UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA

IN RE NATIONAL FOOTBALL LEAGUE
PLAYERS’ CONCUSSION INJURY LITIGATION

Kendra Moyes, as Representative Claimant,
Plaintiff,
v.
National Football League and
NFL Properties, Inc.,
Defendants.

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No. 2:12-md-02323-AB
MDL No. 2323

OBJECTIONS TO POST APPEAL NOTICE
OF DENIAL OF MONETARY AWARD CLAIM (12/27/2018)
ON BEHALF OF THE ESTATE OF KEN STABLER (SPID 950006982)
_________________________________

 TABLE OF CONTENTS
INTRODUCTION ……………………………………………………………………………1
ARGUMENT………………………………………………………………………………… 2

I.

Facts………………………………………………………………………………….2

II.

The Special Master Erred as a Matter of Law……………………………………….5

A. The Special Master Erred Because It Did Not Consider the Fundamental
Claim...…………………………………………………………………………..5

B. The Special Master Erred Because It Incorrectly Applied the Settlement
Terms…………………………………………………………....……………….6

C. The Special Master Erred Because It Considered A Different Claim Based on
Different Evidence……………………………………………...………………..9

CONCLUSION………………………………………………………………………………. 10

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 TABLE OF AUTHORITIES
Page(s)
CASES
In re Nat’l Football League Players Concussion Injury Litigation
821 F.3d 410 (3rd 2016) ............................................................................................................2
In re Nat’l Football League Players Concussion Injury Litigation
307 F.R.D. 351 (E.D. Pa. April 22, 2015) .................................................................................4
Max Seafood Café ex rel. Lou-Ann, Inc. V Quinteros
176 F.3d 669 (3rd Cir. 1999) .....................................................................................................5
IUE Multi-Employer Pension Fund v. M&C Vending, Inc.
No. 2:11-cv-04335, 2013WL2007298 (D.N.J. May 13, 2013)..................................................6
Prousi v. Cruisers Division of KCS Int’l., Inc.
No. 95-6652, 199 WL551359 (E.D. Pa. June 30, 1999) ............................................................6
McGovern v. Jack D’s, Inc., No. 03-5547, 2004 WL 632703, *2 (E
No. 2:11-cv-04335, 2004 WL 632703 (D.N.J. May 13, 2013)..................................................9

STATUTES
Fed. R. Civ. P. 53(f). ........................................................................................................................5

OTHER AUTHORITIES
Settlement Agreement § 6.4(b) ......................................................................................1, 2, 6, 8, 10
Settlement Agreement § 6.6(b) ......................................................................................1, 2, 6, 7, 10
Settlement Agreement, Injury Definitions, §3(b) ..............................................................1, 6, 7, 10
Order Appointing Special Masters...................................................................................................5

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 INTRODUCTION
As the NFL recently re-stated, the “bedrock principle of the Settlement Agreement is to
pay all claims that meet the diagnostic impairment criteria set forth in its heavily negotiated
Injury Definitions, while denying those claims that do not meet these thresholds as of the date of
diagnosis.” See NFL Obj. to Special Master’s Ruling (D.E. 10361 at 5-6 1/02/19). In other
words, this claims process is not supposed to feel like a shell-game. Although not without limits,
it compensates Claimants who demonstrate neurodegenerative disease. This Objection is
consistent with these aims. It occasions the Court to reject an overly mechanical application of
the Settlement Agreement’s plain language, which would mute this central policy aim. By
applying the Settlement terms equitably to this claim for clinically and pathologically confirmed
Alzheimer’s Disease, an award of compensation is the most just and fair result.
NFL quarterback, Ken Stabler, played football for 15 years in the NFL, taking the
Oakland Raiders to a Super Bowl championship, earning an MVP trophy, and, ultimately, being
inducted into the Hall of Fame- all while unknowingly succumbing to a latent, degenerative
dementia resulting from head impacts during his NFL play. Juxtaposed against his long-earned
reputation for being intelligent and clever while on the playing field, in his last years of life, Mr.
Stabler suffered from Alzheimer’s disease. At death, he also was determined to have Chronic
Traumatic Encephalopathy (CTE) and Changes of Alzheimer’s disease in his brain.
Mr. Stabler’s Estate subsequently filed a Representative Claim for Alzheimer’s disease.
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 Ex. 1-Claim Form at 3. Mr. Stabler’s documented condition satisfied the Settlement
Agreement’s Injury Definition for Alzheimer’s Disease for Players who died before the Effective
Date. Medical records showed that Mr. Stabler had a Major Neurocognitive Disorder due to
probable Alzheimer’s disease consistent with [DSM-V]. Sett. Agmt. Inj. Def., §3(b). Further,
Mr. Stabler “manifested actual cognitive impairment…while living,” as required by §§6.4(b)
and 6.6(b) of the Settlement.
Nevertheless, the Claims Administrator and Special Master denied this claim,
“explaining” that Mr. Stabler died too late to bring a “CTE” claim, although the Estate claimed
Alzheimer’s disease, not CTE, as a Qualifying Diagnosis. Ex. 1.1 In denying the claim, the
Special Master erred as a matter of law in three primary ways: (1) the Special Master incorrectly
reviewed the Estate’s claim as one for “Death with CTE.” Ex. 2-Post-Appeal Notice; (2) the
Special Master did not correctly apply the terms set forth in §§6.4(b) and 6.6(b) of the Settlement
Agreement and applied FAQ 89 to override the Settlement’s actual terms; and finally (3) the
Special Master did not consider four pieces of evidence that show Mr. Stabler had “probable
Alzheimer’s disease” and “manifested actual cognitive impairment…while living.”
The purpose of the Settlement is to compensate retired Players and their families, who
now live with [or lived with] “the lasting scars of an NFL career.” In re NFL Players

