What’s On Their Minds: Should Ohio’s Discovery Rule Toll Claims Involving Latent Brain Diseases Like CTE? Steven Schmitz et al v. National Collegiate Athletic Association et al.

By Marianna Bettman on April 20, 2018

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

On April 11, 2018, the Supreme Court of Ohio heard oral argument in 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. The case was argued at Ottawa-Glandorf High School in Putnam County as part of the court’s off-site program.

Case Background

Appellee Steven Schmitz was a running back and receiver for Appellant University of Notre Dame du Lac (“Notre Dame”) football program from 1974 to 1978. During this period, the university was a member institution of Appellant 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, the trial court granted the Defendants’ motion dismissing Schmitz’s complaint as time-barred.

The Appeal

In a unanimous decision, 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.

Read the oral argument preview of the case here.

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 for fraud “shall be brought within four years after the cause thereof accrued.”)

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.”)

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.)

At Oral Argument

Arguing Counsel

Matthew R. Kairis, Jones Day, Columbus, for Appellants NCAA and Notre Dame.

David D. Langfitt, Locks Law Firm, Philadelphia, for Appellees Estate of Steven T. Schmitz, et al.

Football Defendants’ Argument

Mr. Schmitz knew he was injured when he was playing football at Notre Dame, ending in 1978. He was struck on the head when playing football, and was disoriented as to time and place. While disoriented as to time and place, he was ordered to use his helmeted head as a weapon to injure himself and others. Even if he didn’t yet know the severity of that injury, he certainly knew he had suffered an injury.

The discovery rule, a narrow, judge-made exception to the statute of limitations, does not apply in this case because it does not apply to the latent effects of an already manifested injury, which is what Mr. Schmitz alleges in his complaint. He alleged that he was permanently disabled based on the latent effects of the injuries he suffered while he was at Notre Dame, and that his injuries were the magnification and aggravation of injuries he sustained while playing there. His cause of action accrued when he stopped playing football in 1978. He had two years from that time to file suit.

This situation is no different from a bicyclist who is hit by a car, injures his knee, and learns years and years later that he has an ACL injury or osteoarthritis. He cannot sue the driver of the car more than two years after the accident because his injury was immediately manifest and the discovery rule does not apply.

This is simply not a discovery case. O’Stricker does not apply. A newly diagnosed disease—the CTE in this case– is not a new trigger for a new claim. It is simply the magnification of the original injury. This is not analogous to the sponge-left-in-the stomach cases in which the discovery rule would apply. If you leave surgery and you have a sponge in your stomach, you don’t know that you are injured. Even if your stomach hurts a month later, you wouldn’t connect that to your surgery. O’Stricker and its attendant discovery rule has two prongs—knowledge of an injury, and connecting that injury to a cognizable event. But where an injury is immediately manifest, the discovery rule does not apply—there is no second prong. If you are injured, you must immediately find out the cause.

If this is a problem area of the law, it should be addressed by the legislature, which is best equipped to deal with these policy issues, as it did with problems with the statute of limitations in child sex abuse cases, DES cases, and cases of identity fraud.

Schmitz’s Argument

At no time when he was playing football did Steve Schmitz think he had sustained an injury of any kind. He didn’t even really know he’d had a concussion, or any type of concussive injury, and the Notre Dame coaches certainly never told him he did. He did not go on and on in his life with a nagging problem. Transient symptoms of minor head injury did not equate to CTE.

This is a latent disease case, no different from O’Sticker or Liddell. And CTE is the signature latent disease of football. In Liddell, for example, Officer Lindell certainly knew he had a cough and a scratchy throat. But that did not give rise to an accrual. Even the later removal of a benign tumor from his nasal passage did not give rise to accrual. Only when he had a competent medical diagnosis of cancer was the statute of limitations triggered in his case. In both of those cases the medical malpractice claim did not accrue until there was a cognizable event, which in both cases was the diagnosis of cancer by a competent medical professional. A suspicion is not enough. Schmitz was diagnosed with CTE—the signature latent disease of football–in December of 2012-which is when this claim accrued. And he had been diligent in seeking an explanation for his condition.

