ESTATE OF KEN STABLER’S NOTICE OF FILING OF
CLAIM FOR A PRE-EFFECTIVE DATE QUALIFYING
DIAGNOSIS OF ALZHEIMER’S DISEASE
(REPRESENTATIVE CLAIMANT KENDRA STABLER MOYES – SPID:950006982)
I.

INTRODUCTION

Ken Stabler (“Stabler”) lived the last years of his life with, and died with, Alzheimer’s
disease. The central purpose of the NFL Concussion Settlement is to compensate retired NFL
football players for these injuries. This claim is not a rehash of the Holmes and Bironas CTE
claims, where this Court found the CTE diagnosis deadline was a negotiated term and could not
be extended. (Explanation and Order (6/28/18), ECF No. 10108, and Suppl. Implementation
Determination (8/21/18), ECF No. 10230, In re NFL Concussion Injury Litigation, MDL No.
2323). The Stabler Estate does not seek a Monetary Award for a Qualifying Diagnosis of
Death With CTE. Rather, to the contrary, as explained in detail below, this claim rests both on
the clinical and pathological medical evidence that Stabler had Alzheimer’s disease.
Stabler played Quarterback in the NFL for 15 years. He was the NFL’s MVP in 1974.
He was inducted into the NFL Pro Football Hall of Fame in 2016 (posthumously). At the end of
his life, his body was racked with bone breaking injuries and relentless pain. He had lived with
those physical ailments for decades. When Stabler reached the age of 66, he was diagnosed with
metastatic prostate cancer. Treatment for prostate cancer went well, but a second cancer - cancer
of the colon – struck Stabler in early 2015. Oncologist, Dr. Allison Wall, commenced
chemotherapy immediately. In treatment, Stabler suffered from chemotherapy - induced nausea,
chemotherapy - induced diarrhea, anemia, insomnia, and what the medical staff called a
“chemotherapy fog.” At the same time, Stabler’s family could see in his later years that his
cognitive faculties were rapidly declining. His family knew he was experiencing episodic
memory problems, repeating himself, and getting lost in familiar places. The Boston University
(“BU”) Clinical Report documented Stabler’s progressive memory loss in his 60’s. Although
Stabler was struggling with the loss of his cognitive abilities, upon the diagnosis of his colon
cancer in February 2015, his singular focus became survival - beating the cancer. While in
chemotherapy, Stabler continued to fight, and he continued to plan for his future. But on July 4,
2015, he took a terrible and unexpected turn for the worse caused by a large obstruction in the
colon, and four days later, on July 8, 2015 at the age of 69, Stabler passed away. Two days after
his death, BU School of Medicine, Centers for Alzheimer’s Disease and CTE Pathologist Dr.
Ann McKee autopsied Stabler’s brain – and found that he had “Changes of Alzheimer’s
disease,” in the brain, and “Chronic Traumatic Encephalopathy (“CTE”) Stage III/IV.”
One would expect that the NFL Concussion Settlement Agreement, an Agreement
designed to provide significant relief to the most severely brain - injured retired players, would
put players like Stabler at the front of the line: 15 years in the league and clinical and
pathological evidence of Alzheimer’s disease.

 The Recitals to the Settlement Agreement state that:


“the lawsuits arise from the alleged effects of mild traumatic brain injury
allegedly caused by the concussive and sub-concussive impacts experienced
by NFL football players” –Stabler was one of those players.

And the Notice says:


there will be monetary awards also for “Alzheimer’s disease,” and Ken
Stabler’s BU Neuropathology and Clinical Report documents clinical and
pathological evidence of Alzheimer’s disease – so Stabler meets that criteria
also.

Stabler manifested actual cognitive impairment while living, consistent with DSM-V
diagnostic criteria for Alzheimer’s disease. Under the terms of the Settlement including §§
6.4(b), 6.6(b), and FAQ#116 (8/13/18), the Court has the authority to provide relief to Stabler’s
Estate to effectuate the central purpose of the Settlement. Stabler did not go to a neurologist in
2015 to obtain a Qualifying Diagnosis for a neurocognitive disease such as Alzheimer’s or
dementia - diseases he clearly had - because he was consumed with chemotherapy, pain, and a
fight for his very survival, which ended abruptly and unexpectedly on July 8, 2015 upon his
death. In Stabler’s unique, rare, and compelling set of terribly unfortunate circumstances, it is not
reasonable or fair to require that he should have gone for a neurological and
neuropsychological evaluation in his final days to confirm his neurocognitive disease - a disease
that was confirmed by the clinical and pathological evidence.
II.

