Kyle Roat, Associate Member, University of Cincinnati Law Review
On January 2, 1978, the Notre Dame Fighting Irish, led by Joe Montana, upset the number one ranked Texas Longhorns in the Cotton Bowl Classic and claimed the national championship.[1] Thirty-four years later, in December 2012, one member of that team, Steven Schmitz, learned from his physician that his football career had left him with chronic traumatic encephalopathy (CTE), a debilitating disease.[2] Less than two years after receiving his diagnosis, Mr. Schmitz and his wife filed suit against Notre Dame University and the National Collegiate Athletic Association (NCAA) alleging negligence, fraudulent concealment, constructive fraud, breach of express and implied contract, and loss of consortium.[3] Mr. Schmitz passed away in February of 2015, and his estate was substituted as plaintiff.[4] This article will review the primary issue in the Supreme Court of Ohio’s recent decision in the Schmitz case and the implications of the court’s decision for future litigants.
Defendants Notre Dame and the NCAA moved for dismissal under Ohio Rule of Civil Procedure 12(B)(6), asserting the Schmitz’s claims were barred by the statute of limitations and for failure to state a claim on which relief could be granted.[5] The trial court granted the dismissal of all claims without issuing an opinion.[6] Defendant’s repose was short lived however as the Eighth District Court of Appeals reversed in part the trial court’s judgment as to all claims except breach of contract and constructive fraud.
The statute of limitations for an action for bodily injury in Ohio is two years from the date the cause of action accrues.[7] However, in O’Stricker v. Jim Walter Corp.,[8] an asbestos case, the Supreme Court of Ohio held that for latent injuries,
a claim accrues on either ‘the date on which the plaintiff is informed by competent medical authority that he has been injured, or upon the date on which, by the exercise of reasonable diligence, he should have become aware that he had been injured, whichever date occurs first.’[9]
Courts have struggled to reconcile the discovery rule with the rule that “A diagnosis for the long-term effects of an injury a plaintiff already knew about does not revive a time-barred claim.”[10] The central issue is distinguishing between long-term effects of an injury of which the plaintiff is aware and “latent” disease or injury triggered by earlier wrongful conduct.
The Supreme Court of Ohio relied on two cases in deciding that the Schmitzes could continue their case: Liddell v. SCA Servs. Of Ohio, Inc.[11] and Pingue v. Pingue.[12] The plaintiff in Liddell was a police officer who responded to a garbage truck fire and was exposed to toxic gas.[13] The officer experienced both immediate physical symptoms for which he received workers’ compensation and latent symptoms but did not file suit until he developed cancer which his physician linked to the exposure.[14] Despite the immediate injury suffered by Liddell, the court treated his cancer as a distinct injury he could not discover at the time of his exposure.[15]
At issue in Pingue v. Pingue was whether the discovery rule applied in the case of physical assault which the plaintiff later discovered had caused a brain injury.[16] The Fifth District affirmed the trial court’s dismissal in Pingue on the grounds that the plaintiff knew of his injury at the time it occurred and that the diagnosis of brain injury only informed the plaintiff of the extent of his injuries.[17]
The result seems to be that the discovery rule in Ohio applies in two circumstances: (1) when the wrongful conduct of the tortfeasor later causes disease the plaintiff could not have discovered at the time of the injurious conduct and (2) when the occurrence of the physical injury “inherently suggest[s] the existence of actionable wrongdoing.”[18]
Schmitz is not entirely bad news for Notre Dame, the NCAA, and other similarly situated potential defendants. The majority opinion holds that the discovery rule does apply to injuries of the kind suffered by the plaintiff.[19] However, the cause of action will have accrued prior to the October 2012 diagnosis if the defendants can prove the plaintiff knew or should have known of the injury more than two years before the complaint was filed.[20]
The key takeaway for potential plaintiffs is that in order to avoid dismissal at the pleading stage in cases alleging latent disease or injury must plead the disease or injury as latent, unknown, and undiscoverable at any time more than two years before the case was filed. Justice Kennedy’s concurring opinion levies a fair criticism of the majority opinion, arguing the court did not need to categorically rule the discovery rule applied to the allegations.[21] Justice Kennedy asserts that because the statute of limitations is an affirmative defense in Ohio[22] and the complaint alleges no facts which require the conclusion the plaintiff’s claim is untimely the court does not need to proceed further.[23] Instead, Justice Kennedy suggests the defendants would have been better served by raising the defense at the summary judgment stage.[24]
Looming in the future is a question not addressed in this litigation. As public awareness of the danger of repeated concussive and sub-concussive head impacts increases, there will presumably come a time when all possible plaintiffs can be considered to have assumed the risk by engaging in sports in which such injuries are common. Absent proof of negligent conduct on the part of institutions governing these sports (e.g., failing to adequately protect potentially concussed athletes, failing to utilize appropriate protective equipment or protocols), courts will eventually be compelled to deny relief to athletes similarly situated to Steven Schmitz. For now, however, the Supreme Court of Ohio has opened the door for former athletes confronting the consequences of their efforts on the field.
[1] Cotton Bowl Classic, http://www.cottonbowl.com/the-classic/past-classics/ (last visited Nov. 28, 2018).
[2] Schmitz v. Natl’l. Collegiate Athletic Assn., Slip Op No. 2018-Ohio-4391 at ¶5 (Ohio Oct. 31, 2018).
[3] Id. at ¶6.
[4] Schmitz v. Nat’l. Collegiate Athletic Assn., 2016-Ohio-8041, 67 N.E.3d 852, 857 (Ohio Ct. App. 2016).
[5] Schmitz, Slip Op. No. 2018-Ohio-4391 at ¶7.
[6] Id. at ¶7.
[7] Id. at ¶12.
[8] 4 Ohio St.3d 84, 447 N.E.2d 727 (1983).
[9] Schmitz, Slip Op. No. 2018-Ohio-4391 at ¶14, quoting O’Stricker, 4 Ohio St.3d 84, 447 N.E.2d 727.
[10] Id. at ¶39 Kennedy, J., concurring.
[11] 70 Ohio St.3d 6, 635 N.E.2d 1233 (1994).
[12] No. 03-CA-E-12070, 2004-Ohio-4173, 2004 Ohio Ct. App. 2004 WL 1775013. (Fifth Dist. Aug. 9, 2004).
[13] Liddell, 635 N.E.2d at 1234.
[14] Schmitz, Slip Op. No. 2018-Ohio-4391 at ¶16.
[15] Id. at ¶18.
[16] Id. at ¶20.
[17] Id. at ¶20.
[18] Id. at ¶24.
[19] Id. at ¶36.
[20] Id. at ¶30. “Ultimately, it may be true-as appellants argue-that appellees’ claims accrued before October 2012. But . . . that conclusion does not follow solely from the allegations made in the amended complaint.”
[21] Id. at 37.
[22] Ohio Rules of Civil Procedure 8(C).
[23] Schmitz, Slip Op. No. 2018-Ohio-4391 at ¶41.
[24] Id. at ¶41.
