James R. Colvin v. 88 Board, the Joint Board of Trustees for the 88 Plan

Filing 35

ORDER GRANTING 23 Motion to supplement; DISMISSING AS MOOT 28 Motion for Protective Order. Signed by Judge Xavier Rodriguez. (rg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JAMES R. COLVIN,
Plaintiff,
v.
88 BOARD, THE JOINT BOARD OF
TRUSTEES FOR THE 88 PLAN,
Defendant.

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Civil Action No. SA-17-CV-974-XR

ORDER
On this date, the Court considered Plaintiff’s Motion to Supplement the Administrative
Record (docket no. 23) and Defendant’s Motion for Protective Order (docket no. 28). Because
the Court grants Plaintiff’s motion to supplement the administrative record with materials that
were not considered by the 88 Plan Board, the Court finds that remand is appropriate. The
motion for protective order is therefore dismissed as moot.
Background
The National Football League Players Association and the National Football League
Management Council created the 88 Plan, which is an ERISA plan that provides benefits to
eligible former NFL players who have dementia, amyotrophic lateral sclerosis, or Parkinson’s
disease. The 88 Plan provides that dementia excludes substance-induced persisting dementia.
To receive reimbursement from the Plan, a player must first apply to become an “88 Eligible
Player.” Initial applications are reviewed by the 88 Committee, and denials may be appealed
to the 88 Board, which conducts a de novo review and then issues a final determination.

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Plaintiff James R. Colvin played football for the NFL from 1960 to 1967. Plaintiff
asserts that the traumatic injuries he received from playing football have manifested into
neurological and physical disabilities, including the onset of dementia. He applied for benefits
initially in 2013, asserting dementia as a basis for eligibility. His treating physician, Dr. R.
Braden Neiman, completed part of the application (as required), noting that a 2012 PET scan
“showed early dementia and Alzheimer’s disease.” Dr. Neiman also provided records in
support of the application, and a July 5, 2012 record stated that the PET scan showed “some
changes that could be consistent with a dementia process” but it “was still indeterminate” and
“they recommended follow-up in six months to a year.” The Committee denied the application
on the basis that the record did not show that Colvin had been diagnosed with dementia, ALS
or Parkinson’s, and informed Plaintiff by letter on April 3, 2013.
In February 2015, Plaintiff filed an application with the Bert Bell/Pete Rozelle NFL
Player Retirement Plan for total and permanent disability benefits and/or the 88 Plan for
dementia benefits. He was asked to submit an application with the appropriate section
completed by Plaintiff’s treating physician, and he did so on May 5, 2015. Dr. Neiman
checked the box “yes” for the question “Does Player have Dementia as defined in the
Diagnostic and Statistical Manual of Mental Disorders (4th E., Text Revision)?” He checked
“no” for the question “Is (1) Substance-Induced Persisting Dementia or (2) Dementia Due to
Multiple Etiologies where Substance-Induced Persisting Dementia is the primary cause?”
The Plan informed Plaintiff in June 2015 that medical reports from the physician
documenting and/or providing a basis for the dementia diagnosis were missing from the
application such that it was incomplete. Medical records were submitted on June 16, 2015.

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The Committee denied the application in July 2015. The denial letter states that the application
indicates that Colvin may be eligible for benefits due to a diagnosis of dementia but the
medical records “do not show that you have been diagnosed with Dementia by a physician
with experience in the field of treating Dementia.”
Colvin appealed in December 2015 and submitted additional records, including those
related to an evaluation by Dr. Neiman on December 7, 2015 and a referral to Dr. Douglas
Cooper with South Texas Neuropsychology. The 88 Board referred Colvin for an evaluation
with a Plan neurologist, Dr. Eric Brahin, for a dementia evaluation in June 2016. Dr. Brahin
noted that Plaintiff had been drinking since age 12 and would drink 2-4 “big drinks” per night,
each containing 2-3 shots of alcohol per night. Dr. Brahin concluded that Colvin had a
substance abuse problem with alcohol and that he was “unable to properly determine whether
or not [Plaintiff] suffers from dementia due to his alcohol abuse.” However, Dr. Brahin also
noted additional facts that he felt made a diagnosis of dementia unlikely, such as the fact that
Colvin lives independently.
The 88 Plan Board denied the appeal on August 17, 2016. The denial letter was sent on
August 26, 2016. It explained that the Board denied benefits for two reasons: (1) based on the
medical reports, the Board found that Plaintiff did not have dementia; and (2) even if he did
have dementia, his alcohol abuse precludes a finding that he is an 88 Eligible Player because
substance abuse dementia is excluded from the plan and Dr. Brahin found that Plaintiff’s
alcohol abuse interfered with a reliable diagnosis of dementia. The letter informed Plaintiff
that he “should regard this letter as a final decision on review within the meaning of Section
503 of the Employee Retirement Income Security Act of 1974, as amended, and the

