February 27.

2012

Stewart v. Bert Bell/Pete Rozelle NFl Player Retirement Plan T-3 1

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We'd like to m ove in as joint exhibits the entire administrative record, which would be Documents 1 through 275, Is that the binder that I have? The binder is a subset of exhibits

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IN

THE

UNITED

STATES

DISTRICT

COURT

FOR THE DISTRICT OF MARYLAND NORTHERN DIVISION

THE COURT:

MR. ROSENTHAL:

) MlDREW STEWART
I )

5
civil Docket No. WOQ-09-02H2

that will be referred to in today's hearing. THE COURT: Where is the universe of documents? The universe of documents has been

Plaintiff
v. THE BERT BELL/PETE PLAYER RETIREMENT ROZELLE NFL PLAN, et al.,)

)
) ) ) )

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MR. ROSENTHAL: filed with the Court previously. TH E COURT: MR. SCALLET: THE COURT: Okay.

Defendants

) Baltimore,
February

----------------------)
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12 APPEARANCES BEFORE

Maryland
27, 2012

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10: 00 AM to 11: 22 AM

THE ABOVE-ENTITLED MATTER CAME ON FOR BENCH TRIAL THE BONORABLE WILLIAM D. QUARLES, .JR.

No objection, Your Honor. The exhibits are admitted. Yes, sir?

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On behalf 14 15 16 Michael H. Rosenthal. Kelly M. Lippincott, On behalf of the Defendant: Esquire Esquire of the Plaintiff:

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MR. ROSENTHAL: THE COURT: Yes.

May I proceed, Your Honor.

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MR. ROSENTHAL:

Good morning, Your Honor.

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Edward A. Scallet, Esquire Hisham M. Amin, Esquire

I want to start at the beginning here. Andrew Stewart, retired NFl player, has a series of injuries in the NFl, subsequently has som e injuries in the CFl. Years

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later, he applies for disability benefits from the Plan. As part of the Plan's standard procedure, they retain what they call a neutral physician. That's a physician -- not a

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Martin J. Giordano, RMR, eRR, U.S. Courthouse, ROOln 5515 101 West Lombard Street Baltimore, Maryland 21201 410-962-4504 FOCR

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treating physician for the player; som ebodv who is entirely neutral. The Plan retained in this case Dr. Meek, a Canadian orthopaedist.

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physician who is also a Board-certified

Dr. Meek examines Mr. Stewart, determines that he's totally disabled. The Plan accepts that finding, but T-4

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~IOCEEpINGS THE CLERK:

OF FEBRUARY 27

2012

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determines that it did not arise out of league football activities, and that's at Exhibit 191. That's the Plan's

All rise. The United States District

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Court for the District of Maryland is now In session, The Honorable William D. Quarles, Jr. presiding. Good morning. Please be seated.

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initial determination. We asked the Plan at that time to go back to Dr. Meek and get some clarity as to his disability finding: Was it caused by the NFl injuries? The Plan does not do that,

THE COURT:

THE CLERK: The matter now pending before this Court is Civil Docket WDQ-09-2612. Court for bench trial. for the record. MR. ROSENTHAL: Michael Rosenthal. MS. LIPPINCOTT: MR. SCALLET: Edward 5callet. MR. AMIN: Honor. THE COURT: Good morning. And Hisham Amln. Good morning, Your And Kelly lippincott. For Plaintiff, Your Honor, The matter now comes before this

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and the Plan comes back on appeal and says that there is not enough evidence -- there is no evidence that the NFl injuries alone were responsible for his disability. our lawsuit. We can't contact Dr. Meek. Dr. Meek can only be contacted by the Plan. That's the Plan's rule. into that whole administrative So, going So then we filed

Counsel, please identify yourselves

For the Defendants, Your Honor,

process, it was controlled by

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Do you wish to make

the Plan, so that critical piece of evidence -- the causation issue, which we thought Dr. Meek had, in fact, e ddres sed in his report, which the Plan contended was not sufficie.nt,.the Plan had the opportunity to go back to Dr. Meek well at the The Plan did not do so. So,

Peter, do you have a score card for me' THE CLERK: THE COURT: opening statements? MR. ROSENTHAL: to just move forward, Your Honor, we're actually prepared

beginning of this whole matter. instead, I have to file a lawsuit.

I do.
Okay, counsel.

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As the Court knows from the summary judgment pleadings, during the course of the lawsuit, the PI.anand counsel for the Plaintiff agreed to remand the case back to the Plan for further medical development, again, on this

but we do have a housekeeping matter -Yes. -- that we'd like to take care of.

THE COURT:

specific causation Issue that could have been addresseQ.early on.

MR. ROSENTHA'L:

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The remand goes back, and here is what happens next: The Plan sends a letter to Dr. Meek, and also sends a letter to Dr. Bach and says, "Dr. Meek, can you give us some additional clarification of your original findings?" That's at Tab 265, Your Honor -- Exhibit 265. There is a letter from Paul 5cott to Dr. Meek asking for additional information. same or similar letter goes to Dr. Bach. Dr. Meek responds, on balance, it's the NFL injuries that are the cause of the disability. And that's at The

Mr. Stewart was awarded inactive benefits. In other words, he's totally and permanently disabled sometime after he had completed his career, but there was, according to the Plan, no linkage between the NFL injuries and his disability. THE COURT: Yes. MR. ROSENTHAL: Our claim is for football degenerative benefits, and that requires a causal link between the NFL injuries and his current disability. Dr. Bach is apparently entirely confused about what he was supposed to do, because now he thinks that Andrew Stewart is not disabled at all, and, again, it's clear from that letter -- the May 27th letter -- that he still has not read Dr. Meek's original report of examination, because, if he had, he would have clearly have seen that Dr. Meek had found him to be totally and permanently disabled. So that was supposed to be Dr. Bach's complete and final opinion. Dr. Meek responds, and that's at Exhibit 272. He reiterated his earlier view that Mr. 5tewart was disabled as a result of his NFL injuries. He uses the words, "on balance,"

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I:xhibit 268, Your Honor. Dr. Bach responds that the NFL injuries, quote, would not qualify Mr. Stewart for total and permanent benefits, and that's at Exhibit 267. However, Dr. Bach does not explain how he reached that conclusion, nor -- in his list of information that he reviewed, nor does he identify Dr. Meek's original report of examination. So

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Dr. Bach had not looked at Dr. Meek's examination report and simply looked at the old medical records and said, "Those aren't sufficient for total and permanent disability." no explanation of why. Following that Initial round, which was in April of 2010, the Plan then sends the report of Dr. Meek, sends it over to Dr. Bach. The report of Dr. Bach goes to Dr. Meek, and the Plan says, "Doctors, can you comment on each others' report?" And it's supposed to be the complete and final opinion. I think that's i~portant, Again,

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but, again, he's weighing his examination, his x-ravs, his understanding of the injuries. All of that evidence goes into his conclusion that, on balance, the NFL injuries are the cause of his disability without regard to the CFL injuries. That's not good enough for the Plan. On June 7th -sorry. On August 2nd, 2010 -- and that's at Exhibit 273, Your T-8

