The claims administrator implementing the NFL concussion litigation settlement, which is anticipated to top $1 billion, is fighting back against an attorney’s efforts to limit the firm’s powers to audit ex-players’ claims multiple times.
BrownGreer filed a response to a motion Florida attorney Patrick Tighe filed last month, which asked the U.S. District Court for the Eastern District of Pennsylvania to bar the claims administrator from repeatedly auditing ex-players’ claims.
In a 26-page filing entered Monday, BrownGreer principal Orran Brown contended that, under the terms of the settlement agreement, the firm is not limited to auditing claims a single time.
“We must be able to stop ineligible payments whenever we find them, even if we may have audited a claim before, especially when the previous audit focused on a separate issue, as is the case here,” Brown said. “The settlement agreement and the audit rules adopted by the special masters allow us to audit claims at any time in the claims process, even after they are paid. To protect the integrity of the program and pay only those settlement class members who properly qualify for a monetary award, we need to be able to re-evaluate a player and his claim in the audit process whenever we become aware of questions about the legitimacy of a player’s claimed diagnosis.”
In late February, Tighe, who represents around nearly 70 ex-players registered with the claims settlement program, filed a motion for “court intervention” after more than 30 of his clients’ claims were put into a second audit. He contended that forcing the claims into multiple rounds of audits goes against the broader settlement agreement and damages his client’s due process rights.
“The claims administrator’s application of the audit rules allows the claims process to continue ad infinitum at the claims administrator’s role discretion, which effectively eliminates movant’s due process rights under the settlement agreement,” Tighe said.
In its response, BrownGreer outlined its reasoning for auditing his clients’ claims, including switching doctors while the claims were being audited, and eventually using a doctor who allegedly gave a high neurocognitive impairment diagnosis to a former player who “continues to work as a corporate spokesman and as a host for special events related to athletics, regularly makes public appearances and has an active social media presence documenting his frequent golf outings and his foreign travel.”
The company further contested arguments that auditing should be limited to only the three circumstances outlined in the settlement agreement. That argument, the company contended, ignored language in the settlement agreement giving the auditing firm the ability to “establish and implement procedures to detect and prevent fraudulent claims.”
“This program surely would suffer raiding by unscrupulous persons if we could only investigate the three fact-pattern scenarios identified,” BrownGreer said.
On Tuesday, Tighe called the motion a “red herring,” saying it did not address the issues he raised.
“It distracts from the fact that this is an employer-employee settled case, and the employees aren’t getting paid for the damages done to them,” he said. “If we’re to believe [BrownGreer] and they’re allowed multiple audits at any time, how does any claim ever get settled? There’s never any closure.”
The NFL and co-class counsel for the players have not yet responded to Tighe’s motion. Neither Chris Seeger of Seeger Weiss, who is co-class counsel, nor Brad Karp of Paul, Weiss, Rifkind, Wharton & Garrison, who is representing the NFL, returned a call seeking comment.