UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

IN RE: NATIONAL FOOTBALL
LEAGUE PLAYERS’ CONCUSSION
INJURY LITIGATION

No. 2:12-md-02323-AB
MDL No. 2323
Hon. Anita B. Brody

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

Civ. Action No.: 14-cv-00029-AB

v.
National Football League and NFL
Properties, LLC, successor-in-interest to
NFL Properties, Inc.
Defendants.
THIS DOCUMENT RELATES TO:
Settlement Class Member Kendra Moyes
(SPID 950006982)

Hon. Anita B. Brody

RESPONSE OF THE NATIONAL FOOTBALL LEAGUE AND
NFL PROPERTIES LLC IN OPPOSITION TO SETTLEMENT
CLASS MEMBER KENDRA MOYES’ OBJECTION TO
THE SPECIAL MASTER’S DECEMBER 27, 2018 RULING

 TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................. i 
Preliminary Statement ..................................................................................................................... 1 
Background ..................................................................................................................................... 2 
A. 

Factual Background ................................................................................................ 2 

B. 

Procedural History .................................................................................................. 2 

ARGUMENT .................................................................................................................................. 3 
A. 

The Special Master Correctly Determined that the Terms of the Settlement
Agreement Precluded a Qualifying Diagnosis of Alzheimer’s............................... 4 

B. 

The Special Master Properly Upheld the Denial of Ms. Moyes’
Alzheimer’s Claim After Considering Her Appeal ................................................ 7 

Conclusion ...................................................................................................................................... 8 

i

 On December 27, 2018, following an appeal by Settlement Class Member Kendra Moyes,
as Representative Claimant for Ken Stabler, and an opposition to that appeal by the National
Football League and NFL Properties LLC (collectively, the “NFL Parties”), the Special Master
determined that the claim submitted by Ms. Moyes failed to satisfy the Settlement Agreement’s
requirements for a Qualifying Diagnosis of Alzheimer’s Disease (“Alzheimer’s”). Accordingly,
the Special Master upheld the Claims Administrator’s denial of Ms. Moyes’ claim. On January
16, 2018, Ms. Moyes filed an Objection to the Special Master’s decision (“Claimant’s Objection”).
The NFL Parties respectfully submit this response in opposition to Claimant’s Objection because,
as shown below, the Special Master’s decision was correct and should be affirmed.
Preliminary Statement
Ms. Moyes initially submitted a Diagnosing Physician Certification Form for a Qualifying
Diagnosis of Death with CTE, but later submitted a Claim Form for Alzheimer’s based on a postmortem pathological evaluation of Mr. Stabler’s brain and statements from family members about
his impairment. As Ms. Moyes has acknowledged, Mr. Stabler was not evaluated for, or diagnosed
with, Alzheimer’s while alive. As such, Ms. Moyes cannot satisfy the fundamental requirement
under the Settlement Agreement’s Injury Definition for a Qualifying Diagnosis of Alzheimer’s
that a Retired NFL Football Player be diagnosed with Alzheimer’s while living, and not through a
post-mortem examination.
In her Objection, Ms. Moyes attempts to seek relief from this fundamental requirement by
invoking Sections 6.4 and 6.6 of the Settlement Agreement, as well as Settlement Program FAQ
116. But nothing in any of those provisions overrides or modifies the unambiguous foundational
requirement that a Retired NFL Football Player must be diagnosed with Alzheimer’s while he is
living. Instead, those provisions concern what is required when reviewing supporting materials
for diagnoses made when the Retired NFL Football Player is living.

 Ms. Moyes further contends, without evidence, that the Special Master did not consider
her arguments on appeal concerning the Alzheimer’s diagnosis. That claim is baseless. The
Special Master reviewed her appeal and the NFL Parties’ opposition—which exclusively
concerned the Alzheimer’s diagnosis—and then denied the appeal.
For these reasons, and those set forth below, Claimant’s Objection should be denied.
Background
A.

Factual Background

The Settlement Agreement sets forth the criteria necessary to establish a Qualifying
Diagnosis. For players deceased prior to the Effective Date of the Settlement Agreement, such as
Mr. Stabler, a Qualifying Diagnosis of Alzheimer’s requires “a diagnosis of Major Neurocognitive
Disorder due to probable Alzheimer’s Disease . . . or a diagnosis of Alzheimer’s Disease, made
while the Retired NFL Football Player was living” by a qualified physician.

