In re: NFL Players Concussion Injury Litigation v.

• Court: Court of Appeals for the Third Circuit
• Decided: June 10, 2025
• Docket: 24-1910
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 24-1910 _____________

IN RE: NATIONAL FOOTBALL LEAGUE PLAYERS CONCUSSION INJURY LITIGATION

Byron Cuthbert & Associates, LLC; SPID 100004410; SPID 100004597; SPID 100007249; SPID 100007913; SPID 260001260; SPID 100002921; SPID 100005756; SPID 100005198; SPID 100000435; SPID 100002185; SPID 100007068; SPID 100008484; SPID 100013989; SPID 100002465, Appellants _____________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2:12-md-02323) District Judge: Honorable Anita B. Brody _____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) March 6, 2025 _____________

Before: MATEY, FREEMAN, and ROTH, Circuit Judges

(Filed: June 10, 2025) _____________

OPINION * _____________

This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, *

does not constitute binding precedent. MATEY, Circuit Judge.

More than a decade ago, a class of retired professional football players settled

claims against the National Football League concerning chronic head injuries. In re Nat’l

Football League Players Concussion Injury Litig., 821 F.3d 410, 421–22 (3d Cir. 2016).

The settlement agreement established a program to distribute funds to class members who

receive a qualifying diagnosis of one or more concussion-related conditions. It also

empowered a Claims Administrator to verify claims and investigate potential fraud or

wrongdoing. If “the Claims Administrator determines that there has been a

misrepresentation, omission, or concealment of a material fact” in connection with one or

more claims, it refers the claim(s) to the Special Masters. Supp. App. 60. The Special

Masters’ decisions are subject to review by the District Court. Fed. R. Civ. P. 53(f).

Byron Cuthbert & Associates, LLC (BCA) has represented hundreds of class

members seeking settlement awards. After several allegations of wrongdoing, the Claims

Administrator initiated an audit and found that BCA’s Byron Cuthbert 1) “pressured

physicians” to use “Amyloid PET scans that he knew were unreliable”; 2) “attempted to

influence” physicians to obtain Alzheimer’s diagnoses for his clients; 3) improperly

“drafted medical records” and third-party affidavits; and 4) was not truthful with the

Claims Administrator. App. 3. Accordingly, the Claims Administrator determined that

Mr. Cuthbert’s actions constituted “material misrepresentations and omissions related to

Claim filings.” App. 3.

The Claims Administrator referred the matter to the Special Masters, who adopted

the Claims Administrator’s factual findings and denied twelve claims “directly

2 implicated” by the issues identified in the audit. App. 7. The Special Masters also

suspended processing of all claims filed by BCA clients and directed the Claims

Administrator to 1) deny claims subject to the issues identified in the audit; 2) certify

which claims were free of those issues; and 3) deny any claims for which it could not be

determined whether there were issues. All denials were without prejudice, allowing

claimants to resubmit claims after “obtaining new medical records unsullied by the

issues” identified in the audit. App. 7. The District Court affirmed the Special Masters’

decision. Seeing no error, we will affirm. 1

First, the District Court properly declined to address Appellants’ argument that the

Claims Administrator discriminated against Mr. Cuthbert in violation of 42 U.S.C.

§ 1981, as this issue was not raised before the Special Masters. See AMA Multimedia,

LLC v. Wanat, 970 F.3d 1201, 1213 (9th Cir. 2020). Appellants point only to a single

sentence in the Special Master briefing where BCA argued that the “Claims

Administrator’s actions show[] bias towards Attorney Cuthbert—as claims with the same

PET scan evidence are being approved for other Attorneys but not Attorney Cuthbert.”

App. 132–33. That is insufficient.

Second, there was no modification of the settlement agreement. When evaluating

whether the Amyloid PET scans championed by Mr. Cuthbert were reliable, the Claims

1 The District Court had jurisdiction under 28 U.S.C. § 1332(d)(2) and we exercise jurisdiction under 28 U.S.C. § 1291. We review the District Court’s interpretation of the settlement agreement for clear error and the exercise of its authority to administer the settlement for abuse of discretion. In re Nat’l Football League Players Concussion Injury Litig., 962 F.3d 94, 101 (3d Cir. 2020). 3 Administrator relied on the expertise of a nuclear medicine consultant. Appellants argue

that reliance amended the settlement agreement to require claimants to use the

consultant’s methodology. Not so. The Claims Administrator merely utilized an outside

opinion to verify and investigate fraud claims, a process consistent with the terms of the

settlement agreement.

Finally, Appellants argue the Special Masters’ decision violated due process in a

variety of ways. But many of their arguments amount to attacks on the Special Masters’

factual findings, which are final and binding under the terms of the settlement agreement.

See Fed. R. Civ. P. 53(f)(3)(B). The settlement agreement also precludes Appellants from

obtaining an evidentiary hearing on their challenge to the audit proceeding. In sum,

Appellants obtained the process available to them under the settlement agreement, which

they previously had the opportunity to challenge. See In re Nat’l Football League, 821

F.3d at 422–26, 447–48. There is no due process violation.

***

For these reasons we will affirm the District Court’s judgment.