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

RESPONSE OF CLAIMANT
IN OPPOSITION TO THE OBJECTION OF THE NFL

ived a monetary award from the Claims Administrator and postappeal monetary
from the Special Master based on the Special Master's determination that
the NFL failed to marshall clear and convincing evidence that the award, diagnosis, or date of
diagnosis was incorrect. This was a final factual determination. See Post Appeal Notice of
Monetary Award, attached as Exhibit 1. For that reason, the Special Master's determination is
tina! and binding, and Mr. - a w a r d should be paid. See section 9.8 of the Settlement
Agreement, attached as Exhibit 2.
Co-Lead Class Counsel addressed the NFL's appeal of Dr.
proper
application ofFAQ 93(c)(5) to Mr. - c l a i m . Mr.
aoopts in his
own Opposition to the NFL's Objection the entire submission of Co-Lead Counsel as if fully set
forth herein.
Contrary to the NFL argument, this diagnosis has nothing to do with section 8.2 of the
Settlement Agreement. That section addresses circumstances where a qualifying diagnosis was
rendered by a neurologist who is deceased or otherwise unavailable and cannot sign a DPC. Dr.
- i s a qualified MAF neurologist who is among the leading cognitive and behavioural
neurologists in the United States. He fully and independently examined Mr.
ve a
diagnosis based, in part, on the contemporaneous neuropsychological report o
- a n d assessed the date of onset as provided by FAQ 93(c)(5). He is
to that
under the MAF program based on his own examination, the evaluation provided by Dr. collateral information available to him, and past medical records, including neun)logical records
from 2012. Under these circumstances, Dr. ~as able to determine a likely clinical
date-of-onset of Alzheimer's Disease using standard medical practiCe and his sound judgment.
Notwithstanding the NFL's argument, it is medically obvious that Mr. -advanced
Alzheimer's Disease did not appear overnight. It developed over many years and likely began as
a clinical manifestation of simple dementia diagnosed in 2012. The specialists who diagnosed
with dementia in 2012 did not have the benefit of the course of the disease Dr.
assess:ec1. Over six years, the advance of the memory disorder was so dramatic that Dr.
Dr. diagnosed the symptoms as an advanced case of Alzheimer's
began long ago. Dr. - w a s conservative in placing the date of onset as the
date (2012) when a neurosurgeon first tbrmally diagnosed Mr. - w i t h dementia.
Settlement Section 8.2 Does Not Apply
Settlement section 8.2 is irrelevant. It addresses an anticipated problem when a
diagnosing physician becomes deceased or unavailable after rendering a qualifying diagnosis but
before signing a DPC. lt provides a remedy anticipated by the Settlement in the completion of
the DPC, but it does not address the present case where a qualifying physician examines a patient
and, using all available information, c;liagnoses an illness and its start date.
Case law cited by the NFL is equally irrelevant. Those cases involve written contracts

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

that impose an explicit condition to a finite outcome. See Sony Corp. v. FuJijilm Holdings Corp.,
No. 16 CIV. 5988 (PGG), 2017 WL 4342126 (S.D.N.Y. Sept. 28, 2017) and Realtime Data, LLC
v. Malone, 961 N.Y.S.2d 275 (N.Y. App. Div. 2013) (an express condition implies a mandatory
precedent). See also Bank o.fN. Y. Mellon Tr. Co. v. Morgan Stanley Mortg. Capital, Inc., 821
F.3d 297, 306 (2d Cir. 2016) (any condition precedent must be specific within the contract and
any condition not explicitly stated cannot be a required precedent). The cases do not pertain to
the present facts, because section 8.2 does not impose a fixed requirement or preclude the
agreement of the Parties and Order of the Court set forth in FAQ 93(c)(5). If the parties had
intended that the diagnosis date of a player's disease must always match the MAF examination
date, the Settlement would say so. Instead, the Settlement provides one anticipated hypothetical
(section 8.2} that authorizes a diagnosing neurologist to determine an earlier date of onset of a
diagnosed disease. FAQ 93 adds other examples, but it is not an exhaustive list. See FAQ
93(c)(4) and FAQ 93(c)(5). Instead, FAQ 93 acknowledges that the circumstances of Mr.
- c l a i m were not addressed by the Settlement, and the existence ofFAQ 93(c)(5) is proof
that when implemented the Settlement had to account for unanticipated fact pattems.
Standard medical practice requires a physician to make a diagnosis based on current
evaluation and past medical history. The verified symptoms and impairments of a patient are
revealed by contem.porary evaluations, prior medical records, patient history, and reliable
informants. These elements combine to permit the diagnosing nelll'ologist to determine what the
likely disease is and whether or not the disease is sutliciently advanced and observed in the past
to have a date of onset before the date of encounter. This is standard practice in neurological
offices every day. It is illogical and contrary to ethical standards to curtail the obligations ofthe
physician and limit the treatment available to the player who has paid tor the medical
examination. FAQ 93 expressly requires that a physician will determine not only the diagnosis,
but also the start date of the disease: "The diagnosing physician uses his or her professional
medical judgment in deciding when the Player had the conditions amounting to a Qualifying
Diagnosis." See FAQ 93(c)(5). This general rule was specifically endorsed by the NFL when
the FAQs were first circulated. 1

