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Daily Court Reporter - News Football player’s widow can pursue head injury lawsuit against Notre Dame, NCAA

 

Football player’s widow can pursue head injury lawsuit against Notre Dame, NCAA

Dan Trevas, Supreme Court of Ohio

A former University of Notre Dame football player who suffered a chronic brain injury did not necessarily wait too long to file a lawsuit claiming the school and the National Collegiate Athletic Association (NCAA) were responsible for his injuries, the Ohio Supreme Court ruled recently.

The Supreme Court unanimously determined that the statute of limitations had not necessarily run out when Steven Schmitz, who was 57 years old when he was diagnosed with chronic traumatic encephalopathy (CTE) in 2012, and his wife, Yvette, filed a personal-injury lawsuit against Notre Dame and the NCAA in 2014.

Schmitz played for Notre Dame from 1974 to 1978. He died in 2015, and his wife continued on with the lawsuit.

In today’s announcement, the justices were divided in their reasoning for affirming the Eighth District Court of Appeals decision, which found the Cuyahoga County Common Pleas Court prematurely dismissed the case.

Writing for the Court majority, Justice Judith L. French stated that “without more facts or evidence in the record,” the Court could not say the couple missed the two-year statute of limitations. The case was remanded to the trial court for further proceedings.

Chief Justice Maureen O’Connor and Justices R. Patrick DeWine and Mary DeGenaro joined the opinion. Justice Patrick F. Fischer concurred in judgment only.

In her concurring opinion, Justice Sharon L. Kennedy stated that the Court should not be making a definitive judgment that the “discovery rule” applies to Schmitz’s claims. “Too much, too soon,” she stated in the opening of her opinion. Justice Terrence O’Donnell joined Justice Kennedy’s opinion.

The Court heard oral arguments in the case at a special off-site session in Putnam County in April.

Injuries Appear Decades after Playing Days

At Notre Dame, Schmitz participated in football games as well as full-contact tackling drills, practices, and scrimmages, and he sustained “repetitive sub-concussive and concussive brain impacts,” the majority opinion stated. The coaching staff praised techniques that involved a player’s use of his helmeted head and ordered players to continue participating in games and practices following head impacts.

On many occasions Schmitz experienced concussion symptoms, such as being disoriented. At the time, neither Schmitz nor the Notre Dame coaching staff recognized that Schmitz had suffered an injury that required monitoring, treatment, therapy, or rest. He was never tested or examined for concussion symptoms, nor was he educated or advised about concussions while playing at Notre Dame.

Schmitz alleged he did not know or have a reason to believe that he suffered from a latent brain injury until he was diagnosed by the Cleveland Clinic Neurology Department with CTE in 2012. He said that was the first time a “competent medical authority” informed him he suffered a brain injury related to football. By 2014, Schmitz was additionally diagnosed with severe memory loss, cognitive decline, Alzheimer’s disease, and dementia, all of which he claimed were caused, aggravated, or magnified by the repetitive head impacts he sustained playing college football.

Couple Sue School, Governing Body

Just months before his death, Schmitz and his wife filed a lawsuit against Notre Dame, and the NCCA as the governing body overseeing college football, for failing to notify, educate, and protect Schmitz from the long-term danger of repeated head impacts. The couple claimed the organizations were negligent, and committed constructive fraud and fraudulent concealment.

The organizations, citing Civ.R. 12(B)(6), argued the lawsuit should be dismissed because the statute of limitations had run out on the claims. Notre Dame and the NCAA asserted that because Schmitz knew when he was playing football that he was injured, he had to file his case within two years of the injury. Alternatively, they claimed that, at the latest, he should have filed the case within two years of published reports in 2010 that linked CTE to football head injuries.

The trial court dismissed the case without explanation, and Yvette Schmitz appealed to the Eighth District. The Eighth District reversed the dismissal of the negligence and fraud claims and ordered the trial court to conduct further proceedings on those claims. The Eighth District affirmed the dismissal of the other legal claims the couple raised.

The NCAA and Notre Dame appealed the decision to the Supreme Court, which agreed to hear the case.

Court Considers Timing of Dismissal

Justice French explained that when a party moves to dismiss a case citing Civ.R. 12(B)(6), “it must appear beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” The rule requires that the trial court could dismiss the case only if, accepting that all the factual allegations made by the Schmitzes are true, the Schmitzes missed the filing deadline.

The opinion noted the Court has ruled that a claim, known as a “cause of action,” for a bodily injury generally accrues from the time “the wrongful act was committed.” Often the injury and the wrongful act that cause the injury occur at the same time, and in those circumstances it is clear when the time begins to run on the statute of limitations, the Court explained. However, the Court has recognized an exception to the rule where a person is not aware of an injury at the time of the wrongful act.

The Court developed a “discovery rule” for cases where there is a latent injury, which is one that develops later than when the incident causing the injury occurred.

“Essentially, the statute of limitations begins to run when the plaintiff knows or, in the exercise of reasonable diligence, should know that he has suffered a cognizable injury,” the opinion stated.

The majority opinion found Schmitz’s case similar to Liddel v. SCA Servs. of Ohio, Inc., which the Court decided in 1994. Liddel involved a man who had been exposed to toxic chlorine gas. The man knew immediately after the exposure that he was injured because he suffered throat and eye irritation for which he received treatment and workers’ compensation benefits.

The man subsequently suffered sinus infections and had a benign growth removed from his nasal cavity. Six years after his exposure to the toxic gas, a biopsy revealed cancer in his naval cavity, and his physician advised him the exposure to the toxic gas could have caused the cancer. The man filed a negligence lawsuit within two years of the cancer diagnosis, which was contested. The Court ruled that his claim for the latent injury accrued on the “date a competent medical authority” informed him the cancer might be linked to the gas exposure.

