Onyshko Appeal Knocked Out by Pennsylvania Superior Court

By Kristen E. Mericle, Esq., Dylan F. Henry, Esq., Kimberly L. Sachs, Esq., and Kacie E. Kergides, Esq., of Montgomery McCracken

(Editor’s Note: The following will appear as one of several stories in the next issue of Esports and the Law, a complimentary subscription publication available at https://esportsandthelaw.com/)

On January 8, 2021, a panel of three judges from the Superior Court of Pennsylvania denied an appeal by Matthew Onyshko, former linebacker for California University of Pennsylvania (“Cal U”). In our Summer 2019 issue, we discussed the 2014 lawsuit alleging that the National Collegiate Athletic Association (“NCAA”) was negligent for failing to warn of the long-term effects of repeated head injuries from participating in football. This article serves as an update on recent developments in the case.

Onyshko Goes Head-to-Head with NCAA

As a brief recap, Onyshko suffered upwards of twenty concussions—three of which resulted in lost consciousness—while playing for the Cal U Vulcans from 1999-2003. Thereafter, Onyshko progressively suffered from “frequent severe headaches, numbness, twitching, muscle atrophy, fatigue, loss of mobility, slurred speech, difficulty swallowing, weakness and other neurological symptoms.”[1] Onyshko was ultimately diagnosed with amyotrophic lateral sclerosis (“ALS”), despite having no genetic predisposition to the disease. ALS, also known as Lou Gehrig’s disease, is a neurodegenerative disease that affects nerve function in the brain and spine. There is currently no cure for ALS. Onyshko is confined to a wheelchair and relies on an eye-tracking computer system (“ETCS”) to speak.

On June 27, 2014, Onyshko and his wife filed their negligence action against the NCAA in the Pennsylvania Court of Common Pleas, seeking $9.6 million in damages.[2] Onyshko alleged that the NCAA breached its duty to warn him of the effects of repeated head trauma. The NCAA moved to dismiss the case twice, claiming it did not owe a duty and that Onyshko assumed the inherent short and long-term risks of playing football. Judge Katherine Emery rejected these arguments and held that the jury must decide the scope of the NCAA’s duty and whether the NCAA breached this duty. Notably, Judge Emery acknowledged the NCAA’s argument that “getting hit in the head is an inherent risk of football.” In rejecting the motions to dismiss, however, Judge Emery cited the Plaintiff’s assertions “that the NCAA increased Mr. Onyshko’s risk of long-term injury by failing to disclose crucial information as well as failing to have procedures in place with respect to returning to play after sustaining serious head injuries.”

NCAA Emerges Victorious After Battle with Onyshko

In May 2019, a sixteen-person jury heard Onyshko’s case, marking it as the first football-related case concerning ALS to go to trial. Onyshko’s case came shortly after the highly publicized and first-ever football-brain disease case—Ploetz v. NCAA—went to trial. However, Ploetz settled three days into trial, providing no guidance on how juries would view negligence cases against the NCAA and other similarly situated defendants. Both Ploetz and Onyshko were represented by the same attorney, Gene Egdorf.

During trial, Onyshko presented expert testimony from renowned sports-related brain disease doctors, Dr. Bennet Omalu and Dr. Robert Cantu. Dr. Omalu referred to Onyshko’s condition as trauma-induced ALS, CTE-ALS, and chronic traumatic myeloencephalopathy (“CTME”). Omalu asserted that Onyshko’s repeated head trauma contributed significantly to his ALS diagnosis, citing the high level of ALS found in football players compared to the general public. The NCAA countered by arguing that Onyshko did not report any of his concussions to coaches or athletic staff while playing football in college, which prevented Cal U from diagnosing or treating his head injuries.

The jury returned a verdict in favor of the NCAA – the verdict slip read “Was the [NCAA] negligent? No.” This verdict provided little clarity with regard to the NCAA’s duty, as the sole governing body of collegiate athletics, to inform student athletes of the lasting effects of repeated head trauma and whether it breached that duty. Shortly thereafter, Onyshko’s attorney, Gene Egdorf, stated that he planned to appeal the case and file a wrongful death action once Onyshko passes.

