Case 2:12-md-02323-AB Document 11002 Filed 02/18/20 Page 1 of 7

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

THIS DOCUMENT RELATES TO:

Hon. Anita B. Brody

MDL No. 2323

SPID No. 260006736
NFL PARTIES’ RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR AN
INDICIATIVE RULING UNDER FED. R. CIV. P. 62.1
After four months of delay, and only after this Court issued an Order to Show Cause,
Claimant SPID No. 260006736 (“Claimant” or “A.G.”) now moves this Court pursuant to Rule
62.1 of the Federal Rules of Civil Procedure for an indicative ruling stating that the Court would
grant Claimant’s misguided August 22, 2019 Rule 60(b) Motion should the Third Circuit remand
the matter for that purpose. Claimant’s indicative ruling motion should be denied because A.G.’s
Rule 60(b) arguments are devoid of any legitimate ground for this Court to revisit its Settlement
Implementation Determination Order issued on July 2, 2019 (the “July 2 Order”). Rather,
Claimant’s protracted motion practice is meritless and a waste of judicial and party resources.
PROCEDURAL HISTORY
On October 11, 2018, the Special Master, after consultation with a member of the Appeals
Advisory Panel (“AAP”), denied A.G.’s claim as not “generally consistent” with the Qualifying
Diagnosis of Level 1.5 Neurocognitive Impairment as defined in the Settlement Agreement. (See
SPID 260006736, Doc. No. 187657 (Oct. 11, 2018, Post-Appeal Notice of Denial).) The Special
Master’s decision left Claimant free to file a new claim if he were to receive a Qualifying Diagnosis
in the future. Rather than simply make a free BAP appointment, Plaintiff filed an objection with
this Court, arguing that the Special Master committed legal error when he applied the “generally

 Case 2:12-md-02323-AB Document 11002 Filed 02/18/20 Page 2 of 7

consistent” standard to A.G.’s pre-Effective Date diagnosis. (See SPID 260006736, Doc. No.
190582 (November 14, 2018, Objection).) On July 2, 2019, the Court denied Claimant’s objection
and confirmed that “the generally consistent standard applies to all non-BAP diagnoses of Level
1.5 or 2 Neurocognitive Impairment.” (Settlement Implementation Determination, Doc. No.
10712 at 3.)
In response, Claimant filed a Notice of Appeal to the Third Circuit on July 29, 2019 with
respect to the July 2 Order, which the Third Circuit docketed on August 6, 2019, thereby divesting
this Court of jurisdiction with respect to the claim. (See Notice of Appeal, Doc. No. 10772).1
Claimant also filed a motion with the Third Circuit for limited remand to permit this Court to hear
a Rule 60(b) motion he planned to file. On August 22, 2019, Plaintiff filed his Rule 60(b) Motion
in this Court. (See Rule 60(b) Motion, Doc. No. 10817.) The NFL Parties then filed a September
3, 2019 letter to this Court, explaining that the Court lacked jurisdiction over the Rule 60(b)
Motion. (See Letter to Judge Brody, Doc. No. 10828.) On September 9, 2019, Claimant responded
to our letter, agreed that the Court lacked jurisdiction, and informed the Court that he would submit
a “follow-up” motion. (Letter to Judge Brody, Doc. No. 10835 at 1.) After nearly four months of
delay by Claimant, the Court issued a January 27, 2020 Order for Claimant to show cause why the
Rule 60(b) Motion should not be denied, noting the lack of any “follow-up” motion. (See Order,
Doc. No. 10973.) On February 3, 2020, Claimant finally filed a Rule 62.1 Motion for an indicative
ruling as to his previously filed Rule 60(b) Motion. (See Rule 62.1 Motion, Doc. No. 10985.) For
the reasons below, the NFL Parties oppose Claimant’s Rule 62.1 Motion herein.

1

On August 6, 2019, the Clerk of Court for the Third Circuit issued an order requiring the parties to file briefs
addressing the Third Circuit’s authority to review this Court’s July 2 Order. On August 20, 2019, the parties
submitted responses: Claimant argued that the Third Circuit possesses jurisdiction over his appeal, while both the
NFL Parties and Class Counsel argued that Claimant’s appeal did not present an important question warranting
review under the collateral order doctrine—the only route to appellate review available to Claimant.