FACTS

Stabler was diagnosed with metastatic prostate cancer 8/20/12. He received treatment at
MD Anderson Cancer Center in Houston, and by February 2014 was doing well and looking
towards a future with his family.
He feels well today. …He has discussed the possibility of knee
replacements with an orthopedic surgeon… from a prostate cancer
perspective, he is doing superbly.
(MD Anderson Cancer Center – Medical Record (2/25/14) at 16 (Ex. 1); see also Affidavit of Dr.
Allison Wall at ¶¶ 3-8 (Ex. 2)).
Nevertheless, Stabler’s daughters and his partner were beginning to see significant
problems with his memory and his thinking. Kim Bush, Stabler’s partner for the last 16 years of
his life recounted this as follows:
During this same time frame in 2014 and 2015, I was noticing that
Kenny was losing his memory and some thinking abilities. I
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 noticed he could no longer use the computer as he used to. He had
successfully used the computer for years, but sometime in the 2014
timeframe he began to get more and more frustrated with the
computer and asking for help frequently. Routine memory tasks
like not knowing where his wallet or keys were, started to become
a chronic problem. At some point in 2014, he would ask me to
drive, even in familiar neighborhoods, because getting around from
one place to another was becoming increasingly difficult. Kenny’s
daughter Kendra and her children had mentioned to me that he
seemed confused at traffic signals – something we had never seen
before. In 2014, I had to take charge of his daily medicines to
make sure he took the correct pills at the right time. He could no
longer do this on his own. Kenny had always been meticulous
about personal cleanliness (dressing, showering, shaving), but I
noticed this too was falling off and I helped him to maintain his
personal cleanliness. He was often repeating himself in
conversations and when I pointed this out to him he said he had no
idea he was doing this, and just seemed frustrated.
(Affidavit of Kim Bush at ¶ 8 (Ex. 3) (emphasis added)).
The BU School of Medicine Centers for Alzheimer’s Disease and CTE, Clinical and
Neuropathology Report confirmed a clinical history of progressive impaired memory and
cognitive function, and pathological Alzheimer’s changes in the brain.
In his early 60’s he began having subtle memory problems often
repeating himself. This issue progressed over the next several years
in concert with forgetting recent events and complaining of
headaches and increased sensitivity to light and noise. He also had
chronic pain and tinnitus that significantly impacted his mood,
which became more sullen and withdrawn. He also became more
anxious [and] had suffered from insomnia.
(BU Clinical and Neuropathology Report (11/9/15) at PDF 2, 3 (Ex. 4)).
Although it appeared Stabler was overcoming his metastatic prostate cancer, a second
cancer diagnosis – metastatic colon cancer- struck in February of 2015, and it became the central
focus of Stabler’s medical care and his life.
It is clear the patient’s most immediately threatening malignancy is
the metastatic colorectal cancer. We will prioritize management for
this over the next several months per GI medical oncology.
(MD Anderson Cancer Center – Medical Record (3/12/15) at 19, 22 (Ex. 1)).

