Do not sleep on individual sports concussion cases. While the National Collegiate Athletic Association concussion class actions have been grinding away at a glacial pace since 2011, individual concussion cases are moving forward at a faster clip and making law that may have far-reaching implications for the legal landscape for collegiate sports and beyond.
Schmitz v. NCAA and University of Notre Dame du Lac in Ohio is a prime example of the trend. It is the first individual collegiate sports concussion case to reach a state’s highest court. It will be argued on April 11, 2018, before the Ohio Supreme Court.
Schmitz will go to the heart of what constitutes a concussion injury (such as chronic traumatic encephalopathy) and when a concussion claim can or must be brought for purposes of starting a statute of limitations period for negligence claims. It will also hit upon the viability of concussion-based fraud claims. The decision could cut off or open the door to claims based on concussions suffered by athletes decades ago. Additionally, if the case is remanded and goes forward in the trial court, it may be a leader in defining when and how a player can allege a duty sufficient to survive the pleadings stage.
Over the course of the past five years, athletic organizations and institutions from the professional, collegiate, and youth ranks have seen a proliferation of litigation arising out of concussion injuries allegedly suffered by athletes who participated in contact sports. These cases, which have asserted both contract and tort-based claims, are frequently based on injuries alleged to have occurred many years — and sometimes, many decades — before the suit was filed. Several of these cases have settled (such as the multidistrict litigation against the NFL and NCAA), and a handful have been dismissed or litigated to verdict. The majority of these cases, however, continue to wind their way through district and appellate courts at both the state and federal levels.
Against that backdrop, the Ohio Supreme Court will soon decide a threshold issue that may significantly impact many of these ongoing cases. In Schmitz, the Ohio Supreme Court will determine whether the statutes of limitations on personal injury claims in negligence and fraud are tolled when symptoms of a degenerative brain disease caused by a traumatic head injury allegedly do not manifest themselves or become apparent or known until years or decades after the injury occurred (a legal doctrine known as the “discovery rule”).
In October 2014, Steven Schmitz, a running back and receiver for the University of Notre Dame football team from 1974 to 1978, and his wife, Yvette, filed a five-count complaint against the NCAA and Notre Dame. The Schmitzes asserted claims for negligence, fraudulent concealment, constructive fraud, breach of contract and loss of consortium.
The Schmitzes alleged that, while the NCAA and Notre Dame had superior knowledge of the risk of chronic traumatic encephalopathy and owed a special duty of care to Schmitz as a student-athlete, the defendants never educated him about concussion symptoms or the risks of exposure to repeated hits to the head, and failed to implement appropriate health and safety protocols. Ultimately, they alleged, that the repeated hits Schmitz suffered led to a CTE diagnosis in December 2012 — several decades after his college football career had ended. They claim that it was not until this 2012 diagnosis that they became aware that he had an action for the “latent injury” he suffered while playing football.
Setting for Appeal
The parties have extensively briefed whether the discovery rule applies to toll the statutes of limitations with respect to the negligence and fraud-based claims, and if so, when the statutes began to run. Specifically, the parties briefed whether the Schmitzes' negligence and fraud claims are timely under Ohio’s two-year statute of limitations for personal injury actions and four-year statute of limitations for fraud-based actions.
The trial court in Cuyahoga County, Ohio dismissed the first amended complaint without a written ruling explaining the bases for the decision. The Ohio appellate court affirmed in part and reversed in part. The intermediate appellate court affirmed the trial court’s dismissal of the contract-based claims, holding that the discovery rule does not apply to toll the statute of limitations and therefore, the contract claims are barred.
As to the negligence and fraud-based claims, however, the appellate court reversed, holding that the discovery rule applies to toll the statute of limitations because CTE is a latent injury, not simply a latent effect of an earlier injury. To support its finding on an “issue of first impression,” the appellate court found persuasive the courts’ application of the discovery rule in the multidistrict or consolidated litigation involving lawsuits brought by professional football players and wrestlers. The court also analogized Schmitz’s injuries to those at issue in toxic exposure cases, which initially led to the articulation of the discovery rule.