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as you'lI see. The

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remand -- those are at IEXhibits269 and 270. Those are the requests for the complete and final report. Dr. Bach responds first on May 27th, and that's at Exhibit 271. I'd like to read part of that, because it starts off, in my view, incoherently. "I am in receipt of your

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Honor -- August 2nd, 2010, Paul 5cott, who was an administrator for the Plan, sends another letter to Dr. Bach. This letter starts with the premise that, quote, this is an unusual case. Why is this an unusual case? It's not explained. There are other players who filed for football degenerative benefits. There are other players who have been either denied of benefits -- there is cases reported on football degenerative benefits. THE COURT: Is the fact that he played for two different leagues -- the Canadian Football League and the NFL -- perhaps one of those differences? MR. ROSENTHAL: Your Honor, it is certainly a possibility; however, it is not articulated here, and we don't know the entire array of disability claims that have been put onto the Plan. As far as reported cases go, however, I'm not aware of any other claim where there is an NFL-versus-CFL issue, but football degenerative generally requires a causal link between the NFL injuries and the finding of total and permanent disability. All of the football degenerative cases

theory which in my opinion regarding April 24, 2010 letter and report as well as the response from Dr. Meek, an orthopaedic trauma surgeon from Vancouver, British Columbia." Dr. Bach reiterates his view that the NFL injuries were not the cause of Mr. Stewart's disability, but he goes further. He says

Mr. Stewart's not disabled at all. Again, this is at Exhibit 271. Well -THE COURT: Well, not totally and permanently disabled. MR. ROSENTHAL: Not totally and permanently disabled. Correct, Your Honor. THE COURT: He had, in fact, qualified for and received some other benefits; is that correct? MR. ROSENTHAL: That's correct. In fact, he had qualified for total and permanent disability under the inactive category, and, just to remind the Court, there are four categories of benefits at that time. There was an active football, active non-football, there was inactive, and there was football degenerative. 09:40:56 AM

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require that causal link, so, to that extent -THE COURT: I was just wondering the extent to which a difficulty is created by having two professional football experiences and, as you said, there is not a lot of authority out there where there are two possible sources for the disability -- possible football sources for the disability. 2 of 24 sheets

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Stewart v. Bert Bell/Pete Rozelle NFL Player Retirement Plan T-9 T-11 1 lawsuit, some material is redacted, and then it says, ''The Board discussed the reports and asked Dr. Haas for his views on the conflict between Dr. Bach and Dr. Meek." Now, Dr. Haas is the Plan's medical director. THE COURT: I understand you believe that it's not IMthin his duties to opine MR. ROSENllfAL: That's predsely right, Your Honor.

MR. ROSENTHAL: Correct, Your Honor. Correct. But, again, it would be our view that, if we take a slightly broader look at it, that the causation issue is something that runs across the entire array of any football degenerative daim. Staying with Exhibit 273, Mr. Scott has to point out to Dr. Bach that he was wrong about the issue being whether Mr. stewart was disabled or not. He says, "We ask you to assume that Mr. Stewart is totally and pennanently disabled. The question is, given that assumption, whether Mr. Stewart is totally and pennanently disabled due to NFLfootball activities." So he then asks Dr. Bach to address three questions: Pleaseexplain in as much detail as you are able to provide, one, how you believe each of these impaimnents would likely have evolved had Mr. Stewart not played in the CFL; two, the Iikely cumulative effect of these NFL-only injuries today; and, three, whether these NFL injuries by themselves would likely have rendered him totally and permanently disabled. Dr. Bach responds - and this is at Exhibit 274. Dr. Bach states,"I can read the x-ravs, but they wouldn't change my opinion. I don't need to look at x-ravs, Mr. Stewart's not totally and pennanently disabled due to NFL football activities. Those injuries that he had just simply wouldn't qualify him for JCh benefits." I T-10

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The Plan language is very plain about that. He's supposed to provide medical advice under 11.5(b) of the Plan -- medical advice, and he's specifically prohibited from either dedding a daim or providing a recommendation that would, in fact, dedde the daim. The Plan asks for Dr. Haas' views here. Dr. Haas says he's familiar IMth the record. I think that that's unusual. This is a fairly extensive record, and Dr. Haas there is no evidence really that Dr. Haas read through these documents or when or how much time he spent with them; just that he was familiar IMth the record -- was familiar enough to say, "Well, no way. No way that Mr. Stewart's injuries could have rendered him totally and pennanently disabled. I don't think it's even dose." That's a direct quote - "I don't think it's even dose." Now, Your Honor, from our standpoint, "not even dose" and "no way" is not medical advice. Medical advice, in our view, would be advice that would explain the injUry, T-12

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Again, there islno explanation here from a medical standpoint why those injuries would not qualify, nor does Dr. Bach address Mr. sco~'s questions about how would the NFL
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explain the progression of an injury and impairment over time, or, if Dr. Haas thought that the NFL injuries had no role in his disability, why from a medical standpoint that the CFL injuries were responsible and not the NFL injuries. There is nothing in there. There is no written report from Dr. Haas. All we have is the report of the Plan and these minutes, and

injuries have evolved? In other III.Ords,here is no medical t input here. These are just condusory statements from a doctor that, nope, he's not qualified for the benefit. That was the record. pt that point, the record apparently was dosed, because the Plan did not send a third letter to Dr. Meek. The Plan didn't give the courtesy of asking Dr. Meek for any further comments. In fact, going back to 273, the Plan specifically - Paul Scott specifically says, "If you have any comments on the views of Dr. Meek, please so state." So we already have an irrbalance of infonnation. This was supposed to be a remand to get some neutral infonnation about the football degenerative causation, and the Plan goes back to Dr. Bach to fix things, because that May 27th letter was a disaster for the Plan. It was completely off the mark. The Board meets on August 18th of 2010, and there are a few minutes from the Board, They're redacted, and all we see from the minutes of the Board meeting, which are at Exhibit 274, Your Honor -- 274a. Excuse me. 274a. And, at Bates 487B, that's the second page in that exhibit. The Board met. Mr. Doug Ell made some reports on this particular

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7 'the only evidence of his thinking are those words, "no way," 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
23 24 evidence? MA. ROSENTHAL: Not substantial evidence, Your Honor, and, also, it points to Dr. Haas giving a recommendation as a THE COURT: Let me pause you there for a moment. MA. ROSENllfAL: Sure. and, "not even close." THE COURT: You're suggesting not substantial

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THE COURT: "Substantial evidence" is not a particularly heavy burden of proof, is it? MR. ROSENllfAL: It's not a particularly heavy burden

of proof, Your Honor, but it has to rise to a certain level from which one can draw a reasonable condusion, and here -THE COURT: Is it the more than sdntilla, less than a preponderance standard MA. ROSENllfAL: Yes.

THE COURT: -- in this context? MR. ROSENTHAl.: Yes. In this context, that would be 10/05/2012 09:40:56 AM

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the -- it is more than a scintilla.

