By Phillip Movaghar & Jeff Birren, Senior Writer
In July 2011 “…73 former professional football players sued the NFL and Riddell, Inc.” in Los Angeles Superior Court (In Re Nat’l Football League Players Concussion,821 F.3d 410 (“NFL Concussion”) (2016). The NFL removed the case to federal court. Similar cases filed across the country were consolidated in Philadelphia District Court and assigned to Judge Anita Bryant (842 F. Supp. 2d 1378 (J.P.M.L. 2012)). The plaintiffs claimed a myriad of brain-related injuries, including “Alzheimer’s disease, dementia, depression, deficits in cognitive function, reduced processing speed, loss of memory, sleeplessness, mood swings, personality changes, and a recently identified degenerative disease called chronic traumatic encephalopathy” (“CTE”) (NFL Concussion, 821 F.3d at 421).
The NFL moved to dismiss but Judge Brody declined to rule, instead urging the parties to settle. That judicial encouragement worked, as the parties signed a settlement agreement though Riddell was included. The settlement was opposed but it was approved by the Court (In re: National Football League Players’ Concussion Injury Litigation, MDL 2323, 301 F.R.D. 191 (“Concussion Settlement”) (E.D. PA 2015). Those contesting the settlement appealed, but the Third Circuit affirmed, and the Supreme Court denied cert. The settlement went into effect in January 2017.
The State Court Cases
In 2016, a number of the same class members filed seven similar cases against Riddell in the Circuit Court of Cook County, Illinois. Those cases had 54 plaintiffs, all former players, “who are suffering neurological effects from sustaining numerous concussive and subconcussive traumas while playing professional football” (Butler et al v. BRG Sports, LLC f//k/a Easton Bell Sports, LLC, EB Sorts Corp., Riddell Sports Group, Inc., Riddell Sports, Inc., et al, Appellate Court of Illinois, First District, First Division Nos. 1-18-0362 and 1-18-0394 (“Riddell”), (October 21, 2019) at 3). This group of defendants was defined as “Riddell” in the Concussion Settlement (definition “gggg” at 12). The first case was filed in July 2016 and the last that December (Id. at 4).
The plaintiffs alleged that “the helmet manufacturers have long known about the dangers and harmful effects of repeated concussive and subconcussive traumas but never warned the users of their helmets about the dangers, instead representing that their helmets were protecting players” (Id.). The cases were consolidated and assigned to Judge John Ehrlich.
The Riddell defendants moved to dismiss on the basis that the claims were barred by the personal injury two-year statute of limitations. The plaintiffs opposed the motion, insisting that the statute “did not begin to run until the players manifested the specific neurological impairment for which they now seek damages” and that the statute “accrued no earlier than when they were diagnosed with one of the neurodegenerative disorders caused by the head traumas they suffered” (Id.).
The defendants responded that the statute accrued “when the plaintiffs joined and participated in the federal multidistrict litigation in which the plaintiffs alleged to have been injured by concussive and subconcussive trauma and alleged that the injury had been wrongfully caused” (Id. at 7).
The Court knew the plaintiffs “have already sued the NFL in a federal class action case and entered into a settlement with the NFL to address their grievances” (Id. at 2), that “eventually consisted of about 5,000 former players who had filed substantially similar” cases (Id. at 3/4). Riddell was named as defendant in the consolidated federal class action though “it was not a party to the settlement…Even though the plaintiffs in this case had the opportunity to do so, none of them asserted claims in the federal class action case, pursuing only claims against the NFL” (Id. at 6).
The Court held the claims were time-barred, because in joining the federal case, “they would have had to have knowledge that they had both been injured and it had been wrongfully caused because otherwise they wouldn’t have filed a claim” (Id.).
The Appellate Court of Illinois Affirms
The Plaintiffs’ Last-Ditch Effort to Avoid Defeat: Plaintiffs’ counsel did not seek “to amend their complaints to include specific allegations about their neurodegenerative disease diagnoses and the dates of their diagnosis” until after their claims were dismissed (Id. at 23). Furthermore, counsel failed “to explain how the proposed amendment would save their claims” (Id.). The “proposed amendment would have, in fact, been futile. The outcome of the case is not dependent on plaintiffs’ diagnoses or non-diagnosis. It is based on plaintiffs’ knowledge years ago that they were injured and that their injuries were wrongly caused–knowledge that plaintiffs incontrovertibly possessed more than two years before filing these cases” (Id.). Finally, “the amendment that plaintiffs envision would not have cured or even addressed the fatal flaw in the plaintiffs’ pleadings” (Id. at 24).
The Discovery Rule Standard— point of accrual: The “[p]oint of accrual appeals” apply the “discovery rule” (Knox College v Celotex Corp., 88 Ill. 2d 407,414 (1981)). It postpones the start of a limitations period until “a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused” (Id.).
