Update: On  October 31, 2018, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read an analysis of the oral argument here.

On April 11, 2018, the Supreme Court of Ohio will hear oral argument in the case Steven Schmitz et al v. National Collegiate Athletic Ass’n et al, 2017-0098. At issue in this case is whether a diagnosis of a latent brain disease sufficiently tolls Ohio’s statute of limitations under the discovery rule, and whether the fraudulent concealment and constructive fraud claims should be subject to the two year or four year statute of limitations. The case will be argued at Ottawa-Glandorf High School in Putnam County as part of the court’s off-site program.

Case Background

Steven Schmitz was a running back and receiver for the University of Notre Dame du Lac (“Notre Dame”) football program from 1974 to 1978. During this period, the university was a member institution of the National Collegiate Athletic Association (“NCAA”) (collectively, the “Defendants”).

Almost forty years later, in December of 2012, Schmitz was diagnosed at the Cleveland Clinic with chronic traumatic encephalopathy (“CTE”). CTE is a latent disease of the brain, which is purported to be the result of repetitive head impacts. At fifty-seven, Schmitz suffered from memory loss, early onset Alzheimer’s disease, traumatic encephalopathy, and dementia.

Less than two years after his diagnosis, in October of 2014, Schmitz and his wife Yvette filed suit against Notre Dame and the NCAA for negligence, fraud by concealment, constructive fraud, breach of express and implied contract, and loss of consortium. In sum, Schmitz alleged that the Defendants knew, or should have known, about the increased risks of brain injury football posed to players during and after their collegiate careers, but the Defendants ignored these risks. Schmitz died on February 13, 2015, and his estate was substituted as plaintiff with Yvette acting as the fiduciary. Yvette remained a plaintiff in her individual capacity.

On September 1, 2015, Cuyahoga County Court of Common Pleas Judge Deena R. Calabrese granted the Defendants’ motion dismissing Schmitz’s complaint as time-barred.

The Appeal

In a unanimous decision authored by Judge Mary J. Boyle, joined by Judges Larry Jones, Sr. and Frank Celebrezze, Jr., the Eighth District Court of Appeals reversed the trial court’s dismissal on statute of limitations grounds of Schmitz’s claims of negligence, fraudulent concealment, constructive fraud and loss of consortium, affirmed the dismissal of the contract claims as time-barred, and not subject to the discovery rule, and affirmed the dismissal of the constructive fraud claim against NCAA on non-statute of limitations grounds. Following other courts addressing similar issues around the country, the Eighth District found that the discovery rule applied to Schmitz’s latent brain injury because it was unknown until he received his formal diagnosis in 2012. The court also found a prior toxic-tort case, Liddell v. SCA Servc., to be particularly instructive.

The Eighth District also held that the claims of fraudulent concealment and constructive fraud were separate and distinct from the claims for bodily injury, and therefore, were subject to the four year statute of limitations in R.C. 2309.09(C).

Votes to Accept the Case

Yes: Justices O’Donnell, O’Neill, French, and Fischer.

No: Chief Justice O’Connor, and Justices Kennedy and DeWine.

Key Statutes and Precedent

R.C. 2305.10(A) (“an action for bodily injury . . . shall be brought within two years after the cause of action accrues.”)

R.C. 2305.09(C) (An action on the ground of fraud “shall be brought within four years after the cause thereof accrued.”)

Andrianos v. Cmty. Traction Co., 155 Ohio St. 47 (1951) (Holding that Ohio’s prior iteration of R.C. 2305.10(A) “govern[ed] all actions the real purpose of which [was] to recover damages for injury to the person.”)

Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376 (1982) (“A motion to dismiss a complaint under Civ. R. 12(B) which is based upon the statute of limitations is erroneously granted where the complaint does not conclusively show on its face the action is barred by the statute of limitations.”)

