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CTE Reaches the High Courts

2018 April 4

Next week, a potential landmark case will be heard by the Ohio Supreme Court. This is the first CTE case to reach the high courts. And the stakes could not be higher.

At issue: when does a CTE claim accrue for purposes of the statute of limitations?

The plaintiffs, correctly, argue that CTE is a latent disease that does not manifest until decades after the last brain trauma. As a result, a CTE claim does not accrue until an individual has been diagnosed.

This is consistent with black letter law associated with latent diseases and the application of the bedrock principle of the discovery rule.

The sports industry–in this case, the NCAA & Notre Dame–contend that the plaintiffs’ claim is barred because the claim accrued when the player was last exposed to the head trauma. According to the industry, the claim must have been filed decades ago.

This argument is manifestly wrong and highlights the tactics the industry uses to distort the science of CTE during the course of litigation.

What’s more, the sports industry contends that even if the discovery rule applies, then the claim is still time barred since the individual should have known, through the “exercise of reasonable diligence,” that he had CTE prior to his diagnosis. The sports industry points to the very medical literature it denies to support this argument.

Stated differently, the sports industry, to this day, still denies the existence of the link between repetitive brain trauma in contact sports and CTE. Yet, this very same sports industry contends that the medical literature should have put the plaintiff on notice that he had CTE.

By that logic, then, shouldn’t the sports industry, through the exercise of reasonable diligence, also have known about the risks of CTE and warned accordingly?

Of course. But we know it did not.

This is a classic case of industry doublespeak. Or, the industry trying to have its cake and eat it too.

In either event, the Ohio Supreme Court should affirm the court of appeals decision, which agreed with the plaintiffs, and hold that a claim for CTE is a distinct latent disease that does not accrue until an individual has been medically diagnosed.

The arguments will be live streamed here. A summary of the briefs is below, along with links to the dockets and briefs.


Did Brain-Damaged College Football Player Wait Too Long to Sue for Injuries?

National Collegiate Athletic Association et al. v. Steven Schmitz et al., Case no. 2017-0098
Eighth District Court of Appeals


  • Does Ohio’s two-year statute of limitations for a personal-injury tort claim start when the full extent of the injuries are revealed through a formal diagnosis?
  • Is chronic traumatic encephalopathy (CTE) a latent disease or is it the latent effect of previously diagnosed head injuries?
  • Does the statute of limitations for a CTE personal-injury claim begin when CTE is diagnosed?
  • Is Ohio’s four-year statute of limitations for a fraud claim reduced to two years if the substance of the fraud claim is an attempt to recover damages for a bodily injury?

From 1974 to 1978, Steven T. Schmitz played college football for the University of Notre Dame, a member institution of the National Collegiate Athletic Association (NCAA). In December 2012, he was diagnosed with chronic traumatic encephalopathy (CTE) by the Cleveland Clinic Neurology Department. He was 57 years old at the time and suffering from memory loss, early onset of Alzheimer’s disease, dementia, and other health problems. In October 2014, he and his wife, Yvette, filed a personal-injury lawsuit against Notre Dame and the NCAA in Cuyahoga County Common Pleas Court. Schmitz died in 2015. Yvette Schmitz continues the lawsuit on behalf of the estate of her former husband and to press her own claims.

The couple claims Notre Dame and the NCAA knew or should have known the risks of brain injuries college football players faced and that they ignored the risk. They also claim the NCAA schools encouraged players to use their heads when tackling and blocking and did little to address the concussions players suffered. The couple charges the institutions were negligent, committed fraud by concealment and constructive fraud, violated stated and implied contracts, and harmed the couple’s relationship (legally known as “loss of consortium.”)

Notre Dame and the NCAA asked the trial court to dismiss the case, claiming the case was filed too late given the statute of limitations. The trial court dismissed the case, and Yvette Schmitz appealed to the Eighth District Court of Appeals. The Eighth District affirmed the decision to dismiss the breach of contract claims, but reversed the decision on the negligence, fraud, and loss of consortium claims. The case was returned to the trial court to continue with further proceedings. Notre Dame and the NCAA appealed the Eighth District’s decision to the Ohio Supreme Court, which agreed to hear the case. Oral argument in this case will be conducted at a special off-site court session in Putnam County.

Legal Argument Overview
The parties dispute whether the Schmitzes waited too long to initiate a lawsuit in common pleas court. The parties also argue the distinction between characterizing CTE, a certain type of brain injury associated with football and other contact sports, as a “latent disease” or a “latent effect” of an injury. If CTE is a latent disease, it would be a separate injury or illness compared with a brain injury, such as a concussion. If CTE is the latent effect of a disease, it would be the continuation and increased severity of a brain injury that worsens over time. The distinction impacts the timing of when the player’s lawsuit must be filed to comply with Ohio’s statute of limitations for certain civil cases.

Suit Should Have Been Filed Earlier, Institutions Argue
Notre Dame and the NCAA argue that all three main claims — negligence and the two fraud counts — are actually personally injury claims, and are governed by the two-year statute of limitations in R.C. 2305.10(A). Loss of consortium is a related claim that can only move forward as long as the courts allow any of the three main claims to be considered.