NCAA Dodges Appeal, Left Unscathed

In August 2020, Onyshko asked a three-judge panel from the Superior Court of Pennsylvania for a new trial.[3] One of Onyshko’s attorneys, Diana Nickerson Jacobs, argued that testimony from Cal U administrator William Biddington, not a party to the litigation, regarding repeated head trauma warnings given by the university “improperly muddied the water about the NCAA’s responsibilities.”[4]

Biddington testified that he created and implemented policies to warn and educate student athletes on concussion indicators and the related long-term effects. Biddington admittedly did not attend the team meetings in which the information was delivered to the players. He instead provided the trainers with the information, who in turn presented the practices and policies to the team. The head athletic trainer testified to being present in a preseason meeting in which the concussion policies were discussed.

The NCAA’s attorney, Lewis W. Schlossberg, argued that the warnings provided by Cal U were relevant to refute the allegation that the NCAA’s failure to provide this information caused Onyshko’s injuries. Schlossberg stated, “Even if [the NCAA] didn’t produce the information, Cal U did…Because Cal U in fact provided this very information, the NCAA could not have been the cause of the development of his injuries.”[5] Jacobs countered that the “jury had no method to consider the evidence from Cal U, whether these actions were reasonable or whether they negated the harm caused by the NCAA’s conduct.”[6]

On January 8, 2021, the panel adopted Judge Lucas’ opinion from October 1, 2019, holding that Onyshko was not entitled to relief. Once again, this appellate decision does not provide concrete guidance as to how negligence arguments in subsequent sports-related latent-brain-disease cases will fare.

The panel’s rejection reinforced the notion that these are fact-dependent cases, to be decided by juries. Further, the NCAA’s efforts to offer evidence that the university informed student athletes of the effects of repeated head trauma were allowed by the court and proved successful, despite possible confusion of the jury. It is unclear whether this strategy will be permitted by future courts hearing similar cases.

NCAA Fending Off Future TBI Negligence Lawsuits

One of Onyshko’s lawyers, Jason Luckasevic, initiated the first lawsuit against the National Football League (“NFL”) on behalf of 120 former players.[7] The suit cascaded into a class action lawsuit on behalf of thousands of former NFL players and ended in a $1 billion settlement in 2016 to be distributed over 65 years.

Luckasevic decided he was going to “take [the NCAA] on case by case by case” next. The Onyshko case was the first in his pursuit to hold the NCAA liable for its negligence. Thereafter, Luckasevic brought multiple individual suits against the NCAA on behalf of former student-athletes in numerous states. He plans to continue his crusade as more courts resume civil jury cases that were put on hold due to the COVID-19 pandemic.

Separate from Luckasevic’s efforts, in 2013, similar TBI suits brought by student-athletes against the NCAA were consolidated.[8] United States District Judge John Lee granted final approval of the $75 million dollar settlement in August 2019.[9] Seventy million dollars were directed to fund concussion and TBI sports injury scanning for former and current players and $5 million was dedicated to concussion-related research.

The NCAA has faced a slew of similar class actions by former student-athletes. Currently, in the Northern District of Illinois, a multi-district litigation (“MDL”) is proceeding against the NCAA, as well as various leagues and numerous colleges and universities. Four bellwether cases are advancing through fact discovery for determining class certification for student-athletes who played football and sustained head trauma from 1952 to 2010.

The NCAA will likely be thwarting off individual suits, piloted by Luckasevic and others, and class action suits concerning its failure to warn student-athletes of the lasting health effects from head trauma for the foreseeable future.

Other Defendants Surviving Repeated Blows by Negligence Suits

Plaintiffs in sports-related head injury cases at the collegiate level typically bring negligence suits against the university and all relevant parties employed by the university, including athletic trainers, athletic directors, team doctors, and coaches and staff. As previously mentioned herein, (and for a host of other reasons including sovereign immunity) there is a trend for Plaintiffs to sue the NCAA and other defendants more removed from the day-to-day interaction with the student-athletes, such as the athletic conferences and divisions.

These entities have and likely will continue to use the “No Duty” argument that the NCAA benefited from in the Onyshko case. If a duty is established, these defendants will refute the breach and causation elements of these negligence claims by attacking the Plaintiff’s attempts to use expert testimony to bridge the causal gaps in their claims. The science is still unsettled, particularly concerning CTE, which creates further uncertainty for parties bringing and defending these actions.

It is clear Plaintiffs in these cases can survive the procedural thresholds and get these cases before a jury. It is unclear, however, how juries will continue to decide these cases should they go to trial. The Onyshko verdict will not provide the NCAA and similar defendants with a get-out-of-jail-free card as these cases are factually dependent and will be decided by juries on a case-by-case basis. But defendants beware: if just one jury finds the NCAA, a conference, or a division negligent for not warning collegiate athletes of the effects of repeated head trauma, legal experts presume the litigation floodgates may open.