Plaintiff in NFL Concussion Case Losses Appeal

Jan 14, 2022

By Jeff Birren, Senior Writer

Amon Gordon was in the NFL over all or parts of eight seasons, though he only played in 33 regular season games.  His last season was in 2011, and he later “submitted a claim for monetary damage” because his personal physicians “diagnosed with him with Early Dementia” in 2015 (In Re NFL Players’ Concussion Injury Litigation, Case. No. 19-2753, 2021 U.S. App. LEXIS 34949; 2021 WL 5505402, (“Gordon”) at 4, (11-24-21)).  Eventually the Special Master denied the claim, and Gordon appealed that decision to Judge Brody in the U.S. District Court in Philadelphia who oversees the litigation.  Judge Brody “sided with the Special Master’s interpretation” (Id. at 5).  Gordon then sought relief in the Third Circuit Court of Appeals, but in November 2021 that court affirmed Judge Brody in a short opinion.  It is not a “presidential opinion under Third Circuit” rules and is not binding on the court (Id. at 1).

Background

Gordon played college football at Stanford beginning in 2000, primarily at defensive tackle.  He had various injuries there.  One article reviewed his “medical records that have become a part of the court record” (advocacyforfairnessinsports, Sheila Dingus, “Two Stanford Alumni, Two Very Different NFL’s For Luck and Gordon” (“Dingus”), (8-26-19)).  Dingus recounts that at Stanford Gordon had a right shoulder injury that required surgery as a freshman; broke his elbow as a sophomore; had a left-hand fracture as a junior, and that year “recalls having his ‘bell rung’” (and that usually means a concussion.)  He also had several smaller injuries, including a high ankle sprain and bone chips in his ankles (Id.).

Gordon was a fifth-round draft choice of the Cleveland Browns in 2004.  He did not have an easy time in the NFL.  On the very first play of the 2004 NFL regular season, he had a concussion on a kick-off return (Id.).  That year Gordon played in six regular games (www.nfl.com/players/amon-gordon/stats/career).  He was on the Browns’ injured reserve list for the entire 2005 regular season due to a traumatic fracture of his left thumb, and a left knee injury that required “microfracture surgery” (Dingus).  The Browns waived him after the season.  He then joined the Denver Broncos.  He was on the practice squad that year, but had arthroscopic surgery of his right knee (Id.)  He played in no regular season games in 2006.

Denver waived him after the season, and it was on to Baltimore.  He played in five regular season games in 2007.  Baltimore cut him prior to the 2008 regular season.  Carolina signed him, but during a practice he injured his left hip/abductor muscle.  Carolina released him, and he went to Tennessee.  He was on the practice squad for seven weeks and played in the last two regular season games.  He was waived prior to the start of the playoffs (Id.).  Philadelphia claimed him off waivers.

In 2009 he ruptured his left Achilles in May.  He settled with the Eagles and had surgery (Id.).  2010 brought off-season time with New England and Tampa, and then preseason time in Seattle.  He was released, spent time with Tennessee, and then returned to Seattle where he played in six regular season games and one playoff game.  Seattle did not renew his contract.

Gordon joined Kansas City in 2011 and played in all sixteen regular season games for the Chiefs, despite several injuries, including a hip pointer, a left knee bone bruise, a hip bruise on his right side, and shoulder pain.  An X-ray “showed some structural damage,” that was “far more extensive than just a rotator cuff tear” (Id.).   2012 did not go well for him.  Gordon had injections in both knees and pain in his left hip.  He “did not pass the physical exam” and “discovered that he had extensive anatomical problems in multiple parts of his body.”  He was released (Id.), his NFL career over.

Post-NFL Litigation

Less than a year after his playing career ended, he was part of a class-action case in federal court in New York, Baggs et al v. NFL, et al, No. 1:13-cv-05691-RA, (S.D.N.Y. (8-14-13)).  The case was transferred to Judge Brody in Philadelphia (MDL Conditional Transfer Out Order (9-11-13)).  The NFL and the plaintiffs entered a class-wide settlement that allowed the class of former players to seek damages, and Gordon did so (Gordon at 3.)

Gordon also became the second-named plaintiff in another class action case against the NFL, this time in federal court in Chicago, Lance Brown, Amon Gordon, and Charles Grant v. The Bert Bell/Pete Rozelle NFL Player Retirement Plan et al, No. 1:20-cv-06949 (N.D. Ill, Eastern Div. (11-23-20)).  It was a 20-page ERISA lawsuit.  After some wrangling, plaintiff’s counsel dismissed the complaint without prejudice on March 23, 2021.

Claim Procedures

The Third Circuit stated that the class action settlement established procedures for former players seeking a diagnosis.  There were different procedures for players who received a diagnosis from their personal physicians prior to the settlement’s effective date.  However, “all diagnoses were still required to be ‘based on evaluation and evidence generally consistent with’ the diagnostic criteria used in the Baseline Assessment Program” (Id. at 3), (emphasis in the original). 

After the reviewing panel makes its determination, both parties can appeal that decision to the District Court who may refer such appeals to a Special Master.  Either side can subsequently appeal the Special Master’s decision to Judge Brody, but “the settlement agreement limit’s the court’s review.  The factual determinations of the Special Master are ‘final and binding’” and the Court’s “review is limited to questions of law” (Id. at 3/4).

