BIAA NFL Concussion Lawsuits Amicus Documents

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

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IN RE NATIONAL FOOTBALL : No. 2:12-md-02323-AB
LEAGUE PLAYERS CONCUSSION :
INJURY LITIGATION : MDL No. 2323
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BRAIN INJURY ASSOCIATION OF AMERICAS MOTION
FOR LEAVE TO FILE AMICUS CURIAE BRIEF

The Brain Injury Association of America (BIAA) respectfully moves for leave to file
an amicus curiae brief to aid the Court in its assessment of the preliminarily-approved
settlements ultimate fairness. BIAA is the nations oldest and largest nationwide brain injury
advocacy organization. Its mission is to advance brain injury prevention, research, treatment,
and education, and to improve the quality of life for all individuals affected by brain injury.
Decades of work in the field make BIAA uniquely capable of contributing to the Courts
understanding of the consequences of the unprecedented settlement in this case. Accordingly,
BIAA asks the Court for leave file an amicus curiae brief in advance of the Fairness Hearing
scheduled for November 19, 2014 (Dkt. 6084 at 7) to assist the Court in assessing the fairness of
the preliminarily-approved settlement.
As grounds for this motion, BIAA states as follows:
1. The Court earlier denied as moot BIAAs initial request to assist the Court as
amicus-plus in assessing what became the first, and ultimately rejected, proposed settlement in
Case 2:12-md-02323-AB Document 6180 Filed 09/30/14 Page 1 of 4
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this case. (Dkt. 6103.) BIAA here moves simply for leave to file an amicus curiae brief
addressing the fairness of the new, preliminarily-approved settlement.
2. BIAA has at least two special interests justifying its request to participate in this
case. First, under the preliminarily-approved settlement, defendant National Football League
will allocate $10 million of the settlement funds toward medical and safety education for football
players, including children, and their families. As the nations leading advocate for all persons
who have sustained brain injuries, BIAA has an interest in ensuring that these funds are directed
toward projects with the greatest scientific backing and benefit for players and the public.
BIAAs deep understanding of the disease-causative and disease-accelerative nature of brain
injury, as well as the episodic and long-term treatment and support needs of patients and family
caregivers, can help the Court evaluate questions of neuroscience and public health that the
parties might not have sufficient incentive or expertise to bring to the Courts attention. Second,
the largest piece of the settlement is to be allocated toward an injury compensation fund for
eligible retired players who manifest severe cognitive impairment. BIAA and its team of experts
(including National Medical Director Brent E. Masel, M.D., who authored the seminal paper,
Conceptualizing Brain Injury as a Chronic Disease), are uniquely qualified to help the Court
evaluate questions of fairness with respect to eligibility parameters and compensation levels in
the proposed settlement by analyzing how these determinations relate to the progressive
physical, psychiatric, and cognitive disease processes that are caused and/or accelerated by brain
injury, but may not manifest in clinically significant symptoms upon initial examination. The
Declaration of Drs. Brent E. Masel and Gregory J . OShanick, attached as Exhibit 2 to this
Motion, provides further detail on the types of information BIAA is prepared to provide.
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3. BIAAs special interests are not represented in the litigation. Whereas both
plaintiffs and defendants represent their own limited constituencies, and the Special Master
provided independent financial-related assistance, BIAA is an independent, national
organization, whose interest is in the entire field of brain injury, and its work benefits all who
suffer from brain injury. BIAAs interests correspond to the strong public interest in ensuring
that the eligibility criteria adopted in this settlement do not exclude individuals who may already
be at great risk of future neurological deficits, and who ultimately could make significant claims
on public health resources. BIAA, as the voice of brain injury in the United States, can help the
Court ensure that these larger public interests are not neglected in the settlement.
4. BIAA proffers timely and useful information that will aid the Court in assessing
the fairness of the proposed settlement. BIAAs expertise regarding brain injury, such as its
expert knowledge of how brain injuries evolve over a lifespan, will aid the Court in assessing the
fairness of how eligibility for the injury compensation fund is determined, and its work
advocating for brain injury education, prevention, research, and treatment will enable BIAA to
advise the Court on the fairness of any allocation of funds toward these activities. BIAAs
submission of an amicus curiae brief before the Fairness Hearing will be timely and will not
delay the Courts assessment of the settlements fairness.
5. BIAA is not partial to a particular outcome in this case. BIAA is not partial to
whether the case settles; and if it does, BIAA does not care whether any defendant admits
liability as part of the settlement, or whether any particular amount goes to any specific player or
group of players. BIAAs mission is to help the victims (and their families) whose lives have
been devastated by brain injury, to educate the public (including present and future participants
in contact sports) about brain injury, and to work toward preventing brain injury.
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For the foregoing reasons, and for those more fully discussed in BIAAs accompanying
memorandum in support and in the attached Declaration of Drs. Masel and OShanick, this Court
should grant BIAAs motion.

