Daily Court Reporter - News Filing deadlines debated in chronic brain injury case filed by a former college football players
Filing deadlines debated in chronic brain injury case filed by a former college football players
Dan Trevas, Supreme Court of Ohio
The Ohio Supreme Court on Wednesday, April 11th, heard three oral arguments, including an appeal from an Ohioan who played football for the University of Notre Dame in the 1970s and sued the school for failing to protect him from head injuries that turned into a chronic disease decades later. But a Cuyahoga County common pleas court ruled he waited too long to file the case.
Oral Arguments Scheduled
The session started at 9 a.m. with the cases being heard off-site at at Ottawa-Glandorf High School All arguments are streamed live online at sc.ohio.gov and broadcast live and archived on The Ohio Channel.
Below is a summary of the three arguments that will be heard on February 27th. Along with the descriptions in this article, the Office of Public Information has released in-depth summaries of the cases available online at: http://www.courtnewsohio.gov/cases/previews/default.asp#.WsPVvZch2Uk
Along with the brief summaries below, in-depth previews of the seven cases being heard are now available.
National Collegiate Athletic Association et al. v. Steven Schmitz et al., Case no. 2017-0098
Eighth District Court of Appeals
Does Ohio’s two-year statute of limitations for a personal-injury tort claim start when the full extent of the injuries are revealed through a formal diagnosis?
Is chronic traumatic encephalopathy (CTE) a latent disease or is it the latent effect of previously diagnosed head injuries?
Does the statute of limitations for a CTE personal-injury claim begin when CTE is diagnosed?
Is Ohio’s four-year statute of limitations for a fraud claim reduced to two years if the substance of the fraud claim is an attempt to recover damages for a bodily injury?
Steven T. Schmitz was 57 years old when he was diagnosed with chronic traumatic encephalopathy (CTE) by the Cleveland Clinic Neurology Department in 2012. In 2014, he and his wife, Yvette, filed a personal-injury lawsuit against Notre Dame and the National Collegiate Athletic Association (NCAA). Schmitz died in 2015, and his wife continues to press on with the lawsuit.
While the common pleas court found the lawsuit was filed after the statute of limitations for a personal injury lawsuit passed, the Eighth District Court of Appeals disagreed and indicated the suit could move forward. Notre Dame and the NCAA appealed to the Ohio Supreme Court, which agreed to hear the case. NCAA et al. v. Schmitz.
The Schmitzes claim Notre Dame and the NCAA knew or should have known the risks of brain injuries college football players faced and that they ignored the risk. The Cleveland area couple also claim that NCAA schools encouraged players to use their helmets when tackling and blocking and did little to address the concussions players suffered. Among the Schmitzes’ charges, they claim the institutions were negligent, committed fraud, and harmed the couple’s relationship (legally known as “loss of consortium”).
The parties argue the distinction between characterizing CTE, a certain type of brain injury associated with football and other contact sports, as a “latent disease” or a “latent effect” of an injury. If CTE is a latent disease, it would be a separate injury or illness compared with a brain injury, such as a concussion. If CTE is the latent effect of a disease, it would be the continuation and increased severity of a brain injury that worsens over time. The distinction impacts the timing of when the player’s lawsuit must be filed to comply with Ohio’s statute of limitations for certain civil cases.
Notre Dame and the NCAA asked the trial court to dismiss the case, claiming the case was filed too late given the statute of limitations. The trial court dismissed the case, and Yvette Schmitz appealed to the Eighth District Court of Appeals. The Eighth District affirmed the decision to dismiss the breach of contract claims, but reversed the decision on the negligence, fraud, and loss of consortium claims. The case was returned to the trial court to continue with further proceedings. Notre Dame and the NCAA appealed the Eighth District’s decision to the Ohio Supreme Court, which agreed to hear the case.
State of Ohio v. Darin K. Ireland, Case no. 2017-0344
Tenth District Court of Appeals (Franklin County)
Is the defense of blackout or automatism an affirmative defense that must be proven by a defendant by a preponderance of the evidence?
Drew Coen spent the day of Oct. 19, 2013, golfing with his brother. Between 7 and 8 p.m., they went to a bar in Blacklick, a community east of Columbus, and played a video game, listened to a band, and drank. The Combat Motorcycle Veterans Association was holding a fundraiser at the bar that night for military veterans.
Late in the evening, Coen and his brother left the bar. Coen’s brother was called back in to close his tab. The next thing Coen said he remembered was waking up in pain at a Columbus hospital.
Darin Ireland, who served in combat in the 1991 Persian Gulf War, and his wife were at the bar that night along with Tyler Thrash. Thrash stated that Coen grabbed Ireland’s wife’s buttocks as he was leaving the bar. Thrash said he followed Coen outside and put Coen in a headlock, choked him, forced him to the ground, and told him not to touch Ireland’s wife again. The bar owner and Ireland separated the men.
Ireland heard, though, that his wife was the person Coen touched, and witnesses said they saw Ireland repeatedly punch and kick Coen while Coen was unconscious and not moving.
Thrash said that he and Ireland were drinking earlier in the bar. The bar owner stated that he and Ireland were talking before the attack and that Ireland wasn’t drunk.
Coen suffered a broken jaw, broken nose, swelling around the eyes, knee pain, and other injuries. His blood alcohol content was 0.3. He required surgery on his skull and face, developed complications and suffered nerve damage, and deals with chronic pain and psychological injuries, according to a hospital physician.
