The Supreme Court of Idaho has affirmed the ruling of a district court, which dismissed the claim of a Boise State University (BSU) wrestler, who alleged that BSU was negligent when it allowed him to continue to wrestle after he suffered a concussion.
Central to the high court’s ruling was its conclusion that the lower court did not abuse its discretion when it struck expert affidavits of the plaintiff, which were delivered after the close of discovery.
The plaintiff in the case was Samuel Zylstra, a student and wrestler at BSU from 2007-10. Each year, as an active member of the wrestling team, Zylstra signed liability waivers releasing BSU from any claims for damages or injuries sustained while participating in athletics.
On February 26-27, 2010, Zylstra and the BSU wrestling team competed at the Pac-10 wrestling championships in Davis, California. During his first match on February 26, 2010, Zylstra suffered, what would later be diagnosed as a concussion, when his head was slammed to the mat by his opponent. In response to the possible head trauma, BSU coaches called a timeout so that athletic trainer Andy Chorn could assess the presence and severity of any injuries and determine whether it was safe for Zylstra to continue the match. The parties disagreed about whether Zylstra briefly lost consciousness during the event. Upon being approached by Chorn, Zylstra complained that his head hurt. During the 90-second injury timeout, Chorn conducted neurological testing checking for eye motility, double vision, ringing in the ears, and sensitivity to light. According to Chorn, all testing was negative, a concussion was not detected, Zylstra’s dizziness cleared immediately, and Zylstra indicated that he was fine and wished to continue. Based on these findings, Zylstra was permitted to return to competition, completing two matches that first day, as well as two more the following day. Zylstra ultimately placed fifth in the tournament, qualifying him for the NCAA Championships.
On March 10, 2010, still suffering from persistent headaches and other concussive symptoms, Zylstra was examined by team physician Scot Scheffel, M.D. in Boise, Idaho. Dr. Scheffel opined that Zylstra suffered a “significant concussion” at the Pac-10 tournament and indicated that he would not medically clear Zylstra to wrestle in the NCAA Championships. The parties disagree about the degree to which these concussion-related symptoms impacted Zylstra’s daily life and ability to function in the weeks and months following the tournament.
In the fall of 2010, Zylstra sued, pursuant to the Idaho Tort Claims Act, asserting negligence by a public university in allowing a student-athlete to return to competition after sustaining a head injury. BSU moved to dismiss the lawsuit. The plaintiff sought to introduce two expert affidavits in opposition to BSU’s summary judgment motion, but they were presented after discovery. The district court struck the affidavits and ruled for BSU.
Zylstra’s appeal centered, primarily, on whether the district court abused its discretion in granting BSU’s motion to strike two expert affidavits offered by Zylstra in opposition to BSU’s summary judgment motion.
“Counsel for BSU specifically discussed his concern that if BSU files a motion for summary judgment based on failure to prove a prima facie case and then Mr. Zylstra proceeds to file new expert opinion disclosures based on that motion, such opinions should be stricken,” wrote the high court. The lower court had reasoned: “Zylstra waited until the motion was filed and at that time sprang new and different opinions on BSU. For that reason, I strike both affidavits.”
After addressing the motion to strike, the district court addressed BSU’s summary judgment motion, which centered on the issue of causation. “Without an expert opinion rebutting the opinion of BSU’s expert on the element of causation, the district court found in favor of BSU on summary judgment,” wrote the high court. “(I)n the absence of affidavits from his causation experts, the district court’s grant of summary judgment against him on the issue was proper.”
Samuel J. Zylstra v. State Of Idaho and Boise State University; S.Ct. Idaho; Docket No. 41421, 2014 Opinion No. 112, 2014 Ida. LEXIS 293; 10/29/14
Attorneys of Record: (for appellant) Geoffrey D. Swindler Spokane, WA and James F. Whitehead, Seattle, WA. James F. Whitehead argued. (for respondents) Anderson, Julian & Hull, Boise. Phillip J. Collaer argued.