Head Injuries Alone Did Not Start Clock

Contrary to the argument by Notre Dame and the NCAA, the Court majority stated Schmitz’s knowledge of his head injuries and concussions was not enough to suggest that he knew there was a link between playing football and chronic brain injury.

The Court found that even if Schmitz experienced some neurological impairment prior to his CTE diagnosis, he did not know or have a reason to know it was linked to playing football or to conduct by Notre Dame or the NCAA. The opinion stated that under Civ.R. 12(B)(6), the Court must accept Schmitz’s allegations as true. Notre Dame and the NCAA may be able to prove through discovery proceedings that Schmitz knew or should have known about the connection earlier, but there was not enough information before the trial court at the time the case was dismissed to conclusively establish that the Schmitzes’ claims were untimely.

“The determination of those factual questions will require discovery,” the Court concluded.

Concurrence Agrees on Different Grounds

In her concurring opinion, Justice Kennedy wrote “there is simply too much yet to learn about Schmitz’s injuries, their causes, and when he first learned of those injuries and what may have caused them” for the Court to apply the “discovery rule” at this stage of the case.

She began by noting that the statute of limitations is an affirmative defense and that affirmative defenses are not generally successful in a motion to dismiss. To be successful, the complaint must show conclusively that the action was not timely filed.

Justice Kennedy stated that the complaint did not conclusively establish it was not timely filed. The “complaint contains no allegations that compel the conclusion that Schmitz knew or should have known more than two years before he filed the case that appellants were responsible for his alleged injuries.” She concluded that this was the extent of the analysis that needed to be conducted.

2017-0098. Schmitz v. Natl. Collegiate Athletic Assn., Slip Opinion No. 2018-Ohio-4391.

The opinion can be found online at: http://www.courtnewsohio.gov/cases/2018/SCO/1031/170098.asp#.W9rt8eJReUk

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

About the Supreme Court of Ohio

The Supreme Court is established by Article IV, Section 1 of the Ohio Constitution. Article IV, Section 2 of the Constitution sets the size of the Court and outlines its jurisdiction. Article IV, Section 5 of the Constitution grants rule making and other authority to the Court.

The Supreme Court is the court of last resort in Ohio. Most of its cases are appeals from the 12 district courts of appeals. The Court may grant leave to appeal felony cases from the courts of appeals and may direct a court of appeals to certify its record in any civil or misdemeanor case that the Court finds to be "of public or great general interest."

The Supreme Court also has appellate jurisdiction in cases involving questions arising under the Ohio or United States Constitutions, cases originating in the courts of appeals, and cases in which there have been conflicting opinions on the same question from two or more courts of appeals. The Supreme Court hears all cases in which the death penalty has been imposed. These cases currently include both appeals from courts of appeals affirming imposition of the death penalty by a trial court and, for capital crimes committed on or after Jan. 1, 1995, appeals taken directly from the trial courts. Finally, the Supreme Court's appellate jurisdiction extends to review of the actions of certain administrative agencies, including the Public Utilities Commission.

The Supreme Court has original jurisdiction to issue extraordinary writs. These include writs of habeas corpus (inquiring into the cause of an allegedly unlawful imprisonment or deprivation of custody), writs of mandamus (ordering a public official to perform a required act), writs of procedendo (compelling a lower court to proceed to judgment in a case), writs of prohibition (ordering a lower court to stop abusing or usurping judicial functions), and writs of quo warranto (issued against a person or corporation for usurpation, misuse, or abuse of public office or corporate office or franchise).

The Constitution grants the Supreme Court exclusive authority to regulate admission to the practice of law, the discipline of attorneys admitted to practice, and all other matters relating to the practice of law. In connection with this grant of authority, the Supreme Court has promulgated the Supreme Court Rules for the Government of the Bar of Ohio. These rules address, among other things, admission to practice, attorney discipline, attorney registration, continuing legal education, and unauthorized practice of law.

The Constitution also gives the Supreme Court authority to prescribe rules governing practice and procedure in all courts of the state and to exercise general superintendence over all state courts. Procedural rules promulgated by the Supreme Court become effective unless both houses of the General Assembly adopt a concurrent resolution of disapproval. Rules of superintendence over state courts set minimum standards for court administration. Unlike procedural rules, rules of superintendence do not have to be submitted to the General Assembly to become effective.

In connection with all of the rules for which it has responsibility, the Supreme Court generally solicits public comment before adopting new rules or amendments in final form. The Court first publishes its rules and amendments in proposed form. These proposals appear in both the Ohio State Bar Association Reports and the Ohio Official Advance Sheets and indicate the period open for comment and the staff member to whom comments should be directed. The Court reviews all comments submitted before it decides whether to adopt or amend a rule.

Pursuant to the Constitution, the Chief Justice or a Justice designated by the Chief Justice is responsible for ruling on the disqualification of appellate and common pleas court judges. The procedure for obtaining review of a claim of disqualification against an appellate or common pleas judge is commenced by the filing of an affidavit of disqualification with the Clerk of the Supreme Court. The Revised Code contains specific requirements governing the filing of affidavits of disqualification.

Article IV, Section 2 of the Constitution sets the size of the Court at seven -- a Chief Justice and six Justices, who are elected to six-year terms on a nonpartisan ballot. Two Justices are chosen at the general election in even-numbered years. In the year when the Chief Justice runs, voters pick three members of the Court.

A person must be an attorney with at least six years experience in the practice of law to be elected or appointed to the Supreme Court. Appointments are made by the Governor for vacancies that may occur between elections.

Date Published: November 26, 2018

 

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