Case 2:12-md-02323-AB Document 10810 Filed 08/20/19 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA

No. 2:12-md-02323-AB
IN RE: NATIONAL FOOTBALL LEAGUE
PLAYERS' CONCUSSION INJURY
LITIGATION

MDL No. 2323

Hon. Anita B. Brody

THIS DOCUMENT RELATES TO:
SPIDNo. 100007094

SETTLEMENT IMPLEMENTATION DETERMINATION

Before this Court is an objection by the NFL Parties from a finding by the Special Master
that a Retired NFL Football Player ("Claimant") was entitled to a claim award for a Qualifying
Diagnosis of Alzheimer's Disease, with a "date of qualifying diagnosis" of October 24, 2012.
The Court reviews de novo any objections to conclusions oflaw from its Special Masters.

See ECF No. 6871 at 4-5 (appointing the Special Masters and defining their roles). "The decision
of the Court will be final and binding." Settlement Agreement§ 9.8.
In October 2018, the Claimant sought a Qualifying Diagnosis from a Qualified MAF
Physician. The Qualified MAF Physician made a diagnosis of Alzheimer's Disease. He also
reviewed the Claimant's medical records from 2012 and 2013, which showed symptoms of
dementia and cognitive decline, but which did not identify those symptoms as the onset of
Alzheimer's Disease. The MAF Physician determined, based on a review of these medical
records, that the Claimant first developed Alzheimer's disease in 2012. Accordingly, the MAF
Physician found that the date of the diagnosis was October 24, 2012. The NFL parties do not
dispute that the Claimant was properly diagnosed with Alzheimer's disease in 2018. Instead,
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they object to the Claims Administrator allowing the MAF Physician to determine that the "date
of diagnosis" was in 2012.
Specifically, the NFL argues that the Settlement Agreement requires that the date of a
Qualifying Diagnosis be the date the diagnosing physician examines the Retired Player. This is
incorrect. The Settlement's injury definitions, including that for Alzheimer's, do not state that a
diagnosing physician can only give the date of diagnosis as the date that the physician personally
examines the Retired Player. Rather, the injury definition for Alzheimer's Disease merely states
that living Retired NFL Football Players seeking compensation for a Qualifying Diagnosis of
Alzheimer's Disease must have "a diagnosis while living of the specific disease of Alzheimer's
Disease." Settlement Agreement Exh. A-1 at 4.
Additionally, the Settlement requires that a Diagnosing Physician Certification contain
"the Qualifying Diagnosis being made consistent with the criteria in Exhibit 1 (Injury
Definitions)" and "the date of diagnosis." Settlement Agreement § 2.1 (gg). If the date of
diagnosis was always to be the date of the examination, the Settlement would say this, and would
require a Diagnosing Physician Certification to include only the "date of the examination."
Instead, by requiring the "date of diagnosis," the Settlement language implies that the "date of
diagnosis" is not necessarily the "date of the examination."
Recognizing this, the Special Masters promulgated a Frequently Asked Question
("F AQ") which allows a physician, under limited circumstances, to conclude that the date of
diagnosis was at some point prior to the date of the examination. Specially FAQ 99 states, in
relevant part:
(b) General Rule for the other Qualifying Diagnoses: The date of a Qualifying
Diagnosis other than Death with CTE is when the diagnosing physician has enough
information and materials, including test results, to be able to render a medically
sound and reliable judgment about the Player's condition, the way a physician
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normally does in his or her clinical practice. In some cases, using sound medical
judgment, a physician may conclude that a Qualifying Diagnosis existed at some
prior point in time.
(c) Are there other cases when the Qualifying Diagnosis might be before the date
the physician personally examines the Player? Maybe. The unique facts and
circumstances of a particular claim may allow the diagnosis date to be before the
date the diagnosing physician personally examined the Player. Here are the rules:

