Guest Post: The Discovery Rule: Why latent injuries are not barred by the statute of limitations

Today’s guest post is by Alexandra Hoffman. She is a second-year law student at the University of San Francisco, with a focus in both Sports Law and Corporate Law.  She is currently researching the role of science in the law in the NFL concussion litigation context. You can follow her on Twitter @yexxer13.

In civil cases, statutes of limitations (restrictions on how long plaintiffs may wait before filing a suit after an alleged wrong) serve to assure that claims are pursued in a timely manner. The statute of limitations (SOL) for a claim will vary depending on the state and the particular cause of action. Typically the defendant bears the burden of proving the claim is barred by the SOL.

The traditional time of Injury rule starts the running of the SOL clock at the point when the plaintiff initially experiences the injury or harm. In the NFL concussion litigation context, the clock would start when the player incurred the concussion(s). Over time, however, and especially with the rise of asbestos exposure and toxic tort cases, courts began to see the need to allow flexibility for insidious and latent diseases, those where the symptoms of the disease don’t manifest until much later. The discovery rule, an equitable doctrine that may arise out of common law or statute, emerged as a solution to this problem.

Essentially, the discovery rule “tolls,” or postpones, the start of the SOL from the point of injury to the point of when it was discovered or reasonably should have been discovered. This allows plaintiffs to bring a claim for a disease or injury which has it roots in something that occurred years ago, but that only recently began to manifest symptoms. It has been used extensively in asbestos exposure cases, for example, where exposures to asbestos can take over a decade to manifest in symptoms of mesothelioma.

In the NFL concussion lawsuits, the Discovery Rule plays a key role in allowing players to bring claims from injuries initially sustained years or even decades ago. Given the nature of traumatic brain injury, it is often difficult to pinpoint a specific injury or moment in time when the harm was initially experienced. Many of the players experienced repeated concussions over a long period of time, and in some cases the symptoms came on gradually or appeared much later than the actual trauma.

Furthermore, under the discovery rule, a plaintiff’s ignorance is generally not a valid reason to toll the statute – his illness must be such that he could not have reasonably known he was injured until the time of discovery. This concept ties in directly with one of the plaintiffs’ central assertions: the players argue that the NFL’s negligence and concealment in failing to educate them about the harms and symptoms of traumatic brain injury prevented them from discovering their illness until recently. Thus, according to the players, there is no way they “should have known” they were suffering from the disease until the NFL disclosed the link between concussions and long-term brain injury beginning with its educational efforts in 2009.

Although there are certainly no guarantees, the plaintiffs’ attorneys predict that the claims will move forward and are unlikely to be barred by the statute of limitations because of the discovery rule.