By: Dylan F. Henry, Esq., Kimberly L. Sachs, Esq., and Kristen Mericle, J.D. Candidate
Matthew Onyshko, a former linebacker for the California University of Pennsylvania (“Cal. U.”), suffered roughly 20 concussions during his five-year stint with the Vulcans. Years later, Onyshko was diagnosed with amyotrophic lateral sclerosis (“ALS”), a neurodegenerative disease that affects the brain and spinal cord. He is now confined to a motorized wheelchair and speaks using a computer-generated voice device he guides with his eyes. This condition, Onyshko claimed in a 2014 lawsuit against the National Collegiate Athletic Association (“NCAA”), is a direct result of the head injuries he suffered during his football career at Cal. U. and the NCAA’s negligence in failing to warn Onyshko of the long-term health effects of repeated head trauma. A recent jury disagreed, finding the NCAA was not negligent.
Onyshko Kicks Off Suit; Court Punts Twice
In 2014, Onyshko and his wife filed suit against the NCAA in the Pennsylvania Court of Common Pleas, seeking $9.6 million in damages. The suit sets forth a typical negligence cause of action: Onyshko alleged the NCAA, as the governing body of collegiate sports, owed Onyshko a duty, which it breached by failing to warn Onyshko of the long-term effects of repeated head trauma. This breach, Onyshko claimed, caused his ALS.
In response, the NCAA moved to have the case dismissed—twice—arguing, inter alia, that (1) it did not owe Onyshko a duty of care; and (2) that Onyshko assumed both the short-term and long-term risks associated with football. Presiding Judge Katherine Emery disagreed and denied both attempts to dismiss, essentially punting on the issue and indicating that a jury had to decide what the scope of the NCAA’s duty to Onyshko was and whether the NCAA breached that duty. “While it is true that getting hit in the head is an inherent risk of football,” Judge Emery stated, “plaintiffs assert 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.” The case was teed up for trial.
Both Parties Take Their Shots At Trial; Jury Picks A Winner
In May 2019, Onyshko and the NCAA tried the case before a 16-person (nine women and seven men) jury. This was the second high-profile football-related brain disease case (after the Ploetz v. NCAA CTE-case) and the first football-related ALS case to go to trial.
Onyshko put on testimony from two renowned doctors in the sport-injury field—Dr. Bennet Omalu and Dr. Robert Cantu—to support his case. Omalu testified that the prevalence of ALS in football players is markedly higher than that of the general population and that Onyshko’s exposure to repetitive concussive and sub-concussive blows during his time playing football was a significant contributory factor to his developing trauma-induced ALS, what Omalu called in his expert report “CTE-ALS or CTME.”
The NCAA responded by noting Onyshko was never even diagnosed with a concussion while playing for Cal. U, and stating “[i]f he doesn’t demonstrate the symptoms, the trainers can’t treat him. How was he supposed to have been treated or evaluated at the game if he doesn’t tell someone?”
On May 23, 2019, the jury reached a verdict by answering only one question on the verdict slip: “Was the [NCAA] negligent? No.” This was the first football-related brain disease case to reach a jury verdict (Ploetz settled three days into trial). Following the verdict, Onyshko’s attorney, Gene Egdorf, stated he intends to appeal the verdict and file a wrongful death case once Onyshko passes away.
Takeaways From The Match
The verdict is unclear as to whether the NCAA met its duty, or whether it had a duty at all.
In arriving at its verdict in this case, the jury answered one question: “Was the [NCAA] negligent?” The answer, denoted with a check mark on the verdict sheet, was simply “No.” It did not provide any guidance as to what the scope of the NCAA’s duty to Onyshko was and whether the NCAA breached that duty. (The existence of a duty is a preliminary question of law for the court to determine, and so the court should have made that determination before turning the case over to the jury). Whether the NCAA owes a duty to student-athletes and what the scope of that duty is and what actions and omissions breach that duty are important questions that remain unanswered by the Onyshko verdict.
In the NCAA’s motion to dismiss, it attempted to nip these cases in the bud by arguing that “As a matter of law we don’t have a duty.”[xv] The court’s decision to deny the motion to dismiss, in essence, “told plaintiffs that under a certain set of facts, the NCAA could owe a duty. It open[ed] the door for other players to make similar claims.”[xvi]
The NCAA and other similarly-situated defendants in these cases, such as athletic conferences and divisions (SEC, MIAA, etc.), that are further removed from the care of the student-athlete than the team doctor, athletic trainer, or institution, can still benefit from the argument that it does not owe a duty to the student-athlete in these types of cases going forward.
Onyshko Verdict Not a Solid Playbook for Other Defendants
Though the Onyshko verdict provided the first data point in how a jury would rule in a football-related brain disease case, it leaves other defendants, such as universities, athletic trainers, and coaches with little guidance. Because the NCAA is a governing body that does not oversee the day-to-day activities of football programs and student-athlete care, the duties it owes to football players are arguably different than the duties coaches and athletic trainers—who spend entire seasons with student-athletes and are often responsible for return-to-play decisions—owe. The “No Duty” argument likely will not work for these defendants, and they must focus on defeating brain injury cases by attacking the breach and causation elements of a negligence claim.
This is because the plaintiff must show that the defendant’s breach of its standard of care (e.g., failure to warn, educate, train) caused the plaintiff to sustain repetitive concussive and sub-concussive blows, which caused a brain disease to develop (e.g., CTE, ALS), which then caused symptoms associated with those diseases to manifest, which then caused the ultimate harm (e.g., death or disability). In order to bridge those causal gaps, plaintiffs need to rely on expert testimony. The issue with expert testimony in this area is that the science is unsettled. Looking at CTE, for example, there is a spectrum of experts in this field, where on one extreme, the experts find CTE in almost every brain they examine, and on the other extreme, the experts believe that CTE does not exist. The ultimate decision maker as to who is “right” or “wrong” in this battle of the causation experts is the jury. Further complicating the unsettled science is that no causation theory that has been presented to a jury has reached a verdict.
Unfortunately, the Onyshko verdict, because it is silent on causation, has continued that trend. The verdict provides no guidance as to how a jury would rule on the causation element of a negligence claim in a sports-related brain injury case.
The unsettled science and untested causation theories have created a legal environment that makes it easier for a plaintiff to maintain a lawsuit beyond the various procedural thresholds (e.g., motion to dismiss, summary judgment) and uncertain how a jury would rule should a case go to trial.
Parties should not look to the Onyshko verdict as a guidepost as to how other juries may rule on future football-related brain disease cases. Although those cases will be, in all likelihood, factually similar to Onyshko (e.g., failure to warn ultimately caused a degenerative brain disease which ultimately caused harm), juries will continue to be the decision makers on a case-by-case basis should the parties be willing to roll the dice and go to trial.
[xv] Sindhu Sundar, Pa. magistrate shows path for NCAA concussion plaintiffs, Law 360 (June 9, 2014), https://www.law360.com/articles/544233/pa-magistrate-shows-path-for-ncaa-concussion-plaintiffs.