The Indiana Supreme Court will entertain a discovery argument in a concussion case – National Collegiate Athletic Association v. Jennifer Finnerty, et al., 21S-CT-409 – in which the NCAA sought to keep its executives from sitting for depositions in the ongoing litigation.
The underlying lawsuit was brought by the estates of former college football players who claimed they suffered chronic traumatic encephalopathy, or CTE. The families claims of negligence and fraudulent concealment against the NCAA. The litigation was consolidated in Marion Superior Court in July 2019.
The high court’s ruling contradicted a decision of the Indiana Court of Appeals, which in a split decision ruled that the NCAA’s time for seeking an interlocutory appeal of the ruling on its motion for protective order, which would have shielded NCAA President Mark Emmert, Chief Legal Officer/Chief Operating Officer Donald Remy and Chief Medical Officer Dr. Brian Hainline from being deposed, had expired. Therefore, the majority found, the NCAA forfeited its right to appeal.
“Having missed or foregone the opportunity to ask the Court of Appeals to accept jurisdiction after its first motion for protective order was denied, the NCAA’s second motion is nothing more than a motion for the trial court to reconsider its earlier ruling seeking a renewed opportunity to bring this issue to the appellate courts,” wrote the majority in a split decision. “Pursuant to Trial Rule 53.4(A) and Appellate Rule 14(B)(1), the NCAA’s time for seeking an interlocutory appeal of the trial court’s ruling on its motion for protective order has long since passed, and the NCAA has forfeited its right to appeal.”
On appeal, the high court ruled the NCAA’s argument should be reconsidered.