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regulations issued thereunder by the Department of Labor.” It further informed him of his right
to bring an action under ERISA.
Apparently before receiving that letter, Plaintiff’s attorney sent Defendant a letter on
August 29, 2016 objecting to Dr. Brahin’s report based on asserted factual errors and attaching
an August 23, 2016 report from Dr. Neiman rebutting Dr. Brahin’s statements and
conclusions. Plaintiff’s counsel noted that Dr. Neiman questioned whether Dr. Brahin’s report
was actually about Plaintiff or was confused with another patient given its “many factual
errors.” Counsel asked that Dr. Brahin’s report be disregarded or, if considered by the appeals
Board, that Dr. Neiman’s report also be considered in rebuttal.
Dr. Neiman’s August 23 report stated that Plaintiff had no indications of alcohol abuse
and that Dr. Neiman was confident that Plaintiff has Alzheimer’s. Dr. Neiman stated that, in
all the years he had known Plaintiff, he had never reported an alcohol history substantial to the
one that Dr. Brahin listed, nor had there been evidence of it. Dr. Neiman also noted that Dr.
Brahin conducted only a short meeting with Plaintiff and conducted the Montreal Cognitive
Assessment, which is a quick, mini-assessment for screening and not a diagnostic tool. He also
rebutted Dr. Brahin’s conclusion that someone with dementia could not live alone as Plaintiff
did, noting that Plaintiff could live alone “at his level, especially given that he has close family
support.” He concluded by stating that, “full neurological work-up has revealed changes
consistent with Alzheimer’s disease and I am confident with my diagnosis. There is no
evidence of alcohol abuse to question Jim’s diagnosis, and in speaking with Jim, he disputes
the statements made by Dr. Brahin regarding his alcohol use.”

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On September 27, 2016, Plaintiff’s attorney sent a second letter refuting Dr. Brahin’s
report and emphasizing Dr. Neiman’s letter and asking for reconsideration. The letter states
that Dr. Brahin’s report was not timely provided to Colvin and, had it been, he could have
provided Dr. Neiman’s rebuttal report for review at the August 17, 2016 meeting of the 88
Board. The letter also states that both Colvin and his son (who was present at Dr. Brahin’s
evaluation of Colvin) deny the statements that Dr. Brahin reported about Colvin’s drinking
habits. On October 19, 2016, counsel for the 88 Plan responded to the August 29 and
September 27 letters, informing them that the letters were being forwarded to Dr. Brahin and
asking him to respond. The letter said, “When we have Dr. Brahin’s reply, we will share it and
discuss with you the appropriate next steps, if any.”
On November 3, 2016, Dr. Brahin issued a second opinion regarding Colvin. Dr.
Brahin stood by his statement that Colvin admitted to two to four “big drinks” per day with
two to three shots of alcohol in each drink and criticized Dr. Neiman for not fully exploring
Colvin’s alcohol use. Defendant’s counsel forwarded Dr. Brahin’s rebuttal to Plaintiff’s
former counsel on November 8, stating “I enclose for your review a November 3, 2016 letter
from Dr. Brahin, which addresses the issues you raised concerning Dr. Brahin’s evaluation of
Mr. Colvin. As you can see, Dr. Brahin stands by his report. If you have any questions or
concerns, please let me know. Otherwise, I will consider the matter closed.”
On March 31, 2017, Plaintiff’s attorney sent Defendant a letter outlining Plaintiff’s
position and attaching additional documentation, including a March 14, 2017 report from Dr.
Neiman. The report stated that Colvin’s initial neurological work-up revealed some changes
consistent with a dementia process but was still indeterminate, but he had continued to have