Issues Before Ohio Supreme Court
No other state high court has decided whether and if so, to what extent the discovery rule applies in cases involving degenerative brain injuries allegedly caused by sports-related concussions. Here, the Ohio Supreme Court is now poised to decide three key concussion-litigation issues:
First, the Ohio Supreme Court will determine whether the discovery rule applies to the facts alleged in the Schmitzes’ complaint. In the jurisdictions that recognize it, the discovery rule is construed narrowly. In Ohio, the rule applies when the injury at issue did not “manifest itself immediately.” In other words, a statute of limitations is tolled if the alleged injury did not develop until after the time the wrongful conduct occurred. In Schmitz, the Ohio Supreme Court must decide whether CTE or other traumatic brain injuries, such as dementia and Alzheimer’s disease, are latent injuries, or merely latent effects of the initial concussive and sub-concussive hits that Schmitz allegedly sustained decades ago. If the court finds that CTE is a latent effect of the concussive and subconcussive hits suffered by Schmitz in the 1970s, his claims will be untimely, as the statute would have run no later than 1980. But, if the court finds that CTE is a latent injury, the statute of limitations would be tolled until sometime between 1980 and 2012.
Second, assuming the court finds CTE is a latent injury that tolls the statute of limitation, the court must further decide when the statute of limitations began to run. Assuming the court answers the first question in the affirmative, the discovery rule would toll the statute of limitations only until Schmitz had (1) actual or constructive knowledge that he was affected by CTE and (2) actual or constructive knowledge that his CTE was caused by the NCAA and Notre Dame. Under this two-prong test, the NCAA and Notre Dame contend that the statute of limitations could not have started running any later than 2010 based on two factual admissions in the Schmitzes’ complaints: (1) Schmitz acknowledged a “progressive cognitive decline” prior to his December 2012 diagnosis, which triggers the statute of limitations even if Schmitz did not realize the “full extent” of his injury; and (2) in 2010, the NCAA publicly issued a policy requiring its member institutions to have a concussion management plan.
In contrast, the Schmitzes argue that the statute of limitations did not begin to run until December 2012, when Schmitz was formally diagnosed with CTE. They contend that Schmitz did not even know he was being injured, let alone the cause, while he was playing college football. The Schmitzes also assert that they did not need to have knowledge or understanding of public information about the connection between concussions in football and CTE; rather, only the educational institutions are “charged” with understanding those risks because of their purported “clear duties to protect the health and safety of student-athletes.” Thus, and only if the court finds the discovery rule applicable, the court will have to decide whether a firm medical diagnosis of a head injury is required to trigger the statute of limitations, as opposed to simply experiencing symptoms of traumatic brain or head injuries. The court also must determine the point in time at which there was sufficient publicly available information concerning the risks of concussions in contact sports to put student-athletes on notice of the existence and cause of their injuries.
Third, the Ohio Supreme Court will have to decide whether Ohio law permits Schmitz to bring both a negligence and fraud-based claim for the Schmitz’s head injuries. According to the NCAA and Notre Dame, the fraud-based claims — which are governed by a longer, four-year statute of limitations — is inappropriate in the personal injury context under Ohio law, all personal injury actions, no matter the character of the claim, are covered by a two-year statute of limitation. The Schmitzes disagree, arguing, just as the appellate court ordered, the negligence and fraud claims are “separate and distinct,” and the fraud claims are “not merely a vehicle to extend the statute of limitations,” because the claims rest on different factual allegations. For example, the fraud claim rests in part on the NCAA and Notre Dame’s misrepresentations, while the negligence claim rests upon the NCAA and Notre Dame’s failure to institute sufficient concussion protocols.
If the Ohio Supreme Court finds that the Schmitz’s negligence and fraud claims are timely, the case will be remanded to the trial court to proceed on the merits — namely, whether the NCAA and Notre Dame owed a duty of care to Schmitz, whether such a duty was breached, and whether the NCAA and Notre Dame acted fraudulently in failing to disclose or warn student athletes of the risk of suffering head injuries in football games and practice. The trial court’s single-sentence order granting the NCAA’s and Notre Dame’s motions to dismiss provides little clarity on how the trial court might rule on these issues if confronted with them on remand. A ruling affirming the appellate court’s findings also may have a broader impact on pending and future concussion litigation, as articulation of the applicability of the discovery rule may have implications on backward-looking exposure for athletic organizations and institutions.
This article was first published in Law360.