Case 2:12-md-02323-AB Document 10817-1 Filed 08/22/19 Page 1 of 16

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

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

THIS DOCUMENT RELATES TO:

Hon. Anita B. Brody

SPID No. 260006736

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S
F.R.C.P. RULE 60 MOTION
Plaintiff A.G. (“Plaintiff” or “A.G.”) respectfully moves this Court pursuant to Rule
60(b)(1),(2) and (6) in order for A.G., a retired football player and Class Member whose
diagnosis of mild-to-moderate dementia and subsequent claim for relief was initially approved
twice by the Claims Administrator, to recover under the Court-approved Settlement Agreement.
A.G.’s claim was rejected for a reason outside of, and in fact prohibited by, the terms of the
Settlement Agreement and contrary to this Court’s own determination as to the definition of
“generally consistent,” FAQ 101; Order of the Hon. Anita B. Brody, 1/9/19 [Dkt. 10370]. Thus,
he makes this timely motion due to mistake, newly discovered evidence and because allowing
the determination to stand would bring about a manifest injustice. The relief Plaintiff seeks does
not challenge the Settlement Agreement or attempt to alter its terms in any way, but instead—
and to the contrary—asks only that the Settlement be applied as written to A.G.’s claim.

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I.

Plaintiff has standing to bring this motion in lieu of a direct appeal.
This Court’s order entered July 2, 2019, denying an objection to a finding by the Special

Master that A.G. was not entitled to a claim award, is the subject of this Rule 60 Motion. There
is no question that the district court has jurisdiction to review the determination of the Special
Master, Pittsburgh Metro Area Postal Workers Union, A.F.L.-C.I.O. v. U.S. Postal Service, 938
F. Supp. 2d 555 (W.D. Pa. 2013). There was a flawed record before this Court and Plaintiff
respectfully requests that this Court strictly apply the Settlement Agreement, over which the
Court has retained full authority and jurisdiction pursuant to the Amended Settlement Agreement
(Dkt. 6481-1).
II.

The claims process and the procedural history of A.G.’s claim.
By way of background, there is or should be no dispute that: (a) A.G. suffered significant

concussion-related injuries, (b) he was diagnosed by qualified medical personnel who offered
multiple bases for their opinions, (c) his claims were approved both by the Claims Administrator
and the Appeals Advisory Panel (AAP), and (d) the diagnostic criteria used by his physicians
(and confirmed by the AAP) were generally consistent with the criteria set forth in the
subsequently created Baseline Assessment Program (BAP) 1.
Under the Settlement Agreement, a retired professional football player must have
registered for the Settlement and must qualify to bring a claim for defined damages under the
Settlement for a Qualifying Diagnosis. The Qualifying Diagnoses include Level 1.5
Neurocognitive Impairment (mild-moderate dementia) as described in the Settlement at Section
1

“Generally consistent” is not a defined term in the Amended Settlement Agreement, however in the context of
analyzing an Objection by the NFL to six class members’ awards based on generally consistent findings, the District
Court’s Order of January 9, 2019, directed “the Claims Administrator to develop for review and approval by the
Court a clarification of the existing Rules Governing MAF Physicians. The clarification should require that
Qualified MAF Physicians who make a Qualifying Diagnosis of Level 1.5 Neurocognitive Impairment . . . by
deviating from the BAP testing protocols or diagnostic criteria provide a written description in their reports as to
why, in such doctor’s medical judgment, the valuation and evidence is ‘generally consistent’ with the BAP
diagnosis.” The January 9, 2019 Order is attached as Ex. 2.

