Merit Decision: Football Widow Allowed to Proceed with Husband’s Alleged CTE Claim. Schmitz v. Natl. Collegiate Athletic Ass’n.
“Schmitz’s experience of disorientation as to time and place following head impacts establishes that he was, or at least should have been, aware that he had sustained head injuries. But head injuries, including concussions, are an inherent part of football…They do not inherently suggest the existence of actionable wrongdoing.”
Justice French, majority opinion
On October 31, 2018, the Supreme Court of Ohio handed down a merit decision in Schmitz v. Natl. Collegiate Athletic Assn., Slip Opinion No. 2018-Ohio-4391. In a decision written by Justice French, joined in full by Chief Justice O’Connor and Justices DeWine and DeGenaro, the court allowed a lawsuit to proceed which was filed by the widow of a football player who sustained repetitive blows to the head during his college playing days in the 1970’s, but who was not diagnosed with chronic traumatic encephalopathy (“CTE”) until December of 2012. The court ruled that the 12(B)(6) motions to dismiss the claims as time-barred should have been denied. Justice Fischer concurred in judgment only. Justice Kennedy, joined by Justice O’Donnell, concurred in part, and concurred in judgment only in part, with an opinion. The case was argued April 11, 2018.
During the 1970’s, when Steven Schmitz played college football for Appellant Notre Dame, he received repetitive concussive and subconcussive brain impacts. In December of 2012, Schmitz was diagnosed at the Cleveland Clinic with CTE, a degenerative brain disease. By 2014, at age 58, Schmitz was also diagnosed with severe memory loss, cognitive decline, dementia, and Alzheimer’s disease, which he claimed were caused or exacerbated by the repetitive head impacts from his college football days. Schmitz died in February of 2015.
Shortly before he died, in October of 2014, Schmitz and his wife Yvette filed suit against Notre Dame and the National Collegiate Athletic Association (“NCAA”)(Collectively, the “Football Defendants”). In January of 2015, they filed an amended complaint, alleging claims of negligence, constructive fraud, and fraudulent concealment against the Football Defendants. Schmitz and his wife claimed the Football Defendants failed to notify, educate and protect Schmitz from the long-term dangers of repetitive head impacts. After his death, Schmitz’s estate was substituted as a plaintiff. The Estate and Yvette individually, and as fiduciary of Schmitz’s estate, are the appellees in this appeal.
The Football Defendants moved to dismiss the claims under Civ. R. 12(B)(6) as time barred; the NCAA also moved to dismiss for failure to state a claim on which relief could be granted. The trial court granted the motions to dismiss without opinion. In a unanimous opinion authored by Judge Boyle, and joined by Judges Jones and Celebrezze, the Eighth District Court of Appeals affirmed in part and reversed in part. It affirmed the dismissal of contract claims against the Football Defendants and the constructive fraud claim against the NCAA. But it reversed the trial court’s dismissal of the other claims, characterizing the amended complaint as alleging a “latent injury” that “did not manifest until decades after Schmitz stopped playing football.”
R.C. 2305.10(A) (“an action for bodily injury . . . shall be brought within two years after the cause of action accrues.”)
R.C. 2305.09(C) (An action for fraud “shall be brought within four years after the cause thereof accrued.”)
O’Brien v. Univ. Community Tenants Union Inc., 42 Ohio St.2d 242 (1975) (A complaint cannot be dismissed under Civ.R. 12(B)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief.)
Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376 (1982) (To justify dismissal of an action as untimely under Civ.R.12(B)(6), an amended complaint must conclusively show on its face that the claims are time-barred.)
O’Stricker v. Jim Walter Corp., 4 Ohio St. 3d 84 (1983) (“When an injury does not manifest itself immediately, the cause of action does not arise until the plaintiff knows or, by the exercise of reasonable diligence should have known, that he had been injured by the conduct of defendant.”) (syllabus)
Allenius v. Thomas, 42 Ohio St. 3d 131, 133, 538 N.E.2d 93 (1989) (Under the cognizable event doctrine, a claimant does not need to “be aware of the full extent of the injury.”)
Liddell v. SCA Serv. of Ohio, Inc., 70 Ohio St. 3d 6 (1994) (Extending O’Stricker’s rule of accrual to an individual exposure to toxic gas, which manifested itself six years later.)
