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Football Player’s Widow Can Pursue Head Injury Lawsuit Against Notre Dame, NCAA

Image of a brain scan

A Cleveland area man who claims playing football in the 1970s for the University of Notre Dame led to his chronic brain injuries can proceed with his lawsuit against the school and the NCAA.

Image of a brain scan

A Cleveland area man who claims playing football in the 1970s for the University of Notre Dame led to his chronic brain injuries can proceed with his lawsuit against the school and the NCAA.

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 today.

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.

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