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 Chemotherapy for the colon cancer was begun and it took a tremendous toll on Stabler.
Gulfport Memorial Hospital Oncologist, Dr. Allison Wall, who cared for Stabler at this time,
reported the following:
69-year old male with a history of metastatic prostate cancer to
bone diagnosed 8/2012 … A CT chest/abdomen/pelvis was
obtained on 2/2/15 in Arizona. This showed … adenocarcinoma of
the cecum with regional lymph nodes and peritoneal involvement
… Colonoscopy was done on 2/23/15 in Arizona and a villous
oozing fungating infiltrative mass was found at the appendiceal
orifice. The mass measured 15 cm in length. Pathology was
consistent with invasive poorly differentiated adenocarcinoma,
signet ring cell type … He reports arthritic pain … This is
moderate to severe and comes and goes … He reports fatigue.
Moderate to severe the week after chemo. Comes and goes … He
reports fatigue was for about one-week post chemo. He reports
occasional tingling in his hands and feet …He reports insomnia …
He reports abdominal pain resolved since chemo treatment. He
reports general malaise and nausea post chemo. Poor appetite
ongoing …He reports diarrhea …
(Gulfport Memorial Hospital - Clinic Notes of Dr. Allison Wall (3/30/15) at PDF 9 (Ex. 5);
Affidavit of Dr. Allison Wall at ¶¶ 3-8 (Ex. 2)).
Chemotherapy continued through June, and treatment was considered to be progressing
successfully. Stabler was planning for a future where he could be with his family and enjoy his
remaining years. He underwent dental work in June 2015 and again discussed plans for his knee
replacement surgery. Dr. Wall summarized Stabler’s outlook at that time as follows:
His therapy was proceeding in a satisfactory manner in June of
2015 and we were cautiously optimistic about prolonging his life.
He had recently undergone extensive dental work and was
planning to have knee replacement surgery. He expected that he
would survive the cancer and be able to enjoy his future years with
his family.
(Affidavit of Dr. Allison Wall at ¶ 8 (Ex. 2)).
However, Stabler became critically ill on July 4, 2015, as described by his oncologist Dr.
Wall:
We admitted Mr. Stabler immediately. He was suffering nausea
and vomiting, and we determined there was a severe bowel
obstruction. He was seen by the surgeon and plans were made to
operate the next day. He became unstable and was sent to ICU.
He was suffering cardiac arrhythmias and respiratory failure. He
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 was placed on a ventilator. It was determined he was not stable
enough to undergo the surgery. His daughters and his partner
opted for DNR status. He did not survive and expired on July 8,
2015.
(Affidavit of Dr. Allison Wall at ¶ 9 (Ex. 2)).
On July 4, 2015 Stabler took a sudden and unexpected terrible turn and died on July 8,
2015.
During the time he was fighting the colon cancer and receiving
chemotherapy (February to June 2015), his only concern was
beating the cancer and being with his family. His cancer
treatments consumed him. The doctors gave us positive reports,
so we were planning our future together. We were not planning
to say goodbye. There was no discussion about death.…During
the time of cancer treatments, and at the end, we did not discuss
the NFL Concussion Settlement. He did not ask me to set up
appointments with other doctors like neurologists and
neuropsychologists. He was focused completely on beating the
cancer and surviving.
(Affidavit of Kim Bush at ¶¶ 14, 15 (Ex 3)).
*

*

*

I now understand he was potentially eligible to participate in the
NFL Concussion Settlement. He did not raise with me any
questions about neurological examinations or neuropsychological
testing during the time I treated him for stage 4 colon cancer. It
was clear to me his singular concern at that time was surviving the
cancer and he devoted all his energy to that.
(Affidavit of Dr. Allison Wall at ¶ 10 (Ex. 2)).
III.