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progression of memory changes and a full neurological work-up was repeated, including a
brain MRI and PET scan, “which revealed changes consistent with progression of
hippocampal atrophy and posterior hypometabolism consistent with Alzheimer’s disease.” It
further stated that there was no evidence of alcoholism as suggested by Dr. Brahin and that he
disagreed with Dr. Brahin’s evaluation.
On April 13, 2017, counsel for the Board responded, stating that the August 2016
decision was “a final decision that is not subject to further administrative review” and that
Plaintiff could bring suit under ERISA if he would like to challenge the decision or could file a
new application. Colvin filed this lawsuit on October 2, 2017. Colvin brings this ERISA suit
on the basis that he is an eligible former NFL Player entitled to receive 88 Plan benefits and
Defendant wrongfully denied those benefits in violation of the plan provisions and ERISA.
Applicable Law
ERISA provides the federal courts with jurisdiction to review determinations made by
certain benefit plans. 29 U.S.C. § 1132(a)(1)(B). When assessing factual questions, the district
court is constrained to the evidence before the plan administrator. Vega v. Nat’l Life Ins.
Servs., Inc., 188 F.3d 287, 299 (5th Cir. 1999). The plan administrator has the obligation to
identify the evidence in the administrative record and the claimant must be afforded a
reasonable opportunity to contest whether that record is complete. Estate of Bratton v. Nat’l
Union Fire Ins. Co., 215 F.3d 516, 521 (5th Cir. 2000). “Once the administrative record has
been determined, the district court may not stray from it but for limited exceptions, such as the
admission of evidence related to how an administrator has interpreted terms of the plan in

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other instances, and evidence, including expert opinion, that assists the district court in
understanding the medical terminology or practice related to a claim.” Id.
In Vega, the Fifth Circuit held that “the administrative record consists of relevant
information made available to the administrator prior to the complainant’s filing of a lawsuit
and in a manner that gives the administrator a fair opportunity to consider it.” Vega, 188 F.3d
at 300. Relying on Vega, Plaintiff moves to include in the administrative record certain
materials provided by Plaintiff to the Board after its decision but with sufficient time for the
Board to consider it before Plaintiff filed suit in October 2017. The Board opposes inclusion of
the materials, asserting that the administrative record should only include documents
considered up to the August 2016 final decision. Relatedly, Plaintiff seeks to conduct certain
discovery, and the Board has moved for a protective order to quash three deposition notices.
Analysis
In December 2017, the Board produced the Administrative Record, a 200-page
compilation of documents that included “the evidence before the 88 Board at the time of its
August 17, 2016 decision on Plaintiff’s application to become an 88 Eligible Player.” Docket
no. 28-1 at 6. Colvin seeks to include in the administrative record the three letters sent by
Plaintiff’s counsel on 8/29/16 (Ex. B), 9/27/16 (Ex. C), and 3/31/17 (Ex. D) to the Board, and
“documents created by Defendant or others acting on behalf of Defendant” that “were
available to Defendant prior to Mr. Colvin filing his lawsuit” including: the 88 Plan Playbook
(Ex. E); the 88 Plan Summary of Material Modifications (Ex. F); and the November 3, 2016
opinion letter from Dr. Brahin (Ex. G).

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Defendant does not object to the inclusion of Ex. E (the 88 Plan Playbook) and Ex. F
(88 Plan Summary of Material Modifications) but does object to the other exhibits because
they were not before the 88 Plan administrator at the time of its final decision on August 17,
2016 and the administrator did not have a fair opportunity to consider them thereafter. Docket
no. 27 at 1. Defendant further requests that, if the Court grants the motion to include these
documents, it remand to the plan administrator for further consideration because this Court
should not decide the merits by considering evidence not considered by the plan administrator.
Docket no. 27 at 8.
Defendant contends that the language in Vega is dictum and “is impossible to
understand and difficult to apply.” Docket no. 27 at 6. It notes that a later Fifth Circuit panel
observed that it “conflict[s] with prior cases in which [the Fifth Circuit] indicated that the
administrative record consisted of those documents before the administrator at the time the
claims decision was made” and that it “poses a number of practical problems.” Docket no. 27
at 6 (quoting Keele v. JP Morgan Chase Long Term Disability Plan, 221 F. App’x 316, 320
(5th Cir. 2007)). Defendant notes that “district courts have echoed these legitimate concerns.”
Docket no. 27 at 6. Defendant further argues that Vega does not control here because it
involved a plan that was administered by a full-time, professional administrator, whereas this
plan is administered by a Taft-Hartley board of trustees that meets on a quarterly basis. Before
each meeting, plan staff gather and prepare application-related material for presentation and
review by the Board, and no materials were prepared for or presented to the Board after
August 17, 2016 in this matter. Thus, Defendant contends, even under the logic of Vega, the
88 Board did not have a fair opportunity to consider the evidence that Plaintiff submitted.

