Late last year, the Ohio Supreme Court delivered what the defendants in the case considered a late hit. Quite surprising to me, almost nothing has been written about this case, which involves the University of Notre Dame, the NCAA and by extension, the NFL.
Steven Schmitz played football for Notre Dame in the mid-1970s. Of course, he sustained repetitive blows to the head. But he seemed to have no symptoms from the brain impacts until his 50s.
But in December 2012, Schmitz had problems and was diagnosed with chronic traumatic encephalopathy (CTE),which is an ever-worsening brain disease. (It was originally called “dementia pugilistica,” because it was first noticed in boxers.) He then developed severe memory loss, cognitive decline, Alzheimer’s disease and dementia, allegedly the result of the brain injuries from Notre Dame football.
Schmitz and his wife filed suit against defendants Notre Dame and the NCAA in 2014. He died a few months later.
The suit claimed that Notre Dame, and the NCAA, failed to warn, educate and protect Schmitz from the long-term dangers of repeated concussive and subconcussive head impacts. The suit further alleged that the defendants were negligent and fraudulent in failing to disclose the dangers they knew about.
The trial court in Cleveland dismissed the case before any discovery, or pre-trial evidence, was even taken, holding that it was too late. The Court of Appeals there reversed, saying that it wasn’t automatically too late, that if the allegations were true – that he had not known of the injury until 2012, the suit could go forward, as it was within two years of the diagnosis, which was the important date.
The case wound its way to the Ohio Supreme Court. The issue was whether the statute of limitations had run out. That is, whether the claim was barred because it was filed almost 40 years after the brain trauma occurred.
Usually, the time begins to run when the injury occurs – a car runs into you and breaks your bones. There’s no question that you’ve been injured. In most states, you have two years to bring a lawsuit or your claim is barred by the passage of too much time. This result makes some sense, because as time goes on memories fade and evidence gets lost.
But suppose that injury is not immediately apparent. You might work in a coal mine or a factory that uses asbestos. Many years later, you develop a disease or condition that had never been symptomatic before. Obviously, not all miners get black lung disease. You can’t sue for something you don’t even know about yet.
The court here decided that, just as in black lung cases, the time doesn’t run until a diagnosis, assuming you haven’t had symptoms and just refused to be examined. The time starts to run when someone knew, or should have known, that the injury caused the harm.
Schmitz had not been diagnosed with CTE until 2012. The medical evidence was that the disease can be latent – it can appear years or even decades later. People in their 40s and 50s often show the symptoms of the disease much earlier injury.
Notre Dame and the NCAA persisted that Schmitz must have had some awareness that he was injured, especially with all the publicity that concussion-type injuries had received.
But Schmitz had claimed he had no symptoms before 2012. If that is correct, surely he shouldn’t have filed a lawsuit earlier. If he had, it would likely have been dismissed as premature.
The Ohio Supreme Court made the right decision on the main point (there were a couple of other points not relevant here). And unanimously; all justices concurred in the decision. The court decided that, in the case of a latent disease caused by prior trauma, the time starts to run when the person is diagnosed with the disease, regardless of when the injury that caused it happened.
The case is not over. It will go back to the trial court in Cleveland to determine whether Schmitz’s widow can prove her case. Because no evidence had yet been offered, there could be proof that Schmitz knew about his condition earlier, though in my opinion that’s doubtful. And maybe a court will rule that the defendants had no reason to know about the possible harm from concussions. But that defense didn’t work too well for the tobacco companies. Also, the damages – compensation for the loss of a spouse, lost income, medical bills – need to be determined.
Since this decision – and likely because of it – many other lawsuits have been filed against the NCAA and various colleges. And there were already some pending. In these lawsuits, players allege that their concussions led to medical issues spanning from headaches to depression and in some cases early onset Parkinson’s and Alzheimer’ disease. (The NCAA in 2014 settled one lawsuit for $70 million, but it did not compensate individual players.)
While the decision is certainly the right one at this point, implications for colleges, the NCAA, and surely by analogy the NFL, could be immense.
Mark P. Painter served as a judge for 30 years. He is the author of six books, including “Write Well” and “The Legal Writer.”
Originally published in The Cincinnati Enquirer March 24, 2019.