MR. ROSENTHAL: In this case - well, one Court in

this disbict has already addressed that issue in the Newman Corrpany. In that

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THE COURT: Is there more than a scintilla of

evidence in the adrnini5tra1ve record supporting the decision?

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case, Newman versus Prudential

Insurance

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MR. ROSENTl1AL: No, Your Honor. The scintilla of

evidence -- the evidence that they've presented does not reach from

case, the Court said, "A plan administrator credit a claimant's treating physician."

need not spedally

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The Court said of examining to examine and interview

that level, because, number one, they were prohibited even taking this evidence from

nothing about the relative credibility physidans, who have the opportunity In this case -

Dr.

Haas. That assumes,

1HE COURT: Well, two things, though.

one, that Dr. Haas' opinion was dispositive,

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the Plaintiff directly.

and I'm not so

THE COURT: Let me ask you. Forgive my

interruption. determinations? I'm authorized make credibility Are you asking me to make credibility I mean, theoretically, this is a trial, and

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sure that's enti rely clear In the record that it was dispositive; and the other is, it's not the only evidence in theoretically. Again,

the record, so it could be discounted I'm not deciding that -

to do that, but are you asking me, In fact, to determinations here?

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MR. ROSENTl1AL: Right. THE COURT: -- but it could be discarded, and the
argument comments opinions, would be that thene is still, absent - to be generous, but comments.

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MR. ROSENTl1AL: Your Honor, we are asking you to

make findings an arbitrary discrediting of fact on whether the Plan conducted either arbitrarily using itself in

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Dr.

Haas'

and capridous

manner,

let's not call them medical that there

Dr. Bach - Dr. Meek, and also improperly that's really a

Absent those comments,

Dr. Haas. It's hard to say whether credibility structured

would still be some medical basis for the decision -- medical bases that you don't like, a level of detail that you don't like, but, nonetheless, a medical basis. Your Honor, in this case, however, I

issue, because, in fact, the way the Plan has their dedsion, they're saying that, well, you

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know, we didn't arbitrarily unprofessional, an arbitrary

- we found Dr. Meek to be

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MR. R~

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and, to the extent that you find that that was

would suggest to the Cou~ that, in fact, if you're just corrparinq pretty dear. Dr. Bach and Dr. Meek, the case law is actually We have here two neutral physidans. This is

decision by the Plan, I think that implidtly is dininished. linkage there; however,

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says that their credibility

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I think there is an impiidt

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not a situation

where we have a treating

physician on the one on the

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I think it's difficult determination witnesses

for the Court to make a credibility sense when there are no actual

hand and an independent

or a Pian- retained physidan

in a conventional

other hand, and that the Supreme Court has -

to testify.

All we have is the black and white

1HE COURT: Well, even if we had, the treating

physician would not necessarily correct? be giving the benefit; is that

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pieces of paper.

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THE COURT: Is there a heightened

on the Plan decision in this case?

level of scrutiny

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MR. ROSENTl1AL: That's correct.
The treating

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MR. ROSENTHAL: No, Your Honor. That line of cases

has been abrogated. standard or reasonable It is an arbitrary standard and capridous There is no To the

physician would not necessarily however, we have

be giving the benefit; of equal weight in this case.

two

physidans

in this circuit.

We have one neutral retained

by the Plan, Dr. Meek, and, for this case.

such thing anymore

as, quote, heightened

scrutiny.

again, I think that's very important

extent that there were a conflict of interest in its operations, evaluation

in the Plan -

1HE COURT: I want to hear you more fully on the

conflict issues after the medical issues, but, in any substantial evidence setting, you're likely to have perhaps

then that could be a factor in your determination.

of the Plan's ultimate For purposes

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of this case, the Magistrate Judge has so that

equal opinions on both sides, because, again, neither side has to predominate. scintilla, balandng It's sufficient to have, again, more than a in any case,

already ruled that there is no conflict of interest, line of analysis just doesn't apply here. However-

so that you could look at, in theory, evidence. Perhaps it's

THE COURT: That further limits my view of your

proof, doesn't it?

SO/50.
agency

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The fact that it's given to an administrative means that, in predsely

MR. ROSENTHAL: But, Your Honor, although - these

are very difficult cases for a plaintiff because of the

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those close calls, the agency can

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make the decision, even if there, again, is no one side that predominates. presumably So here, where you have qualified, presumably

hurdles that we have to dear. sorry. It does constrain

It does limit our proof --

two

physidans, basis

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your review to evaluate whether This a number

with some articulable

there is a reasonable

basis for the Plan's dedson, has identified, however,

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for the opinion, perhaps one you don't agree with, why doesn't the administrative agency get to make the call? AM

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Court - the Fourth Orcuit

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of factors which the Court must or should take a look at when 4 of 24 sheets

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Stewart v. Bert Bell/Pete Rozelle NFL Player Retirement

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reviewing the process, because the process still can be that the dedsion was the result of a

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Dr. Haas, and, similarly,

in the context

of Dr. Bach.

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reviewed to determine reasonable

Dr. Bach, again, looked at the paper record, came in with a series of conflicting opinions, and the Plan, however, opinions, does

process, and, in this case, again, we're focussed

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on those two pieoes of evidence that the Court couldn't dedde on summary context judgment, but! now will have to dedde in the that is, did the Plan rely on which we say they did, and did they once you find at that point, doctor here. Mr. Stewart, The

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not deal with those conflicting

and that, Your

Honor, I think is also very important

here. making suppresses

of this hearing;

'M1en the Plan's own dedsion information that is certainly relevant

Dr. Haas impermissibly, arbitrarily discredit

to this case -information? was

Dr. Meek, because I think,

THECOURT: 'M1at's ~ not

the suppressed

that those two are in the favor of Mr. Stewart, Dr. Meek really stands alone as the only creditie

ROSENTHAl..: hat T

is, Dr. Bach's information making. The May 27th

discussed in the Plan's dedsion

He's the only doctor that has exarrined

opinion --

and that's a factor that you still can take into account. fact that he examined

11iE COURT: You're

of suppressed

asking me

to draw

the condusion

him is a factor that can be considered

from absence of discussion?

