court filing
system by counsel for all parties.
MGS LAW, P.A.
s/ Michael St. Jacques
MICHAEL G. ST. JACQUES, II

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