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This claim is not a rehash of the Holmes (ECF 10108) and Bironas (ECF 10230) CTE decisions where this Court
found the CTE diagnosis deadline was a negotiated term and could not be extended.

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 Concussion Injury Litig., 821 F.3d 410, 444 (3rd 2016) (bracketed text added). Of the
approximate 20,000 NFL retired Players, there is not a better example of a Player who warrants
compensation than Ken Stabler – 15 years in the League, suffered Alzheimer’s disease while
alive, and died with Changes of Alzheimer’s disease in his brain. However, under the Special
Master’s incorrect interpretation of the claim, Mr. Stabler’s family will get nothing at all.
ARGUMENT
I.

Facts
During his NFL football career, Ken Stabler sustained numerous blows to the head,

causing degenerative neurocognitive disease. In 2015, Mr. Stabler suffered terminal colon
cancer, which prevented him from seeking a full neurological assessment prior to his death. Ex.
3-Aff. Dr. Wall, at ¶¶3-9; Ex. 4-Clinical Notes, Dr. Wall at 9; Ex. 5-MD Anderson Recs, at 19,
22; Ex. 6-Aff. Kim Bush, at ¶¶14-15. Notwithstanding this fact, in the last years of his life, Mr.
Stabler suffered documented and significant functional impairment and “manifested actual
cognitive impairment[s].” Neuropsychologist Todd Solomon, Ph.D. documented that Stabler
began “often repeating himself,” and, “over the next several years,” his cognition progressively
worsened “in concert with forgetting recent events” and mood changes. Ex. 7-BU Rept. at 1.
Additionally, Kim Bush, Mr. Stabler’s long-term partner of 16 years, recounted her
observations of Mr. Stabler’s significant memory and other cognitive impairments:
[I]n 2014 and 2015, I was noticing that Kenny was losing his memory and
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 some thinking abilities. I noticed he could no longer use the computer like
he used to. He had successfully used the computer for years…Routine memory tasks… started to become a chronic problem…At some point in 2014,
he would ask me to drive, even in familiar neighborhoods…getting around
…was becoming increasingly difficult…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…he had no idea he was doing this, and just
seemed frustrated. Ex. 6 at ¶8.

At the time of his death, Mr. Stabler had documented “Changes of Alzheimer’s disease”
in his brain, including “moderate diffuse plaques,” “neuritic plaques,” and “amyloid
angiopathy,” as well as CTE. Ex. 7 at 2.
In 2014, the NFL’s Medical Expert, Kristine Yaffe, MD, told this Court, while testifying
in support of Approval of the Settlement, that Retired Players who died with CTE, like Mr.
Stabler, most likely would have received a Qualifying Diagnosis for another neurocognitive
disease identified in the Settlement Agreement if those Players received neurological evaluations
before they died:
Based on my review of 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.

Ex. 8-Yaffe Dec. at ¶83; see also In re NFLe Players’ Conc. Inj. Lit., 307 F.R.D. 351, 400
(E.D. Pa. April 22, 2015). This Court credited Dr. Yaffe’s testimony, noting that, while CTE is a

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 unique disease, “it includes symptoms compensated by Neurocognitive Impairments” and is
“strongly associated with other Qualifying Diagnoses in the Settlement.” Id.
On September 27, 2018, Mr. Stabler’s Estate filed its claim for a Pre-Effective Date
Qualifying Diagnosis of Alzheimer’s disease. While the claim included a 7-page statement and
71 pages of medical records, the Claims Administrator denied the Estate’s claim in less than one
day. Ex. 9-Notice of Denial. In response, the Estate filed its Appeal of the Notice of Denial,
which the Special Master denied on December 27, 2018, providing a one sentence explanation,
lacking any mention of the Estate’s claim for a Qualifying Diagnosis of Alzheimer’s disease.
II.