Plaintiffs argued that their claims for their respective latent brain injuries should not be barred because the plaintiffs had just discovered the harm (Riddell at 7). They contended that “the statute of limitations cannot run until a latent brain injury is discovered.” Plaintiffs urged the Court to hold that their causes of action accrued when they were diagnosed with a particular neurodegenerative disorder (Id.). Plaintiffs relied on Illinois asbestos exposure cases that applied the discovery rule to determine the point of accrual for a cause of action when the plaintiff is diagnosed with a disease resulting from earlier exposures (Id. at 8).
Plaintiffs cited VaSalle v. Celotex Corp., 161 Ill. App. 3d 808, 810 (1987), which held that a cause of action accrues when the plaintiff knows, or reasonably should know, that he had been injured by the wrongful conduct of another (Id.). When the injuries are the result of “several ostensibly innocuous circumstances,” a cause of action accrues when the plaintiff knows, or reasonably should know, that he had been injured by another’s wrongful conduct (Id.). Thus, although they had alleged the existence of “head problems” when they sued the NFL and Riddell in 2011, there was “no formal diagnosis of neurodegenerative disease pled at that time” (Riddell at 9).
Plaintiffs maintained that the statute of limitations for the injuries which they now sought redress began to run after their participation in the federal class action against the NFL and within two years of when they filed Riddell (Id.). Plaintiffs further contended that even if they exhibited symptoms of neurodegenerative disease prior to their diagnoses of latent brain injuries, it is the diagnosis of a particular disorder that causes the statute to begin to run to recover for that disorder (Id.).
The Illinois Supreme Court has held that a plaintiff who knows he is injured need not know the exact nature or extent of his injuries in order for the statute of limitations to begin (Golla v. General Motors Corp., 167 Ill. 2d 353, 367 (1995)). “[T]here is no requirement that a plaintiff must discover the full extent of her injuries before the statute of limitations begins to run” thus, “[b]ecause the plaintiff knew or should have known at the time of the accident both that she was injured and that the injury may have been wrongfully caused, the limitations period commenced at that time” (Id.). Similarly, the VaSalle dissent opined that the court should have found the plaintiff’s claim for lung cancer from asbestos exposure to be time barred because a plaintiff should not be permitted to pursue a claim for each distinct injury resulting from the same wrongful conduct (VaSalle at 815.).
Relying on Golla and the VaSalle dissent, Defendants argued: (i) Plaintiffs’ allegations in NFL Concussion demonstrate Plaintiffs discovered they were injured more than two years before filing Riddell and (ii) Plaintiffs’ clearly knew that they were injured from the head traumas they suffered while playing football and had sufficient information about their injuries as evidenced by suing the NFL (Riddell at 10.).
Plaintiffs responded that VaSalle is the best framework for latent brain injury litigation. The Court found merit in Plaintiff’s argument, reasoning that “due to several innocuous brain traumas the plaintiffs survived over the years and the slow developing neurodegenerative disorders at issue, the blunt and straight forward rule applied in Golla may not be the most suitable precedent for sports—related latent brain injury cases” (Id. at 11). Such claims may not accrue when they had headaches or similar minor ailments but could not reasonably know about a neurodegenerative disorder lurking that may not manifest until years later (McCullough v. World Wrestling Entertainment, Inc., 172 F. Supp. 3d 528, 547 (2016)) (knowledge about a single concussion is not the same as knowledge about CTE or another degenerative neurological disorder). Nevertheless, the Court found that these circumstances warrant a different result than VaSalle.
Evidence of plaintiffs’ knowledge about their injuries: Plaintiffs’ allegations in NFL Concussion establish that they had sufficient knowledge to pursue claims against Riddell as early as the point in which they sued the NFL, which was over two years before Plaintiffs Riddell. The Court therefore found the claims barred by the statute of limitations (Riddell at 12). The Court reasoned that in both the master NFL Concussion complaint and in each Plaintiffs’ short form complaint, Plaintiffs sought redress “not for the symptoms of a latent brain injury, but for the long-term brain injuries themselves and their attendant manifestations,” the same injuries plaintiffs sought redress for in Riddell (Id.).
While the Plaintiffs’ symptoms at the time of NFL Concussion are extensive and varied, all alleged the existence of symptoms of their injuries such as headaches, loss of memory, sleeping problems and depression (Id. at 13). Moreover, Plaintiffs sought redress for the underlying permanent brain injuries, including even the yet-to-be diagnosed manifestations of those injuries when they sought damages in NFL Concussion (Id.).