Date: September 30, 2014 Respectfully submitted,

Brain Injury Association of America, Proposed
Amicus Curiae

By: /s/ Christopher J . Wright

Christopher J . Wright, DC Bar No. 367384
Stephen W. Miller, DC Bar No. 1018103
Harris, Wiltshire & Grannis LLP
1919 M Street, NW, Eighth Floor
Washington, DC 20036
(202) 730-1300
(202) 730-1301 (fax)
cwright@hwglaw.com
smiller@hwglaw.com
(Admitted pro hac vice)


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MEMORANDUM OF LAW IN SUPPORT OF BRAIN INJURY ASSOCIATION OF
AMERICAS MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

Introduction
In cases of great public concern, courts regularly receive input from experts in the
relevant field as they work to reach a just decision. Here, the Court must decide whether to give
final approval to a class settlement dealing with brain injury among retired National Football
League (NFL) professional football players. The decision will have an immense effect not
only on the parties involved here, but also on all current and future victims of brain injury. It is
for this reason the nations oldest and largest nationwide brain injury advocacy organization, the
Brain Injury Association of America (BIAA), now requests to submit an amicus curiae brief to
assist the Court with its assessment of the ultimate fairness and consequences of the settlement.
BIAAs mission is to advance the causes of brain injury prevention, research, treatment,
and education, and to improve the quality of life for all individuals affected by brain injury.
Although BIAA has achieved noteworthy successes in its mission, much work remains on all
fronts. After decades of work in the field, BIAA is uniquely capable of assisting the Courts
Case 2:12-md-02323-AB Document 6180-1 Filed 09/30/14 Page 1 of 6
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evaluation of the fairness and public-interest consequences of the preliminarily-approved
settlement. Accordingly, BIAA respectfully asks the Court for leave to file an amicus curiae
brief.
Discussion
A. Standard
District courts have inherent authority and broad discretion to designate amici curiae.
Liberty Res., Inc. v. Philadelphia Hous. Auth., 395 F. Supp. 2d 206, 209 (E.D. Pa. 2005); Sciotto
v. Marple Newtown Sch. Dist., 70 F. Supp. 2d 553, 554 (E.D. Pa. 1999). Although no Federal
Rule of Civil Procedure guides the analysis, district courts grant amicus curiae status where
(1) the proposed amicus has a special interest in the particular case; (2) that interest is not
represented competently or at all in the case; (3) the proffered information is timely and useful;
and (4) the amicus is not partial to a particular outcome in the case. Liberty Res., 395 F. Supp.
2d at 209. There is no rule . . . that amici must be totally disinterested, id. (quoting Hoptowit
v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982)), and there is no requirement that amicus must not
be motivated by pecuniary concerns, see Neonatology Assocs., P.A. v. C.I.R., 293 F.3d 128, 131
(3d Cir. 2002). Participation by an amicus may be particularly appropriate where the amicus will
ensure a complete and plenary presentation of difficult issues in a case involving important
public interests, Liberty Res., 395 F. Supp. 2d at 209-10, or where the amicus can contribute to
the court's understanding of the consequences of the settlement proposed by the parties, Harris
v. Pernsley, 820 F.2d 592, 603 (3d Cir. 1987).
B. BIAA Meets This Standard and Should be Given Leave to File an Amicus
Curiae Brief Addressing the Fairness of the Settlement.

