CTE as Latent Disease – Will Other Courts Follow?

By: Callie Brister

Member, American Journal of Trial Advocacy

Background – Schmitz v. NCAA

In October of 2014, Steven Schmitz, a former running back and receiver at the University of Notre Dame, and his wife, Yvette Schmitz, filed a lawsuit against the University of Notre Dame (“Notre Dame”) and the National Collegiate Athletic Association (“NCAA”) alleging that they both “failed to notify, educate, and protect Schmitz from the long-term dangers of repeated concussive and subconcussive head impacts.”[1] Steven was a football player at Notre Dame in the mid-1970s.[2] During his career at Notre Dame, he sustained repeated “concussive and subconcussive impacts.”[3] Steven was diagnosed with a degenerative brain disease, chronic traumatic encephalopathy (“CTE”), in 2012.[4] By 2014, at the age of fifty-eight, Steven had also been diagnosed with Alzheimer’s disease, dementia, severe memory loss, and cognitive decline.[5] Steven ultimately died in early 2015.[6]

Because this lawsuit was filed over thirty years after Steven’s collegiate football career ended, the Ohio Supreme Court had to decide when this cause of action accrued to determine whether the claims were barred by the statute of limitations or not.[7] More specifically, the court had to decide whether the claims accrued at the conclusion of Steven’s football career in 1978, or whether they accrued when Steven was diagnosed with CTE in 2012.[8]

Under Ohio law, the courts have created a “discovery rule” that postpones the accrual of a cause of action for injury “that does not manifest itself until a point subsequent to the defendant’s alleged misconduct.”[9] Applying the discovery rule to latent injuries, Ohio courts have found that a claim accrues on the day “the plaintiff is informed by competent medical authority that he has been injured,” or the day the plaintiff should have become aware that he had been injured, by the exercise of reasonable diligence.[10] Thus, the statute of limitations generally begins to run when the plaintiff knows or should have known, by the exercise of reasonable diligence, that he has suffered an injury.[11]

The defendants took the position that this was not a case of latent injury or disease, but rather that Steven’s claims accrued when he experienced his injuries, regardless if he was unaware of the extent of his injuries.[12] Although the court did not expressly classify Steven’s injuries as latent ones, it did so implicitly by rejecting the defendants’ argument that this was not a case of latent injury or disease.[13] The court ultimately held that the discovery rule applied to Steven’s claims for negligence, constructive fraud, and fraudulent concealment; thus, the claims were not time-barred.[14]

Ohio Becomes the First

The Schmitz case is important because the Ohio Supreme Court is the first state or federal court of appeals to directly consider whether CTE is recognized as a latent disease that extends the applicable statute of limitations.[15] Based on this decision, at least for actions litigated pursuant to Ohio law, the ruling “opens the door to timely-filed tort claims against sports leagues, governing bodies, and teams by athletes who didn’t know or should have known their neurological impairments were caused by their wrongful conduct while playing the sport until recently.”[16] Matthew Mitten, the executive director of the National Sports Law Institute, noted that Schmitz recognizes “that sports concussions may have latent effects not medically diagnosed until many years thereafter.”[17] Ultimately, the ruling could affect and help thousands of athletes across the country who have filed similar concussion suits against all types of sports organizations and associations.[18]

CTE Litigation

CTE research is continuing to develop and grow, which leaves litigants and researchers without uniformity “regarding the existence, the nature, or the causes of the disease.” [19] Some researchers describe CTE “as a progressive degenerative disease of the brain found in people with a history of repetitive brain trauma (often athletes), including symptomatic concussions as well as asymptomatic subconcussive hits to the head.”[20] The changes CTE causes to the brain may not begin until months, years, or decades “after the last brain trauma or end of active athletic involvement.”[21]