Plaintiffs argued that in NFL Concussion they only alleged they were suffering the symptoms of a neurological disorder, whereas here they alleged they were suffering from a diagnosed neurological disorder (Id. at 14). The Court acknowledged that none of the Plaintiffs specifically alleged a diagnosis of a neurodegenerative brain disease in NFL Concussion, yet it found Plaintiffs had pursued a recovery for both present and future neurodegenerative disorders (Id.). Plaintiffs were not in NFL Concussion to seek redress for minor symptoms (rather, they pursued claims for the injuries that those symptoms represented and potential future manifestations of those injuries) (Id.).
Plaintiffs similarly argued they were not aware of the injuries asserted in the case at bar when they participated in NFL Concussion because they had not yet been diagnosed (Id.). However, the Court stated that Plaintiffs were aware of such injuries because they expressly sought recovery for future diagnoses from the head trauma that gave rise to both the instant case and the NFL Concussion class action (Id.). The Court found Plaintiffs’ accounting for future diagnoses in their allegations in NFL Concussion as “an incontrovertible admission of knowledge” (Id.). The Court cited Heredia v. O’Brien, 2015 Ill App (1st) 141952, 26-28 (Riddell at 15). That court found Heredia knew, or reasonably should have known, that the negligent performance of a medical procedure was responsible for her injury at the time she filed her first complaint, and thus, Heredia’s later-filed complaint was untimely (Heredia at 26-27).
Plaintiffs participation in NFL Concussion with its “unmistakable aim of recovering latent brain injuries incontrovertibly establishes that plaintiffs knew that they were injured with long-term injuries and knew that those injuries were wrongfully caused” (Id.). Plaintiffs had sufficient information two years prior to filing Riddell because they asserted the sufficiency of their knowledge in the NFL Concussion proceedings (Id.).
Plaintiffs propose an unworkable limitations’ regime: Plaintiffs advanced a theory in which the discovery rule would restart the limitations clock every time one of the plaintiffs developed a new condition stemming from the same original harm (Id. at 16). Such a result would “create significant confusion about when claims are justiciable — effectively hampering the very aim of statute of limitations” (Id.). Under their theory, even if Plaintiffs were able to secure a judgment against Riddell, they would still be able to sue Riddell again decades later for the same alleged conduct under a different claim such as Alzheimer’s one year and then a third time for the same alleged conduct a year later for wrongful death. Such results would be untenable (Id.).
Ironically, under Plaintiffs’ proposed standard, half of the fifty-three plaintiffs who did not have a specific qualifying neurological condition when the instant case was filed would be considered to be asserting premature claims (Id.). None of these plaintiffs had any additional knowledge than they did at the time of NFL Concussion (Id.). Thus, the Court opined, “how could that half of the plaintiffs be said to have sufficient knowledge of their injuries now, but not during their participation in the federal class action case?” (Id. at 17).
Plaintiffs had the opportunity to pursue claims against Riddell and chose not to do so: The Plaintiffs could have pursued their claims against Riddell in NFL Concussion (Id.). During that case, plaintiffs, including the Riddell plaintiffs, were given a short-form complaint that gave them the opportunity to state whether they had a claim against Riddell, (as a defendant), and to detail what those claims were (Id.). Some of the plaintiffs in the class action case lodged claims against Riddell, yet none of the 53 Riddell plaintiffs checked the box to indicate they were aggrieved by Riddell (Id. at 18). Plaintiffs chose to enforce their claims against the NFL only and, despite being presented with the opportunity, made a conscious decision not to pursue Riddell (Id.).
Plaintiffs have a remedy for these injuries in the NFL settlement: Ultimately, Plaintiffs possessed the requisite knowledge and the opportunity to seek the same remedy against Riddell but chose not to pursue it, so the discovery rule cannot be used to save Plaintiffs’ untimely claims (Id. at 19). The federal court’s approval of the Concussion Settlement provided a remedy for future claims like the ones Plaintiffs were pursuing against Riddell (Id. at 19). The damages awarded in NFL Concussion was an “uncapped monetary award fund” that provides compensation to players who submit proof of their injuries (Id.). Any player that has been diagnosed with a qualifying disorder is entitled to an award and that applies to diagnoses made after the settlement (Id.). If a retired player, after receiving an initial award, receives a more serious diagnosis, he would receive a supplemental award (Id.).
The Concussion Settlement demonstrates that the parties were aware of potential future deterioration and future diagnoses as it was a compromise and satisfaction of both present and manifestations of the harm alleged (Id. at 20). The settlement was crafted with future diagnoses in mind and the Riddell Plaintiffs possessed the requisite knowledge during the Concussion Settlement negotiations to trigger the statute of limitations that effectively time barred them from seeking damages in this action. (Id.).
Law Is Rarely Simple
The same panel also heard another NFL concussion case filed against Riddell. That decision was “filed simultaneously with” Butler and Presiding Justice Griffin wrote both opinions. Justices Pierce and Walker again concurred. To the Court, this “appeal, however, raises different issues than those raised in Butler, so we have filed this separate opinion” (Nakamura v. BRG Sports Riddell Sports Groups, Inc., et al, 2019 Il. App (1st) 180397, Appellate Court of Illinois, First District, First Division (“Nakamura”) (October 21, 2019)).