Even the extent of the injury cases show that only when there is a cognizable event, just like in the latent disease cases when there is a competent medical diagnosis, is the plaintiff then put on notice. This notice is critical to the law of Ohio—it is throughout the case law. Without this kind of medical diagnosis, people like Steve Schmitz do not necessarily know anything.

This is not a stale claim. What happened at practices and what Notre Dame knew either individually or as an institution throughout these years is absolutely discoverable; the evidence will be documentary. Most of the medical literature cited in the complaint is or should be in the Notre Dame library.

What Was On Their Minds

What Did Schmitz Know and When Did He Know It?

When were Mr. Schmitz’s injuries manifested, asked Justice O’Donnell? Is Notre Dame suggesting Schmitz could have raised an Alzheimer’s claim while he was a student at the university of Notre Dame? (yes, it was.) Even though he had no symptoms of Alzheimer’s at the time? When did he first know he had symptoms of Alzheimer’s? Were there some type of concussion-related injuries exhibited to Schmitz at the time he was playing football? That translates to a diagnosis of CTE? Despite the fact the coach tells him, get back in the game, or lose your scholarship, Mr. Schmitz should have sued Notre Dame then? Because that’s when the cause of action was ripe? So lose his scholarship that way? (Justice O’Donnell asked this series of questions with considerable feeling) Later, he commented that the complaint alleges Mr. Schmitz was using his helmet as a weapon and became disoriented –what weight do we give to that allegation? Does that not impart some knowledge of his injury to him?

Mr. Schmitz knew he was injured on the field, did he not, asked Chief Justice O’Connor? While he didn’t know the extent of his injury, didn’t he know at various times and in various games that he had had a concussion or disorientation? He might not have put a name to it, but he knew he was injured playing football.

At some point Mr. Schmitz had to know he had this disease, commented Justice DeWine. Is the rule the plaintiff is asking the Court to apply is that there has to be an actual diagnosis even though there is all this research out there, and he knew he had all these problems? Isn’t the applicable standard from the case law, “knew or should have known?”

Is there anything in the plaintiff’s complaint that talks about what led Mr. Schmitz to seek medical care and being diagnosed in 2012, asked Justice DeGenaro?

Latent Disease or Magnification of Existing Disease?

I’m not a doctor, commented Justice French. How do I know what kind of disease this is? How do I know if this is a more latent disease or if it is something that develops over time? Where do I get my information to make that decision?

How should the Court view the fact that 2012 is the first time Mr. Schmitz gets a diagnosis of CTE, asked Justice O’Donnell?

Accrual of the Cause of Action

When did the cause of action accrue in this case, asked Justice O’Donnell? Is this a discovery case or an accrual case?

Because Mr. Schmitz had a series of injuries by the time he completed his college football career in 1978, isn’t that when his cause of action accrued, asked Chief Justice O’Connor? At that time, he could have introduced medical testimony to say, here’s what his condition is today, and medical expertise will be admitted to show that the long term effects of this would likely be Alzheimer’s or CTE –there is a high probability that he will be afflicted by this, as a result of this present day injury, correct? (yes, agreed counsel for Notre Dame)

When Mr. Schmitz’s career at Notre Dame was concluded, is that when his cause of action accrued, asked Justice DeGenaro? How does a plaintiff get over the issue of speculative damages if a lawsuit is filed then?

Justice French expressed her concern with some of the policy reasons behind the statute of limitations. How, as a practical matter, can there be a trial relating to what happened 40 years ago? There are players and coaches who are no longer with us, there are coaches who are no longer at Notre Dame, how do you have a trial under those circumstances? There would be no limit to such cases—people could bring them even into their 80’s, she commented.

Medical Malpractice Cases

If we analogize to medical malpractice, to the sponge left inside the patient, undiscovered until years later, beyond the one year statute for medical malpractice claims—don’t we say that the cause of action didn’t accrue because the patient had no idea until the subsequent symptoms presented themselves, which was outside the statute of limitations, and so the law has developed that yes, that action can be prosecuted because it accrued at the time of the discovery, asked Justice O’Donnell?

