Court Denies NFL’s Statute of Limitations Argument in Concussion Case Involving Player from the 1950s

Mar 3, 2017

A New York state trial court has denied the NFL’s motion to dismiss a claim in which the son of a former NFL player, who was diagnosed with chronic traumatic encephalopathy (CTE) after his death, sued the league for fraud and negligence.
The lawsuit was filed by Arthur DeCarlo Jr. after his father, Art DeCarlo, died in 2013. DeCarlo Jr. alleged in the complaint that the risks associated with repeated head blows have been researched and written about in medical journals for nearly a century. Yet, the NFL “ignored, minimized, disputed and suppressed” such studies linking CTE to football. The “century” reference is important because DeCarlo played football for the defendant from 1953 to 1961.
Specifically, he asserted the following causes of action: “(1) counts one and two-fraudulent concealment and fraud; (2) count three-civil conspiracy; (3) counts four and five-negligence; (4) count six-negligent misrepresentation; (5) counts seven and eight-negligent hiring and retention; and (6) count nine-wrongful death and survival.
The NFL moved to dismiss the complaint, arguing that the claims are time barred relative to the “applicable statute of limitations: (1) three years from accrual of the negligence causes of action; and (2) two or six years, depending on the circumstances, from accrual of the fraud-based causes of action, and thus, that these causes of action expired more than 50 years ago, when they accrued at the time DeCarlo retired from football. The defendant also argues that the statute of limitations for civil conspiracy is that of the underlying tort, that the conspiracy claim is based on the defendant’s alleged fraudulent concealment of progressive long-term neurological injuries resulting from repetitive head trauma, and that, therefore, the conspiracy cause of action is likewise time-barred.”
The NFL also argued that “the causes of action are time-barred even if the plaintiff argues that they are based on the cognitive injury manifesting after DeCarlo’s retirement.” It notes that, based on the complaint, DeCarlo:
“began experiencing symptoms of extreme headaches, memory loss, and mild confusion in 1993, that he sought and received medical attention for these symptoms between 1995 and 2005.”
“was diagnosed in 2005 with having atrophy and ventricular enlargement of his brain as secondary to repeated injury from playing football, and that, therefore, the causes of action accrued when these conditions were discovered in 2005.”
The defendant also argued that the complaint “fails to state a cause of action for: (1) fraud because the complaint does not identify any representation made by Defendant, that only conclusory allegations of concealment are plead, and that the complaint does not plead with particularity that DeCarlo justifiably relied on any alleged misrepresentation to his detriment; (2) negligent hiring or retention because the complaint does not plead the identity of the specific MTBI Committee members employed by the defendant, and does not allege that the defendant knew or should have known any alleged employee’s propensity for the sort of conduct complained of. Further, the complaint fails to sufficiently allege how the hiring and retention of MTBI Committee members, decades after DeCarlo retired, caused him harm, or that the employees were acting outside the scope of employment; (3) civil conspiracy because the complaint does not allege the central element that two or more people agreed to commit an unlawful act, that conspiracy is not actionable without allegations of an intentional tort, and that the claim for fraudulent concealment that the conspiracy claim is based on, is deficiently pled because there was no fiduciary relationship duty to disclose, and mere silence is not sufficient, and; (4) wrongful death/survival because the substantive causes of action are time-barred.”
The plaintiff countered that the statute of limitations for his claims start with DeCarlo’s date of death on Dec. 21, 2013, meaning the claim would not be time-barred.
The court elaborated on the plaintiff’s argument, noting that he is alleging that the defendant “failed to warn the players, the public and the healthcare community of football’s risk of causing CTE, and that this failure to warn left DeCarlo at risk for both CTE and with no ability to recognize the symptoms consistent with the damage caused to his brain by repetitive trauma.” Further, he claims the suit “is for both the injury done to DeCarlo when he played football, ignorant of its risk of brain damage, and damages suffered during his lifetime after retirement, and that the wrongful death and survival actions therefore accrued when the CTE was diagnosed after DeCarlo’s death.
“The plaintiff argues that a plaintiff can still commence a wrongful death suit after missing the statute of limitations if the defendant prevented the suit from being commenced by the use of fraud or misrepresentation, that the fraudulent concealment tolled the action until at least 2013 when the CTE was diagnosed, especially since it is clear that there is a connection between CTE and playing football, that the allegations of fraudulent concealment and negligence are adequately plead, and were hidden and undiscoverable until the CTE was diagnosed after DeCarlo’s death in 2013.”
The court sided with the plaintiff on the question of whether the claims were time-barred.
“These concussion cases involving the defendant are relatively new, and case law on point involving latent head injuries is lacking,” the judge wrote. “An article published in the New York State Bar Journal addressed statute of limitations issues with regards to football related head injuries. ‘Football-related head trauma can be likened to asbestos exposure in that damage caused by both can take up to 20 to 40 years to manifest.’ (Joseph M. Hanna, Concussions May Prove to Be a Major Headache for the NFL, 84-OCT N.Y. St. B.J. 10 (2012)). That studies have shown an indeterminate gestation period, that usually personal injury actions have a two to four-year time period to file a claim, and that ‘to be fair to people with latent injuries, most states have adopted the discovery rule. (Id.). Further, the article states that ‘…NFL alumni should be able to invoke the discovery rule because cognitive illnesses caused by multiple concussions (e.g., CTE, dementia, Alzheimer’s, depression) represent exactly the type of latent injuries the rule was intended to address.’ (Id.).”
Further, “the plaintiff’s causes of action are not time-barred as they are premised on the cause of DeCarlo’s neurological illness, CTE, not being discoverable until an autopsy was performed after his death,” added the court. “This type of latent disease is comparable to asbestos cases where the injury occurred outside of the statute of limitations period, however, the manifestation of the disease or illness is not developed or detected until years later. If the plaintiff was suffering from a latent condition, and the ability to diagnose the condition is not available until the death of the injured party, then under the discovery rule the cause of action arises upon the discovery of the latent disease, i.e. at the time an autopsy is performed.”
As for the question of whether the plaintiff adequately stated a cause of action, “the court must afford the pleading a liberal construction, accept all facts alleged in the pleading to be true, afford the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 N.Y.2d 83, 614 N.Y.S.2d 972, 638 N.E.2d 511).
“Affording the pleading a liberal construction, accepting all facts alleged in the complaint to be true, the complaint states causes of action cognizable at law. All of the plaintiff’s claims have been sufficiently plead to state recognizable causes of action.”
Arthur Decarlo, Jr., Personal Representative on behalf of the Estate of his father, Arthur Decarlo, Sr. in his individual capacity, and on behalf of his father’s heirs and next of kin v. National Football League; S.Ct.N.Y. (New York County); INDEX NO. 161644/2015, 2017 N.Y. Misc. LEXIS 292; 2017 NY Slip Op 30165(U); 1/26/17


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