2

 Case 2:12-md-02323-AB Document 11002 Filed 02/18/20 Page 3 of 7

ARGUMENT
The Court should deny both Claimant’s Rule 62.1 Motion and the underlying Rule 60(b)
Motion because the Rule 60(b) Motion is meritless and a waste of judicial and party resources.
There is not a legitimate, procedurally appropriate argument for Claimant to advance in his Rule
60(b) Motion. A.G.’s objection to the Special Master’s decision—the denial of which is the July 2
Order from which A.G. now seeks relief in both the Third Circuit and this Court—was that the
Special Master committed legal error by applying the “generally consistent” standard to his preEffective Date claim. Notwithstanding this original objection, Claimant’s Rule 60(b) Motion has
now entirely abandoned his legal argument, admitting that this Court’s July 2 Order is correct.
(See Rule 60(b) Motion at 8 (“Diagnoses made by board-certified neurologists Pre-Effective Date,
need only be ‘generally consistent’ with the diagnostic criteria set forth under the Settlement
Agreement.”). Since Claimant concedes the correctness of the Court’s July 2 Order, it is
nonsensical that he nevertheless seeks relief from that Order.
Even if Claimant had not abandoned his previous legal argument, however, Claimant
would still be unable to base his Rule 60(b) Motion on the purported “legal error” he originally
raised in his underlying objection to the Special Master’s decision. The Third Circuit has
repeatedly held that because a Rule 60(b) motion “may not be used as a substitute for an appeal
. . . legal error, without more does not warrant relief under [Rule 60(b)].” Jaye v. Oak Knoll Vill.
Condo. Owners Ass’n, Inc., 2019 WL 3492464, at *1 (3d Cir. Aug. 1, 2019) (quoting United States
v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003)); see also Moore’s Federal Practice – Civil § 60.41

3

 Case 2:12-md-02323-AB Document 11002 Filed 02/18/20 Page 4 of 7

n.59 (explaining that the “Third Circuit does not permit request for reconsideration of decision on
legal issues to be transformed into claim that there is ‘mistake’ under Rule 60(b)(1).”).
Instead, although Claimant’s Motion filed in this Court is styled as a motion made pursuant
to Rule 60(b), Claimant actually purports to dispute the Special Master’s findings of fact—
specifically, that his diagnosis did not qualify under the “generally consistent” standard. More
than a third of Claimant’s Rule 60(b) memorandum of law recounts aspects of A.G.’s Claim
Package, arguing that “[t]hese findings meet the definition of generally consistent”—a factual
determination. (See Rule 60(b) Motion at 8–11.) And, in his memorandum of law in support of
the Rule 62.1 Motion, Claimant explicitly states that he “seeks the Court to advise the Third Circuit
that, if the case were remanded to this Court, this Court would reconsider the facts as presented.”
(Rule 62.1 Memorandum, Doc. No. 10985-1 at 4 (emphasis added).) The Special Master’s
findings of fact, however, became final and non-appealable as of the Special Master’s October 11,
2018 opinion. (See Order Appointing Special Masters, Doc. No. 6871 at 5 (“[T]he parties agree,
pursuant to Fed. R. Civ. P. 53(f)(3)(B), that the factual determinations of the Master(s) will be
final and biding.”)); see also Fed. R. Civ. P. 53(f)(3)(B) (authorizing parties to stipulate, with court
approval, that the findings of a special master will be final).

Indeed, Claimant implicitly

recognized that these findings of fact were binding and not reviewable by this Court when he
decided not to contest them in his underlying objection to the Special Master’s determination
previously filed with this Court.
Accordingly, Claimant is blatantly abusing the Rule 60(b) process. Simply put, A.G.
concedes that the holding of the July 2 Order is correct, he is unable to use Rule 60(b) to correct
legal error, and he improperly seeks to dispute the Special Master’s final and non-appealable
findings of fact.