Going back to the hypo about the sponge left in the stomach during surgery, wouldn’t the clock start to run as soon as the patient felt the pain a month after surgery, and isn’t that a more concrete injury than what we have before us in this case, asked Justice DeGenaro? How is that different from the constant hits and sustaining concussions?

Help From the Legislature

Should the legislature create a special statute of limitations for this class of injuries, asked Justice Genaro?

Is this a matter for this court or is it a matter for the General Assembly to take up as it did in 2305.11 and subsequent matters, asked Justice O’Donnell? Is this a legislative prerogative, a judicial determination, or judicial activism?

The Global NFL Settlement

Do these cases date to preexisting injuries, as part of that global settlement for NFL players, asked Justice O’Donnell? Is there a similar class action for college football players?

How it Looks from the Bleachers

To Professor Emerita Bettman

Like a win for the Football defendants, but regrettably, in the view of my notorious plaintiff’s heart. I think a majority will find that by 1978, Schmitz was aware of his injuries, even though not aware of their full extent, and therefore had to sue within two years.

First of all, I must say this case was beautifully argued by both counsel—really a treat to watch, and an excellent choice for the high school audience in Putnam County as part of the Court’s off-site program. And both lawyers apparently were former college football players (Mr. Kairis for Notre Dame).

The entire argument focused on the latent disease versus magnification of existing injury dichotomy. There were other fraud and contract arguments in the briefs, but those fell by the wayside at oral argument.

My personal view is that Steve Schmitz had no idea in 1978 that he had suffered an injury that someone else might be responsible for. Yes, he knew he was hurt, and temporarily disoriented, but what about the second part, that that was due to some tortious conduct of the coaching staff? Or the NCAA? No way. Chief Justice O’Connor developed in questioning the fact that if Schmitz had filed suit within two years of 1978, he had the right to claim future damages. I can only say that if Schmitz had come into court in 1978 and claimed that it was probable that he would develop CTE or Alzheimer’s in the future, he would have had a serious, if not insurmountable problem with the speculative nature of such damages. Justice DeGenaro specifically asked how a plaintiff could get over the problem with speculative damages at that time. And Mr. Kairis admitted as much, although arguing the plaintiff even then had medical literature to support these future damages.

Justices O’Donnell and DeGenaro seemed most sympathetic to Schmitz’s position; the Chief and Justice DeWine least. The Chief kept hammering on the fact that Schmitz knew he was injured, just not the full extent of those injuries, in 1978. Justice French had her oft-voiced public policy concerns about how long a tail these claims could carry if the discovery ruled applies here. I think a majority is going to agree that this was a magnification of an injury that occurred by 1978 at the latest, and Schmitz should have sued within two years. Schmitz’s estate is likely to get a little bone from the Court that it hopes the legislature takes this up and deals with these CTE injuries in their own category, as it has done with other delayed injury cases. But this one, I think, goes to the defendants.

To Student Contributor Jefferson Kisor

After going through the briefs in this case, and given the growing CTE litigation across the country, I was excited to see the direction the oral argument would take. Fortunately, this was a much warmer bench than recent arguments I’ve watched, and I was very impressed by counsel, especially with how they handled the questions by the Court.

This case will turn on whether the Court, based on the Complaint, finds CTE to be an effect or magnification of concussive injuries Schmitz sustained while playing football, as posited by Notre Dame and the NCAA, or concludes that it is a separate and distinct brain disease. Although counsel for Schmitz, Mr. Langfitt, was adamant that Schmitz had no knowledge of a concussion while playing football, the Justices seemed skeptical, no one more so than the Chief Justice. Even though Schmitz may not have been aware of the specific name or label of the injury, the Chief Justice kept circling back in her questions to how he likely knew something was wrong. Justice DeWine echoed a similar concern, alluding to Schmitz’s possible knowledge of his medical problems he exhibited that precipitated his formal medical diagnosis. While I would love to see the merits of this case fleshed out, I do not believe this Court will save a forty-year old claim. I predict that the Court will reverse the Eighth District and find this case to be time-barred.