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6.3(a)-(f). The Settlement Agreement certified two categories of players: those diagnosed before
the Effective Date of the Settlement and those diagnosed after the Effective Date of the
Settlement. And, further, Qualifying Diagnoses must be made by either board-certified
neurologists or neuro-psychiatrists if made before the effective date of the Settlement, January 7,
2017, or by a MAF approved board-certified neurologist or neuro-specialist physician after the
Effective Date or by a BAP appointed neurologist.
The BAP was created pursuant to the Settlement Agreement and thus implemented only
after its Effective Date. Notably, the Settlement Agreement did not require re-testing of all stillliving Class Members whose injuries and diagnoses pre-dated the execution of the Settlement.
Instead, and logically, only general consistency—as in, general consistency of the criteria used in
the BAP and outside of the BAP—was required to further principles of equity and efficiency in
the Settlement; the Settlement Agreement was based on a recognition that the BAP was not the
only way a player could or would recover. To the contrary, the express (and logical) term in the
Settlement Agreement is that the Class Members must be diagnosed under criteria that are
“generally consistent with,” not identical to, the BAP criteria.
“Generally consistent with” is not a defined term in the Settlement Agreement, however,
it is defined by the Court and the parties in the Frequently Asked Questions:
F.A.Q. 101. What does “generally consistent” mean?
Something is “generally consistent with” something else if the two things have
more elements or characteristics in common with each other than they have
elements or characteristics that differ from each other. The common elements or
characteristics must predominate over the uncommon ones.
The Settlement Agreement states specifically that diagnostic criteria for a
diagnosis made outside the BAP do not have to be identical to the diagnostic
criteria for a diagnosis made in the BAP. The diagnostic criteria, or the medical
rules the doctor must follow to make the diagnosis, outside the BAP do not have
to be 100% the same as the Exhibit 1 criteria.
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With this said, the closer a set of diagnostic criteria match those specified in
Exhibit 1, the more “consistent” it will be with Exhibit 1.
A claim based on a Qualifying Diagnosis is most solid when its elements match
closely those required in Exhibit 1. For example, where Exhibit 1 requires
documentary evidence or a third-party sworn affidavit corroborating functional
impairment, or neuropsychological testing, the claim of a Qualifying Diagnosis is
most solid when its Claim Package contains documentary evidence or a thirdparty sworn affidavit corroborating functional impairment and proof of
neuropsychological testing that serve the majority of purposes of those specified
in Exhibit 1 for the diagnosis and that do not conflict in any manner with those
criteria and requirements. (Ex. 15, Settlement Program FAQ 101.)
The crux of the issue is that A.G.’s claim did not match one of the specific BAP
requirements for a Qualifying Diagnosis of Level 1.5. However, A.G.’s test scores and all other
findings were generally consistent with the BAP’s requirements, more of them matched precisely
than not. And, the Special Master ignored or entirely overlooked the CDR score assigned to
A.G.’s diagnosis by the board-certified neurologist. That CDR rating, flatly ignored by the
Special Master, exceeded one of the four criteria for recovery.
However, this finding was not because the BAP medical personnel believed or could
argue they were more qualified than A.G.’s original doctors to render a diagnosis and, crucially,
not because the NFL challenges the sad fact that, like all patients with dementia, A.G. has in fact
suffered a precipitous decline in neuro-functioning. Nothing in the express or implied terms of
the Settlement Agreement provides that a retired player suffering from dementia who chose to
participate in the Settlement is out of luck simply because, apparently, his cognitive functioning
started at a higher level than perhaps the average (of course, someone has to be above the
average just as others have to be below).
A.G. graduated from Stanford University, played nine seasons with the NFL and, like he
was encouraged to do, he played hard. He suffered multiple concussive injuries. Dementia is a
horrible disease to strike any person, but A.G. is only 37 years old. He was first diagnosed with
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dementia at age 33. He chose to participate in the Settlement because it is a fair and good
agreement as written. Because his claim (which had already been accepted) was subsequently
rejected for a reason not permitted by the Settlement Agreement, Plaintiff respectfully submits
that even though the relief he seeks would not alter the Settlement Agreement, the correction of
this relatively discrete but important mistake would serve the additional purpose of helping the
Court to ensure appropriate implementation of the Settlement Agreement going forward to the
extent this is an issue that may recur.
A.

A.G. received a qualifying diagnosis by a world-renowned neurologist.