(Settlement

Agreement, Ex. § 3(b) (emphasis added).) Here, however, Ms. Moyes acknowledges that Mr.
Stabler never received a diagnosis of Alzheimer’s while living. Accordingly, a Qualifying
Diagnosis for Alzheimer’s is precluded under the plain terms of the Settlement Agreement.
B.

Procedural History

On September 25, 2018, Representative Claimant Kendra Moyes submitted a Claim Form
on behalf of her deceased father, Ken Stabler, for a July 8, 2015 Qualifying Diagnosis of
Alzheimer’s provided by neuropsychologist Dr. Todd Solomon and neuropathologist Dr. Ann C.
McKee. (See Ex. 2, Claim Form at 3.)1 Her Claim Package included records from Mr. Stabler’s

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Initially, Ms. Moyes submitted a Diagnosing Physician Certification Form signed by Dr. McKee for a diagnosis
of Death with CTE on November 10, 2015. (See Ex. 3, Diagnosing Physician Certification Form at 6.) Ms.
Moyes then wrote to the Claims Administrator to clarify that she was not seeking a Monetary Award for Death
with CTE, but instead was seeking compensation for an Alzheimer’s diagnosis based on a post-mortem
pathological examination of Mr. Stabler’s brain and statements by family members about his impairment when
living. (See Ex. 4, Notice of Filing at 1, 6–7.)

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 cancer treatments; an affidavit from his oncologist, Dr. Allison Wall; an affidavit from his life
partner, Kim Bush; and a post-mortem neuropathology report from Boston University, but did not
contain any neurological evaluation or medical records that purported to diagnose Mr. Stabler with
Alzheimer’s prior to his death. Ms. Moyes acknowledged to the Claims Administrator that no
such neurological examination occurred. (See Ex. 4, Notice of Filing at 2, 6.)
On September 28, 2018, the Claims Administrator denied Ms. Moyes’ claim based on a
determination that: (1) Mr. Stabler was ineligible to receive a Qualifying Diagnosis of Death with
CTE because he died after April 22, 2015; and (2) Ms. Moyes did not submit a Diagnosing
Physician Certification Form for any other Qualifying Diagnosis, such as Alzheimer’s, that was
made while Mr. Stabler was living. (See Ex. 6, Denial Notice at 1.) Ms. Moyes appealed that
denial on October 25, 2018, solely as to the denial of the Alzheimer’s diagnosis, and the NFL
Parties filed an opposition on November 28, 2018. (See Ex. 5, Appeal; Ex. 7, Opposition.) On
December 27, 2018, the Special Master issued a Post-Appeal Notice of Denial of Monetary Award
Claim. (See Ex. 8, Post-Appeal Denial Notice.)
On January 16, 2019, Ms. Moyes filed an Objection to the Special Master’s ruling, arguing
that: (1) the Special Master “incorrectly applied the Settlement terms” by denying her appeal;
and (2) “[t]he Special Master erred because it did not consider the Stabler Estate’s Alzheimer’s
claim,” as opposed to its Death with CTE claim, which involved different evidence. (See Ex. 1,
Claimant’s Objection.)
ARGUMENT
In her Objection, Claimant misunderstands or improperly seeks to modify the terms of the
Settlement Agreement. The Settlement Agreement sets forth clear definitional requirements for a
Qualifying Diagnosis of Alzheimer’s. In accordance with those requirements, the Special Master

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 affirmed the denial of Ms. Moyes’ claim because the Claim Package failed to meet the requisite
criteria to establish the diagnosis.2
A.

The Special Master Correctly Determined that the Terms of the Settlement
Agreement Precluded a Qualifying Diagnosis of Alzheimer’s