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Defendant states it is unaware of any case applying Vega in the context of a Taft-Hartley plan
administered like the 88 Plan, and Plaintiff has cited none. Plaintiff responds that “the only
reason the proposed supplemental documents were not before Defendant is because
Defendant’s representatives were intentionally not presenting them to Defendant for their
consideration.” Docket no. 29 at 3.
In Vega, the en banc court considered what evidence becomes part of the
administrative record. Vega v. Nat'l Life Ins. Servs., Inc., 188 F.3d 287, 299 (5th Cir. 1999). It
emphasized the “motivating concern” that the rules encourage the parties to resolve their
dispute at the administrator’s level and not circumvent the administrator’s review of claims.
Id. at 300. It further held that “the administrative record consists of relevant information made
available to the administrator prior to the complainant’s filing of a lawsuit and in a manner
that gives the administrator a fair opportunity to consider it.” Id. Specifically, it noted that the
bar to a party’s seeking to introduce evidence into the administrative record was not
“particularly high” and that, “if the claimant submits additional information to the
administrator . . and requests the administrator to reconsider his decision, that additional
information should be treated as part of the administrative record.” Id.; see also id. (“Before
filing suit, the claimant’s lawyer can add additional evidence to the administrative record
simply by submitting it to the administrator in a manner that gives the administrator a fair
opportunity to consider it.”). Although this language was subsequently affirmed in Estate of
Bratton v. National Union Fire Ins. Co. of Pittsburgh, Pa., 215 F.3d 516, 521 & n.5 (5th Cir.

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2000), Defendant is correct that subsequent decisions in the Fifth Circuit courts have noted
concern over this holding. 1
The Fifth Circuit acknowledged in Keele v. JP Morgan Chase Long Term Disability
Plan, 221 F. App’x 316, 32-21 (5th Cir. 2007) that Vega appeared to conflict with prior cases
indicating that the record was only those documents before the administrator at the time the
claims decision was made, and also noted that it could cause practical problems in terms of
setting standards for when the administrator could close a matter. But it did not decide the
question because the later information did not change the outcome.
Keele was unpublished, and later that same year the Fifth Circuit issued Corry v.
Liberty Life Assurance Co. of Boston, 499 F.3d 389 (5th Cir. 2007), in which it held that
affidavits from the plaintiff and doctors mailed seven months after Liberty issued a final denial
letter were correctly determined to be part of the administrative record because they were
submitted over a year before the plaintiff filed the lawsuit, thereby giving Liberty a fair
opportunity to consider them. Id. at 398 n.12.
In Anderson v. Cytec Industries, Inc., 619 F.3d 505, 516 (5th Cir. 2010), the Fifth
Circuit noted that “subsequent panels of this court and several district courts within this circuit
have wrestled with [the] language from Vega, which could be read to allow claimants to add
material to the administrative record long after exhausting their final administrative appeal,
even without a showing that the evidence was unavailable to them while their administrative
appeal was pending or that they made a good-faith effort to discover or submit the information
during the administrative process.” It noted that this would “make this circuit’s administrative

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In addition, the Seventh Circuit has called Vega an “outlier” that does not rest on firm ground. Majeski v. Met
Life, 590 F.3d 478 (7th Cir. 2009).