KEN STABLER LIVED AND DIED WITH SEVERE NEUROCOGNITIVE
DISEASE CAUSED BY FOOTBALL – HIS ESTATE DESERVES TO BE
COMPENSATED

Stabler manifested actual cognitive impairment while living, consistent with DSM-V
diagnostic criteria for Alzheimer’s disease. This Court and the Third Circuit have recognized that
Retired Players that have a documented medical history like Stabler are highly likely if not
certain to suffer neurocognitive injury. This recognition was noted in the reasons given for the
approval the Settlement as fair and reasonable and the overruling of the objection to the
elimination of the CTE benefit after the Final Approval Date. The Court noted and relied on the
medical expert put forward by the NFL, Dr. Kristine Yaffe, who told this Court that players with
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 CTE upon death will nearly always be able to obtain a diagnosis of one of the other Qualifying
Diagnoses if they go to a doctor when they are still alive.
Based on my review of the injury definitions and test battery
agreed to under the Settlement Agreement, and accepting the
findings in the McKee Study as accurate, at least 89% of the
former NFL players studied by Dr. Stern, Dr. McKee, and their
colleagues would have been compensated under the settlement
while living.
Yaffe Dec., ECF No. 6422-36 at ¶ 83; see also In re National Football League Players’
Concussion Injury Litig., 307 F.R.D. 351, 400 (E.D. Pa. 2015); In re National Football League
Players’ Concussion Injury Litig., 821 F.3d 410, 442 (3d Cir. 2016).
And as the District Court acknowledged, the destructive neurodegenerative symptoms of
CTE start in life not at death. 307 FRD at 402 (“… the alleged symptoms Death with CTE
compensates did not begin when Retried Players died”). The Third Circuit also noted that long
term Retired Players who suffer the symptoms associated with CTE will obtain relief.
This settlement will provide significant immediate relief to retired
players living with the lasting scars of an NFL career, including
those suffering from some of the same symptoms associated with
CTE.
821 F.3d at 444.
Stabler, as much as any Retired Player, lived with “the lasting scars of an NFL career,”
and symptoms associated with CTE, including Alzheimer’s disease. The record on this is clear,
(BU Clinical and Neuropathology Report at PDF 2, 3 (Ex. 4); Affidavit of Kim Bush at ¶ 8 (Ex.
3); Yaffe Dec., ECF No. 6422-36 at ¶ 83)), and remains true whether or not he visited a
neurologist for testing in the final months of his life.
Settlement Agreement §§ 6.4(b), 6.6(b), and FAQ #116 (8/13/18) provide the Claims
Administrator, Special Master, and this Court with the authority to grant an Award in this case.
FAQ#116 specifically calls for a showing of a reliable and verifiable explanation why any
records or documentation are missing to verify the Qualifying Diagnosis. The Stabler Estate has
made such a showing. The records show Stabler manifested actual cognitive impairment while
alive, consistent with DSM-V based on both the clinical and pathological evidence. He had lost
his short-term memory. He had lost his ability to maintain personal cleanliness, mange his
medications, use words without repeating himself, and find his way around familiar
neighborhoods. (Ex. 4 at PDF 2, 3; Ex. 3 at ¶ 8). Stabler clearly was in the group of former
football players that NFL expert Dr. Yaffe was referring to as those who would have been
compensated under the settlement while living. Yaffe Dec., ECF No. 6422-36 at ¶ 83; see also
307 F.R.D. at 400; 821 F.3d at 442. Thus under FAQ # 116, it is clear that the documented
evidence of actual cognitive impairment while living and Alzheimer’s disease verifies the
Qualifying Diagnosis even if each of the technical documentation requirements is not met.
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 Allowing a recovery here will not lead to an “opening of the floodgates.” Stabler’s situation was
unique – his singular focus during his final months was on fighting metastatic colon cancer, and
his clinical and pathological findings of Alzheimer’s disease are documented. (Affidavit of Dr.
Allison Wall at ¶¶ 8-10 (Ex. 2); Affidavit of Kim Bush at ¶¶ 14-15 (Ex. 3); BU Clinical and
Neuropathology Report (Ex. 4)).
The timing of these medical events and the severity of the painful and debilitating
consequences of them was outside the control of Stabler. Stabler did nothing “wrong,” and
nothing “neglectful” in devoting himself to beating the cancer and believing he would survive
the cancer treatments. He and his family acted in good faith in devoting all their energies to
overcoming the cancer. Stabler is dead and cannot cure any technical deficiency in his proof,
however, the proof clearly establishes that he is entitled to a neurocognitive injury recovery.
IV.

CONCLUSION

The central purpose of the NFL Concussion Settlement is to compensate long-term
veteran players who suffered neurocognitive disease. Stabler is that veteran player, but he died
unexpectedly, and in his last months he was consumed with surviving cancer. In his unique, rare
and compelling set of terribly unfortunate circumstances, it is not reasonable to assume he should
have gone for a neurological or neuropsychological evaluation in his final months of life. Rather
it is clear that he and his family acted in good faith and that the clinical and pathological
evidence shows that he suffered the precise injuries this Settlement was supposed to remedy,
including Alzheimer’s disease. To grant his Estate an Award based on this evidence would
achieve the central purpose and goal of the Settlement.

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 Exhibit List:
1.
2.
3.
4.
5.

MD Anderson Cancer Center - Medical Records.
Affidavit of Dr. Allison Wall (8/28/18).
Affidavit of Kim Bush (7/12/18).
Boston University School of Medicine Centers for Alzheimer’s Disease and CTE Clinical and Neuropathology Report (11/9/15).
Gulfport Memorial Hospital - Clinic Notes of Dr. Allison Wall.

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