A.G. is a 37-year-old man who played for the NFL for nine seasons between 2004 and
2012 as a defensive lineman. On April 11, 2017, Class Member A.G. submitted a Pre-Effective
Date claim, supported by a 30 page neurological report and opinion that he suffered from
qualifying 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., a world renowned expert in concussions and a board-certified neurologist. (Ex. 3, Lobatz
Report.) In addition, A.G. submitted a neuropsychological report by Dr. Laura Hopper, using an
accepted set of measurements that also independently demonstrated that he suffered a 1.5 deficit
(mild-moderate dementia). (Ex. 4, Hopper Report.) And, although Dr. Hopper did not perform
all of the suggested tests in the battery of tests, she performed most of them.
The claim first was analyzed and approved by the Claims Administrator and then by the
Appeals Advisory Panel, because the Pre-Effective Date Claimants are so reviewed pursuant to
Section 6.4(a)(1).
Plaintiff was diagnosed with a Qualifying Diagnosis prior to the Effective Date of the
settlement (January 7, 2017) by a board-certified neurologist (as permitted by the Settlement
Agreement) and that board-certified neurologist submitted a Diagnosing Physician Certification
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Form as required by the Settlement Agreement. (Ex. 5, Pre-Effective Date Diagnosing Physician
Certification Form.) Plaintiff complied with all of the applicable requirements for the submission
of his claim. Because his was a Pre-Effective Date claim, A.G.’s entire record was reviewed by
members of the Appeals Advisory Panel (“AAP”), who are board-certified neurologists. The
AAP members concurred with Dr. Lobatz, as well as with the Plaintiff’s neuropsychologist Dr.
Hopper, that A.G.’s Qualifying Diagnosis met the criteria for Level 1.5 Neurocognitive
Impairment. Subsequent to the approval of his claim, Plaintiff timely followed all of the rules as
laid out in the Settlement Agreement for the submission of a monetary award claim. Based upon
the final and binding determination of the Appeals Advisory Panel, the Claims Administrator
agreed that A.G. suffered a Level 1.5 deficit and issued a Notice of Monetary Award to A.G. on
July 20, 2017, finding that he was entitled to a monetary award under the settlement and that he
qualified for a Level 1.5 recovery. (Ex. 6, Notice of Monetary Award, 7/20/17.)
B.

The Claims Administrator audited the entire record and accepted the
opinion of the board-certified neurologist.

On day 32 after the monetary award was initially granted, A.G. was advised that his
Claim was the subject of a random 10% audit by the Claims Administrator 2. (Ex. 7, Notice of
Audit, 8/21/17). As part of the audit, on September 7, 2017, A.G. produced 5 years of medical
records and 5 years of employment records. (Ex. 8, Response to Notice of Audit, 9/7/17.)
The Claims Administrator interviewed Dr. Lobatz. During the interview, Dr. Lobatz
made clear to the Claims Administrator that he based his opinion on the radiographic evidence of
significant brain bleeds caused by trauma to the head as well as his long history as A.G.’s doctor
of four years to formulate his opinion that A.G. suffered from a Level 1.5 Qualifying Diagnosis.

2

The audit was done pursuant to Section 10.3 of the Settlement Agreement. (Id.)

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Dr. Lobatz explained to the Claims Administrator’s representatives that his opinion was
independent of Dr. Hopper’s testing, however, helpful.
In his written opinion, Dr. Lobatz refers to multiple bases for his diagnosis including, Dr.
Hopper’s 2015 neuropsychological examination taken over three days, an EEG, radiological
imaging of A.G.’s brain, psychiatric evaluation by the Crosby Center, and an evaluation by Dr.
Ezekiel Fink, an independent medical examiner/neurologist. (Ex. 3, Lobatz Report at 26-35.) In
Dr. Lobatz’s report, he describes the supportive findings at length. He describes a moderate
decline in cognitive functioning, as well as the Amen Clinic, Dr. Fink and the Crosby Center’s
“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
Dementia Rating Scale (CDR) 1.5 (Neurocognitive impairment) in the areas of Community
Affairs, Home and Hobbies and personal care.” (Id. at 35.) He found that A.G. had a progressive
history of cognitive impairment, images of brain trauma demonstrating hemorrhagic events
caused by trauma, evidence of trauma on the EEG findings, as well as the determination by Dr.
Fink that he had significant cognitive impairment and the Crosby Center records supported his
CDR rating of 1.5. (Id.)
C.

The NFL’s objection confuses and conflates the Generally Consistent
Standard with “Identical.”