First, Claimant contends that “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 [Ms. Moyes’] claim and relying on
FAQ 89 to override the terms of the Agreement.” (Ex. 1, Claimant’s Objection at 6.) This
argument represents a fundamental misunderstanding of the Settlement Agreement and its Injury
Definitions. The Special Master correctly applied the clear terms of the Settlement Agreement
establishing that a diagnosis of Alzheimer’s must be made while the Retired NFL Football Player
is living—a fundamental requirement that this claim indisputably failed to meet.
The Settlement Agreement’s Injury Definition for a Qualifying Diagnosis of Alzheimer’s
for players deceased prior to the Effective Date of the Settlement Agreement, such as Mr. Stabler,
requires “a diagnosis of Major Neurocognitive Disorder due to probable Alzheimer’s Disease . . .
or a diagnosis of Alzheimer’s Disease, made while the Retired NFL Football Player was living”
by a qualified physician. (Settlement Agreement, Ex. 1 § 3(b) (emphasis added).) Settlement
Program FAQ 89 confirms this requirement, stating that, for a Qualifying Diagnosis of
Alzheimer’s, “the Player had to have been diagnosed while he was living by a physician with the
appropriate qualifications.” (Settlement Program FAQ 89 (emphasis added).) Here, Ms. Moyes
acknowledges that Mr. Stabler was not diagnosed with Alzheimer’s while living, and that fact
presents an absolute bar to recovery under the Settlement Agreement.

2

As noted above, the Claims Administrator also correctly determined that Mr. Stabler was not eligible for a
Qualifying Diagnosis of Death with CTE based on his date of death. Ms. Moyes has not argued otherwise on
appeal or in her opposition, and previously confirmed that she “does not seek a Monetary Award for a Qualifying
Diagnosis of CTE.” (Ex. 5, Appeal at 1 n.1.) For this reason, the NFL Parties do not further address that basis
for the claim denial.

4

 Ms. Moyes argues, however, that Mr. Stabler should be excused from that requirement
because Dr. McKee’s autopsy of Mr. Stabler’s brain found “Changes of Alzheimer’s disease,” and
because Mr. Stabler’s life partner, Ms. Bush, described memory problems that Mr. Stabler
developed in the last few years of his life. (See Ex. 1, Claimant’s Objection at 3–5, 6–9.) Ms.
Moyes also argues that Mr. Stabler was too focused on fighting cancer to see a neurologist prior
to his death (although she does not address the fact that he underwent extensive dental work in
2015 and was planning to have knee replacement surgery). (Id. at 3; Ex. 5, Appeal at 5.) In any
event, there is nothing in the Settlement Agreement that provides an exception to the fundamental
requirement of a diagnosis while the player is living. None of the provisions on which Ms. Moyes
seeks to rely—namely, Sections 6.4(b) and 6.6(b) of the Settlement Agreement, and Settlement
Program FAQ 116—provide for such relief.
Specifically, Section 6.4(b) 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.” (Settlement
Agreement § 6.4(b).) That provision, however, concerns how a diagnosis is rendered while the
player is living. It does not alter the fundamental requirement in the Settlement Agreement’s Injury
Definition that a diagnosis of Alzheimer’s must be made while the player is living. Furthermore,
the “generally consistent” criteria does not apply to Qualifying Diagnoses of Alzheimer’s disease.
(Settlement Program FAQ 94 (“Diagnoses of Alzheimer’s Disease . . . are all made following the
diagnostic criteria set out in [the Injury Definitions] (and the ‘generally consistent’ standard does
not apply).”) For these reasons, the Claims Administrator properly did not apply Section 6.4(b) to
this claim.

5

 Next, Section 6.6(b) of the Settlement Agreement states that “Monetary Awards . . . shall
compensate Settlement Class Members only in circumstances where a Retired NFL Football
Player manifests actual cognitive impairment.” (Settlement Agreement § 6.6(b).) Ms. Moyes
argues that this section supports her appeal because Dr. McKee’s report and Ms. Bush’s affidavit
both describe undiagnosed cognitive impairment that Mr. Stabler manifested while alive. (See Ex.
1, Claimant’s Objection at 7–8.) Section 6.6(b) goes on to state that “[f]or the avoidance of any
doubt, the identification of a condition—for example, through a blood test, genetic test, imaging
technique, or otherwise—that has not yet resulted in actual cognitive impairment . . . experienced
by the Retired NFL Football Player does not qualify as a Qualifying Diagnosis.” (Settlement
Agreement § 6.6(b).) In other words, this provision merely confirms that a valid diagnosis requires
not only that the player be living at the time—as set forth in the Injury Definition—but also that
impairment must actually manifest at the time of the diagnosis. Nothing in Section 6.6(b) supports
that a backwards looking, post-mortem analysis based on interviews with family members is
sufficient to meet the Injury Definition for Alzheimer’s. Nor would such an interpretation be
proper because it would read a clear term out of the Settlement Agreement without any proper
basis.
Finally, Settlement Program FAQ 116 provides, in part, that “[t]he Claims Administrator
has discretion to review and decide Settlement Class Members’ requests to excuse the Diagnosing
Physician Certification Form and/or medical records reflecting Qualifying Diagnosis requirements
and to determine the appropriate date of diagnosis in such circumstances, based on evidence the
Claims Administrator deems necessary to evaluate each request.” (Settlement Program FAQ 116;
see Ex. 1, Claimant’s Objection at 8–9.) The Claims Administrator did not purport to exercise any
such discretion here. Nor could the Claims Administrator have done so, as FAQ 116 does not