1

The NFL objected to other language within FAQ 93 (in particular at FAQ 93(c)(3 )), but
specifically endorsed the language ofFAQ 93(c)(5). See Feb. 2, 2018 Email t!·om B. Birenboim
to 0. Brown: "There is nothing in the Settlement Agreement that permits the Special Masters or
the Court to depart from the "general rule" at1iculated in FAQ 93 (the date of diagnosis 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 nm1nal~in his or her.==.actice")." This general rule applies to the
diagnosis of M r . - because D r . - u s e d medically sound and reliable judgment just
as he would in his nonnal clinical practice. Further, the NFL failed to tile any formal objection
with the Com1 seeking an adjudication of the issue. More than a year has passed since that time,
and the NFL has waived its right to object now.

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 Case 2:12-md-02323-AB Document 10810-2 Filed 08/20/19 Page 3 of 5

The 2012 J)iagnosis Date is Correct
Alzheimer's Disease by definition has an insidious and often unrecognized start date.
means that many cases are preliminarily misdiagnosed and
The gradual decli ·
mistreated. Dennis
66 in 2012 when he actively sought treatment for memory loss.
2
At that time Mr.
ptoms had been ongoing for at least six years. D r . evaluations of
three in all- progressed in a manner consistent with t~
problems of a making an Alzheimer's diagnosis. D r . - first treated Mr. - o r
dementia and later (after several months) for Alzheimer's in particular. H-owever
Dr.
who
had the breadth of patient history and reports possessed by Dr.
years
patient's progressive decline in memory, extensive mterviews
wife
son . .(a
and the neuropsychological
that established t
memory was nearly non_,,.. . ."'''" in 2018 for the cognitive domam of learning and memory were
16, 24, 25, 31,
, which show
rment on every single test and a severe level of
impainnent.that signaLs Alzheimer's. See
attached as Exhibit 3. This is the
ultimate red flag for Alzheimer's, yet this
and none of the other foregoing
information was available to Dr. - o r D r . - · It was available to Dr. and he was able to use the data, including the reports ~and D r . - provided,
to view the patient in a broader context. Both prior evaluations misdiagnosed Mr. - w i t h
CTE, a diagnosis popular in 2012, but neither had the full picture provided by six more years that
showed the course of the disease. 3
The NFL, in its argument, uses emotion rather than facts. It vaguely mischaracterizes Dr.
~s "sympathetic" in the diagnosis. Whatever the NFL may mean, it is a baseless

~and designed to question an exemplary professional carefully selected to participate in

the MAF program. In his evaluation, Dr.~as, in fact, conservative. He stated that Mr.
- 1 1 a y have met the criteria tor dementia a s as a
2 r len his impairment forced him
MD, attached as Exhibit 4,
into early retirement. See Medical Addendum of
at 1. The assessed start date of 2012 was, however, ten years ater and only after qualified
physicians had formally diagnosed serious neurocognitive impairment, including significant
memory loss. This is the assessment of a thoughtful and conse1vative diagnostican who based
2

Both neurologists, plus the neurosurgeon and the neuropsychologist, corroborate memory
impairment dating back to 2006 or earlier.

The NF~ument against Alzheimer's Disease makes no sense. On the one hand, it agrees
that Mr. - d o e s , in fact, have Alzheimer's Disease in 2018. On the other hand, it seeks to
convince the Special Masters and Court that this gradual and insidious disease did not exist in
2012 and the impairment diagnosed must have been something else, perhaps CTE, and only later
turned into Alzheimer's. This reflects a complete misunderstanding ofthe medical course of
Alzheimer's and the diagnostic process. It is why the Special Masters, Court, and both parties
must rely on the sound clinical judgment of outstanding neurologists in accordance with the
provisions ofF AQ 93.
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 Case 2:12-md-02323-AB Document 10810-2 Filed 08/20/19 Page 4 of 5