The NFL’s initial appeal to the Special Master did not raise any issues with the
qualifications of the doctors and/or their ability to render the Plaintiff’s diagnosis. The
Diagnosing Physician’s diagnosis was confirmed as generally consistent by a member of the
AAP, who reviewed the findings for the Claims Administrator during the two audits. Rather, the
NFL argued below only that the diagnosis did not satisfy what it argues is the governing standard
– those spelled out for diagnoses through the Baseline Assessment Program (the “BAP”).
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However, because Plaintiff was diagnosed outside the BAP, and, indeed before the BAP was
even conceived, under the plain terms of the Settlement Agreement, the diagnosing physicians
did not have to apply the same objective diagnostic criteria to this player as to those diagnoses
made by BAP neurologists after 2017. Diagnoses made by board-certified neurologists PreEffective Date, need only be “generally consistent” with the diagnostic criteria set forth under
the Settlement Agreement.
This Court has made it clear that generally consistent is not identical. (Ex. 1, Order of
Hon. Anita B. Brody, 1/9/2019 [Dkt. 10370].) With respect to this player’s claims, the specific
diagnostic criteria for Level 1.5 Neurocognitive Impairment in the BAP can be found in
subsection 1(a)(i)-(iv) of Exhibit A-1 to the Settlement Agreement 3.
D.

The standard for “Generally Consistent.”

The NFL has repeatedly insisted to the Special Master and to the Court that significant
deviations downward alone are not sufficient to meet the “generally consistent” criteria set in the
Settlement Agreement. This is without basis in science and these assertions were made long
after the fact when class members had to opt in and agree to the terms of the Agreement. The
NFL insisted that A.G.’s significant downward deviations in most of his neuropsychological
testing “could not” meet that standard, when in fact, there is no such “standard.” The
neuropsychologist report from 2015 two years before the Settlement, demonstrates A.G. had
significant downward deviations in complex attention and processing speed. (Ex. 4, Hopper
Report at 3-10.) His T scores were respectively at 26 for complex attention/processing speed, far

3

Subsection 1(b) of Exhibit A-1 then makes it clear which “diagnostic criteria” are subject to the “generally
consistent” standard. Subsection 1(b) states in relevant part:
For living Retired NFL Football Players diagnosed outside of the BAP, a diagnosis while living of Level 1.5
Neurocognitive Impairment, i.e., early dementia, based on evaluation and evidence generally consistent with the
diagnostic criteria set forth in subsection 1(a)(i)-(iv) above, . . . made by a Qualified MAF Physician or a boardcertified or otherwise qualified neurologist, neurosurgeon, or other neuro-specialist physician, as set forth and
provided in Sections 6.3(b)-(d) of the Settlement Agreement.

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below the T score of 35, and at 40 for the auditory memory and visual memory testing. (Id.)
There is no question that A.G. scored in the 80 percentile range in the vocabulary testing but that
is consistent with his premorbid IQ of 122. (Id.) The complex attention/ processing speed and
visual and auditory memory tests demonstrated substantial and multiple deviations downward
from his premorbid IQ of 122, with scores of 26, 40, 40, 40 and 41, and 44. (Id.) The testing was
valid and the doctor found that these findings were indeed consistent with brain damage
demonstrated by the imaging and the EEG testing. (Ex. 3, Lobatz Report at 27-28, 34-35.) As a
result, both neurologists who examined A.G., Dr. Lobatz and Dr. Fink, found that he had a
significant neurocognitive decline. (Id.; see also Ex. 9, Fink Report at 12.)
Instead of acknowledging and accepting the validity of the testing, the validity of the
board-certified neurologist’s extensive report and the validity of the AAP members’ initial
approval and assent, and the validity of the CDR rating of 1.5, the NFL insisted that the testing
results need be identical to the BAP results. Nonetheless, the NFL insisted upon disregarding the
board-certified neurologist’s diagnosis, completely ignoring or downplaying what Dr. Lobatz
knew of his patient of four years, the neuropsychologist finding of a premorbid high IQ of 122
and the testing demonstrating a three to four time deviation downward in critical domains of
complex attention/processing speed and visual and auditory memory. The NFL similarly sought
to ignore and downplay severe symptoms consistent with dementia that several other treaters had
described. Had the NFL not continuously argued that “generally consistent with” is equivalent
to “identical” then, the Court would never have been presented with such a flawed record. This
Court has prided itself throughout this long and difficult process with requiring the most accurate
data to be sure the player class members are best served by the Settlement. That was not