O’Stricker v. Jim Walter Corp., 4 Ohio St. 3d 84 (1983) (“When an injury does not manifest itself immediately, the cause of action does not arise until the plaintiff knows or, by the exercise of reasonable diligence should have known, that he had been injured by the conduct of defendant.”) (syllabus)

Hambleton v. R.G. Barry Corp., 12 Ohio St. 3d 179 (1984) (per curiam) (The statute of limitations begins to accrue when a claimant “possessed knowledge sufficient to lead a reasonably prudent person to make inquiry and had such inquiry been made with reasonable care and diligence.”)

Gaines v. Preterm-Cleveland, Inc., 33 Ohio St. 3d 54 (1987) (“[A] cause of action in fraud, is separate and independent from malpractice.”)

Allenius v. Thomas, 42 Ohio St. 3d 131, 133, 538 N.E.2d 93 (1989) (Under the cognizable event doctrine, a claimant does not need to “be aware of the full extent of the injury.”)

Erickson v. Scotsman, Inc., 456 N.W.2d 535, 539 (N.D. 1990) (“[W]hen a plaintiff is aware of his or her injury, but not the full extent of those injuries, a ‘discovery rule’ should not be applied to toll the statute of limitations.”)

Liddell v. SCA Serv. of Ohio, Inc., 70 Ohio St. 3d 6 (1994) (Extending O’Stricker’s rule of accrual to an individual exposure to toxic gas, which manifested itself six years later.)

Pingue v. Pingue, 2004-Ohio-4173 (5th Dist.) (In order for the discovery rule to apply, there must be (1) discovery of the injury and (2) discovery of the wrongful conduct. Since this plaintiff knew the perpetrator and that he had been injured, his claims were time-barred.)

Flagstar Bank, F.S.B. v. Airline Union’s Mortgage Co., 2011-Ohio-1961 (A cause of action for professional negligence exists from the time the wrongful act is committed.)

MacDonald v. Cleveland Income Tax Bd. of Review, 2017-Ohio-7798 (“When there is a conflict between a general provision and a more specific provision in a statute, the specific provision controls.”)

Defendants’ Argument

The Eighth District erred by applying the discovery rule to an injury that manifested itself immediately, but even if the rule did apply, Schmitz had actual or constructive knowledge of the injury at issue and who caused it prior to the 2012 diagnosis.

Generally, a claim exists and begins to accrue when the tortfeaser commits the “wrongful act” underlying the claim. The exception to this—the judge-made discovery rule—does not apply when the injury manifested itself immediately. Therefore, the claims at issue began to accrue when the injuries actually occurred, in the 1970s. Even though Schmitz may not have been aware of the “full extent” of his injury, that alone does not prevent the statute of limitations from accruing. The Defendants argue that “limiting the discovery rule to latent injuries, as opposed to the latent effects of already-known injuries, is consistent with the rule’s purposes.”

The Eighth District was wrong in finding CTE to be separate and distinct from the concussions Schmitz suffered while playing. And the appeals court mistakenly relied on Liddell, which involved a latent injury, not a latent effect of an already known injury. CTE as alleged in the complaint would be better characterized as the latter. However, if this Court finds Liddell applicable to cases involving long-term effects, then it should limit it to contexts like toxic tort claims where liability relies on documentary evidence, which does not lose reliability over time, rather than on individual memories. Plus, any plaintiff, within the statutory period, can recover damages for future harms.

This unwarranted expansion of the discovery rule frustrates the purpose of Ohio’s statutes of limitations – protecting defendants from stale and fraudulent claims. These policy matters should be left to the General Assembly. This Court should reverse the Eighth District, enforce the statutes created by Ohio’s legislature, and find that all of Schmitz’s claims are time-barred.

Also, this Court should clarify that Andrianos v. Cmty. Traction Co. remains good law and precludes plaintiffs from circumventing the statute of limitations for claims of bodily injury by disguising them as actions for fraud. The Eighth District failed to address this binding precedent, and in its stead, rejected traditional rules of statutory construction by failing to apply the more specific two year statute of limitations in R.C. 2305.10(A) to all of Schmitz’s claims.