(5) Sound clinical medical judgment: Also, the physician making a diagnosis may
conclude, in the exercise of his or her sound medical judgment, that he or she has
enough information from personal examination, medical records from other
healthcare providers, medical history, corroborating evidence from non-family
members and other information that medical specialists rely on in their clinical
practices, to form a sound medical judgment that the Player's Qualifying Diagnosis
conditions existed at a date earlier than the date of a personal examination of the
Player by the physician making the diagnosis and signing the Diagnosing Physician
Certification Form. The Settlement Class Member is best served by having the
doctor who made an earlier diagnosis sign the Diagnosing Physician Certification
Form. But there may be situations where the diagnosing physician can pinpoint an
earlier date that is based on sound clinical judgment and best medical practices.
This FAQ is a sensible and reasonable interpretation ofthe Settlement: it recognizes that there
may be infrequent situations in which a Retired NFL Player's past symptoms were not
recognized as a Qualifying Diagnosis at the time but now can be identified by a physician as the
onset of a Qualifying Diagnosis. In that case, the Retired NFL Player should not be penalized for
their previous doctor's failure to identify a Qualifying Diagnosis, or for their early symptoms
manifesting in an unusual way. Instead, these Retired Players should be compensated based on
the date their diagnosis actually began. 1

1

The NFL Parties also argue that because the Claimant does not meet the requirements of Settlement
Agreement§ 8.2(a)(iii), the date of diagnosis can only be the date of the 2018 examination. Settlement
Agreement § 8.2(a)(iii) concerns the requirements for when a Retired NFL Player received a Qualifying
Diagnosis prior to the Settlement's Effective Date, and the doctor who made that diagnosis is no longer
available to submit a Diagnosing Physician Certification. It is not relevant to the claim at issue here, and
does not alter the Settlement's Injury Definitions.

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Of course, a diagnosing physician may only determine that the date of diagnosis was at
some point before the date of the examination when he or she bases that determination on
medical records and other information normally relied on by physicians. There must be sufficient
evidence from which the diagnosing physician may be confident, based on his or her sound
clinical judgment, of the proper date of diagnosis. Because these requirements were satisfied in
this case, the Claims Administrator properly accepted the MAF Physician's date of diagnosis.
The NFL Parties also argue that the Special Master abused his discretion in failing to
consult with a member of the Appeals Advisory Panel ("AAP") when deciding the NFL Parties'
appeal. The Settlement states that when deciding claim appeals, the Special Master "may be
assisted, in its discretion by any member of the Appeals Advisory Panel and/or an Appeals
Advisory Panel Consultant." Settlement Agreement§ 9.8. The Settlement Agreement thus
unambiguously states that deciding whether to consult a member of the Appeals Advisory Panel
("AAP") and/or an Appeals Advisory Panel Consultant ("AAPC") is within the complete
discretion of the Special Masters. Because the parties left the decision whether to consult a
member of the AAP and/or an AAPC within the discretion of the Court and the Special Masters,
I may only disturb the Special Master's decision on AAP or AAPC consultation if it was an
abuse of discretion. See ECF No. 10528.
"An abuse of discretion occurs only where the district court's decision is 'arbitrary,
fanciful, or clearly unreasonable'-in short, where 'no reasonable person would adopt the district
court's view." United States v. Green, 617 F.3d 233, 239 (3d Cir. 2010) (quoting United States v.
Starnes, 583 F.3d 196, 214 (3d Cir. 2009)).

I find that the Special Master did not abuse his discretion in declining to consult an AAP
member when deciding the appeal subject to this objection. It was well within the range of

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reasonable choices available to the Special Master to decide that he was capable of reviewing the
claim appeal, including the MAF Physician's determination of the date of the diagnosis, without
additional input from an AAP member.
Based on a review of the Special Master's Ruling, a review of the NFL Parties' objection,
and a review ofNFL's oppositions to the objection filed by the Claimant's attorney and by Class
Counsel,2 I approve and adopt the conclusions in Special Master Pritchett's Ruling. Accordingly,
the NFL Parties' objection is DENIED.

August~ 2019

Copies VIA ECF

2

The filings reviewed by the Court are attached to this Settlement Implementation Determination. They
have been redacted to remove identifying Player information.

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