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presented to the Court here and this Court should request to be presented with these facts once
again in order to make a fair determination applying the Settlement Agreement as stated.
The NFL appealed to the Special Master, Wendell Pritchett. (Ex. 10, NFL Appeal,
1/3/18.) Presumably based on the report of a new or different AAP Consultant 4, who was a
neuropsychologist not a neurologist, the Special Master denied Plaintiff’s claim. (Ex. 11, PostAppeal Notices of Denial; see also Ex. 12, Special Master Decision, 10/10/18.) Plaintiff
appealed to Judge Brody who upheld the denial based on improper flawed information placed
before the Court. (Ex. 13, Objection to Special Master Decision, 10/26/18; see also Ex. 1,
Settlement Implementation Determination, 7/2/19 [Dkt. 10712].) There is no clear explanation
why the claim was denied. However, speculation suggests that the Special Master denied the
claim because A.G.’s T scores in the complex attention/processing speed domain fell below 35,
as required under the BAP, while the learning and auditory and visual memory tests reflected
scores of 40, 40, 44, 47, 57, and 50. (See Ex. 14, AAPC Review, 8/12/17.) And, the Special
Master held Section 1(a)(iii) was not satisfied without explanation, despite the findings that there
was documentary evidence and evaluations demonstrating functional impairments, depression
and anxiety that are generally consistent with the criteria set forth in the National Alzheimer’s
Coordinating Center’s Clinical Dementia Rating Scale (CDR) 1.5 (Neurocognitive impairment)
in the area of Community Affairs, Home and Hobbies and personal care. (Ex. 12, Special Master
Decision at 3.)
4

Settlement Agreement (Dkt. 6481-1), Section 2.1 (h): “Appeals Advisory Panel Consultants” means three (3)
neuropsychologists certified by the American Board of Professional Psychology (ABPP) or the American Board of
Clinical Neuropsychology (ABCN), a member board of the American Board of Professional Psychology, in the
specialty of Clinical Neuropsychology, 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 a member of the Appeals
Advisory Panel, the Court, or the Special Master on the neuropsychological testing referenced in Exhibits 1 and 2 to
the Settlement Agreement, as pertaining to the Qualifying Diagnoses of Level 1.5 Neurocognitive Impairment and
Amended Settlement Agreement, Level 2 Neurocognitive Impairment, and Level 1 Neurocognitive Impairment if
subject to review as set forth in Section 5.13.Appeals Advisory Panel Consultants do not meet the definition of
Appeals Advisory Panel members and shall not serve as members of the Appeals Advisory Panel.

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The NFL argued below only that the diagnoses did not satisfy what it argues is the
governing standard – those spelled out for diagnoses through the BAP because of the deviation
in the scores. With respect to this player’s claims, the specific diagnostic criteria for Level 1.5
Neurocognitive Impairment in the BAP can be found in subsection 1(a)(i)-(iv) of Exhibit A-1 to
the Settlement Agreement. There is no question that A.G. satisfied all four prongs of Section
1(a)(i)-(iv):
1.

A.G. presented a well-documented decline in his cognitive functioning. He can

no longer attend school, work outside of his home, adequately care for his personal care, or
participate in the family without being oftentimes disruptive;
2.

The neuropsychological testing demonstrates a severe decline in performance in

connection with complex attention, processing speed, visual and auditory memory. His T scores
of 26, 40, 40, 40 in processing speed/complex attention, and auditory memory are consistent with
the required T scores in the BAP testing. This is especially true where, here, the decline from
premorbid functioning and IQ was so significant;
3.

A.G.’s CDR score was found to be a 1.5 ( Functional Impairment) in the areas of

Community Affairs, Home and Hobbies and personal care by Dr. Lobatz, greater than the rating
of 1 required under subsection iii; and,
4.