The institutions contend the time limit begins to run from the time the defendant commits the “wrongful act” upon which the action is based. They also claim there is a narrow exception to the rule in R.C. 2305.10(A) called the “discovery rule,” which applies to injuries that don’t “manifest” themselves at the time of the wrongful conduct. The institutions claim that CTE and other neurological problems are the long-term effects of injuries that “manifested” immediately during Steve Schmitz’s playing days, and that if the couple is claiming Notre Dame and the NCAA are responsible for the wrongful conduct, then the conduct took place no later than 1978 when he stopped playing. If that is when the injuries occurred, the statute of limitations to file a lawsuit ended decades ago, the institutions conclude.

The institutions also maintain that even if the CTE is a new injury and the discovery rule does apply, the couple still waited too long to file the lawsuit because they should have realized Steve Schmitz was suffering from head injuries long before they received a formal diagnosis from the Cleveland Clinic. Citing the Ohio Supreme Court’s 1983 O’Stricker v. Jim Walter Corp. decision, the institutions explain the discovery rule states that when an injury doesn’t immediately manifest itself, the statute of limitations begins to run from the date that the injured person is “informed by a competent medical authority” or the date the injured person “by the exercise of reasonable diligence” should become aware of the injury.

The Eighth District ruled that CTE was a latent injury, separate from the concussions Steve Schmitz suffered while playing football, and the deadline to file a lawsuit started when he received his diagnosis from the Cleveland Clinic. Notre Dame and the NCAA counter that by exercising reasonable diligence, the Schmitzes should have known about the potential of developing CTE at least two years before the clinic’s evaluation. The institutions note that the Schmitzes argue CTE involves the slow build-up of Tau protein in the brain tissue and causes progressive decline in brain function, and that the Schmitzes must have noticed the problems long before they went to the doctor.

The institutions argue that both sides in this case claim that studies of head injuries to college athletes have been issued since the 1920s, and both sides should have been aware of the potential impact. They dispute the Schmitzes’ argument that the institutions concealed information from athletes about the potential severity of the injuries, and they noted that in 2010 the NCAA instituted a concussion protocol that required Notre Dame and all schools to have concussion management plans.

“In short, if the allegations of the Complaint are true, then by 2010 at the absolute latest, Mr. Schmitz was or should have been alerted to the possibility that head injuries can lead to significant, long-term cognitive impairment,” the institutions’ brief states.

Notre Dame and the NCAA conclude that a lawsuit claiming it was responsible for causing CTE should have been filed within two years of the 2010 NCCA rule. The institutions also dispute the fraud allegations, and argue the Schmitzes waited too long to file on those claims as well. They argue that the four-year statute of limitation for fraud in R.C. 2305.09(C) doesn’t apply because a two-year time limit applies to all claims based on bodily injury regardless of whether they are characterized as fraud claims.

Lawsuit Should Proceed, Family Asserts
The Schmitzes maintain the injury is a latent disease and the Eighth District correctly applied the discovery rule when it found that the case was filed in the appropriate amount of time. They argue the symptoms of CTE are different from the symptoms arising from concussions. They further maintain Steve Schmitz never knew he had concussions from the hits he endured while playing football and the Notre Dame staff never informed him that he suffered concussions when he felt dizzy or disoriented on the playing field. The complaint doesn’t allege this is a known injury that worsened over time, and the fact that a player suffered head injuries during playing days doesn’t prevent a lawsuit later when a diagnosis of a disease is delivered, they argue.

The couple points to the Ohio Supreme Court’s 1994 Liddell v. SCA Services of Ohio Inc. opinion as the decision that explains how to apply the discovery rule to a latent disease. In Liddell, a police officer was exposed to toxic fumes when he escorted school children out of a bus spewing toxic fumes after it overturned. He experienced breathing issues and six months later developed sinus infections. Six years later, a surgeon removed a tumor from his sinus cavity that revealed cancer. While the officer was aware he had been exposed to toxic fumes from the time of the accident, he sued the transportation company based on the latent disease. The Supreme Court applied Ohio’s discovery rule to the case and found the two-year statute of limitations didn’t begin until the officer’s cancer was revealed.

“Like the police officer in Liddell, prior to his diagnosis with CTE, Steve Schmitz did not know that he had been exposed to the risk of a latent brain disease caused by football or that he would be diagnosed with that latent brain disease at age 57,” the Schmitzes’ brief states.

The couple also disputes the claim that they must have known about the injury long before going to the Cleveland Clinic. They argue because the trial court dismissed the lawsuit at the earliest stages, discoveryhadn’t taken place and the institutions are only speculating on what the Schmitzes might have known about the impact of a brain injury three decades after participation in a college sport. The Schmitzes maintain that the clock began to run on filing a lawsuit when a competent medical authority, the Cleveland Clinic, issued the diagnosis, and that the case was filed within two years of the diagnosis.

Friend-of-the-Court Briefs Filed on Each Side
An amicus curiae brief supporting Notre Dame and the NCAA’s position has been submitted by the Ohio Association of Civil Trial Attorneys. The Ohio Association for Justice has filed an amicus brief supporting the Schmitzes.

– Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the National Collegiate Athletic Association: Frederick Nance, 216.479.8500

Representing University of Notre Dame: Matthew Karis, 614.469.3939

Representing Steven Schmitz et al.: Robert DeRose, 614.221.4221

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