BIAA should be designated amicus curiae because it has at least two special interests in
this case. See Liberty Res., 395 F. Supp. 2d at 209. First, the NFL will allocate $10 million of
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the settlement to fund education programs promoting safety and injury prevention in football
players, including youth football players, and the education of retired NFL Football Players
regarding the NFLs medical and disability benefits programs and initiatives. (Dkt. 6073-5 at
16.) As the nations leading advocate for all persons who have sustained brain injuries, BIAA
has an interest in ensuring that these funds are directed toward educational projects with the
greatest scientific backing and benefit for players and the public. BIAAs deep understanding of
the disease-causative and disease-accelerative nature of brain injury, as well as the episodic and
long-term treatment and support needs of patients and family caregivers, can help the Court
evaluate questions of neuroscience and public health that the parties might not have sufficient
incentive or expertise to bring to the Courts attention.
Second, the largest piece of the settlement is now an uncapped injury compensation fund
for eligible retired players who manifest severe cognitive impairment. (See id. at 15-16.) BIAA
and its team of experts (including National Medical Director Brent E. Masel, M.D., who
authored the seminal paper, Conceptualizing Brain Injury as a Chronic Disease) are uniquely
qualified to help the Court evaluate questions of fairness with respect to eligibility parameters
and compensation levels in the proposed settlement by analyzing how these determinations relate
to the progressive physical, psychiatric, and cognitive disease processes that are caused and/or
accelerated by brain injury, but may not manifest in clinically significant symptoms upon initial
examination. The Declaration of Drs. Masel and OShanick, also attached to the Motion, more
fully describes BIAAs expertise and preliminary insights on the current settlement.
In addition, BIAA satisfies Liberty Resources second prong because its special interests
are not represented in the litigation. 395 F. Supp. 2d at 209. Whereas both plaintiffs and
defendants represent their own limited constituencies, BIAA is an established, recognized, and
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independent national organization, whose interest is in the entire field of brain injury, and whose
work benefits all who suffer because of brain injury. For example, there is no particular reason
to expect either the plaintiffs or the defendants to care, to any meaningful degree, how the money
for brain injury education is allocated, but the public has a strong interest in ensuring that these
funds are not squandered as a public-relations afterthought to the overall settlement. Similarly,
while class counsel are understandably and quite properly focused on the existing plaintiffs, there
is a strong public interest in ensuring that the eligibility criteria adopted in this settlement do not
exclude individuals who may already be at great risk of future neurological deficits, and who
ultimately could make significant future claims on public health resources.
Importantly, BIAAs interests were not represented by the Special Master, and its efforts
will not duplicate the Special Masters. Whereas the Special Master was well equipped to assist
the Court with the financial complexity of the settlement, BIAA will aid the Court in evaluating
questions of neuroscience and public health as they relate to determinations of eligibility for the
injury compensation fund and of which activities should receive proceeds from the education
fund. BIAAs expertise, as demonstrated in the Declaration of Drs. Masel and OShanick, is
rooted in its deep understanding of the disease-causative and disease-accelerative nature of brain
injury, as well as the episodic and long-term treatment and support needs of brain injury patients
and family caregivers.
In Liberty Resources, this Court permitted a party to participate as amicus where it was a
stakeholder in that cases core debate, but had no place at the table. Id. at 210. Similarly,
BIAA, as the voice of brain injury in the United States, is a recognized and uniquely qualified
stakeholder in the discussion of how best to prevent and treat brain injury at large, and how to
improve the quality of life for all individuals affected by brain injury. Its submission of an
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amicus curiae brief at this stage in the case can help the Court ensure that these larger public
interests are not neglected in the settlement.
BIAA also satisfies Liberty Resources third prong because it proffers timely and useful
information that will aid the Court in assessing the fairness of the proposed settlement. Id. at
209. BIAAs expertise regarding brain injury, compiled from its comprehensive, nationwide
network of physicians, researchers, rehabilitation experts and facilities, caregivers, and brain
injury sufferers and their families, makes it uniquely qualified to proffer useful information to
the Court. In particular, BIAAs expert knowledge of how brain injuries evolve and progress
across a lifespan will aid the Court in assessing the fairness of how eligibility determinations for
the injury compensation fund are determined, and its work advocating for brain injury education,
prevention, and treatment will enable BIAA to advise the Court on the fairness of any allocation
of funds toward these activities. Further, BIAAs briefing will be timely and will not delay the
Courts assessment of the settlements fairness.
Moreover, BIAA is not partial to a particular outcome in this case, and thus satisfies the
final prong of the Liberty Resources test. Id. BIAA is not partial to whether the case settles; and
if it does, BIAA does not care whether any defendant admits liability as part of the settlement, or
whether any particular amount goes to any specific player or group of players. BIAAs mission
is to help the victims (and their families) whose lives have been devastated by brain injury, to
educate the public (including present and future participants in contact sports) about brain injury,
and to work toward preventing brain injury.
Finally, this case is one of great public concern, not only because of professional
footballs popularity, but also (and more importantly) because of the ripple effects any resolution
here will have on the future of education, research, diagnosis, and treatment of brain injury.
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Particularly with regard to the proposed settlements education and injury compensation funds,
and owing to BIAAs unique expertise in the field, BIAAs participation in this case will serve
the Court well as it seeks to reach a just decision on the ultimate fairness of the preliminarily-
approved settlement.
Conclusion
For the foregoing reasons, BIAA respectfully requests that the Court grant BIAAs
motion for leave to file an amicus curiae brief to assist the Court in assessing the fairness of the
preliminarily-approved settlement.
Dated this 30th day of September, 2014.
Respectfully submitted,