Dr. Lobatz stated that the cognitive deficits documented in this case have clearly

not occurred in the context of a delirium, acute substance abuse or as a result of medication side
effects. (Ex. 3, Lobatz Report; see also Ex. 4 Hopper Report.)
These findings meet the definition of generally consistent with. The findings
demonstrate that most of them match precisely while one is similar to the BAP standard, even
though not identical.

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III.

Rule(60)(B) provides that the Court may correct a mistake that has caused a
manifest injustice as occurred here.
Rule 60(b) of the Federal Rules of Civil Procedure provides that:
On motion and upon such terms as are just, the court may relieve a party or its
legal representative from a final judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been discovered in
time to move for a new trial under Rule 59(b); (3) fraud (whether previously
called intrinsic or extrinsic), misrepresentation, or misconduct of an adverse party;
(4) the judgment is void; (5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the judgment should have
prospective application; or (6) any other reason justifying relief from the
operation of the judgment.
The motion must be made within a reasonable time and for reasons (1), (2), and (3) not

more than one year after the judgment, order, or proceeding was entered or taken. Gonzalez v.
Crosby, 545 U.S. 524, 528 n. 2, 125 S. Ct. 2641, 2646 n. 2, 162 L.Ed.2d 480 (2005);
FED.R.CIV.P. 60(c)(1). This motion is indeed timely as it was made within 30 days following
the entry of the Settlement Implementation Order dated July 2, 2019, that the Court wrote was
final and binding. (See Ex. 1, Settlement Implementation Determination, 7/2/19 [Dkt. 10712].)
Here, the district court would be empowered to grant relief under several parts of
Rule 60(b), including but limited to Rule 60(b)(1), mistake and surprise; Rule 60(b)(2), newly
discovered evidence; and Rule 60(b)(6), any other reason justifying relief from the operation of
the judgment. See Satterfield v. D.A. Philadelphia, 872 F.3d 152 (3rd Cir. 2017). Here, the
hardship to A.G. is extreme. Having to wait to go through another years-long process to make a
claim under the Settlement Agreement will undoubtedly delay his award and even potentially
reduce his award drastically as the awards are reduced based on age of the claimant. A.G. will
be under extreme hardship if he fails to reinstate the claims he was duly awarded more than two
years ago.
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In addition, apparently, there is some unknown action that took place by the NFL, the
Claims Administrator or the AAP , that led to the district court being provided incorrect
information: “The Court is troubled by the events leading to this objection and has looked into
the matter. The Special Master and the Claims Administrator have assured the Court that the
events leading to this objection will not be repeated.” (See Ex. 1, Settlement Implementation
Determination, 7/2/19 [Dkt. 10712].) There is simply no further explanation in the Order to put
A.G. or his counsel on notice of what misleading information may have worked its way into the
process that resulted in A.G.’s claim being strangely rejected contrary to the clear language of
the Settlement Agreement. It can only mean the Settlement Agreement was not followed and
that behind-the-scenes efforts may have trampled A.G.’s Due Process rights to notice of the
actions and implementation of the Settlement Agreement.
Under well-established principles, Rule 60(b) is not a substitute for an appeal. See
Martinez-McBean v. Government of the Virgin Islands, 562 F.2d 908, 911 (3d Cir. 1977).
However, other courts have held that legal error may be characterized as a “mistake” within the
meaning of Rule 60(b)(1), but only where the motion is made, as here, within the time allowed
for appeal. See, e.g., Barrier v. Beaver, 712 F.2d 231 (6th Cir. 1983); International Controls
Corp. v. Vesco, 556 F.2d 665 (2d Cir. 1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 730,
54 L.Ed.2d 758 (1978). See generally, Note, Relief from Final Judgment Under Rule 60(b)(1)
Due to Judicial Errors of Law, 83 Mich. L. Rev. 1571 (1985). This Court has yet to decide this
issue.
When the Sixth Circuit considered this question in the Barrier case, it found that a
mistake of law falls within the “mistakes” considered under Rule 60(b)(1) 5.