Retired players can receive monetary relief if they can show that they have a “Qualifying Diagnosis.”  That includes “(1) Early Dementia, (2) Moderate Dementia, (3) Alzheimer’s disease, (4) Parkinson’s Disease, and amyotrophic lateral sclerosis” (Id. at 4). “Early dementia, the subject of this appeal, can be particularly hard to quantify.”  Prior to the testing, the physicians “must first estimate the player’s pre-injury intellectual functioning.”  That leads to classifying each such former players as “Below Average,” “Average,” or “Above Average,” a category that includes all players with an estimated pre-injury IQ above 110.

The player is given “a battery of tests spread across the five domains to estimate the degree of functional and cognitive impairment.”  The “examining physician” “assesses the player’s scores.”  If an individual score is “far below what is expected for a person with the same pre-injury baseline,” the physician can infer that the former player “is suffering from some sort of cognitive decline.”  The raw scores are “converted into T-scores to determine if the scores are enough standard deviations below the expected range to indicate statistical significance.”  To be deemed “impaired” the subject “must have two scores in that domain that fall below the standard-deviation threshold.  And, to receive an Early Dementia diagnosis, the former player must be impaired in two or more domains” (Id.).

Gordon’s Claim

Gordon submitted a monetary claim in 2017, prior to the settlement, because his personal physicians “diagnosed him with Early Dementia.”  That diagnosis was reviewed by the advisory panel.  The panel approved the claim and determined that the diagnosis “was generally consistent with the” Program’s criteria (Id. at 5).  A neuropsychology consultant then reviewed the application and recommended that the claim be denied “because Gordon’s personal physicians did not properly scale Gordon’s scores.”  The claim was “also flagged for an audit.”  After the audit was completed, the panel “again approved” the claim.  The NFL appealed the decision to the Special Master.

The parties agreed that Gordon belonged in the Above Average pre-injury baseline, and that the personal physicians “used many of the same tests” that were part of the Baseline Assessment Program.  The NFL asserted that Gordon’s personal physicians used improper “scaled scores” rather than the T-scores.  When the scores were “properly converted to T-scores,” “Gordon failed to meet the Program’s criteria for an Early Dementia diagnosis.”  The Special Master agreed, finding that Gordon’s personal physicians’ diagnosis was not “generally consistent” with the Program’s diagnostic standards. The Special Master also “concluded that Gordon’s test scores did not show the cognitive decline required for a diagnosis” and consequently denied the claim.

It was Gordon’s turn to appeal.  He argued that the Special Master misinterpreted the settlement agreement.  However, the “court’s jurisdiction is limited to “legal issues.”  The appeal was therefore “confined to a single question: whether the Special Master erroneously required Gordon’s pre-effective date diagnosis to be ‘generally consistent’ with the diagnostic standards listed in the settlement’s Baseline Assessment Program.”  The District Court accepted the Special Master’s interpretation of the agreement.  All such diagnoses “must be made” consistent with Exhibit 1 to the agreement, and that “unequivocally states” that retired players diagnosed outside of the program must be diagnosed “based on evaluation and evidence generally consistent” with the Program’s diagnostic criteria.  This “applies to all Qualifying Diagnosis of [Early and Moderate Dementia], including pre-Effective Date Diagnoses” (Id.).  Judge Brody affirmed the Special Master, and Gordon appealed to the Third Circuit.

The Circuit’s Analysis

The Circuit reviews the District Court’s “interpretation of the settlement agreement for clear error and its administration of the settlement for abuse of discretion.”  Gordon “now completely abandons his argument presented to the District Court.”  He “concedes that all pre-effective date diagnoses must be ‘generally consistent” with the diagnostic criteria the settlement’s Baseline Assessment Program.”  He even repeated his concession in his reply brief.  Gordon’s new argument was that the District Court “abused its discretion by failing to explain its reasoning for upholding the Special Master’s determination.  Gordon presents no other arguments” (Id. at 6). 

Gordon insisted that he “cannot discern the factual basis of the District Court’s denial of his award” (Id.).  This is “meritless.”  The District Court only had a single question before it: whether the diagnosis supporting the claim had to be generally consistent with the program’s standards.  Gordon claimed that the District Court “should have given a more detailed account of the factual underpinnings of his claims” but those issues “were not before the court and were not germane to the disposition of Gordon’s legal objection.  The District Court gave a well-reasoned and detailed analysis of the issue Gordon raised.  Thus, we find no abuse of discretion.”

The Court stated in a footnote that Gordon “suggests” that the T-score in effect requires “’race norming” that leads to “the unequal treatment of black players.”  However, that “issue is not before” the Court and Gordon “specifically did NOT ask this Court to consider that issue because the evidence is not before it” (Id. FN.2, at 4), (emphasis in the original).

Conclusion

Gordon’s wife and personal physicians insist that he has major cognitive impairment.  If this is true it is a sad story.  Such claims must be presented with vigor, clarity, and completeness, and the facts must support the desired conclusion.