Brain Injury Association of America, Proposed
Amicus Curiae

By: /s/ Christopher J . Wright

Christopher J . Wright, DC Bar No. 367384
Stephen W. Miller, DC Bar No. 1018103
(202) 730-1300
(202) 730-1301 (fax)
cwright@hwglaw.com
smiller@hwglaw.com
(Admitted pro hac vice)
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DECLARATION OF DRS. BRENT E. MASEL AND GREGORY J. OSHANICK IN
SUPPORT OF BIAAS MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

I, Dr. Brent E. Masel, M.D., and I, Dr. Gregory J . OShanick, M.D., hereby declare as
follows:
1. We serve in the volunteer capacities of National Medical Director and National
Medical Director Emeritus, respectively, for the Brain Injury Association of America (BIAA).
2. BIAA is the nations oldest and largest brain injury patient advocacy organization.
Its mission is to advance brain injury prevention, research, treatment, and education for the 2.4
million children and adults who sustain traumatic brain injuries in the U.S. each year. BIAAs
status as a publicly supported, tax-exempt organization under Section 501(c)(3) of the Internal
Revenue Code compels the organization to bring certain facts pertaining to traumatic brain injury
(TBI) to the attention of the Court in the interests of the public at large.
3. I, Dr. Masel, graduated from Loyola Medical School in Maywood, Ill., in 1974. I
completed my internship and Neurology residency at the University of Texas Medical Branch
(UTMB) at Galveston in 1978. Following this training, I established a Neurology private
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practice in Galveston and received certification in 1980 from the Board of Psychiatry and
Neurology. Currently I am a Clinical Professor in the Department of Neurology, and Clinical
Assistant Professor in Family Medicine, Internal Medicine, Physical Therapy and Occupational
Therapy at UTMB. In 1992, I became the medical director of the Transitional Learning Center
(TLC), and in J anuary of 1994, I left private practice to become the president of this post-acute
brain injury rehabilitation facility. I have provided numerous in-service training seminars and
lectures at a variety of local, state and national conferences. I frequently speak on the topic of
growth hormone deficiency and hypopituitarism and rehabilitation following a brain injury, as
well as the long-term medical issues following a TBI. I currently serve on the governing board
of The Moody Endowment, which supports organizations committed to the rehabilitation of
individuals suffering from head injuries and related charitable, educational and scientific
activities.
4. I, Dr. OShanick, am a former chairman of the board of directors of BIAA. In
May 2011, I became the medical director emeritus for BIAA, after serving for 14 years as its first
national medical director. Over the past 30 years, I have treated more than 11,000 patients with
brain injuries while serving on the faculties of three different medical schools and in private
practice. Since 1991, I have served as the president and medical director of the Center for
Neurorehabilitation Services in Richmond, Va. I hold board certification in four medical
subspecialties (Behavioral Neurology and Neuropsychiatry, Neurorehabilitation, Psychosomatic
Medicine and General Psychiatry) and have published three books, 12 academic textbook
chapters and more than 70 peer-reviewed publications. I have presented at national and
international medical conferences and have served as an advisor to numerous federal agencies
including the Centers for Disease Control and Prevention, Department of Defense, National
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Institutes of Health and National Institute on Disability and Rehabilitation Research. I was
selected to serve on the Examination Oversight Committee by the American Board of Psychiatry
and Neurology and the American Board of Physical Medicine and Rehabilitation to develop the
subspecialty board certification in Brain Injury Medicine.
5. BIAAs and our relevant expertise, acquired over decades of service in the fields
of neuroscience and treatment of brain injury, makes us uniquely qualified to assist the Court
with its assessment of the settlement in this case.
6. We have identified several concerning aspects of the preliminarily-approved
settlement, and respectfully ask the Court for the opportunity to present our findings more fully
in an amicus curiae brief. Below we outline our concerns.
A. Numerous physical and behavioral consequences of TBI are excluded
from the list of qualifying diagnoses for treatment and compensation
under the settlement.