Norgard v. Brush Wellman, Inc., 95 Ohio St.3d 165 (2002) (Discovery of physical injury alone is insufficient to start the statute of limitations running if at that time there is no indication of tortious conduct giving rise to a legal claim.)
Pingue v. Pingue, 2004-Ohio-4173 (5th Dist.) (In order for the discovery rule to apply, there must be (1) discovery of the injury and (2) discovery of the wrongful conduct. Since this plaintiff knew the perpetrator and that he had been injured, his claims were time-barred.)
Football Defendants’ Proposed Propositions of Law
A diagnosis for the long-term effects of an injury a plaintiff already knew about does not revive a time‐barred claim.
Plaintiffs’ fraudulent‐concealment and constructive fraud claims are subject to R.C. 2305.10(A)’s two‐year statute of limitations.
The discovery rule applies to all the bodily injury claims. The fraud claims were also considered bodily injury claims, thus also subject to the two year statute of limitations.On the fraud claims, the Football Defendants’ second proposed proposition of law was accepted.
Accepting all allegations in the amended complaint as true, and drawing all inferences in favor of appellees, as is required for a Civ.R. 12(B)(6) motion, the amended complaint does not conclusively show the claims are time-barred, and therefore the amended complaint should not have been dismissed. So the Football Defendants first proposed proposition of law is rejected. But the court did throw a Hail-Mary pass here—the court’s opinion suggests that as discovery progresses, the Football Defendants may be able to prove that Schmitz knew or should have known about his neurological conditions and their connection to the defendants’ conduct before October of 2012, which would mean the lawsuit was untimely. We’ll see.
The Negligence Claims
Positions of the Parties
During the extremely well argued oral argument in this case, the Football Defendants insisted Schmitz’s claims accrued by 1978, the end of his college football-playing years, and were thus time-barred long before 2014 when the suit was filled. The appellees argued that this was a latent-injury case, and as such, the claims accrued in 2014 when Schmitz was informed by competent medical authority that he had CTE.
For me, a retired torts professor, Justice French’s opinion was like a stroll down the good old time-of-discovery days of torts.
The Creation of the Discovery Rule
The general rule in torts is that a cause of action for bodily injury accrues when the injury occurs. But there are times when an injury does not manifest itself immediately, which means that a person’s claim could have been barred before the person was aware of an injury. To remedy that unfairness, in 1983, in O’Stricker, the court held that a cause of action for bodily injury accrues when the plaintiff knew or should have known by the exercise of reasonable diligence that he or she was injured by the conduct of the defendant. This is commonly known as the discovery rule.
The Discovery Rule and Latent Diseases
O’Stricker involved a latent disease—cancer that developed as a result of plaintiff’s exposure to asbestos. Asbestos exposure can cause disease many years after inhalation of the fibers. As a matter of policy, in O’Stricker, the court found that “accrual” should be liberally construed in cases where the bodily injury manifests itself at a later point. The court extended that discovery rule in Liddell, a case involving exposure to toxic gas, where a cancer manifest itself many years after the exposure. Even though the plaintiff in Liddell was aware of some physical problems at the time of his exposure to the toxic gas, he did not discover the cancer or its connection to the gas exposure until much later, and the court recognized that if he had tried to claim damages for the possibility of cancer then, such a claim would have been too speculative. So in Liddell the court held that the cause of action accrued on the date that a competent medical authority informed him that his cancer might have been caused by the exposure—an argument Schmitz made here.
Extent of the Injury
The Football Defendants argued that this case does not involve a latent injury, but the latent effects of a known injury, which meant Schmitz’s claims accrued when he experienced those injuries, even if he didn’t realize the full extent of them at the time. The court did not buy that argument, and rejected the Football Defendants’ reliance on the Pingue case.
“Discovery of physical injury alone is insufficient to start the statute of limitations running if at that time there is no indication of tortious conduct giving rise to a legal claim,” wrote French.
Tying it all Together in this Case
The Football Defendants made a number of arguments about the inferences that could be drawn from the amended complaint, which they argued showed the claims were time-barred. The court did not buy any of them.
