Diagnosed Years After the Hits: Ohio's Discovery Rule and Brain-Injury Claims (Schmitz v. NCAA)

Published December 4, 2018 · Ohio Supreme Court

Steven Schmitz played football for Notre Dame from 1974 through 1978. He took hit after hit in drills, practices and games, and he sometimes came away disoriented, not knowing the time or where he was. No one tested him for a concussion or told him to rest. More than three decades later, in December 2012, doctors at the Cleveland Clinic diagnosed him with chronic traumatic encephalopathy, or CTE, a degenerative brain disease linked to repeated blows to the head. By 2014 he also had severe memory loss, Alzheimer's disease and dementia.

He and his wife sued the NCAA and Notre Dame in October 2014. Schmitz died a few months later, and his estate carried on the case. The defendants' answer was simple: he knew he was getting hurt in the 1970s, so his time to sue ran out decades ago.

On October 31, 2018, the Supreme Court of Ohio disagreed. In Schmitz v. Natl. Collegiate Athletic Assn., Slip Opinion No. 2018-Ohio-4391, the Court held that the lawsuit could not be thrown out as too late, at least not based on the complaint alone. The decision is an important one for anyone whose injury from long-ago conduct is only now coming to light.

Ohio's two-year deadline and when it starts

Under R.C. 2305.10(A), a lawsuit for bodily injury must be filed within two years after the cause of action "accrues." Ordinarily, that is the day the injury happens: the day of the crash, the fall or the dog bite. I have written before about how strictly Ohio applies the two-year deadline.

But some injuries do not show themselves right away. A disease caused by an exposure or by repeated trauma may not appear for years. For those cases, Ohio courts apply what is called the discovery rule. Under it, the two years do not start until the injured person knows, or by using reasonable diligence should know, that he or she has been injured by the defendant's conduct. In latent-disease cases, the Court explained, that is generally the earlier of the date a competent medical authority tells the person about the injury, or the date the person reasonably should have become aware of it.

The defendants' argument: "he knew he was hurt"

The NCAA and Notre Dame argued that this was not a latent-injury case at all. Schmitz had concussion symptoms while he played. In their view, a later diagnosis only revealed the long-term effects of injuries he already knew about, and learning more about the extent of a known injury does not restart the clock.

The Court's answer: knowing you were hit is not knowing you were wronged

Justice French, writing for the Court, rejected that argument as a basis for dismissing the case. The key points:

Concussions in football are not, by themselves, a red flag of wrongdoing. The Court observed that head injuries, including concussions, are an inherent part of the sport. "They do not inherently suggest the existence of actionable wrongdoing." Experiencing disorientation after a tackle told Schmitz he had been hit hard; it did not tell him he had a progressive brain disease, or that the people responsible for his safety had failed to protect him.

The disease he sued over was different from the symptoms he felt on the field. The Court compared the case to earlier decisions involving asbestos and toxic-chemical exposure, in which a person who had some immediate symptoms was not required to sue for a cancer that had not yet developed. The claims here sought recovery for memory loss, cognitive decline, Alzheimer's disease, CTE and dementia, and the complaint did not allege any of those appeared before 2012.

The complaint alleged he had no reason to connect the dots. According to the allegations, the medical literature on head impacts was not available to him, and his coaches downplayed head injuries to the point that he never recognized he had suffered an injury needing treatment or monitoring. At this stage, those allegations had to be accepted as true.

Because the complaint did not show conclusively that the claims accrued more than two years before suit, the claims for negligence, fraudulent concealment and constructive fraud could go forward.

The other half of the ruling: two years for every theory

The Court also decided which deadline applies to the fraud-based claims. The court of appeals had applied Ohio's four-year deadline for fraud. The Supreme Court held that because those claims sought damages for the same bodily injury, based on essentially the same alleged failure to inform Schmitz of the risks, they were governed by the same two-year period as the negligence claim.

That is an important practical point. Labeling a claim "fraud" or "concealment" does not buy extra time when what you are really seeking is compensation for a physical injury. The two-year clock, once it starts, governs all of it.

What the decision does not decide

This was a ruling on a motion to dismiss. The Court did not decide that the NCAA or Notre Dame did anything wrong, or even that the claims were timely in the end. It held only that the complaint, read in the plaintiffs' favor, did not prove the claims were too late. The defendants remain free to show through evidence that Schmitz knew or should have known of his injury and its cause earlier. Two justices, while agreeing with the result, would have said even less about the discovery rule at this early stage.

Who this helps

Schmitz involved football, but its reasoning reaches well beyond sports:

• Former athletes at every level who are now experiencing cognitive or behavioral problems after years of head impacts. Families of young athletes may also want to read my March post on a brain injury suffered during an unsanctioned team activity.
• Crash and fall victims whose brain injuries were missed or minimized at first. Not every concussion resolves, and some effects emerge only later. I discussed how concussions and traumatic brain injuries are proven after a crash.
• People exposed to harmful conditions who develop disease years later.

But it is not a blank check. For most crash and fall injuries, the injury and its cause are obvious on the day it happens, and the two years start running then. The discovery rule is the exception, and courts apply it carefully.

What this means for you

If you have recently been diagnosed with a brain injury or another condition that may trace back to something that happened years ago, do not assume it is too late. The question is not when you were first hurt, but when you knew or should have known that you had a compensable injury caused by someone else's conduct. At the same time, the diagnosis itself may start a two-year clock, and every legal theory you have will likely be on that same clock. The time to get advice is now, not a year and a half from now.