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Ohio Supreme Court reaffirms "Discovery Rule," allows CTE case brought by former Notre Dame football player to proceed


One key issue for those harmed by the wrongful conduct of others to keep in mind is the impact that a statute of limitations can have on his or her case. These laws dictate the time window injured person has to file suit on a claim before it expires and becomes subject to dismissal by a trial court. These deadlines can vary based on the state jurisdiction a case falls under, and also based on the type of case involved. For instance, in Ohio, a personal injury case arising from an auto accident, trip-and-fall, or defective product claim typically must be filed within two years from the date when the cause of action accrues or else be forever barred. Likewise, a wrongful death case must be brought by an estate representative within two years from the date of death. In medical negligence claims, however, Ohio law provides only one year from the date that the cause of action accrues in which the plaintiff must file his complaint to preserve any right of recovery.

The date of “accrual” for any type of case can vary for a number of factors, but often arises at the time of the negligent conduct causing injury. For example, in auto accident cases the applicable time window would typically be two years from the date of the crash itself. That said, these deadlines can become problematic in certain cases involving unknown and undiscoverable injuries that lay dormant and do not immediately come to light. These include situations involving exposure to asbestos or other disease-causing chemicals, when a plaintiff would have no reason to suspect that he or she has been (or will be) harmed for years, sometimes decades, after the events in question. There have even been reported cases involving surgery patients unaware of their potential cause of action for foreign objects (surgical sponges, tools, etc.) left in the body during a procedure, until becoming symptomatic more than one year later. To ensure that justice can be provided in these scenarios, Ohio courts, like those in many other states, have developed a “discovery rule” that can delay the start of the statute of limitations period until a plaintiff knows, or has reasonable cause for suspicion, that he or she has been harmed by the negligence of another.

In a decision released earlier this month, the Ohio Supreme Court reaffirmed and clarified the discovery rule in a significant case that involved a condition that has become well-known to sports fans over the past few years: CTE, or chronic traumatic encephalopathy. CTE is a degenerative brain disease that has been found to be prevalent among athletes, veterans, and other groups known to endure repetitive blows to the head, in which Tau proteins progressively build up in brain tissue to speed up cognitive decline. CTE-related litigation has become much more widespread in recent years, and the creation and management of a settlement fund for former NFL players has created national headlines on multiple occasions, paying out more than $568 Million to date.

In Schmitz v. NCAA, et al., Steven Schmitz and his family members had filed suit against the NCAA and his alma mater, Notre Dame, for negligence and “reckless disregard” in failing to properly warn and educate players, and in concealing the risks associated with repeated head blows during his time as a collegiate football player in the 1970s. Mr. Schmitz’s Complaint alleged that while he was never diagnosed or treated for concussions during his playing career, he experienced concussion-like symptoms like episodes of severe confusion on numerous occasions following head impacts in practices and games. The Complaint went on to state that, despite being aware of these risks, the coaching staff at Notre Dame at the time “praised tackling and blocking techniques that involved a player’s use of his helmeted head and aggravated the risk of head injuries, and coaching staff ordered players to continue participating in practices and games following a head impact.” Mr. Schmitz subsequently suffered numerous difficulties, including memory loss and dementia in the decades thereafter before ultimately being diagnosed with CTE by the Cleveland Clinic in 2012. He and his wife filed their case against the NCAA and Notre Dame in 2014, within two years from the date of his diagnosis, and his wife continued to press the lawsuit after he died the following year at the age of 60.

The trial court initially dismissed the Schmitz case at the pleading stage on statute of limitations grounds, even before any discovery of documents or depositions could take place to ascertain all of the facts. The court had granted a Motion to Dismiss filed by the NCAA and Notre Dame which argued CTE was not a “latent” or undiscoverable injury but merely an “extension” of Mr. Schmitz’s prior concussion-like symptoms that he should have known that he had suffered during his career, and that the two year statute of limitations had therefore expired long ago. The plaintiffs appealed the trial court ruling, which was reversed by Ohio’s Eighth District Court of Appeals. The NCAA and Notre Dame then sought a further review from the Ohio Supreme Court in an effort to reinstate the trial court’s dismissal order.

The Schmitz case was particularly significant as it was the first time the supreme court of any state had been asked to determine whether CTE qualifies as a “latent” disease to permit the discovery rule to extend a statute of limitations, or is merely an furtherance of another condition (concussions and concussion-like symptoms) that should immediately start the clock on a plaintiff’s timeline to file suit. Given the far-reaching implications of the case, not only to sufferers of CTE but to those impacted by other delayed-onset diseases and conditions as well, R&B attorney Jonathan Stoudt submitted an amicus curiae (“friend of the court”) brief supporting the plaintiffs’ position on behalf of the Ohio Association for Justice. A majority of the Ohio Supreme Court justiceagreed with the arguments advanced by the plaintiffs and the OAJ, holding that CTE can be considered a latent condition such that the lawsuit should at least be permitted to proceed past the initial pleading stage. As set forth in the majority opinion of Justice Judith L. French: “[H]ead injuries, including concussions, are an inherent part of football. . . . They do not inherently suggest the existence of an actionable wrongdoing.” Thus, based on the allegations contained in the Complaint, “we cannot conclusively say that appellees’ claims accrued by the time Schmitz finished playing football for Notre Dame in 1978.” While the liability of the university and the NCAA remains an open question yet to be decided, the case will now return to the trial court so that discovery can proceed and the evidence in the case, rather than a legal technicality, may determine the outcome.

The full text of the Ohio Supreme Court’s decision can be found at The amicus curiae brief submitted by Rourke & Blumenthal on behalf of the Ohio Association of Justice is also available on the Court’s website at

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