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 eviscerate the requirement that the retired player receive the diagnosis while living. Instead, the
FAQ was intended to apply in circumstances where a retired player received a diagnosis while he
was living, but where documentation establishing that diagnosis may be lacking.3 Here, Mr.
Stabler never received such a diagnosis, and FAQ 116 is therefore inapplicable.
B.

The Special Master Properly Upheld the Denial of Ms. Moyes’ Alzheimer’s
Claim After Considering Her Appeal

Next, Ms. Moyes contends that the Special Master erred as a matter of law because he
allegedly considered only the Death with CTE claim instead of the Alzheimer’s claim that relied
on different evidence. (Ex. 1, Claimant’s Objection at 5–6, 9–10.) This argument is belied by the
claim and appeal history.
Ms. Moyes initially submitted a Diagnosing Physician Certification Form that claimed a
diagnosis of Death with CTE, and not Alzheimer’s Disease. (See Ex. 3, Diagnosing Physician
Certification Form at 5.) The Claims Administrator correctly denied that claim, but the Denial
Notice also stated that: “If [Mr. Stabler] received a different Qualifying Diagnosis while he was
living (i.e., . . . Alzheimer’s Disease . . .), [Ms. Moyes] may submit a Claim Package for that
Qualifying Diagnosis for review by the Claims Administrator. The new Claim Package must
contain . . . a new Diagnosing Physician Certification Form, and medical records that reflect the
newly asserted Qualifying Diagnosis.” (Ex. 6, Denial Notice at 1 (emphases added).) Although
Ms. Moyes filed a Claim Form for Alzheimer’s, she did not include a new Diagnosing Physician
Certification Form or any medical records reflecting a diagnosis of Alzheimer’s while Mr. Stabler
was living; no such records exist.
3

To the extent that the FAQ purports to expand the circumstances in which the Claims Administrator may excuse
the lack of medical records or a Diagnosing Physician Certification Form beyond those set forth in the Settlement
Agreement, the NFL Parties respectfully submit that it would constitute a material change to the terms of the
Settlement Agreement and, thus, would be improper.

7

 Nonetheless, Ms. Moyes appealed the denial of the Alzheimer’s claim and now argues,
without any factual basis, that the Special Master “did not consider the Stabler Estate’s
Alzheimer’s claim.” (Ex. 1, Claimant’s Objection at 6, 9.) Ms. Moyes’ appeal and the NFL
Parties’ opposition both focused exclusively on the denial of her Alzheimer’s claim because her
appeal stated that she “does not seek a Monetary Award for a Qualifying Diagnosis of CTE.” (Ex.
5, Appeal at 1 n.1; Ex. 7, Opposition.) Although the Special Master’s Post Appeal Notice of Denial
continued to list the original claim denial for Death with CTE, that provides no basis to believe
that the Special Master failed to review or consider the parties’ submissions on appeal before
affirming the denial of Ms. Moyes’ claim. (See Ex. 8, Post Appeal Notice of Denial.) There is
simply no support whatsoever for Ms. Moyes’ claim that the Special Master did not adequately
consider the arguments she made on appeal. Indeed, as demonstrated above, because Mr. Stabler
did not receive an Alzheimer’s diagnosis while living, the plain terms of the Settlement Agreement
required denial of the claim.
Conclusion
For the foregoing reasons, the NFL Parties respectfully request that the Court deny
Claimant’s Objection to the Special Master’s determination.

8

 Dated: February 11, 2019

Respectfully submitted,
/s/ Brad S. Karp
PAUL, WEISS, RIFKIND, WHARTON
& GARRISON LLP
Brad S. Karp
Bruce Birenboim
Lynn B. Bayard
Richard C. Tarlowe
Douglas M. Burns
1285 Avenue of the Americas
New York, NY 10019-6064
Tel: (212) 373-3000
bkarp@paulweiss.com
Attorneys for Defendants the National Football
League and NFL Properties LLC

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