Based on the descriptions of CTE, one practicing attorney noted that the descriptions suggested at least three characteristics that could be significant in litigating a CTE-related claim.[22] First, CTE is a “progressive degenerative disease.”[23] CTE differs from an injury that causes immediate damage because CTE causes damage through the build-up of protein over a course of years.[24] Second, “CTE might not be linked to any single, identifiable blow to the head.”[25] Instead, CTE may be attributed to repeated contact, which includes sub-concussive hits.[26] Third, “CTE may not manifest in any perceptible symptoms until long after the damage-causing blows occurred.”[27] Thus, a plaintiff may allege that his or her head injury and progressive injury happened long before he or she began experiencing CTE symptoms.[28] Although each case is different, the abovementioned characteristics of CTE seem to be a useful starting point in litigating a CTE related claim.[29]

Despite CTE’s lacking uniformity among litigants and researchers, the lawsuits are still being filed.[30] For example, in 2011, the National Football League (“NFL”) was sued by seventy-three former professional league football players in the most high profile CTE-related lawsuit to date.[31] Following that lawsuit, there were around 300 similar lawsuits filed by approximately 5,000 former professional league players against the NFL.[32] All of the claims generally alleged a failure on part of the NFL to protect its players from the long-term risks associated with concussions and fraudulent concealment of those risks.[33] In 2013, the NFL agreed to a settlement, which included $765 million to go towards “medical examinations and compensation for player injuries.”[34]

However, the NFL is not the only sport-related association affected by CTE litigation.[35] The National Hockey League (“NHL”) has been sued multiple times in Minnesota on behalf of players for failing “to act to prevent brain injuries caused by blows to players’ heads.”[36] Additionally, the NCAA has settled a class action lawsuit regarding head injuries and concussions to college athletes.[37] Pending court approval, “the settlement would create a $70 million program offering free medical monitoring for fifty years.”[38]

Where does that leave us?

As with most everything in the law, there is no clear answer. While an argument can certainly be made that Schmitz will open the floodgates of litigation for CTE and concussion-related injuries, we have no precedent to suggest that all, or even a majority of jurisdictions, will apply the same reasoning as the Ohio Supreme Court did. However, given the complexity of CTE and how long it may take for symptoms to manifest, if other jurisdictions apply the Schmitz reasoning, we can expect an increase in the amount of CTE and concussion related claims being fully litigated.

[1]Schmitz v. Nat’l Collegiate Athletic Ass’n., No. 2018-Ohio-4391, slip op. at 2 (Ohio Oct. 31, 2018).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Schmitz, slip op. at 6(“[A]n action for bodily injury . . . shall be brought within two years after the cause of action accrues.”) (quoting Ohio Rev. Code Ann. § 2305.10(A) (West 2018)).

[8] Id.  

[9] Id. at 7 (citing O’Stricker v. Jim Walter Corp., 447 N.E.2d 727, 732 (Ohio 1983)).

[10] Id. (quoting O’Stricker, 447 N.E.2d at 732).

[11] Id.

[12] Id. at 9.

[13] Schmitz, slip op. at 9.

[14] Id. at 15.

[15] Steven M. Sellers, Notre Dame Player’s Brain Injury May Be ‘Latent,’ Ohio Judges Rule, Bloomberg Law (2018), https://www.bloomberglaw.com/product/blic/document/X7367BCK000000?bna_news_filter=us-law-week&jcsearch=BNA 00000166ca47d94ba9e7fe6fb96c0000#jcite (last visited Nov 2, 2018).

[16] Id.

[17] Id.

[18] Id.

[19] Thomas M. Reiter & Lucas J. Tanglen, Concussions and Coverage: Insurance Claims Alleging Long-Term Brain Injuries, Including CTE, American Bar Association (2017), https://www.americanbar.org/groups/entertainment_sports/publications/entertainment-sports-lawyer/2017/fall2017/concussions/ (last visited Oct. 30, 2018).

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Reiter, supra note 19.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Reiter, supra note 19.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Reiter, supra note 19.

[38] Id.

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