The NCAA has responded to a concussion lawsuit filed by a former water polo player at Mercyhurst University, addressing each of the six counts in a bid to have the lawsuit dismissed.
Plaintiff Rachel Stock filed the lawsuit in Erie County Court (Pennsylvania), alleging that the Mercyhurst board of trustees and the NCAA exhibited negligence, fraudulent concealment of information about the risks of repeated head injuries, breach of contract and unjust enrichment.
Stock suffered at least four concussions during her two seasons as a goal keeper during the 2014 and 2015 seasons at Mercyhurst, according to the complaint.
As a result, she allegedly experiences or is at risk for loss of memory, inability to focus and an increased risk of developing chronic traumatic encephalopathy (CTE).
Stock further claimed in her lawsuit that she “relied upon the guidance, expertise and instruction of Defendants in understanding the risks associated with the serious and life-altering medical issues attendant to TBIs suffered while playing water polo.”
Representing the plaintiff, Pittsburgh lawyer Jesse Drumm claimed that Mercyhurst and the NCAA were “willfully blind to and/or knowingly concealed” the risks of concussions to student-athletes participating in water polo.
In its answer, the NCAA countered that the claim for fraudulent concealment “is not viable because the plaintiff has entirely failed to plead with the necessary specificity that any fraudulent concealment ever occurred.” Specifically, it tackled the plaintiff’s claim that the NCAA was “aware of the significance of ‘the published medical literature’” about the risk of concussions and their danger. “Publicly available information, however, by definition cannot be ‘concealed’ from others, and the plaintiff has not identified any material, non-public information allegedly concealed from the plaintiff,” argued the NCAA. “Thus, the plaintiff’s fraudulent concealment claim is legally deficient and should be dismissed.”
Turning to the breach of contract claim, the association wrote that the plaintiff “has not attached any contract to her complaint as required, nor has she provided any justifiable basis for failing to do so.” It added that another deficiency was a lack of “specificity” around the “essential terms” of the alleged contract.
As for the unjust enrichment argument, the NCAA assailed the fact that the plaintiff “failed to identify any direct benefits she conferred upon the NCAA, which were appreciated, accepted and retained by the NCAA.”
As for the negligence and fraudulent concealment claim, the association argued that, if the breach of contract argument survives, the claim should be dismissed because of the “gist of the action doctrine.” The doctrine “precludes a plaintiff from recasting breach of contract claims as tort claims.
“If the substance of a plaintiff’s allegations is determined to center upon contractual obligations between the parties, then the plaintiff will not be permitted to maintain tort claims relating to those same obligations. Here, plaintiff has asserted multiple tort and contract claims against the NCAA, involving a common core of allegations regarding the NCAA’s alleged failure to warn and protect plaintiff from the dangers of head injuries in collegiate water polo. To the extent the plaintiff is permitted to maintain these allegations as contract claims, then pursuant (to the doctrine), the plaintiff’s tort claims involving these same allegations should be dismissed.”
Turning to the demand for punitive damages, the NCAA maintained that the plaintiff has not pled “sufficient facts … to maintain such a demand for extraordinary relief.” Elaborating on this, it cited Pennsylvania law, which requires that such an award may only be made if the defendant has “acted in an outrageous fashion due to either the defendant’s evil motive or the reckless indifference to the rights of others.”The NCAA has responded to a concussion lawsuit filed by a former water polo player at Mercyhurst University, addressing each of the six counts in a bid to have the lawsuit dismissed.
Plaintiff Rachel Stock filed the lawsuit in Erie County Court (Pennsylvania), alleging that the Mercyhurst board of trustees and the NCAA exhibited negligence, fraudulent concealment of information about the risks of repeated head injuries, breach of contract and unjust enrichment.
Stock suffered at least four concussions during her two seasons as a goal keeper during the 2014 and 2015 seasons at Mercyhurst, according to the complaint.
As a result, she allegedly experiences or is at risk for loss of memory, inability to focus and an increased risk of developing chronic traumatic encephalopathy (CTE).
Stock further claimed in her lawsuit that she “relied upon the guidance, expertise and instruction of Defendants in understanding the risks associated with the serious and life-altering medical issues attendant to TBIs suffered while playing water polo.”
Representing the plaintiff, Pittsburgh lawyer Jesse Drumm claimed that Mercyhurst and the NCAA were “willfully blind to and/or knowingly concealed” the risks of concussions to student-athletes participating in water polo.
In its answer, the NCAA countered that the claim for fraudulent concealment “is not viable because the plaintiff has entirely failed to plead with the necessary specificity that any fraudulent concealment ever occurred.” Specifically, it tackled the plaintiff’s claim that the NCAA was “aware of the significance of ‘the published medical literature’” about the risk of concussions and their danger. “Publicly available information, however, by definition cannot be ‘concealed’ from others, and the plaintiff has not identified any material, non-public information allegedly concealed from the plaintiff,” argued the NCAA. “Thus, the plaintiff’s fraudulent concealment claim is legally deficient and should be dismissed.”
Turning to the breach of contract claim, the association wrote that the plaintiff “has not attached any contract to her complaint as required, nor has she provided any justifiable basis for failing to do so.” It added that another deficiency was a lack of “specificity” around the “essential terms” of the alleged contract.
As for the unjust enrichment argument, the NCAA assailed the fact that the plaintiff “failed to identify any direct benefits she conferred upon the NCAA, which were appreciated, accepted and retained by the NCAA.”
As for the negligence and fraudulent concealment claim, the association argued that, if the breach of contract argument survives, the claim should be dismissed because of the “gist of the action doctrine.” The doctrine “precludes a plaintiff from recasting breach of contract claims as tort claims.
“If the substance of a plaintiff’s allegations is determined to center upon contractual obligations between the parties, then the plaintiff will not be permitted to maintain tort claims relating to those same obligations. Here, plaintiff has asserted multiple tort and contract claims against the NCAA, involving a common core of allegations regarding the NCAA’s alleged failure to warn and protect plaintiff from the dangers of head injuries in collegiate water polo. To the extent the plaintiff is permitted to maintain these allegations as contract claims, then pursuant (to the doctrine), the plaintiff’s tort claims involving these same allegations should be dismissed.”
Turning to the demand for punitive damages, the NCAA maintained that the plaintiff has not pled “sufficient facts … to maintain such a demand for extraordinary relief.” Elaborating on this, it cited Pennsylvania law, which requires that such an award may only be made if the defendant has “acted in an outrageous fashion due to either the defendant’s evil motive or the reckless indifference to the rights of others.”
