By Nicholas Malfitano | Jul 10, 2018

PHILADELPHIA – The son of a former NFL player who applied for a monetary award in the NFL Concussion Litigation’s settlement award program due to his late father’s “Death with CTE” diagnosis has had that claim rejected by a federal court in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania Judge Anita B. Brody affirmed a previous denial of Jeffrey Holmes’ award claim from the settlement, asserting the post-mortem diagnosis of Chronic Traumatic Encephalopathy determined for his deceased father, Ronald Holmes, was untimely.

The NFL’s concussion settlement program is currently in its first year of an uncapped 65-year term and during that time, has registered more than 20,000 class members, issued notices of claims determinations for more than 375 retired NFL players and given out more than $227 million to players given a qualifying diagnosis.

Such qualifying diagnoses are for neurocognitive illnesses, such as CTE, Amyotrophic Lateral Sclerosis (ALS, a.k.a. Lou Gehrig’s disease”), Alzheimer’s disease, Parkinson’s disease and others.

“Ronald Holmes, a retired player and settlement class member, died on Oct. 27, 2011. According to the claimant, after Ronald Holmes’ death, a routine autopsy was performed by the local medical examiner in Tacoma, Wash. At the time, the examiner’s office did not document any abnormal brain findings nor did it note the preservation of any brain tissue,” Brody said.

“In August 2013, the Holmes family hired co-lead class counsel Anapol Weiss to pursue Ronald Holmes’ claims against the NFL. Not until March 2014, seven months later, did Holmes’ counsel ask the Tacoma medical examiner’s office whether any of Ronald Holmes’ brain tissue had been preserved. The office reported no preserved brain tissue.”

In April 2015, the Holmes family independently contacted the Tacoma medical examiner and were informed that brain tissue from Ronald Holmes’ autopsy did in fact exist. The family, again independently, handled obtaining and testing the brain tissue, and on Aug, 4, 2015, Ronald Holmes was provided a post-mortem “Death with CTE” diagnosis by a board-certified neuropathologist. The “Death with CTE” diagnosis was made over three months after the settlement agreement’s April 22, 2015 deadline. Subsequently, on April 11, 2017, Ronald Holmes’ son, Jeffrey Holmes, filed a timely claim for a monetary award with the settlement fund’s claims administrator based on his father’s untimely post-mortem diagnosis.

On June 13, 2017, that administrator rejected Holmes’ monetary award claim because the “Death with CTE” diagnosis was untimely and on Dec. 22, 2017, the denial was affirmed by the Special Master. On Jan. 19 of this year, Jeffrey Holmes filed the present motion under Federal Rule of Civil Procedure 60(b), requesting that the Court cure the untimely “Death with CTE” diagnosis based on equitable principles, to which the NFL parties responded to in opposition.

“Holmes timely registered and filed a timely claim for a monetary award. The untimely aspect of Holmes’ claim, under the terms of the settlement agreement, was the underlying CTE diagnosis. The parties clearly negotiated for a strict diagnosis deadline for each ‘Death with CTE’ claim as a substantive requirement. I will not perform the ‘excusably neglect’ analysis, and instead I will look to the terms of the Settlement Agreement to determine if granting relief is appropriate,” Brody stated.

Brody explained the “Death with CTE” definition was “a contentious issue that was negotiated heavily by the Parties and received intense scrutiny.”

“The diagnosis deadline in the ‘Death with CTE’ definition was part of ‘the bargain struck by the parties.’ Based on that bargain, to meet the substantive requirements to qualify for a ‘Death with CTE’ monetary award, a class member must adhere to the diagnosis deadline. Notably, the parties failed to include any way for a claimant to cure a tardy CTE diagnosis,” Brody said.

“On the other hand, the parties did include ways for class members to cure late-filed registrations and late-filed monetary award claims. Extending the ‘Death with CTE’ diagnosis deadline would circumvent the parties’ negotiated, substantive terms and applying the ‘excusable neglect’ standard to alter those terms would be inappropriate.”

Brody opined that even if the District Court were to apply the “excusable neglect” standard in this matter, the result would be the same per that standard’s four factors, which are: “1) The danger of prejudice to the non-movant; 2) The length of the delay and its potential effect on judicial proceedings; 3) The reason for the delay, including whether it was within the reasonable control of the movant; and 4) Whether the movant acted in good faith.”

According to Brody, Holmes’s claim did not find favor with the four factors.

“The first factor – prejudice to the non-movant – weighs heavily against relief because extending the diagnosis deadline would alter a crucial, negotiated term of the settlement agreement. The second factor – length of delay and effect on judicial proceedings – is less relevant in a case that does not involve a late filing. Here, the length of delay relates to the substantive nature of the claim itself, not the facilitation of judicial proceedings. Whether the diagnosis was timely or late does not affect court proceedings. Instead, the deadline for a ‘Death with CTE diagnosis is a negotiated requirement that provides certainty to the NFL parties and additional confidence that a diagnosis is based on more recent evidence,” Brody commented.

“The third factor – the reason for the delay – does not weigh clearly for or against relief. Holmes alleges that error by the medical examiner’s office led him to first learn of the available brain tissue in April 2015. While it may have been reasonable for Holmes to rely on the initial representation that no brain tissue existed in March 2014, if there was any doubt as to the accuracy of that representation, Holmes should not have waited over a year to ask again. A ‘Death with CTE’ diagnosis provides a possible value of $4 million, more than enough money to incentivize a more thorough and timely investigation.”

Brody added Holmes was represented by co-lead class counsel Anapol Weiss and clearly on notice of the terms of the settlement agreement – including the diagnosis deadline. Though Brody said the Court was “sympathetic” to the alleged facts, she believed that factor was not swayed in Holmes’ favor.

As to the final factor, good faith, Brody thought it also ultimately did not align with Holmes’ case.

“There is no allegation or reason to believe that Holmes or his counsel failed to act in good faith. But, based on equitable principles, this factor is more a reason to deny relief otherwise deserved than to provide an independent basis for it. Therefore, the good faith is afforded little weight on its own. Ultimately, the factor of prejudice weighs heavily against Holmes while the other factors do not strongly point in his favor. Holmes cannot establish ‘excusable neglect,” Brody said.

“Settlement is a compromise, a yielding of the highest hopes in exchange for certainty and resolution.’ The Court will not disturb the parties’ clear, bargained-for language by exercising its equitable powers to cure Holmes’ claim.”

U.S. District Court for the Eastern District of Pennsylvania case 2:12-md-02323

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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