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record law more expansive than that of the rest of the circuits.” Id. at 516 n.9. 2 It did not
resolve the problem or directly confront Vega, however, because it held that the defendant did
not abuse its discretion even considering the extended administrative record. Id. at 511 n.5; see
also McCorkle v. Met. Life Ins. Co., 757 F.3d 452, 458 n.18 (5th Cir. 2014) (again noting the
Vega language and stating “we may sidestep any ‘thorny timing issues posed by Vega’ when
the additional information is ‘cumulative’ or ‘irrelevant’”).
In Killen v. Reliance Standard Lift Ins. Co., 776 F.3d 303 (5th Cir. 2015), the Court
cited Vega and noted that a “fair opportunity” must come in time for the administrator to
reconsider his decision. Where the file was already closed and the plaintiff had exhausted two
internal appeals, submission of evidence four weeks before filing suit did not give a fair
opportunity. But the Court also concluded that the new evidence would not change the
outcome.
Despite certain language questioning it in later opinions, Vega is an en banc opinion
that has not been overruled. Vega and Corry strongly support Plaintiff’s motion to include the
letters sent by Plaintiff’s counsel, which included Dr. Neiman’s rebuttal to Dr. Brahin’s letter,
to the Plan in August 2016, September 2016, and March 2017 and the second opinion letter
from Dr. Brahin. The goal in Vega was to encourage the parties to consider all the evidence
before filing the lawsuit. Plaintiff’s attempt to rebut Dr. Brahin’s report is consistent with this
goal. Colvin was first made aware of Dr. Brahin’s opinion that Colvin suffered from a
substance-abuse problem and did not appear to have dementia when he received the report,
and Colvin quickly responded with a rebuttal letter from Dr. Neiman, not realizing that the
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Some litigants have argued, however, that Vega prevents a self-interested administrator from manipulating the
process unfairly by closing the record prematurely and excluding information that would weigh in favor of the
claimant. Corbello v. Sedgwick Claims Mgmt. Servs., Inc., 856 F. Supp. 2d 868, 887 (N.D. Tex. 2012).

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Board had already reached a decision. This rebuttal was not something that Colvin was aware
that he needed to include before that time.
Moreover, although the 88 Board may not have considered the evidence because it was
not presented at a quarterly meeting, Vega permits inclusion in the record all “relevant
information made available to the administrator prior to the complainant’s filing of a lawsuit
and in a manner that gives the administrator fair opportunity to consider it.” Vega, 188 F.3d at
300; see also Atkins v. Bert Bell/Pete Rozelle NFL Player Retirement Plan, No. A-10-CA-515SS, 2011 WL 13269723, at *3 (W.D. Tex. Aug. 8, 2011) (“There is clearly no standard that an
administrative record only include documents ‘presented to,’ as opposed to ‘made available’ to
the fiduciary.”). The Board met again in November 2016, and in February and May 2017, long
before suit was filed. All of the policy and technical requirements justifying the rule in Vega
are satisfied here. Thus, the Court concludes that Exhibits B, C, D, and G must be considered
part of the administrative record, as well as Ex. E and Ex. F, which are unobjected to.
Defendant has asked that, if the Court requires the supplemental exhibits to be included
in the record, it remand rather than determine the merits of this case. The “job of weighing
valid, conflicting professional medical opinions is not the job of the courts” but of “the
administrators of ERISA plans.” Corry, 499 F.3d at 401; see also McDonald v. Hartford Life
Group Ins. Co., 361 F. App’x 599, 612 (5th Cir. 2010). Although the Board may choose
between competing medical opinions, according to Defendant, the Board did not review or
evaluate Dr. Neiman’s letters disputing Dr. Brahin’s conclusions regarding substance abuse
and dementia. It would be improper for this Court to evaluate the information without the plan
administrator first having the opportunity to do so.

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In Hartwell v. U.S. Foodservice, No. 3:09-cv-00260-DPJ-FKB, 2010 WL 3713496
(S.D. Miss. Sept. 13, 2010), the district court noted that if new information was presented,
then remand would be consistent with Vega’s policy of encouraging resolution at the
administrative level. It further noted that “[h]istorically, the Fifth Circuit has sanctioned
remand for review of evidence or issues that the plan administrator failed to consider” and thus
it remanded with instructions for the plan administrator to consider the new evidence. Id. at
*9. Similarly, Defendant cites Abate v. Hartford, 471 F. Supp. 2d 724 (E.D. Tex. 2006), in
which the court allowed the claimant to supplement the administrative record with relevant
materials and remanded because the administrator’s decision was based on an incomplete
record and overlooked pertinent information. The Court finds that remand is appropriate here.
Conclusion
Plaintiff’s Motion to Supplement the Administrative Record (docket no. 23) is
GRANTED. Further, the case is REMANDED to the plan administrator to consider the
supplemental evidence. Defendant’s motion for protective order (docket no. 28) is
DISMISSED AS MOOT. The Clerk shall administratively close this case. Either party may
move to reopen this case after the administrator’s final decision following further review.
It is so ORDERED.
SIGNED this 11th day of April, 2018.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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