4

 Case 2:12-md-02323-AB Document 11002 Filed 02/18/20 Page 5 of 7

Left with no viable legal appeal and an unassailable final ruling on the facts, Claimant
resorts to asserting an unspecified “mistake” under Rule 60(b)(1). See Fed. R. Civ. P. 60(b)(1).
To that end, Claimant misleadingly claims that this Court’s July 2 Order acknowledged that “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.” (See Rule 60(b) Motion at 13.)
This Court’s July 2 Order said nothing of the sort. Rather, the July 2 Order acknowledged that the
Court “is troubled by the events leading to this objection.”

(Settlement Implementation

Determination, Doc. No. 10712 at 1.) Far from some contrived “unknown action,” the Court’s
July 2 Order is clearly referring to the events described in the preceding paragraph—namely, that
Claimant was not told at an earlier time that his claim was wrongly approved. Setting aside
Claimant’s manufactured, erroneous reading of the Court’s July 2 Order, A.G. has not identified a
Rule 60(b)(1) “mistake” that warrants reversal.
As a last ditch effort, A.G. also summarily invokes Rule 60(b)(2) (“newly discovered
evidence”) and Rule 60(b)(6) (“any other reason that justifies relief”) as alternative grounds.
Claimant’s Motion, however, identifies neither new evidence nor any other reason that would
justify relief from this Court’s order. Thus, any invocation of Rule 60(b)(2) or Rule 60(b)(6) is
entirely misplaced.
Finally, Claimant overstates the purported “manifest injustice” and “extreme” hardship
imposed on him by the valid and proper denial of his claim. (See Rule 60(b) Motion at 12.)
Contrary to his protestations that delay in receiving a diagnosis could “potentially reduce his award
drastically as the awards are reduced based on age of the claimant” (id.), Claimant is just 38 years
old. The maximum Monetary Award for a Level 1.5 Qualifying Diagnosis on the Monetary Award
Grid is available to a Retired NFL Football Player under age 45. (See Settlement Agreement, Ex.

5

 Case 2:12-md-02323-AB Document 11002 Filed 02/18/20 Page 6 of 7

3.) In other words, Claimant has nearly seven years to receive a Qualifying Diagnosis that would
provide him with the equivalent compensation that he purports to have been wrongfully denied by
the Special Master. Moreover, Claimant is self-inflicting the delay he avers is manifestly unjust.
He has wasted the past fourteen months since his claim denial on meritless motions and appeals,
and he has left this Court in limbo for the last four months over his egregious delay in filing this
“follow-up” Rule 62.1 Motion. Despite such willful delay, Claimant is eligible to participate in
the free Baseline Assessment Program (“BAP”) where a Level 1.5 Qualifying Diagnosis is
available if he meets the Settlement’s diagnostic criteria. In sum, Claimant’s continued fight—
now tallying two objections filed with this Court, a frivolous appeal filed in the Third Circuit, and
meritless Rule 60(b) and Rule 62.1 Motions—is a waste of party and judicial resources when
Claimant has known since October 2018 that he could simply make a free BAP appointment.
CONCLUSION
For the reasons set forth above, the NFL Parties respectfully submit that this Court should
deny both Claimant’s Motion for an indicative ruling pursuant to Rule 62.1 and Claimant’s Rule
60(b) Motion. Should the Court find it necessary to receive separate briefing on Claimant’s Rule
60(b) Motion—as opposed to the instant response to Claimant’s Rule 62.1 Motion—the NFL
Parties reserve all rights to respond to that Motion in full upon the direction of this Court and a
reasonable briefing schedule.

6

 Case 2:12-md-02323-AB Document 11002 Filed 02/18/20 Page 7 of 7

Dated: February 18, 2020
Respectfully submitted,
/s/ Brad S. Karp
Brad S. Karp
Bruce Birenboim
Claudia Hammerman
Lynn B. Bayard
Douglas M. Burns
PAUL, WEISS, RIFKIND, WHARTON
& GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Main: (212) 373-3000
Fax: (212) 757-3990
Email: bkarp@paulweiss.com
ATTORNEYS FOR THE
NATIONAL FOOTBALL LEAGUE
AND NFL PROPERTIES LLC

7