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when, on the other hand, all you have is a paper review, and a paper review that apparently didn't even understand was certainly flawed, as Dr. Bach

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ROSENTHAL:Perhaps
here.

it's a slight -- we'll use wasn't wasn't

it as an absence of discussion induded. induded Whether

It certainly

what he was supposed to be doing.

it's suppressed

or not, it certainly

If I may just dose out on Dr. Haas --

in the discussion,

or at least whether

it was -- we or not. It could

lliE COURT:IYes. HR. ROSENTHAL:one of the questions that's

don't even know if it was induded We just know what's reported have been discussed.

in the discussion

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in the Plan's report.

still, you know -- what ddes the Pian mean by medical advice, and I think there is an instructive that was out of the Ninth Ol'OJit. case here - the Boyd case That's Boyd versus Bert Plan, 410 F.3d 1173. a football

11iECOURT: But a
brief. There is no requirement,

medical opinion is not a legal is there, for the adversarial

BelI/Pete Rozelle NFL Players Retirement That's 2004, Your Honor. degenerative benefit.

process

to

be induded

in the dedsion

in the sense of all of of

That case also involved a retired player,

the evidence, each?

all the positions,

and a point refutation

It involved

Is that required? T-20

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Brent Boyd, who had a head injury back in the early '80s and daimed that head injury was a cause of his current problems, and he was seeking football

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ROSENTHAL:In

this case, when we're on remand or not the NFL

for the specific purpose

of finding whether

neurological degenerative

injuries were the cause of his disability,

I do believe all of

benefits, just like in here. At that point, there was some evidence on both

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that evidence should have come in and should have been considered. In fact, the Plan's 000 instructions to Dr. Bach

sides, and the Plan sent him to another examining physidan, a neurologist,

neutral

physidan,

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when he issued that May 27th letter were: complete complete and final opinion, and final opinion. I don't think -

This should be your

who examined

Mr. Boyd for

and they don't accept that as his

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two days, and, afterwards, explaining his view:

the neurologist

issues a report by Mr. Boyd in

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That head injury suffered responsible

1980 was
problems.

not organically

for Mr. Boyd's neurologic

lliE COURT: Well, ~

they don't rely on that. go beyond that. They don't

ROSENTIiAL:They

Now, only after this extensive did the Board then condude football degenerative

evaluation

and report

accept: it because they go back to Dr. Bach a third time and ask him, "Hey, Dr. Bach, this opinion doesn't work. Mr. Stewart assurrption this thing," question without is totally and permanently incorrect. disabled. Your

that Mr. Boyd did not qualify for I think we can contrast what

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benefits.

was done in Boyd with what they're case, Dr. Haas - no examination, review of the file; and a bare-bones doesn't qualify."

now relying on in this Your Honor; a last-rrinute condusion, "Nope, he

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was completely

We need you to rethink

and they want Dr. Bach specificalJy to answer a

about how would this NFL injury evolve over time the CFL? Dr. Bach doesn't speak to that issue.

I point to the Boyd case not because the Plan was required couldn't

11iE COURT: But, giving

deference,

them a certain arrount essentially is, in fact, doing

of

to have
examine

Dr. Haas examine Mr. Stewart

Mr. Stewart.

In fact, he

you could say that what they're information

under the terms of the plan, but

by asking Dr. Bach fur additional creating an adversarial

I'm pointing

to the Boyd case to show what really constitutes of a football degenerative

position so that each of the points

medical advice in the context

considered considered

by Dr. Meek's has been at least discussed or by Dr. Bach?

benefit when the issue is causation, not reached that level of rredical

and I think the plan has of

advice in the context

ROSENTHAL:Except:

that Dr. Bach doesn't do 10/05/201209:40:56 AM

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Stewart v. Bert BellJPete Rozelle NFL Player Retirement Plan T-21 T-23

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that.

That's our point.

They could go back to him, but, if

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degenerative

benefits.

they're going to go back to Dr. Bach after he gives a report

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There is a second thread to the Plan's decision making here in that final August 30 letter. or they discredit So they undermine

which the Plan feels is not sufficient, required by fairness, and certainly

then they were under the law, as a

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Dr. Meek, but they also say that the Board

reasonable process, to go back to Dr. Meek when the Board comes up with this idea that Dr. Meek is unprofessional seeking to mislead the Board. and

found - this is a quote -- found it diffiaJit to believe that a reliable opinion on the issue presented in large part on an examination today. Frankly, I think thats Honor. a baffling statement, Your here could be based condition

of Mr. Stewart's

nE axJRT: Well, I'm going to ask Mr. Scallet or

Mr. Amin where that came from.

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condusion wherethat-

MHo ROSENTHAI.: I'm sorry, Your Honor? nE COURT:

I'm going to ask Mr. Scallet or Mr. Amin

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How

The whole premise of football degenerative has deteriorated

benefits is over

that the retired player's condition time. It's a lS-year

window to file for benefits, is irrelevant,

and, if the

MHo ROSENlltAl.: Yeah. nE COURT: - condusion came from about Dr. Meek.
But I think that, with that on the

player's now current condition football degenerative

then why have

benefits at all? Well, this is one of the reasons I

MHo ROSENlltAl.:

ntE COURT:

hanging out in the air, it was incumbent

wished the record were dearer.

I suspect

one of the things

Board to go back to Dr. Meek and ask for his explanation, could they go back to Dr. Bach to rehabilitate the same time, they discredit Dr. Meek without an opportunity him when, at

17

we're not seeing is, again, the fact that he played football in two different settings, so that the person who is being

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22

even giving him That's or at

examined today is not perhaps the same person who would have been exami ned after only the NFL experience, an impossible task to deterrrine CFL caused? and perhaps it's

to explain or address their concerns? It's a process that was designed,

not a fair process.

what's NFL caused and what's

least the way it worked out was a process that worked to the disadvantage of the Plan partidpant.

Again, I wish the record would have been better That's one

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3

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T-22

on that, because that's what's hanging over here.

Again, I note this is an NFL case, and it's interesting and different because it's an NFL player who is

r:i the

major differences

here in most of the -- perhaps all of

the reported

cases, but you don't have bM::l possible causes,

T-24

seeking benefits, but these guys are just the same as every other errplovee. ERISA-covered responsibilities This is covered by ERISA This plan is an

1 2 3 4 5 6 7 8 9

and I don't see much in the Plan language that tells me what to do when there are two different causes or how you apportion

plan, and the Board has some fidudary here. They're not just there to create a to seek judgment

or if any provision at all has been made for rnultiple causes.

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MHo ROSENTHAI.: The Plan language suggests that the

NFL injuries should be at least the determinative disability. cause of the

record to deny benefrt:s. They have a responsibility out the facts of the case and make an independent

I'm not going to argue what the Plan language

based on the facts, and not create, quote, facts around a fixed or predetermined condusion, which is what I think

says doesn't address that issue.

believe the Plan language

has some language in there that speaks to what should be the cause and how do you link that cause to the current disability, but that's in every football degenerative case,

happened here, Your Honor.

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17
exerrplifies

I think their conduct at the Board by coming up with

this information that

10 11 12 13 14 15 16 17 18 19 20
21

Dr. Meek

was unprofessional,

I think

it

Your Honor, because a person can have a lifetime of experience after the NFL, can have

that, because, though the Board expresses those about Dr. Meek's professionalism, the Board

other

Injuries or other events occur,

great reservations

and still the question Is: What causes the current disability? It's the same in the Bayd case. It was the same

was not concerned with Dr. Bach's statement quote, clearly does not understand process. incorrect

that Dr. Meek, bargaining

the collective

in the Jani case as well.