5

There is authority for the view that the word “mistake” as used in Rule 60(b)(1) encompasses any type of mistake
or error on the part of the court, including judicial mistake as to applicable law. See, Oliver v. Home Indem. Co., 470

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Here, this Court is faced with a question of mistake in the application of the precise terms
of the Settlement Agreement to A.G.’s claim. This Court specifically described that:
“[s]omething is ‘generally consistent with’ something else if the two things have more elements
or characteristics in common with each other than they have elements or characteristics that
differ from each other. The common elements or characteristics must predominate over the
uncommon ones.” (Ex. 15, Settlement Program FAQ 101.)
A.G. demonstrated a significant decline in cognitive function as documented by testing
data, films and a board-certified neurologist’s report meeting all the criteria under Sections
1(a)((i)-(iv). The T scores are not identical but they certainly replicate the same pattern as
predicted for someone with a lower IQ. The fact that he had a higher premorbid IQ skews the
numbers slight upward but not significantly as to demonstrate that he was not injured by the
multiple concussive strikes to his head. There is no question that all of A.G.’s findings, taken
together, are more than consistent with a Level 1.5 Qualifying Diagnosis, and that these findings
are generally consistent with the criteria called for under the Settlement.
IV.

Conclusion
Plaintiff A.G. respectfully moves this Court to review this matter, apply the precise

language of the Settlement Agreement as this Court has interpreted and applied it and reinstate
A.G.’s monetary award with interest.
F.2d 329 (5th Cir. 1972); Stewart Security Corp. v. Guaranty Trust, Co., 71 F.R.D. 32 (W.D.Okla.1976); Crane v.
Kerr, 53 F.R.D. 311 (N.D. Ga. 1971). See also D.C. Federation of Civic Associations v. Volpe, 520 F.2d 451 (D.C.
Cir. 1975); Meadows v. Cohen, 409 F.2d 750 (5th Cir. 1969); and Schildhaus v. Moe, 335 F.2d 529 (2d Cir. 1964)
(failure to apply intervening appellate decisions contrary to district court interpretation of the law is a “mistake”).
Contra, Silk v. Sandoval, 435 F.2d 1266, 1267–68 (1st Cir. 1971), cert. denied, 402 U.S. 1012 [91 S.Ct. 2189, 29
L.Ed.2d 435] (1971); Morgan Guaranty Trust Co. of N.Y. v. Third National Bank of Hampden Cty., 545 F.2d 758
(1st Cir.1976); Scola v. Boat Frances, R., Inc., 6181 [618] F.2d 147 (1st Cir.1980). See also Swam v. United States,
327 F.2d 431 (7th Cir. 1964) [cert. denied, 379 U.S. 852 [85 S.Ct. 98, 13 L.Ed.2d 55] (1964) ]. This Court is
persuaded that the better view is to allow reconsideration of a point of law under Rule 60(b)(1) when relief from
judgment is sought within the normal time for taking an appeal. International Controls, 556 F.2d 665 , cert. denied,
434 U.S. 1014 [98 S.Ct. 730, 54 L.Ed.2d 758] (1978 ). This view serves the best interest of the judicial system by
avoiding unnecessary appeals and allowing correction of legal error if and when made and the trial court has been
satisfied that an error was committed.

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Dated: August 22, 2019

Respectfully submitted,

By:
Wendy R. Fleishman
Lieff Cabraser Heimann & Bernstein, LLP
Wendy R. Fleishman
Rachel Geman
250 Hudson Street, 8th Floor
New York, New York 10013
Telephone: (212) 355-9000
Facsimile: (212) 355-9592
wfleishman@lchb.com
rgeman@lchb.com
Lieff Cabraser Heimann & Bernstein, LLP
Kenneth S. Byrd
Andrew R. Kaufman
150 Fourth Avenue, North, Suite 1650
Nashville, TN 37219
Telephone: (615) 313-9000
Facsimile: (615) 313-9965
kbyrd@lchb.com
akaufman@lchb.com

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CERTIFICATE OF SERVICE
I hereby certify that on August 22, 2019, I filed the foregoing through the Court’s
CM/ECF system, which will provide electronic notice to all counsel of record and constitutes
service on all counsel of record.

/s/ Wendy R. Fleishman
Wendy R. Fleishman

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1829384.1