Schmitz’s Argument

This Court should affirm the Eighth District, which correctly held that Schmitz’s claims were timely filed, only eighteen months after his diagnosis of CTE. The appeals court properly applied the discovery rule, and did not expand it at all.

Defendants effectively seek to have this court prevent anyone afflicted with CTE (likely former football players similar to Schmitz) from ever having a claim proceed to the merits of the case. Contrary to the Defendants’ mischaracterization, CTE is a latent neurological disease and is fundamentally different from the concussions and head trauma Schmitz suffered while participating in Notre Dame’s football program. More importantly, Schmitz was unaware of any injuries—especially his latent brain disease—until his diagnosis. That was when his injury manifested itself for the purposes of the discovery rule.

The Pingue case is not as instructive as the Defendants contend. Pingue involved a plaintiff who knew his perpetrator and was completely aware of that perpetrator’s criminal and tortious conduct for almost three decades. That is why the Eighth District correctly distinguished the case, and instead adopted the rationale discussed by this Court in Liddell.  Like the plaintiff in Liddell, Schmitz could not, and did not discover his injury until his physician diagnosed him. It would be inherently inequitable to bar his claim.

Although the Eighth District did not discuss Andrianos by name, it acknowledged that plaintiffs “cannot couch a claim for bodily injury as a fraud claim.” The claims of fraud as alleged were sufficiently “separate and distinct” to support the application of the four-year limit on claims. But even if the appeals court is wrong, and the two year statute in R.C. 2305.10(A) applies, it makes no difference since all of Schmitz’s claims were filed within two years of discovery of his injury.

Defendants’ Proposed Proposition of Law No. 1

A diagnosis for the long-term effects of an injury a plaintiff already knew about does not revive a time‐barred claim.

Defendants’ Proposed Proposition of Law No. 2

Plaintiffs’ fraudulent‐concealment and constructive fraud claims are subject to R.C. 2305.10(A)’s two‐year statute of limitations.

Amicus in Support of Defendants

The Ohio Association of a Civil Trial Attorneys (“OACTA”) filed an amicus brief in support of the Defendants. This organization and its constituents are primarily concerned with the defense of civil lawsuits, as well as the fair and efficient administration of justice in Ohio.

OACTA expressed concern regarding the Eighth District’s expansion of Ohio’s discovery rule beyond the intended framework established by the General Assembly. Echoing the Defendants’ arguments above, the injury underlying the claim was known to Schmitz for purposes of the statute of limitations, even if he was not aware of the “full extent” of the injury. Although Schmitz was diagnosed in 2012, he should have known of his condition through reasonable diligence prior to that formality, since the injury manifested itself in the 1970’s. However, under the Eighth District’s rationale, the reasonable diligence requirement has in effect been abrogated. This means that “[a] litigant whose prior injuries worsen over time has an open-ended time period to bring claims.” The Eighth District’s application of the discovery rule to newly discovered effects of already known injuries is wrong, and must be corrected.

Amicus in Support of Schmitz

The Ohio Association for Justice (“OAJ”) filed an amicus brief in support of Schmitz. The OAJ includes member-attorneys who specialize in tort litigation  and consumer protection on behalf of injured persons within Ohio.

OAJ believes that the adoption of Defendants’ first proposition of law could be devastating to all potential claimants suffering from latent injuries. Despite assertions to the contrary by Defendants and OACTA, “the mere presence of some physical symptom alone would not constitute an ‘injury’ for purposes of the discovery rule.” Although knowledge of the “full extent” of an injury is not necessary, that does not negate the requirement of a “cognizable event” or “alerting event” regarding the injury. Furthermore, it is important that this Court avoid unconscionable results where individuals suffering from latent injuries would be deprived of a remedy. The settled law of Ohio and public policy considerations support the Eighth District’s decision, and it should be affirmed by this Court.

Student Contributor: Jefferson Kisor