Again, the Board was not concerned about Dr. Bach's statements in that May 27th letter. They don't even

ntE COURT:

Obviously I don't remember

all the

cases, but except that we're often dealing with a football career versus one or bM::l or several discrete traumatic injuries as opposed to a product of two football have someone who has played in two leagues. careers. You

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address it

And the Board wasn't concerned that Paul Scott

had to go back to Dr. Bach and write him this letter and desaibing it as an unusual case. The Plan really took extra steps to kind of build the evidence that it wanted - extra steps here With Dr. Bach that they didn't want to take with Dr. Meek, because they knew Dr. Meek's opinion was solid, that there was a linkage, or there was a causation, and that gave Mr. stewart the football

MHo ROSENTHAI.: COrrect, Your Honor, and that's

certainly the complicating potential factor here, because you have a

22

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causal link from the NFL, and you have some injuries

from the CFL, but, in this case, we do have a doctor who actually examined Mr. Stewart, looked at his x-ravs, and no 6 of 24 sheets

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other doctor looked at his current x-ravs,

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had to be done through the Plan, and the Plan refused. the beginning, the Plan narrows the stream

SO, at that's the

THE COURT: But I don't necessarily have to give

that decisive weight. MA. ROSENTliAL: Well, Your Honor, again, under the

et evidence

going in. N:. the end of the case, they're rranipulating evidence to come up with the result that they want. That's, I think, our case, Your Honor.

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9

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Newman case, which I've cited already, the doctor that had an opportunity to exarnne and interview the Plaintiff directly There is a case that was in the --

THE COURT: Thank you. MA. SCAUET:

Good morning, Your Honor.

should be given more weight.

Westem District of Pennsylvania

THE COURT: Good morning, Mr. Scallet. MA. SCAUET:

It's a pleasure to be back here. I

11iE COURT": And you're suggesting more weight by me

as trier of fact --

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1 2 3 4 5 6 7 8
9

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Yes.

was telling Mr. Amin that I still have a vivid memory of signing the book, Wlich I consider one of the best traditions

MR. ROSENTHAL:

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T-26

THE COURT: - as opposed to the plan? MA. ROSENTHAL:

Yes. Well, the Plan should have

et any

of the Courts, so it's a pleasure to be back. Your Honor, this is a case -- and, I think, you

also, but that's a mistake by the Plan, and so that you can as well, in reviewing the Plan's conduct here. There is also a case out of the Sixth Orcuit, Kalish versus Uberty Mutual Ufe Insurance Company of Boston,

know, from the questions,

dearly you're seeing it the way we

are, that, as often happens in ERISA cases -

11iE COURT": Well, don't condudeMR. SCAUET:

Well, just on this one point, that I think, is Sometimes it's a rule

419 F.3d 501, and there the Court said, "Whether a doctor has physically examined the daimant may consider in determining arbitrarily and capridously is indeed one factor that we acted

this is a case really where the standard, determinative. Sometimes it's a fact.

whether a Plan administrator in giving greater weight to the

of law. I think, in this case, as in many daims cases, the standard is really dispositive. It points the way, in dose

opinion of its consulting

physidan."

cases and tough cases, to a decision.

Your Honor, I think one other factor that's important here: In this context here, under the CUPerry case,

THE COURT: And you're talking here, I suppose,

about the quantum

et evidence

required?

which is 630 - that's out of the Fourth Orcuit -- recent

MA. SCAUET:

Well, just the abuse of discretion T-28

case out of the Fourth Orcuit, 632 F.3d at 872.

In that to

1
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standard,

substantial

evidence, juSt all that goes with the

case, the burden of proof was on the plan administrator explain why the evidence supported the denial. proof was on, in this case, the Plan adninistrator, would be on the NFL plan.

ERISA dairns case standard, and I'm not going to argue the law or a lot of cases. Actually, what I wanted to talk about today was why that makes a lot of sense, because it's somewhat controversial in a lot of people's ninds, the standard that's

Burden of so it

In }ani, too, in the Fourth Orcuit, in that case, the Court said that the fidudary evidence. must present substantial

applied to these cases, but there is a very good reason Wly the Supreme Court has the law this way, or interprets Congress' intent as the law should be this way.

So, again, there is a burden on them to support

their position, and, I think, when you look at the evidence in the context of how they conducted themselves -- and I think in or

THE COURT": Well, I think the major reason is sort

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14

10 11 12 13 14 15 16 17 18 19 20 21 22 23
by

r:i a

self protective

one of the Courts that we don't become

that's certainly a factor -- how they conducted themselves this case by improperly relying on Dr. Haas, and irJl)roperly

administrative

agendes and we're not making these dedsions. agendes across the spectrum

The existence of administrative

unfairly going to Dr. Bach three times, an extra time, and then coming up with these kind of out-of-the-blue staterrents

in our country, from motor vehicles to private insurers to Sodal Security admnistrative law judges is a concession to

15 16 17 18 19 20 21 22 23 24 25

about Dr. Meek, the Plan was really grasping for a reason to deny this claim, and, again, to kind of drde back to the beginning, this could have all been easily done at the very beginning of this matter when I asked the Plan to go talk to Dr. Meek if they thought that that original opinion -- his first opinion based on the examination causation. The Plan did not want to do so, and, again, we didn't have the opportunity to correct the record or to was not dear as to

the reality, one, of how litigious we are as a country -

MA. SCAUET:

Yes.

THE COURT": -- and, secondly, you can't just have

enough judges to decide the litigation, so --

MR. SCALLET: Well, I wouldn't disagree wth any of

that, Your Honor, but, actually, I was thinking you made the point earlier, and that was really the first point I was going to make, which is that it provides dedsion and a way for the Court to decide a case consistent wth the law - a really close case - a conflicting kind of case where you really do have conflicting medicallnforrnation or other kinds of - kind 10/05/201209:40:56 AM

enhance that record wth Dr. Meek. We were not pennitted the Plan's rules to go to Dr. Meek and seek darification. It

24 25

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Stewart v. Bert Bell/Pete Rozelle NFl Player Retirement Plan T-29 T-31

of a close case, particular1y in a setting where you can't put the doctors up on the stand here and ask them questions yourselves. So, in those sorts of cases, this rule of law - and I think Your Honor pointed out -- asked Mr. Rosenthal a couple of questions like that, that this actually points the way to a decision, and that's helpful to the Court and helpful to our judicial system. So I want to talk about the first thing about the medical evidence here, and I think it's fair to say that there is conflicting medical evidence for sure. I would disagree, however, with the notion that the Board discredited Dr. Meek, and I want to talk about -- you said you wanted to ask me, and I'll get there, if you will, but I wanted to talk first about this notion that, in some way, the Board discredited Dr. Meek. The fact of the matter is Dr. Meek made two determinations here. One, based on Mr. stewart's current medical condition, Is he currently totally and permanently disabled, and, with respect to that dedsion, the Board credited Dr. Meek, and they credited Dr. Meek on the basis, I think, for a couple of really good reasons, one being that he saw him today, and that is the decision that total and permanent disability today is. He saw him, examined him. He took x-rays. He looked at his x-rays. The other thing was that Dr. Meek's opinion was not T-30