The Special Master Erred as a Matter of Law
The Stabler Estate’s claim should be allowed because the Special Master erred as a

matter of law. Under Fed. R. Civ. P. 53 and the Court’s July 13, 2016 Order Appointing Special
Masters, any objection to the Special Master’s conclusions of law will be reviewed de novo.
A.

The Special Master Erred Because It Did Not Consider the Fundamental
Claim

Court decisions inconsistent with “wise exercise of discretion” amount to errors of law.
Max Seafood Café. v. Quinteros, 176 F.3d 669, 673,678 (3rd Cir. 1999). For example, if the
court fails to consider a claim or defense that is so “fundamental” to the case that it bears on the
court’s discretion, the court has erred as a matter of law. See id. In Max’s Seafood, the court in
deciding a motion for reconsideration failed to address the defendant-restaurant’s defense that it

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 had not come into existence at the time of the contumacious acts in question. See id. In finding
this error inconsistent with wise exercise of discretion, the deciding court held that the lower
court erred as a matter of law and fact. Id. 678–79.
Here, the Special Master erred because it did not consider the Stabler Estate’s
Alzheimer’s claim. The Special Master and the Claims Administrator were put on explicit notice
in the Claim Form and supporting briefs and submissions that the Estate sought a Qualifying
Diagnosis of Alzheimer’s, not CTE, yet, each denied the Estate’s claim by finding that Mr.
Stabler’s “Asserted Qualifying Diagnosis … [of] Death with CTE” did not qualify. However,
the Estate did not seek a Qualifying Diagnosis based on Death with CTE; it sought a Qualifying
Diagnosis based on Alzheimer’s Disease. Ex. 1. Here, the Special Master did not consider the
most fundamental claim presented, the Alzheimer’s claim, and, as such, erred as a matter of law.
B.

The Special Master Erred Because It Incorrectly Applied the Settlement
Terms

The Special Master erred as a matter of law by not applying the Settlement Agreement
terms set forth in §§6.4 and 6.6 to this claim and relying on FAQ 89 to override the terms of the
Agreement. A mistake of law also is an error of law. See IUE v. M&C Vending., No. 2:11-cv04335, *2 (D.N.J. May 13, 2013). In IUE, the court, after reviewing relevant statutes upon a
motion for reconsideration, noted that reconsideration was “necessary to correct a clear error of

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 law.” Id. See also Prousi v. Cruisers. 1999 WL551359, *1 (E.D. Pa. June 30, 1999) (“clear error
of law” when court mistakenly based its decision inapposite the guiding statute).
Under the Settlement’s Injury Definitions § 3(b), a Retired Player deceased prior to the
Effective Date meets the Qualified Diagnosis of Alzheimer’s Disease if there is “a diagnosis of
Major Neurocognitive Disorder due to probable Alzheimer’s disease consistent with the
definition of … (DSM-5)” or “Alzheimer’s disease, made while the Retired NFL Football Player
was living.” Sett. Agmt., § 3(b) (emphasis added). Additionally, under §6.6(b), a claimant must
show that the deceased Player “manifested actual cognitive impairment and/or actual
neuromuscular impairment while living.” Further, §6.6(b) continues, “For the avoidance of any
doubt, the identification of a condition…that has not yet resulted in cognitive impairment…does
not qualify as a Qualifying Diagnosis.” Id. This language clarifies that a Player must have
exhibited cognitive impairment, as Mr. Stabler did.
Mr. Stabler meets the Settlement’s terms for a Qualifying Diagnosis of Alzheimer’s
Disease under the first prong of the § 3(b) Alzheimer’s Disease definition because it is
documented that Mr. Stabler manifested progressive cognitive impairments, including memory
problems, progressively worsening over time, consistent with DSM-5. Ex. 7 at 1.
These clinical findings were consistent with the accounts of Ms. Bush, Mr. Stabler’s
long-term partner, who attested to memory and cognition deficits in the years prior to Mr.

