The estate of a former Notre Dame football player may proceed with negligence claims that his degenerative brain condition counts as a latent disease not subject to Ohio’s usual time bar, the Ohio Supreme Court ruled Oct. 31.

The case is significant because the Ohio top court is the first appeals court, state or federal, to squarely consider whether chronic traumatic encephalopathy, or CTE, qualifies as a latent disease that extends the time within which a former player may sue a sports league under state law.

Typically claims must be filed within two years of the injury.

“The court didn’t explicitly rule CTE is a latent disease, but they also didn’t go the other way and say it wasn’t,” plaintiffs’ lawyer Paul Edelstein, of The Edelsteins Faegenburg & Brown in New York, told Bloomberg Law.

“You’re happy if you are a plaintiffs’ lawyer with a sports-related chronic brain injury case,” said Edelstein, who represents plaintiffs in sport-related brain injury litigation.

Matthew Mitten, executive director of the National Sports Law Institute at Marquette University Law School in Milwaukee, agreed.

“This case of first impression recognizes that sports concussions may have latent effects not medically diagnosed until many years thereafter,” Mitten said.

“It opens the door to timely-filed tort claims against sports leagues, governing bodies, and teams by athletes who didn’t know or should have known their neurological impairments were caused by their wrongful conduct while playing the sport until recently.”

The ruling could also help thousands of other players who have filed similar concussion-related suits across the country against a variety of professional, collegiate, high school, and youth sports leagues from football to gymnastics.

The Ohio top court said in its ruling, however, that more fact-finding is necessary to determine whether and when Steven Schmitz was on notice of his brain injury claims from repetitive head-banging in the sport, the court said.

That gives the University of Notre Dame and the National Collegiate Athletic Association a second chance to argue Schmitz knew he had a brain injury claim long before he ever filed suit.

“They stayed away from the bigger issue of whether CTE is a latent disease as a matter of law, but one can insinuate that from the decision,” Edelstein said.

Neither attorneys for Schmitz’s family nor the NCAA immediately responded to a request for comment.

1970s’ Football Hits

Schmitz, a running back for the University of Notre Dame from 1974 to 1978, died in 2015 at the age of 60. He was diagnosed three years earlier with CTE caused by repetitive head impacts, the complaint alleges.

Yvette Schmitz argued on appeal that her husband couldn’t have known of his late-developing degenerative disease within the two-year filing window for negligence cases in Ohio.

Notre Dame and the NCAA argued, however, that Schmitz’s negligence and fraudulent concealment claims were filed too late because her husband’s football concussions, as well as his progressive cognitive decline before his CTE diagnosis, put him on notice that he had a potential CTE claim.

Known as “discovery” statutes of limitation, the laws extend the time for injured people to sue when a latent disease made its discovery impossible until symptoms developed years after its cause.

Here, “neither the allegation that CTE involves progressive cognitive decline nor the allegation that Schmitz suffered symptoms prior to filing his complaint (almost two years after his diagnosis) conclusively demonstrates that Schmitz should have been aware prior to October 2012 that he had been injured as a result of appellants’ conduct,” the Ohio top court held.

“The determination of those factual questions will require discovery,” it said.

It reversed a lower appeals court ruling, however, that Schmitz’s fraudulent concealment claims could also proceed. Those claims were subject to the two-year time limit, the court said.

Justice Sharon L. Kennedy concurred in the opinion, but cautioned the ruling acknowledged only that the discovery rule “could conceivably apply” here.

“There is simply too much yet to learn about Steven Schmitz’s injuries, their causes, and when he first learned of those injuries” to make a definitive judgment yet, she said.

Judge Judith L. French wrote the unanimous opinion for the court. She was joined by Chief Justice Maureen O’Connor, R. Patrick DeWine, Mary DeGenaro. Justices Patrick F. Fischer, Terrence O’Donnell, and Kennedy concurred in the judgment.

The law offices of Narkan Meizlish Handelman Goodin Derose Wentz, the Locks Law Firm, and Hausfeld represented the estate of Steven Schmitz and Yvette Schmitz.

Squire Patton Boggs represented Notre Dame and NCAA. Jones Day also represented Notre Dame.

The case is Schmitz v. Nat’l Collegiate Athletic Assoc., Ohio, No. 2018-Ohio-4391, 10/31/18.