7. A mild TBI, also known as a concussion, is a complex pathophysiological process
induced by biomechanical forces to the head or to another part of the body that transmit to the
head. The injury produces an alteration of brain function that results in a wide range of
neurological, physical, cognitive, and neuropsychological impairments. These impairments can
appear on an intermittent or persistent basis immediately or as many as ten or more years after
injury.
8. The neurologic consequences of mild TBI include motor, sensory, and autonomic
dysfunction as well as vestibular (balance) disturbances, visual perceptual (depth perception,
visual figure ground) and oculomotor deterioration (impaired eye tracking, eye-hand
coordination), anosmia (loss of sense of smell), ageusia (loss of sense of taste), and posttraumatic
headache. Mild TBI can bring about movement disorders, such as Parkinsonism and epilepsy.
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The risk of developing epilepsy as long as ten years after TBI is 1.5 times that of non-injured
persons. Sleep abnormalities (including central sleep apnea) are common in individuals with
mild TBI and are associated with an increased risk of stroke. Mild TBI also increases the risk of
pituitary hormonal dysfunction. Symptoms from these deficits include atherosclerosis
(hardening of the arteries), fatigue, decreased muscle mass and weakness, mood abnormalities,
and cognitive changes. A recent study of 68 retired NFL players who were screened for pituitary
dysfunction found hormonal abnormalities in approximately 24% of those studied.
9. The cognitive challenges associated with mild TBI vary and change over time.
Early in recovery, arousal, attention, and concentration difficulties are prominent, as are
memory-encoding problems. Later, difficulties with divided attention, memory retrieval and
executive functioning, such as reasoning, planning, sequencing, decision-making and judgment,
may emerge. Cognitive recovery evolves at a different pace for each person, with many
interdependent factors affecting recovery. Some individuals with mild TBI recover well and
return to previous levels of functioning; others do not. Even after returning to routine activities,
individuals with mild TBI may experience reduced cognitive efficiency and inconsistency of
performance. Such patients may have persistent difficulty recognizing, assessing and managing
novel, complex or stressful situations, making it difficult to monitor changes in their health or to
reliably comply with medication or medical treatment regimens.
10. The neurobehavioral consequences of mild TBI are significant. Population-based
studies demonstrate a several fold increase in depression, anxiety and impulse control disorders,
such as disinhibition, aggression and substance abuse in patients with mild TBI. Even subtle
damage to frontal lobe systems can prevent the person with mild TBI from effectively
suppressing or consistently managing undesirable behavior, including suicide and suicidal
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ideation. Thus, loss of frontal lobe inhibitory control in tandem with escalating depression and
the tendency for males to seek self-medication solutions for physical or emotional pain form a
potentially explosive combination for those with mild TBI.
11. Many of the physical, neurological and neurobehavioral consequences of TBI are
missing from the list of qualifying diagnoses in the preliminarily-approved settlement.
B. The settlements approach to diagnosis of neurocognitive impairment
is deeply flawed and will serve to exclude retired NFL players and
limit their access to medical benefits and compensation.

