Ohio Appeals Court Overturns Ruling in Schmitz Concussion Case, Citing ‘Discovery Rule’

Feb 3, 2017

An Ohio state appeals court has overturned a lower court’s ruling, paving the way for the widow of a former Notre Dame University football player to continue a lawsuit in which she and her husband alleged that the NCAA and the University of Notre Dame exhibited “reckless disregard” for player safety, and failed to protect him from concussions.
In so ruling, the appeals court found that the trial court erred when it concluded that the plaintiffs did not state sufficient facts to survive a motion to dismiss and that the statute of limitations barred the claims.
From 1974-78, Steven Schmitz, a former running back and receiver, played football for Notre Dame, a member institution of the NCAA. In December 2012, Schmitz was diagnosed by the Cleveland Clinic Neurology Department with chronic traumatic encephalopathy (CTE). At that time, Schmitz was 57 years old and “unemployable,” suffering from severe memory loss, cognitive decline, early onset Alzheimer’s disease, traumatic encephalopathy, and dementia.
In October 2014, Schmitz and his wife, Yvette Schmitz, filed the underlying lawsuit against Notre Dame and the NCAA, alleging that “Notre Dame, its football coaches, athletic directors, and trainers, and the NCAA failed to notify, educate, and protect the plaintiff Steve Schmitz (and others) regarding the debilitating long term dangers of concussions, concussion-related impacts, and sub-concussive impacts that result every day from amateur athletic competition in the form of football at the collegiate level.”
Further, they alleged that the defendants knew (or should have known) “college football players are at greater risk for chronic brain injury, illness, and disability both during their football careers and later in life.” Further, Notre Dame and the NCAA “orchestrated an approach to football practices and games” that (1) ignored the medical risks to Steve Schmitz; (2) aggravated and enhanced the medical risks to Steve Schmitz; (3) failed to educate Steve Schmitz of the link between concussive and sub-concussive impacts in amateur football and chronic neurological damage, illnesses, and decline; and (4) failed to implement or enforce any system that would reasonably have mitigated, prevented, or addressed concussive and sub-concussive impacts suffered by Steve Schmitz, according to the complaint. The complaint sets forth counts for negligence, fraud by concealment, constructive fraud, breach of express and implied contract, and loss of consortium.
In March 2015, the defendants moved to dismiss the plaintiffs’ amended complaint. Specifically, Notre Dame moved to dismiss the amended complaint on the grounds that the plaintiffs’ claims are time-barred. The NCAA moved to dismiss the claims on both statute of limitations grounds and failure to state a claim under Ohio or Indiana law.
Schmitz died on Feb. 13, 2015. Thereafter, the estate of Steven Schmitz was substituted as a plaintiff as well as Yvette Schmitz as fiduciary of her husband’s estate and in her personal capacity.
On Sept. 1, 2015, the trial court granted both Notre Dame’s and the NCAA’s motion to dismiss without opinion and dismissed the amended complaint with prejudice, leading to the appeal.
The appeals court began by writing that Ohio has fairly “liberal pleading rules.” All that is required of a plaintiff bringing suit is “(1) a short and plain statement of the claim showing that the party is entitled to relief, and (2) a demand for judgment for the relief to which the party claims to be entitled.” It concluded that the plaintiffs met this requirement.
The appeals court then turned to the defendants’ statute of limitations argument, and the role of Ohio law in considering that argument.
The plaintiffs counter that their complaint “pleads a latent undiscoverable injury that became manifest decades after Schmitz played football.”
This argument, it wrote, calls into play the discovery rule, which “would have tolled their claims until December 2012 — the date when they became aware of the injury and the cause of the injury. Because they filed their original complaint approximately 18 months after learning of the diagnosis, they argue that their claims were timely and well within (1) the two-year limitation period for their negligence personal injury claim under R.C. 2305.10, (2) the four-year limitation period for their fraud claim as contained in R.C. 2305.09, and (3) the 15-and six-year period for their express written and implied contract claims as contained in R.C. 2305.06 and 2305.07.”
The appeals court turned to the applicability of the discovery rule to the plaintiffs’ claims.
“With respect to the plaintiffs’ contract claims, we find that it does not. As the plaintiffs even acknowledge, no Ohio court has ever applied the discovery rule to a claim for a breach of contract,” it wrote, citing Cristino v. Bur. of Workers’ Comp., 2012-Ohio-4420, 977 N.E.2d 742, ¶ 41 (10th Dist.) (recognizing this fact and refusing to be the first court to do so). “Without the benefit of the discovery rule, the plaintiffs’ breach of contract claim is barred.”
Personal injury claims are a different story. “Ohio courts have routinely applied the discovery rule to negligence personal injury claims,” it wrote, citing Flagstar Bank, 128 Ohio St.3d 529, 2011-Ohio-1961, 947 N.E.2d 672, at ¶ 15.