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 Stabler’s death. Ms. Bush detailed Mr. Stabler’s actual cognitive impairment and lack of
independence in daily living, citing his inability to use a computer which he had done for years,
inability to provide self-care, inability to manage his medications, and tendency to become lost in
familiar locations. Dr. Solomon’s and Ms. Bush’s reports undoubtedly show that Mr. Stabler’s
cognitive impairments manifested during his lifetime and were consistent with the DSM-5
criteria for Alzheimer’s Disease. Further, the clinical evidence of Alzheimer’s is confirmed by
pathological evidence of “Changes of Alzheimer’s disease” in the brain that was inevitably
present while he was alive. Ex. 7 at 2. Moreover, Dr. Yaffe, the NFL’s Expert, testified that any
Player diagnosed with CTE probably—in fact, more likely than not (by 89 percent)—had another
Qualifying Diagnosis, like Alzheimer’s Disease, under the Settlement. Ex. 8 at ¶83.
Section 6.4 of the Settlement Agreement states that review of whether a Qualifying
Diagnosis is “based on principles generally consistent with the diagnostic criteria set forth in
Exhibit 1 (Injury Definitions) does not require identical diagnostic criteria, including without
limitation, the same testing protocols or documentation requirements." As such, the medical
documentation, including both clinical and pathological findings consistent with Alzheimer’s
Disease, is sufficient to prove the Qualifying Diagnosis of Alzheimer’s disease.
Additionally, “[t]he Claims Administrator has discretion” “to excuse Qualifying
Diagnosis requirements, including the DPC Form and/or medical records,” under conditions met

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 in this case. FAQ 116. The key is whether the accuracy of the diagnosis can be verified as
reliable, and the absence of any particular record can be explained. In using its discretion, the
Claims Administrator must consider “[t]he availability of other documents or information to
verify that the claimed Qualifying Diagnosis occurred.” Id. Those documents in the form of
clinical and pathological findings, consistent with an eyewitness account of cognitive decline,
(Ex. 7; see also Ex. 6), and the reason why a medical record is missing (Exs. 3,4,5,6), are all
present here. In sum, the medical records, sworn statement of Ms. Bush, and testimony of Dr.
Yaffe, demonstrate that Mr. Stabler was most likely suffering from Alzheimer’s, and it was legal
error not to consider this evidence under Section 6.4(b)’s evidentiary standards.
C.

The Special Master Erred Because It Considered A Different Claim Based on
Different Evidence

The Special Master erred as a matter of law when considering a CTE claim, instead of an
Alzheimer’s claim, because the Alzheimer’s claim relies on different evidence than a CTE claim.
Additionally, that evidence shows the criteria for a Qualifying Diagnosis of Alzheimer’s Disease
consistent with DSM-5 are met. A “clear error of law” exists if the court incorrectly considers a
different claim, based on different facts, than the one alleged, and that error results in an alternate
decision. See McGovern v. Jack D’s, Inc., No. 03-5547, 2004 WL 632703, *2 (E.D. Pa. Feb. 25,
2004) (If two claims are factually distinct and would lead to different outcomes, failure to
consider that factually distinct evidence amounts to a clear error of law.).

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 In the present case, a clear error of law exists because the Special Master did not consider
evidence of the Alzheimer’s claim, including evidence that shows that Mr. Stabler “manifested
actual cognitive impairment” “while living” and, ultimately, had “a Major Neurocognitive
Disorder due to probable Alzheimer’s Disease.” See Sett. Agmt., §6.4(b), 6.6(b), Inj. Def. §3(b).
First, the Special Master did not consider the clinical evidence that shows Mr. Stabler
“manifested actual cognitive impairment” “while living.” Ex. 1 at 3; Ex. 7 at 1. Second, the
Special Master did not consider the confirmatory pathological evidence that shows Mr. Stabler
was determined to have “Changes of Alzheimer’s disease” in the brain. Ex. 7 at 2. Third, the
Special Master did not consider the confirmatory Affidavit of Kim Bush that detailed Mr.
Stabler’s actual cognitive impairment and functional decline. Ex. 6 at ¶8. Last, the Special
Master did not consider the testimony of the NFL’s Expert, Dr. Yaffe, who told this Court that
Retired Players who died with CTE, like Mr. Stabler, most likely would have received a
Qualifying Diagnosis for another neurocognitive disease if those Players had received full
neurological evaluations before they died. Ex. 8 at ¶83. In sum, under the standards of
McGovern, it was a clear error of law not to evaluate this evidence of Alzheimer’s disease.
For the reasons stated herein, Plaintiff respectfully requests reversal of the Special
Master’s decision, denying the Stabler’s Estate’s recovery for their father’s Alzheimer’s disease.

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 Dated: January 16, 2019

Respectfully submitted,
/s/ Richard S. Lewis
Richard S. Lewis
HAUSFELD LLP
1700 K Street, NW
Suite 650
Washington, DC 20006
Phone: (202) 540-7200
Fax: (202) 540-7201
rlewis@hausfeld.com
/s/ Bradford Rothwell Sohn
Fla. Bar No. 98788
The Brad Sohn Law Firm, PLLC
2600 S. Douglas Road, Suite 1007
Coral Gables, FL 33134
Phone: (786) 708-9750
Fax: (305) 397-0650
On the Brief

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