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decision -- clear1yit's not the Board's decision -- to read Dr. Bach as saying Dr. Bach has some doubts about that, but they did not. It's the second determination where there is the real crux of this case, of course, and that is, with just looking at the NFl injuries alone and ignoring the significant toll that seven years of playing -- and, by the way, Your Honor, Mr. Stewart played over a hundred games in the canadian Football League over seven years. Whether that's the significant toll that was taken is really what's creating the totality -- three extremities at this point. niE COURT: Who says that in the record? MR. SCALl.ET: You caught me out, Your Honor. The record - the record as it appears - it does say he played seven years. niE COURT: No. Granted, but who draws the condusion that it was the CFl; not the NFl? MR. SCAUET: Well--

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3

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8

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1
2

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9
draw?

niE COURT: Where is MR. SCALl.ET: It's the over conclusion certainly that was drawn by Dr. Bach, which was that the NFLInjuries alone would not have caused the disability. Since we now have the fact that there is total and permanent disability, I think the inference then is that, yes, it's seven years of playing defensive end, over a hundred games, that's really the cause T-32 of the totality of disability of this player. When we look at that, Your Honor -niE COURT: That's a conclusion you're asking me to

equivocal at all with resplct to total and permanent disability. This is a man, looking at the totality of the circumstances, with significant impairments in three of his four extremities, and Dr. Meek says that a couple of times. He says really only his left arm is the only extrerrstv that Is free from fair1ysignificant injury, and I think, when you look at Dr. Meek and you step back, that's clear1y- his general view is that a man that is suffering from impairments to a number of limbs, extremities, is disabled. Now, let's talk about Dr. Bach. It is possible that the Board could have, on the basis of a couple of Dr. Bach's opinions - and certainly the second time - could have conduded, if it wanted to - and, based on this record, I think it's pretty clear that Dr. Bach was quite dubious whether Mr. Stewart is totally and permanently disabled today at all, and you can read one or two -- one of his letters like that. The Board did not go there. The Board credited Dr. Meek on a very significant issue, and, frankly, Your Honor, that's a more significant issue than the second issue, because, on that issue, that guarantees Mr. Stewart a very significant amount of money for the rest of his life -$50,000 a year for the rest of his life because the Board credited Dr. Meek, and I think, based on this record, it is possible - I don't think It would have been the right AM

3 4 5 6 7 8
9

MR. SCALl.ET: I think that's a conclusion thatagain, what the Board was looking at, whether, just looking alone at the NFl injuries -- and that's the specific conclusion. They said, "No, it does not arise out of league activities." He is totally and permanently disabled. While the Board doesn't say, "and, therefore, that disability was caused principally by the wear and tear and the pounding and the significant injuries that were incurred in the CFl," that's implied. I think that's fair to say that that's implied, becauseyou're starting with the fact that he is totally and penmanently disabled now, but I wanted to go back to how a doctor would look at it. That's a very different kind of conclusion than I'm looking at this man now who is in front of me -- he's examined. I have the x-rays. And, by the way, just let me take this off the table, if I may. The reason that Dr. Bach did not examine Mr. Stewart is that Mr. stewart refused to come to the United States, and the reason that he did not look at x-rays ntE COURT: I think you mentioned that in the summary judgment paper. MR. SCAU.ET: All right. So Mr. Rosenthal sort 8 of 24 sheets

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1
of -- he can't have that both ways, I don't believe. Plaintiff can't say, "I'm not going to submit examination," The 1 players many years later and trying are the sorts of things that consistently, to draw linkages, those

T-35

2 3
4

to a physical

2 3
4

Dr. Bach

does and has done

and then say, you know, "I win, because there

and I would submit

is better at it and has a lot

was no physical examination." I don't think that's necessary here. I think that --

more experience

at it than Dr. Meek.

5
6 7

5 6 7 8 9
letter? telling.

I wanted to take a look - I think it's quite

If you would -- take a look, if you could, Your And that's also the wrong one.

the skill that really came to bear on the second question not the whether you're totally and pemnanently

disabled today,

Honor, at Exhibit 271.

8
9

but what caused it - really just developed experience severity of looking at NFL injuries,

out of a lot of

THE OOURT: Dr. Bach's one-Page - one- paragraph

not only looking at the

10
11

of them at the time, but also with a lot of and knowledge of how those injuries progress, or,

10
11 12 13
Honor.

MR. SCAll.ET:

No. I apologize.

It's 267, Your

experience

This is the first one, and this is from Dr. Bach.

12 13 14 15 16
17

in this case, probably years later.

regress,

and affect players many, many

THE OOURT: Okay.

MR. SCAll.ET: The letter is one page the first time. in his notes which follow that,

There is no evidence

at all--

and, in fact,

14 15 16
17

Then he has some discussion

Dr. Meek just says that a long time ago, some work for one of the CFL teams. hundreds situation and hundreds

20 years

ago, he did

and that's what I'm looking at - the next page. Bates starrp at the bottom right.

477 is the

Dr. Bach has seen

of NFL players in exactly this

THE COURT: Yes.

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19

18
THE COURT: What in the record -MR. SCAll.ET: Yes?

MR.SCAll.ET:
a quarter injury,

It's a little hard to tell, but, about about the left knee

19

of the way down, he's talking if Mr. Stewart

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21

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and really,

has a case here, I think

THE OOURT: What in the record permits me to

condude that? MR. SCAll.ET: people? That Dr. Bach has seen a Ict: of

it's his left knee injury,

because the other extremities-bicep he's got a

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23

his right leg, his right arm, shoulder, ton of CFL"related injuries, induding

23 24

on his left leg, too,

24
25

but his left leg starts with this knee injury that he has in training camp. You'll notice it was - if you kind of look

THE OOURT: That he's seen a lot of people, and the

25

T-34 1 2 3 4 5 6
7
dedsion in this case is a reflection Obviously agendes of judgments that he's

T-36 1
2
down, Your Honor, sort of in the middle, it says that -- if

made over that career. essentially expertise, administrative

one of the reasons we have is that they're to develop one of and quality

you can see 1991 - it's like right in the middle of the thing. It's maybe the tenth line down.

3
4 5 6

and it's always helpful if you're

reviewing

THE COURT: Yes.

MR. SCAUET: He's talking about that knee injury,

their dedsions

to have some sense of the quantity

of their expertise. MR. SCAUET: Well, the final denial letter does physician, which

so it's in 1991, the knee injury, down, he starts a sentence report from that September really critical observation

and then he - three or four

with, he sees a second operative 4th, 1998, and that's, I think, a

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11

point out that Dr. Bach is a medical advisory is a sort of tiebreaker physidan

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for the NFL, that he's been

by Dr. Bach.

So he says the has an arthroscopic

doing this for a long time.

Let me see.

second thing - he has -- Mr. Stewart surgery on his knee.

THE COURT: What's the exhibit?

He opens it up, and this is what the The knee was stable. The and

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13

MR.SCAUET:

I'm sorry.

Exhibit 275.

