By Jeff Birren, Senior Writer
This July, Notre Dame scored a courtroom victory against John Askin. During four years in South Bend “he suffered concussions on a weekly basis” plus “more serious concussions.” Askin also had constant pain from other injuries, leading to an opiates’ addiction. Years after becoming aware of a possible connection between his concussions and cognitive decline, Askin sued Notre Dame and the NCAA alleging various torts. Notre Dame won summary judgment based on the statute of limitations. Askin appealed and the Kentucky Court of Appeals affirmed the decision.
The Sorry Background
Askin grew up in Louisville, Kentucky. Gerry Faust recruited Askin to play at Archbishop Moeller High School in Cincinnati, so Askin and his family moved there. Faust became Head Coach at Notre Dame in 1980 and recruited Askin to South Bend. He entered Notre Dame in 1982 and played offensive line. Askin wore #72 jersey, 6’6” and weighed over 270 pounds. Football practice was not kind to Askin. He “suffered numerous concussions at practices and games.” On one occasion, “documented in Notre Dame’s medical records, he was knocked unconscious and sent to the hospital for a CT brain scan. He returned to practice several hours later that day at the insistence of the coach.” According to the Complaint, Askin was subjected to repetitive head impacts, and “was never furnished with appropriate health and safety protocols”. He did not see a neurologist, nor warned about the risks of concussions. It further asserted that Askin was never pulled from practice or games due to concussions, but rather was returned to play as soon as possible. He was given various pain medication for multiple orthopedic injuries that the Complaint alleges were illegally dispensed and illegally administered, often in the locker-room.
Following his time at Notre Dame, Askin tried, but failed to play in the NFL. This attempt ended in 1987. Askin returned home and worked for an insurance company, then a bank in Louisville. The pain associated with various injuries took a heavy toll and by age forty-five he left his job and qualified for Social Security disability benefits. The Court acknowledged that three years later he began to see a physician for treatment related to issues with “his low back, neck pain and headache pain [due] to trauma from playing football.” The doctor “prescribed MS Contin (morphine) and oxycodone.” By 2013 and 2014 Askin had “cognitive problems, including short-term memory loss.” This included “difficulty remembering names and performing everyday activities” and became addicted to opiates. A “friend testified that his speech was slurred, and he had difficulty conducting a coherent conversation.”
Askin eventually became aware of the NFL concussion litigation. His pain nurse stated that it took repeated reminders to get him to perform tasks. In October 2014 Askin told the nurse he had tremors in his left hand and “whole body tremors while sleeping.” He acknowledged in a pain management application that he had cognitive impairment because of concussions from playing football. The opioid addiction became alarming. He made a concerted effort to deal with his addiction. He eventually overcame it, but all the while, his cognitive decline continued.
He took a further test in 2016, but incorrectly “believed that he passed” the test. As a result, Askin “did not have the other prescribed tests performed.” In 2017, he emailed “several of his former teammates” regarding an article about congressional hearings concerning concussions and mental illness, saying “this thing is a lot bigger than what we know.” In 2018, Askin was diagnosed “with Major Neurocognitive Disorder at a moderate level of severity and CTE caused by repetitive brain trauma in football.”
Askin sued Notre Dame and the NCAA in February 2019. The Complaint is 48-pages, and includes a history of football, the associated risks and inadequate treatment. He asserted causes of action for negligence, fraudulent concealment, constructive fraud, and punitive damages. Notre Dame moved to dismiss based on the statute of limitations. So, too, did the NCAA in a two-page brief that adopted Notre Dame’s arguments. Both motions were denied. The circuit court did limit initial discovery to “issues related to the statute of limitations.” Once completed, Notre Dame moved for summary judgement. It was granted, but the court denied the NCAA’s motion. Up went Askin.
In the Kentucky Court of Appeals
That Court began, as appellate courts often do, stating the appropriate standard, that is, whether there were any “genuine issues as to any material fact” such that the moving party was “entitled to judgment as a matter of law.” More of the same followed before it turned to the legal issue: the “statute of limitations and the discovery rule.” The parties agreed that the relevant statute of limitations required that an action for personal injury “shall be commenced within one (1) year after the cause of action accrued.” The “discovery rule” begins “on the date of the discovery of the injury, or from a date it should, in the exercise of ordinary care and diligence, have been discovered.” This requires both discovery of the injury “but also that his injury may have been caused by the defendant’s conduct.”