12. The determination of eligibility is heavily weighted towards those with severe
memory dysfunction and/or evidence of neuromuscular abnormality, which is reflected in the
reliance on neuropsychological evaluation in isolation from other indices of functional
impairment in day-to-day settings (including information from reliable family members, etc.). In
addition, the specification of a basic neurological evaluation excludes the abundance of literature
on the multiplicity of other neurological abnormalities potentially present after mild TBI that
would be undetected by a basic neurological examination. To be maximally effective at
identifying those players with residual deficits, it is well accepted by the brain injury
professional community that an approach that is more holistic, human-based, and less
linguistically reliant is preferred. A more broadly based performance assessment that will not
under-estimate pre-morbid intelligence for a personal baseline TBI comparison is needed. Such
subtleties reinforce the need for clinical experience to make proper judgment in these
assessments.
13. The proposed settlement provides for a standard or basic neurological
examination, which is not sufficient to diagnose and document all symptoms associated with
post-concussion syndrome or mild TBI. An elemental or basic neurological examination
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commonly assesses for those motor and sensory abnormalities that reflect either spinal cord
dysfunction or motor or sensory cortex injury/disease and fails routinely to incorporate those
regions of the brain involved in integrating multi-sensory or sensorimotor aspects of brain
function. While it is reasonable that with an appropriately developed neuropsychological
battery one can omit the mental status/cognitive portion of a neurological examination, it is a
major deficit to omit detailed assessments of Cranial Nerves I-XII, motor integration, balance,
fine motor control, pathological reflexes involving frontal suppressive systems, and
extrapyramidal functions to name but a few. The standard neurological evaluation must be a
detailed neurological evaluation.
14. Eligibility for compensation is based on a discrepancy between current function
and an estimate of pre-morbid function. The Test of Premorbid Function (TOPF) is used to
assess pre-morbid function. The TOPF is a word reading test that requires the subject to read a
list of words and pronounce them exactly. Thus individuals who speak with a dialect or accent
are at a disadvantage, as are individuals with TBI-related speech impairments like dysarthria.
(Estimates of the prevalence of dysarthria following traumatic brain injury vary from 10% to
60%.) In addition, the TOPF is unreliable in cases where there is a history of reading disability
or in cases where injury or illness affects reading ability.
15. The way in which moderate cognitive decline is defined is also flawed. If a
player has impairment in language or visual spatial function, but not in executive function,
learning or memory, they would not qualify. This will exclude people with significant
impairment in single domains, like aphasia, or severe memory dysfunction. While the
prevalence of aphasia post-TBI is unknown, it presents in a variety of ways, sometimes
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independent of other impairment. In addition, if a player is severely impaired in only a single

domain, such as memory, he would be excluded from receiving benefits.
C. The downward adjustment of monetary awards on the basis of the number
of eligible seasons, the Class Members age at the time of Qualifying
Diagnosis, and/or the presence of stroke or TBI demonstrates a serious lack
of understanding of mild TBI.

16. A single concussion, whether diagnosed or not, is capable of generating
debilitating physical, cognitive and behavioral impairments that interfere with the activities of
daily living and require treatment throughout the lifespan. Therefore, the nature and extent of
the impairment not the number of seasons played should be the determining factor in any
monetary award. Many retired NFL players who sustained concussions went undiagnosed or
were not held-out from play or practice. Thus, the definition of eligible season unfairly excludes
players who may have been concussed but did not spend at least two (2) regular or postseason
games on the injured reserve list or inactive list due to a concussion or head injury. Similarly,
while it is reasonable to assume that exposure to mild TBI increases as playing time increases, it
is not reasonable to assume that multiple concussions sustained over a short period of time are
less debilitating than multiple concussions sustained over a long period of time. In fact, the
opposite is true. A patient who sustains repetitive concussions that go unresolved will exhibit
symptoms akin to more severe TBI.
17. Similarly, it is unfair to offset a monetary award by 75 percent based on the
existence of a stroke or TBI occurring prior to a qualifying diagnosis. Persons who sustain one
concussion are predisposed to re-injury, both on and off the field. Severity of injury increases
with recurrent injury, as does the likelihood of disability. In a study of over 30,000 individuals
in Taiwan, individuals with mild TBI had a 1.7 times increased risk of stroke over those who had
not sustained a brain injury.
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18. Finally, the Class Members age at the time of qualifying diagnosis should not be
a factor in calculating a monetary award. The consequences of a brain injury are the same
whether experienced in the past (as with the case of a hypothetical 60-year-old retired player
who has exhibited symptoms for decades) or the future (as with the case of a hypothetical 30-
year-old retired player who has not yet exhibited symptoms). The sole factor in determining
monetary awards should be the nature and extent of the impairment.
D. The proposed settlement over-relies on board certification as an indicator of
expertise in diagnosing and treating patients with mild TBI.