Examining its applicability in the instant case, however, the appeals court wrote that the issue is one of first impression in Ohio, and turned to other courts that have recently addressed “substantially similar arguments in analogous cases involving latent brain injuries suffered by former professional hockey players and former professional stunt wrestlers. See In re NHL Players’ Concussion Injury Litigation, D.Minn. No. 14-2551, 2015 U.S. Dist. LEXIS 38755 (Mar. 25, 2015); McCullough v. World Wrestling Entm’t, Inc., D.Conn. Nos. 3:15-CV-001074, 3:15-CV-00425, and 3:15-CV-01156, 172 F. Supp. 3d 528, 2016 U.S. Dist. LEXIS 39791 (Mar. 21, 2016). These courts rejected defendants’ claims that the statute of limitations accrued at the time of the concussive and subconcussive impacts, recognizing that plaintiffs’ alleged injuries in the form of an increased risk of developing neurodegenerative diseases, such as CTE, are distinctly different than the head injuries they sustained while playing the sport. As explained by the Connecticut district court in the wrestling case:
“The mere fact that the Pre-2012 Plaintiffs allege that they sustained concussions and head trauma during their tenure with the WWE; and that they allege awareness of those concussions and possible concussion-like symptoms at the time, is not necessarily dispositive here at the motion to dismiss stage. A single [mild traumatic brain injury (“MTBI”)] such as a concussion, and the symptoms that a discrete MTBI can manifest, are not the same “condition” as a disease such as CTE or another degenerative neurological disorder that may — or may not — be caused by repeated MTBIs. Id. at *41-42.
“For this reason, the Connecticut federal district court found that the allegations of the complaint did not support the conclusion that the plaintiffs had been on notice of their alleged injuries, i.e., increased risk for latent, permanent neurological conditions, simply because they had suffered a concussion. Specifically, the court explained as follows:
“Here, however, it cannot be determined from the face of the Complaints and as a matter of law that the Pre-2012 Plaintiffs were on notice of an increased risk for a latent, permanent neurological condition merely because they knew they had suffered a concussion and/or sustained other minor brain trauma during the time they wrestled for WWE. The Pre-2012 Plaintiffs’ knowledge, or lack thereof, of a connection [between] repeated concussions or sub-concussive blows to the head and latent, permanent neurological conditions presents a material issue of fact that must be decided at a later date. Without knowledge of such a connection, Plaintiffs may have discovered “some injury,” but not “actionable harm” because of their inability to tie head trauma that they knew they were sustaining to another party’s breach of a duty to disclose increased risks for latent, permanent neurological conditions. Id. at *44-45.”
Turning back to the instant case, the court noted that the plaintiffs “allege a latent injury that Schmitz was not aware of until his diagnosis in 2012. The complaint further alleges that, prior to the diagnosis, Schmitz never understood or appreciated the nature of the risk of the subconcussive and concussive impacts he sustained; that he never understood that those impacts ‘significantly increased his risk of developing neurodegenerative disorders and diseases,’ and resulted in ‘latent effects’ and ‘neurocognitive and neurobehavioral changes over time.’ The thrust of the complaint is not an injury for concussive and subconcussive impacts; instead, the complaint alleges an injury in the form of CTE and other neurological diseases that did not manifest until decades after Schmitz stopped playing football at Notre Dame.
“We find the Ohio Supreme Court’s decision in Liddell v. SCA Servs., 70 Ohio St.3d 6, 1994 Ohio 328, 635 N.E.2d 1233 (1994), analogous and supports the application of the discovery rule in this case. In Liddell, the Ohio Supreme Court allowed a plaintiff to proceed when he sought recovery for the latent effects of toxic gas exposure, even though the toxic gas had caused him to suffer adverse health effects immediately following his exposure.”
The appeals court also found that Schmitz exercised reasonable diligence to discover his injuries, anther prerequisite to the claim.
Similarly, the court found that the discovery rule applied to the negligence and fraud claims, thus defeating the argument that those claims are time-barred.
Attorneys of Record: (for appellants) Robert E. Derose, Neal J. Barkan, Barkan Meizlish Handelman Goodin Derose Wentz, L.L.P., Columbus, Ohio; Melanie J. Garner, David D. Langfitt, Locks Law Firm, Philadelphia, Pennsylvania; Richard S. Lewis, Hausfeld, L.L.P., Washington, D.C. (for appellees, NCAA) Frederick R. Nance, Sean L. McGrane, Squire Patton Boggs (US), L.L.P., Cleveland, Ohio. (for appellees, University of Notre Dame du Lac) Steven A. Friedman, Squire Patton Boggs (US) L.L.P., Cleveland, Ohio; Aaron Michael Healey, Matthew A. Kairis, Jones Day, Columbus, Ohio.
Steven Schmitz, et al. v. National Collegiate Athletic Association, et al., Ct. App.Ohio, 8th App. Dist.; No. 103525, 2016 Ohio App. LEXIS 4914; 12/8/16


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