Ruling
The Court noted that the “circuit court held that the limitations period began to run by at least October 2014 because Askin “was on notice by that date that he might suffer from football-related CTE.” This was “primarily based” on Askin’s statements and of his nurse “in the disability questionnaire signed and submitted to an insurance company.” Askin argued that he was “not providing a diagnosis in completing the forms, that his conclusions were premature and related solely” to his interest in participating in the NFL settlement, and the nurse “influenced him to fill out the forms.” The court below held that no matter what Askin said, it meant that “the receipt of such an instruction… was more than sufficient to put Askin on notice to a need to investigate the potential that he had football-related CTE.” That court rejected the NCAA’s same argument because it “had agreed to” a tolling agreement in separate litigation. The tolling agreement required Askin to establish that his claims “accrued before 2011.” Askin may have learned of his claims in 2014, but that did not bar his NCAA-claims.
Askin argued his symptoms in 2014 were attributable to his opioid addiction, and those symptoms mimic CTE. This rendered him incapable “to understand the implications of the NFL settlement” and his statements on the disability forms. The Court retorted that even if that was true, he overcame his addiction in 2016, and his then-doctor’s “notes plainly stated that Askin suffered cognitive decline after several years of playing football, that he had suffered head trauma, that he had begun noticing cognitive problems and memory loss over the past ten years, and that he wanted to be added to the concussion settlement.” Askin claimed the notes were inaccurate, but the doctor “could only have obtained the information” from him. That doctor recommended that Askin get further tests, but Askin admitted to another doctor that he was afraid of getting the tests “for fear of what they might reveal about his mental condition.” He was therefore “on notice that he might be suffering from a brain disease caused by the concussions he suffered playing football at Notre Dame.”
Askin admitted he had notice of harm, but asserted “the discovery of harm must be distinguished from the discovery of injury.” Therefore, allegedly he was not yet “on notice that Notre Dame had caused him to develop CTE.” The Court stated that formal medical diagnosis was not required to “fulfill the notice of the injury prong for the discovery rule.” Askin “failed to exercise reasonable diligence” when not seeking “a timely diagnosis of his condition, choosing not to undergo a brain scan” though his nurse and doctor recommend that he do so.
The Court briefly discussed the fraud cause of action. The circuit court ruled the five-year statute of limitations did not apply because the “real object of his complaint was the claim that he suffered a personal injury in the form of football-related CTE.” The Court repeated that the five-year statute did not apply, but the one-year statute did, because this was really a personal injury case.
Notre Dame argued that the appeal should be dismissed because Askin “failed to name a necessary party, the NCAA.” Askin made a motion in the circuit court to make its summary judgment order final as to Notre Dame, but denied as to the NCAA. The NCAA did not file “any response to the motion, nor did it seek to challenge the order.” The motion was granted. On appeal, Notre Dame claimed the NCAA “could have an unspecified interest in our decision on Askin’s appeal and consequently the appeal should be dismissed on jurisdictional grounds.” The NCAA made no such arguments on its behalf, and yes, the NCAA can afford lawyers. Moreover, “Notre Dame does not explain how it has standing to seek dismissal on the NCAA’s behalf” so the strange motion was denied. With that, Notre Dame’s summary judgment victory was upheld.
The Court’s Catch-22
The Complaint states that Notre Dame instructed players to “lead with their helmets in games and practices.” This was likely not done to ensure CTE, but for players like Askin it has that effect. An article in “Legal Issues In College Athletics” examined a recent scientific study that found this exact result. The “chance of a football player developing CTE was found to be connected to both how many head impacts they received and how hard the head impacts were” (“Scientists Unveil ‘Real’ Drivers of CTE in Football”, August 23, 2023, Vol 24, Issue #10). Notre Dame’s techniques caused Askin serious head injuries that led to cognitive impairment. When Askin sued, Notre Dame prevailed because Askin’s cognitive impairment clouded his thinking and memory, and consequently he did not sue soon enough.
This Faust made millions of dollars at Notre Dame. Not so for Askin, who can no longer think clearly, but was held to a legal standard created for those who can. Nothing in the decision indicates Notre Dame ever offered aid to Askin in any form. Notre Dame’s website proclaims it is a place where scholars “examine … ethical practices.” First year law-students quickly learn that there is a difference between being legally correct and being ethically correct. In Askin, the Court determined that Notre Dame was legally correct.