He has

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13

doctor says, seven years later: joint was nomnal. looked fine.

served as -- I'm looking at -- they don't seem to have the page, but the Bates label is AS 490, Your Honor. that'sAgain,

The medical compartment

was examined

14
15
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He did say in the letter he had a degenerative Was debrided, but the surfaces were

type of tear whidl reasonably good.

THE OOURT; I'm there.

MR. SCAUET: bottom, Okay. Great. It's right at the He's one of

16
17

So here we have, seven years after this and seven years of the CFL pounding, this left knee injury doesn't look

18
19

and there is a discussion physidans.

of Dr. Bach.

18
19

the most respected physidan,

He's a medical advisory

so bad, and I think that's a lot of what Dr. Bach is going off of. He's saying, "Look, I know how these injuries progress or

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21

or a MAP. That's their most - you know, their questions. He's been a MAP for ten years, and NFL players. I said over a hundred,

20 21 22 23

most difficult

regress. arthritis

I'm looking seven years later. built up in that knee.

There is not

22 23 24
25

he has examined but

a hundred

There is not an unstable a medical basis for standing alone,

I misspoke.
So dearly, with this detenmination, it forward sort of looking and looking at

joint here."

I think

that's

dearly

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25

Dr. Bach to assume that that left knee injury, is now"

at an injury and sort of projecting

well, 1998 what's that -. 14 years later, causing

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NFl Player Retirement

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a disability or the cause of the disability, as opposed to the rest of the totality of these injuries that were suffered in the CFL I want to move on to what I think is the second reason why this abuse of discretion standard really makes a lot of sense, and it very much makes sense for us as fidudaries. It makes good sense because - and I think you

referred to it earlier, Your Honor -- this is a body that has experience itself. The Court obviously is capable of making deterrninations that are part -- you deal with complex issues every single day, but so does the Board, and the Board of Trustees here looks at this kind of issue over and over again with hundreds of different players. Not only that, they're football guys. Either they've played football, or they've been around the game of football their entire lives. They've been around players their entire lives. They've been around retired players their entire lives. They've seen lots of injuries. They've seen players years after they've suffered injuries. And, you know, the one that really sort of jumped out at me here was Mf:""'Stewar.d's hand injury, which was also an NFL injury, and dearly it was unfortunate that it was not treated properly apparently when it first occurred. There had to be some surgery. But these are football guys, Your Honor. I think of -- I don't know if you've ever seen a

T-38
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 picture of Mike Ditka and his hands. I mean, he has like fingers going every single which way, and linemen - NFL linemen, if you look at them, that is a profession where hands are just, you know -- every one of them probably -- and I think our football guys on the Board are thinking, every single NFL lineman has hand injuries of one sort or another. niECOURT: Is that true, Pete? niEClERK: Mine work fine.

MR. SCALLEr: There you go. We have an expert witness here. niECOURT: Pete played for the Redskins. MR. SCALLEr: Oh, impressed.

But let's take a look at the hand injury or what the facts are. I mean, the Board looks at, yes, a serious hand injury that occurs in the NFL, and then the man plays seven years of defensive end for the Canadian Football League, a position dearly where you need to be able to use your hands. I don't think, as football people, the Board is thinking this person is totally and permanently disabled because of a hand injury in 1991 when he's going to play seven more years of defensive end. dearly it did not disable him from playing defensive end, one of the most physically-demanding things. niECOURT: Now, you've constructed a very, very plausible basis for the decision. Where is it neatly summarized in the record as you just did? AM Page 37 to 40 of 60 10 of 24 sheets

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T-41

T-43
1 2 to Dr. Bach's critidsm of Dr. Meek. For example, his lack of understanding otme collective bargaining process sort of

1
2
3 4

no question about that. Playing in the NFLtakes a toil on you, but the fact of the matter is this man played very briefty in the NfL and is going to get a very significant amount of rronev, If he prevails here, and if you ignore the hundredplus gamesthat he played in the CFL,he's going to get $120,000 a year for life, the very same amount that, if, one day, it appears that Brett Favre isn't really Superman, and he does -- somehowthe toll of playing all those games - you know, there is a toll exacted on him, he will get exactly the same amount, Mr. Stewart, as Brett Favre, who played 15, 16 years, hundreds and hundreds of games of NFL. That's the way the plan is set up, and I think, when the Board looks at this kind of case - and it is an unusual case,Your Henor. There aren't any reported cases- and I don't know and I can't tell you it's in the record how many times there is a brief NFL career and a very lengthy CFLcareer -- I think that's a rather unusual drcumstance. But, in that sort of drcumstance, I think where the Board came down here was a very fair result and one very consistent looking at the totality of their fidudary responsibilitieshere. Now, I'm happy to answer some questions. You asked some. You said you wanted to ask me some questions. This is v.nat I had wanted to put forward, but I'm happy to respond. I know you had a couple of questions in particular.
I

3 . i:hing. It was not balanced. 4 5 6 7 8 HR. SCALlEI': Okay. I 'M)Uldsay it was -- on that score, which I would consider to be a little bit of a professionalspat between the does, and the Board kind of standing up for their guy. I don't think it had anything to do with the dedsion. Remember,the critical dedsion here and the dedsion that means that Mr. stewart's going to get rrillions of dollars for a handful of games in the NFL,the Board relies on Dr. Meek. It could have read Dr. Bach's opinions as contrary on that issue,total and permanent disability. So I think it is quite overstated, and I think it distorts the processand ignores the result if one looks at this like there was some - v.natever comments were made by Dr. Meekwere somehowsignificant in the result. THE COURT; Well--

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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MR. SCAIJ,ET: I don't think they were. THE COURT: But his statements - and I assume

they're innocent, but it's statements like yours, that he's one of our team, that raises concerns in the review. HR. SCALlEI': I'm not sure why that is, Your Honor. Vvhatthat means is -- again, our team, under the law -- and we v..I:)uld ay as a matter of fact -- our team is devoted to s

25
1

T-42
THE COURT: I was struck by the reference in the 1 2 3 4 5 6 7 8 9 getting it right. We have very significant fidudary obligations imposed upon us by federal law, and v.e take thern seriously. The members of our team are helping us fulfill our obligations under the law. They are helping us stay on the straight and narrow, so the fact that Dr. Bach is a valuable person to us, someone upon whom we rely - remember -- I mean, hundreds rj players -- rrost
rj

T-44

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4

dedsion to Dr. MeelCsunprofessionaltone. MR. SCALlEI'; Well, let me say this, and I'll come back to what I just: said before. These are football guys, and Dr. Bach is a part of the NFLteam in this thing, and that's not a bad thing, Your Henor, at all. The NFLteam here is, by law and in fact, not conflicted. This is a team that's trying to get the right result, and Dr. Bach is a valuable member of that team. He's been there for over ten years. He's done a lot of good things for the NfL. I think the football guys may have overreacted when Dr. Meekkind of casually -- I think it was rather casual,and not malidous at all - says, "Well, I don't have a conflict