In January 2014, Ireland was indicted in Franklin County for felonious assault. He pled not guilty and had a trial before a jury.
Ireland’s lawyer asked the trial court to give the jury an instruction on the defense of “blackout,” as spelled out in the Ohio Jury Instruction Manual. The prosecutor countered that “blackout,” also referred to as “automatism” or “unconsciousness,” is an affirmative defense, which would put the burden of proof regarding whether a blackout occurred on Ireland. The trial court gave the jury an instruction about “blackout” and stated that presenting this defense placed the burden of proof on Ireland. The court noted that the instruction didn’t apply to a person “who recklessly or negligently became intoxicated.”
A psychologist testified on Ireland’s behalf. In the psychologist’s professional opinion, based on an examination, Ireland experienced a dissociative episode when he attacked Coen that was caused by post-traumatic stress disorder (PTSD) stemming from the time Ireland served in war. Because of his combat experience, Ireland has “a significant capacity for dissociation,” which is an alteration of consciousness during which a person is “not consciously present at that moment” and the person’s actions are “not a manifestation of conscious thought or awareness,” the psychologist stated.
A psychologist who testified for the state determined, however, based on Ireland’s records and Ireland’s psychologist’s report, that the evidence supported substance abuse, rather than PTSD, playing a role in the assault. The psychologist acknowledged he didn’t interview Ireland and couldn’t diagnose him.
In October 2015, the jury found Ireland guilty of felonious assault, and the trial court sentenced him to six years in prison and a three-year mandatory period of postrelease control.
Ireland appealed to the Tenth District Court of Appeals. One of his arguments was that the trial court wrongly told the jury that the defense of blackout or automatism was an affirmative defense that placed the burden of proof on Ireland to show that he acted involuntarily when he assaulted Coen. The Tenth District agreed and reversed the trial court’s decision. The appeals court limited its ruling to claims of involuntary acts resulting from PTSD-induced blackout.
The Franklin County Prosecutor’s Office appealed to the Ohio Supreme Court,
State of Ohio v. Jeffrey Bowshier, Case no. 2017-0936
Second District Court of Appeals (Clark County)
May a court of appeals dismiss a case pursuant to the U.S. Supreme Court’s decision in Anders v. California (1967) if the appealing party presents case law in support of a claim?
On Nov. 17, 2005, Jeffrey Bowshier drove a 1995 van to a motel parking lot to make a swap. Bowshier agreed to buy 200 pounds of marijuana in exchange for a $20,000 down payment, two kilograms of cocaine, and the titles to a 2001 pickup truck and a motorcycle. As he left in a moving truck filled with the marijuana, he was arrested.
Bowshier was indicted for drug trafficking and drug possession, and the charges included additional penalties, called specifications, that would require him to forfeit the cash, the 2001 pickup truck, and the 1995 van. The jury convicted Bowshier, and the trial court sentenced him in March 2006 to 30 years in prison.
Bowshier filed an appeal in the Second District Court of Appeals, which reversed his convictions and sentence. After a second jury trial, Bowshier was convicted again of drug trafficking and possession. In 2009, the court sentenced him to 15 years in prison and a $30,000 fine, and required forfeiture of $21,196, the pickup truck, and the van.
In Bowshier’s second appeal, the Second District upheld his convictions and sentence but stated that the jury must consider the forfeiture of the vehicles and money. Back at the trial court, the jury found that the cash and the pickup truck could be forfeited, and the trial court determined that the van couldn’t be seized based on state rules for criminal cases. The Second District ruled, however, that the prosecutors had to prove that the forfeited items were not just used in, but were proceeds of, the drug transactions.
In July 2012, the trial court ordered that the state must return Bowshier’s property. The prosecutors argued, though, that it shouldn’t have to give back anything because Bowshier had paid none of the $30,000 fine. At a hearing about the issue, the prosecutors notified the court that the van and the pickup truck had been sold. The city of Springfield sold both vehicles in 2006 during an auction.
The pickup truck was sold for $13,351, and the van was sold for $2,601. Bowshier argued that the truck’s fair market value was $22,000 and the van was worth $4,000. The prosecutors stated the truck was worth just under $20,000 and the van’s value was between $2,601 and $4,705. The court, however, used the auction prices to value the vehicles at a combined $15,952, and found the state owed Bowshier that amount plus the $21,196 in cash, for a total of $31,148.
Bowshier appealed to the Second District, in part contesting the use of the auction prices to value his vehicles. His appointed lawyer filed a brief, though, stating that the appeal was frivolous. This type of brief is referred to as an Anders brief, named for the U.S. Supreme Court’s decision in Anders v. California (1967). Bowshier, acting pro se, filed his own brief with the appellate court. When an Anders brief is filed, the appeals court must conduct an independent review of the record in the case. If the court determines that any of the arguments made in an appeal aren’t frivolous, then the original lawyer withdraws from the case and a new lawyer is appointed to handle the matter.
On the forfeiture issue, Bowshier cited a 1994 ruling from the Sixth District Court of Appeals that found the use of an auction price was inappropriate in a forfeiture case. However, the Second District concluded that none of Bowshier’s arguments had merit.
Bowshier filed an appeal with the Ohio Supreme Court, raising several issues. The Supreme Court agreed to review Bowshier’s claim that the Second District wrongly dismissed his case given that he provided case law in his pro se brief to support his position about the value of the forfeited vehicles.
Date Published: April 23, 2018