19. On its own, board certification is not a sufficient indicator of expertise in the
subspecialty of TBI, as the American Boards of Psychiatry and Neurology and the American
Board of Physical Medicine and Rehabilitation concluded with their establishment of a joint
subspecialty Board certification in Brain Injury Medicine in September 2011. Years of
experience, involvement in relevant scientific and professional societies, peer-reviewed journal
publications, invited presentations, federal grant awards, or active practice in J oint Commission
on Accreditation of Healthcare Organizations or Commission on Accreditation of Rehabilitation
Facilities programs are more reliable indicators of expertise in diagnosing and treating the
complex and heterogeneous consequences of mild TBI.
E. The proposed settlement limits pharmacy vendors to mail order providers.
20. While the establishment of a consistent means for providing routine and stable
medications to injured players is appropriate, some medications particularly human growth
hormone (costing $15-20,000 yearly for life) used to treat pituitary dysfunction in patients with
mild TBI require distribution that controls for temperature, light, vibration and other conditions
and cannot be reliably distributed by mail order. Further, during periods of medication
adjustment and trials to determine efficacy and dosage amounts, the use of a mail order
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pharmacy slows down the turnaround time in medication acquisition, preventing the physician
from making quick and immediate medication changes, and, typically can only refill for a 90-day
period which may be excessively wasteful should a therapeutic trial be unsuccessful after several
days or even weeks.
F. The BAP Supplemental Benefits program within the proposed settlement
fails to recognize the full extent of the treatment team that may be required
to support injured players in recovering or maintaining physical, cognitive
and behavioral function after mild TBI.

21. The standard of care for patients with TBI dictates that rehabilitation and other
medical treatment plans be developed and carried out by a multi-disciplinary team of licensed,
credentialed clinicians working in specialized settings and accredited programs. The specialties
may include endocrinology, physical medicine, ophthalmology, neuro-optometry,
otolaryngology, psychiatry, physical therapy, occupational therapy, speech language therapy, and
neurobehavioral therapy. Settings may include inpatient rehabilitation hospitals or units,
residential rehabilitation facilities, outpatient clinics or at home by licensed providers. As
proposed, only board-certified neuropsychologists would be eligible to provide treatment.
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[Proposed] O R D E R

AND NOW this ____ day of ___________, 2014, upon consideration of Brain Injury
Association of Americas Motion for leave to file amicus curiae brief, it is hereby ORDERED
and DECREED that Movant Brain Injury Association of Americas Motion is GRANTED.
Brain Injury Association of America may file its amicus curiae brief no later than
_________________________.

BY THE COURT

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Anita B. Brody, J .


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CERTIFICATE OF SERVICE

I, Christopher J . Wright, hereby certify that on September 30, 2014, I caused the
following documents: (1) Brain Injury Association of Americas Motion for Leave to File an
Amicus Curiae Brief; (2) Memorandum of Law in Support of Brain Injury Association of
Americas Motion for Leave to File an Amicus Curiae Brief; (3) Affidavit of Drs. Brent E.
Masel and Gregory J. OShanick in Support of BIAAs Motion for Leave to File Amicus
Curiae Brief; and (4) [Proposed] Order, to be electronically filed with the Clerk of Court
through ECF and be available for viewing and downloading from the ECF system, and that ECF
will send an electronic notice of electronic filing to counsel of record in the above-captioned
case.
/s/ Christopher J . Wright
Attorney for Proposed Amicus Brain Injury
Association of America
Admitted pro hac vice (DC Bar No. 367384)
(202) 730-1300
(202) 730-1301 (fax)
cwright@hwglaw.com

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

independent of other impairment. In addition, if a player is severely impaired in only a single

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