5 6 7
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them are receiving disability

benefits from the NFL,as is Mr. stewart. This notion that there was some kind of adverse thing and we were, you know, not just trying to get the right answer becausethat's our job, but we had some kind rj special anirrus toverds Mr. Stewart, I don't see that, and, frankly, if there v.ere, v.e v.A:lUldave denied his benefits. I mean, paying h this man $50,000 a year - v.nat is he, 50 -- he's 49 years old or 50 years old? I mean, $50,000 a year, he could live 30,40 years. That's a very significant amount rj rronev,
1lIE COURT:

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ci interest like that

guy," and I think v..hat:hat prompted in t

the NFL,the Board's mind, was, "Hey, you have no reasonto go after our guy like that. He doesn't have a conflict of interest. You don't really understand that we're on the side and we have fidudary obligations, and Dr. Bach is a very urportant member of our team. Don't go after our guy. You go after our guy, v.e're going to go after you a bit." In retrospect, it \>\Iasn't best thing in the world to do, but I the do think, as a matter -THE COURT: I just: note that --

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For any organization other than the NFL

HR. SCALlEI': Well, Your Henor, we also have very significant liabilities and obligations to these players, players like Brett Favre, players that have payed in our league for ten, fifteen years, as well as players like Mr. Stewart, v.no, through no fault of his own, is injured at a training camp and never sets foot on a NFLfield during a regular game. We've got those people to cover, too. So yes. Is there a significant amount rj money in 10/05/2012 09:40:56 AM

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MR. SCALlEI': Yeah.

1lIE COURT:

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- there was no corresponding reference

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,.-'
1

February

27. 2012

Stewart

v. Bert BelllPete

Rozelle

NFL Player

Retirement

Plan

T-45
that plan? Yes, because we're paying very significant benefits to our players. If that's - that's the fact of it, 1 The saga of Brett Favre has nothing to do with this case. By the way, Brett Favre, I think, regardless of whether he's ever eligible for benefits or not, has plenty of money to keep him going, but this plan keeps the players who are --

T-47

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yes. We have a considerable arruunt of rruney in these plans, and we have to, because the cornnitments players and our former

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we've made to our

are backed up by the law. We and, as you've

1lIE COURT: The joumeyman

players? players, the unknown

are required to make significant contributions,

MA. ROSENTlIAL: The joumeyman

probably seen, virtually every collective bargaining cycle, these benefits are significantly irrproved.

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players, the guys that only played for a few years and only made the minimum wage, this plan is important for them. Brett Favre, you know, it's a rounding error for him. Finally, Your Honor, counsel focussed on Dr. Bach's evaluation of the situation, but, when we go to the actual Plan dedsion -- and, again, that's at says - and that's at Bates

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As I just said,

before the recent -- the more -- the last one, the payment for Mr. Stewmt would have been about $40,000 without the actuarial deduction. Now it's 50. That's a 25% increase for

Mr. Stewart, but we have hundreds and hundreds and hundreds of other people that are gOing to get that same increase. So, yes, the NFL has a lot of money. could it possibly afford to pay Mr. Stewart? You know,

275,Your 491.

Honor - it

491.

Bates

The Board --

1lIE COURT: Hold on. MA. ROSENTHAL:

Dr. Haas. -- relied on the unequivocal view of

Sure, but that's

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not what -- dearly I know Your Honor does not believe that that's the way to handle --

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1lIE COURT: Hold on for a moment until I get there. MR. ROSENTHAL: Oh, I'm sorry, Your Honor. niE COURT: Yes, go ahead. MA. ROSENTHAL: It's the bottom of the page, Your
Honor.

niE COURT: That will not be dispositive. MR. SClAU.ET: That will not be dispositive.
Your Honor, are there any other questions? I know. I know

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you had a couple you were saying for myself and Mr. Arrin. know you asked the one about Dr. Meek.

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niECOURT:

Yes.

niE COURT: I think you've covered it. MA. SCAllET: Thank you. 1lIE COURT: Thank you.

MA. ROSENlHAL: The Board relied on the unequivocal

views of Dr. Haas. How much dearer can we get as to what the Board actually did? Not what they may have done, not what

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counsel explains what they did, but what's actually in the record is they relied on the unequivocal views of Dr. Haas:'fo break the tie. I mean, that's the only way that this can be read, and that is a violation of the Plan docurrent, Honor. Your

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Mr. Rosenthal, you get the last word.

MR. ROSENTlIAL: Thank you, Your Honor.

I think it's important to understand that, going into.the-i'emand, Your Honor, there was no question of whether disabled. That wasn't

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Mr. Stewar:t: was totally and permanently

an issue. So, for the Plan to argue that, well, we could have denied his total and pennanent time, and we gradously a mischaracterization case at that time. The only thing that was at issue in the remand -the only thing - was the issue of causation, and that's very plain from Mr. Paul Scott's August letter to Dr. Bach saying, "Mr. Stewart is totally and permanently to assume that." multiple of issues. Secondly, counsel keeps saying, "seven years in the CFL" It's interesting, I think, that the Plan itself only disabled, and you have disability at that point in

niE COURT: Thank you.

Did you bring findings of fact and conclusions, or do you want a date set for them?

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allowed him to keep it, that simply is

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of the procedure and the posture of the

MA. SCAllET: We did not bring them, Your Honor. If

you want them, whatever date, I think, would be, I'm sure, agreeable.

niE COURT: I am willing to listen to a proposal

from you.

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MR. SCAll.ET: What do you think, Michael? MA. ROSENTHAL:

memorandum, Well, Your Honor, we have a trial

So there was only one issue here, not a

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but we'll just wait to submit that.

niE COURT: Yes. Convert it, if you would. MA. ROSENTHAL: Yes. MA. SCAllET: What do you think, Mr. Amin? MA. ROSENTHAL: Fifteen days? MA. SCAUET: Yeah. Rfteen days is fine.with us. niE COURT: I was going to give you until March 30. MR. SCAUET: March 30 is even better than 15.
March 30 is good, Your Honor.

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registered four years in the CFL That was their finding. It's at 492. The Board also relied on its own extensive experience in reviewing claims for disability benefits. The

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Board could not ignore that Mr. Stewart played in the CFL for at least four years after his NFL career ended. So hundreds

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of games or four years, seven years, that's not in the record, and, again, we are limited to what's in the record here.

1lIE COURT: Okay. Please, dose of business, 12 of 24 sheets

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AM

February 27, 2012

Stewart v. Bert Bell/Pete Rozelle NFL Player Retirement Plan T-49

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March 30, findings of fact and condusions of law, and let me

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state my appredation and admiration for the very good arguments for both sides. You did what you're supposed to do - you've made my job hard. MR. ROSENTHAL.: Thank you, Your Honor. MR. SCAllET: Thank you, Your Honor.

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TltE COURT: We're in recess. TltE a.ERK: All rise. This Court now stands in
recess. (Proceedings adjourned.)

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13 14 I, Martin J. Giordano, Registered Merit Reporter and Certified Realtime Reporter, certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter.

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Martin J. Giordano, RMR, CRR

Date

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