Nakamura played six NFL seasons, and while doing so had multiple concussions (Id. at 2). On Aug. 29, 2013 he suffered an acute concussion during a Carolina Panthers’ preseason game. His “condition worsened, and he experienced headaches, impaired cognition, visual changes, fatigue, depression, and suicidal ideation” (Id. at 2/3). Nakamura settled with Carolina “for money in exchange for a release of any claims he might have had against the team” (Id. at 3).
That concussion ended his career and he filed a disability claim with Lloyds. There, “he stated that he had a permanent disability and claimed that he was suffering from several post-concussive symptoms” (Id.). One doctor opined that “plaintiff was unlikely to return to playing professional football, and that, to a reasonable degree of medical certainty, plaintiff was permanently disabled with post-concussive syndrome” (Id.). In 2016 Nakamura sued Lloyds for denying the benefits. A doctor testified that the problems “may well have been caused by the August 29, 2013 head injury” and diagnosed him with chronic post-concussion syndrome on Oct. 8, 2015 (Id. at 4).
Nakamura also sought benefits from the NFL Retirement Plan and claimed that he had a permanent disability (Id. at 3). At the time, Nakamura “had not yet been diagnosed with a severe neurodegenerative disease” and was not part of NFL Concussion (Id.).
Nakamura sued Riddell on Oct. 5, 2017, alleging claims of negligence, strict product liability for the defective design of the helmets, that Riddell conspired with the NFL to misinform players of the risks of long-term brain damages and that Riddell long knew about the dangers and harmful effects of playing football (Id. at 5).
Riddell moved to dismiss, asserting the claims were barred by the statute of limitations that began to run when he “received diagnosis of permanent injury related to his August 2013 concussion” (Id.). Nakamura responded that the single concussion did not trigger the statute and it did not begin to run until the October 2015 diagnosis. The trial court dismissed the case. Nakamura appealed (Id. at 5/6).
Riddell claimed that Nakamura made admissions in his Lloyds case “that evidence his knowledge of his injury” since he had alleged that he was “totally and permanently disabled as a result of suffering concussions and that he had a long-term brain injury.” Consequently, he was simply “trying to prosecute a new lawsuit for only a new symptom or condition” but it is “a new lawsuit for the same injury” (Id. at 7/8). The Court of Appeals disagreed.
“We find his knowledge of his acute condition in 2013 and his condition associated with the disability claim is insufficient to per se establish that the claims he presents here are barred by the statute of limitations” (Id. at 8/9). Those claims were based on the “consequences of a single severe concussion” while here “plaintiff is seeking recourse for repetitive concussive and subconcussive trauma experience while playing football.” Moreover, the prior claim was for “for an injury under a disability policy that covered the risk that he might suffer a career-ending injury” and those benefits “were designed to serve as a replacement for income.” Here, he “is seeking redress for lifelong cognitive degeneration” (Id. at 9).
The Court repeatedly made the distinction that a “single concussion—even a severe, debilitating one—is a different injury from a latent brain injury caused by repetitive head trauma” (Id. at 11 (italics in the original).
The Court did point out a potential problem with the claim. In the trial court “and at times in this court, plaintiff focused on the change in his diagnosis from post-concussion syndrome to chronic post concussive syndrome” as the point that would trigger the statute of limitations (Id. at 12 (emphasis in the original)). Yet he changed his theory and stated that the statute “cannot run until” he “unfortunately, is diagnosed with neurodegenerative disease.” “Plaintiff makes it clear that he has not been diagnosed with such neurodegenerative disease. By plaintiff’s own arguments, he makes the case against himself, exhibiting that his claims are not even ripe, are not justiciable.” The “record is too underdeveloped on this issue of ripeness and judiciability for us to order plaintiff’s case dismissed on those bases.” That will require further “factual development” (Id.). However, he may have a claim for the increased risk of such a disorder (Id. at 13). The Court stated that “we caution that plaintiff’s claims have significant questions about their viability going forward” (Id.). However, it will go forward, for now.
Butler is reduced to a simple fact: in 2016 some of the very same plaintiffs filed lawsuits against the very same defendants that they had sued but not pursued back in 2011 and 2012. Whatever one may feel about their injuries, that is not a plan for success in our judicial system.
Mr. Movaghar received his B.A. from UCLA and is a full time 3L student at Southwestern University School of Law in Los Angeles and is a member of the Biederman Institute’s Entertainment & the Arts Legal Clinic.
Birren is the former general counsel of the Oakland Raiders and is an adjunct professor of law at Southwestern.