A civil procedure fundamental is that in order to be dismissed under Civ.R.12(B)(6), the complaint must show on its face that the claims are time-barred. In this case the court found that while the amended complaint established that Schmitz was or should have been aware that he had sustained head injuries, head injuries are an inherent part of the game of football, and do not of themselves suggest evidence of tortious conduct. Simply put, the amended complaint alleges that before Schmitz received his diagnosis of CTE in December of 2012, he did not know or have reason to know that he had suffered a latent brain injury because of playing football.
The Football Defendants also argued that the claims were time-barred because the amended complaint created an inference that Schmitz was showing symptoms of cognitive and neurological problems that should have alerted him to the fact of a cognizable injury before his formal diagnosis. Again, the court refused to accept that at the pleading stage. While noting that the Football Defendants may be able to prove that with facts developed through discovery, the court found that conclusion did not follow solely from the allegations in the amended complaint. “The determination of these factual questions will require discovery,” noted French.
Finally, the Football Defendants argued that Schmitz should have known of his injuries by April 2010, which is when the NCAA changed its concussion-treatment protocols, which since then have required member institutions to have a concussion-management plan. Once again, the court found that the amended complaint does not allege when Schmitz became aware of those changes in protocol or that knowledge of those changes would have alerted him to the fact that the head injuries he sustained while playing college football created a risk of long-term cognitive defects.
While facts fleshed out in discovery may show that Schmitz knew or had reason to know the connection between his football concussions and his CTE, that knowledge and any connection to the conduct of the Football Defendants cannot be inferred just from the amended complaint. This part of the Eighth District’s opinion is affirmed.
The Fraud Claims
This one is easy. All seven justices agreed with the Football Defendants’ second proposed proposition of law. The majority opinion held that in this case the alleged conduct underlying the fraud claims could not be separated from the “virtually identical” alleged conduct underlying the negligence claims. Both sets of claims alleged that the Football Defendants failed to inform Schmitz about the risks of playing college football or to share material information with him, and both sets of claims sought recovery for brain injuries. Thus the court classified them all as bodily injury claims subject to the two-year statute of limitations in R.C. 2305.10(A). So, this portion of the Eighth District’s opinion was reversed.
Justice Kennedy’s Position
In a nutshell, Justice Kennedy writes, “too much, too soon.” She thinks all the court needed to say is that the discovery rule might apply given the allegations in the amended complaint.
Kennedy explains that the statute of limitations is an affirmative defense, which rarely is successfully asserted in a motion to dismiss under Civ.R.12(B)(6), because affirmative defenses usually rely on matters outside the pleadings.
Kennedy would find that the amended complaint does not contain any allegations that compel the conclusion that Schmitz knew or should have known any sooner than when he filed this case that the Football Defendants were responsible for his CTE. There is simply no way to tell from the face of the complaint that the claims are time-barred. That’s all the analysis that is needed, she says. So, she concurs in judgment only as to the first proposition of law, and joins the majority opinion on the second. Justice O’Donnell joins Justice French in this opinion.
I couldn’t be happier to have been wrong about this one. I predicted after argument that “this looked like a win for the Football defendants, but regrettably, in the view of my notorious plaintiff’s heart.” I thought a majority would find that by 1978, Schmitz was aware of his injuries, even though not aware of their full extent, and therefore had to sue within two years. Well, apparently my notorious plaintiff’s heart rubbed off, here, at least at this pleading stage.
I wrote this after the argument:
“My personal view is that Steve Schmitz had no idea in 1978 that he had suffered an injury that someone else might be responsible for. Yes, he knew he was hurt, and temporarily disoriented, but what about the second part, that that was due to some tortious conduct of the coaching staff? Or the NCAA? No way. Chief Justice O’Connor developed in questioning the fact that if Schmitz had filed suit within two years of 1978, he had the right to claim future damages. I can only say that if Schmitz had come into court in 1978 and claimed that it was probable that he would develop CTE or Alzheimer’s in the future, he would have had a serious, if not insurmountable problem with the speculative nature of such damages. Justice DeGenaro specifically asked how a plaintiff could get over the problem with speculative damages at that time. And Mr. Kairis admitted as much, although arguing the plaintiff even then had medical literature to support these future damages.”
It will be extremely interesting to see what discovery brings in this case. The blog will continue to follow the case on remand.