his assessment on a large volume of medical evidence he and others developed over many years. 4
NFL implies that Mr
sought an MAF evaluation from Dr.
a member of the AAP) is precluded
First, as the NFL points out,
u. 0 .....,0 a pre-effective date
so Dr. - w a s
Further, the advancement of Mr.
isease is such that It would be unreasonable (and
possibly legal malpractice) for undersigned counsel to rely on the limited evaluation in 2012 of a
neurosurgeon who is not a neurologist and not nearly as well-versed in the clinical assessment of
Alzheimer's as a cognitive and behavioral neurologist whose day to day clinical specialty is the
evaluation and treatment Alzheimer's Disease. Furthermore, any Class member who is willing
to travel and pay for a medical examination from a qualified MAF neurologist has the right under
the Agrement to do that. It is disingenuous for the NFL to claim anything untoward against a
player for exercising that right. The NFL in its disability benefit plans recognizes that longdistance travel for medical treatment is common. It oftens sends players 800 to 1500 miles for
medical examinations from physicians, including neurologists and nemopscyhologists, the NFL
unilaterally selects and pays.
Dr. - s t a t e d botl~eport, attached as Exhibit 5, and in his Medical
Addendum (Exhibit 4), that Mr.-howed a level of moderate dementia i~that
progressed over many years and had a date-of-onset of at least 2012 when Mr. -received
his first diagnosis of dementia. In his addendum, Dr. ~bly deflates the NFL 's
argument that something else must have existed in 2012 (general dementia and/or CTE}, because
ofthe distinguishing features o f M r . - a s e , in particular the early memory loss. See
Exhibit 4. The MRI results also support Alzheimer's. See Exhibit 5 at 6.
There Was No Abuse of Discretion
The NFL tiled its objection in this case on March 20, 2019, before the Court's Order of
April 12, 2019, attached as Exhibit 6. In its Order, the Comt addressed the NFL's abuse-ofdiscretion allegation against the Special Master for declining to consult the AAP when reviewing
claims that allegedly turned on technical and medical grounds. The Court confirmed that
Settlement section 9.8 provides the Special Master complete discretion whether or not to consult
the AAP. The Court determined that the language of section 9.8 is unambiguous and that if the
parties had wanted compulsory review by the AAP in any particular situation, they would have
said so in writing. Also, the Court directly referred to the standard the NFL must meet to prove
its allegation that the Special abused his discretion. That standard requires that the NFL establish
that the Special Master issued a decision that is "arbitrary, fanciful, or clearly unreasonable."
That is, one that "no reasonable pel'son would adopt." See United States v. Green, 617 F.3d 233,
239 (3d Cir. 2010) (quoting Uniled States v. Starnes, 583 F.3d 196,214 (3d Cir. 2009). See also

4

IfMr-isease started in 2002, then his Monetary Award would be $576,212 more
than what he was awarded for a 2012 diagnosis date.

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

U.S. v. Cunningham, 694 F.3d 372, 383 (3d Cir. 2012) (the abuse must be "clearly and
substantially" unreasonable).

In this case, the Special Master had complete discretion to refer (or not refer) the case to
the AAP. The NFL has not even attempted to prove that the Special Master's decision not to
refer the case was "arbitrary, fanciful, or clearly unreasonable" or one that "no reasonable person
~·" Based on the plain facts, the Special Master was reasonable to rely on Dr.
~valuation over any other, in part, because it is more thorough and based on a more
complete set of facts than the reports provided in 2012. ~NFL 's diagnostic argument is
fanciful. It makes no sense that the NFL agrees that Mr. - m d Alzheimer's Disease in
2018, yet claims that his dementia in 2012 was some other disease and anything but Alzheimer's.
That argument is unreasonable, and Dr.-explains that the dementia witnessed in 2018
was a progression of the illness that exi~ 2. See Exhibit 4.
The Settlement is also unambiguous with respect to "strict scrutiny." The Agreement
grants to the Claims Administrator discretion to seek additional information in the strict scrutiny
process: "Any such diagnosis [under FAQ 93] will be strictly scrutinized in the claims review
process. The Claims Administrator may request additional information and/or documents to
support the claimed diagnosis date and prevent misrepresentations of material fact in connection
with the_claim." See Settlement Agreement FAQ 93, attached as Exhibit 7. (Emphasis added).
The anticipated review, therefore, is within the Claims Administrator's discretion during the
claims review process, and it does not require an extra procedure, either by seeking review by the
AAP or requesting additional documentation, if the Claims Adminstrator does not think that is
necessary. There should be no doubt, therefore, that the Claims Administrator and Special
Master acted within their discretion in reviewing and approving Mr. - ! a i m , because
their respective decisions are clearly reasonable, not fanciful, and no~ They reasonably
relied on Dr.
·s, because it is medically sound and better-supported than the
arguments offered by the NFL.
Conclusion

For all of the foregoing reasons, Mr. -espectfully requests that the Court and
Special Master overrule the NFL's Objection and direct the Claims Administrator to pay Mr.

-

Respectfully submitted,

Is/ David D. Langfitt
David D. Langfitt
LOCKS LAW FIRM
60 I Walnut Street
Philadelphia, PA 19106
Email: dlangfitt@lockslaw.com
Phone: (21 893-3423
Counsel

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