IN THE SUPREME COURT OF OHIO

National Collegiate Athletic Association, et al.,

Defendants-Appellants,

v.

Steven Schmitz, et al.,

Plaintiffs-Appellees.

Case No. 2017-0098

Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District Court of Appeals Case No. CA-15-103525

__________________________________________________________________________

OPENING BRIEF OF APPELLANTS

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, AND UNIVERSITY OF NOTRE DAME DU LAC

____________________________________________________________________________ Frederick R. Nance (0008988) Steven A. Friedman (0060001) Sean L. McGrane (0091287) SQUIRE PATTON BOGGS (US) LLP 4900 Key Tower 127 Public Square Cleveland, OH 44114 Telephone: (216) 479-8500 Facsimile: (216) 479-8780 fred.nance@squirepb.com steven.friedman@squirepb.com sean.mcgrane@squirepb.com Attorneys for Defendant-Appellant National Collegiate Athletic Association

Matthew A. Kairis* (0055502) *Counsel of Record Yvette McGee Brown (0030642) Aaron Michael Healey (0091709) Benjamin M. Flowers (0095284) M. Ryan Harmanis (0093642) JONES DAY 325 John H. McConnell Blvd., Suite 600 Columbus, OH 43215 Telephone: (614) 469-3939 Facsimile: (614) 461-4198 makairis@jonesday.com ymcgeebrown@jonesday.com ahealey@jonesday.com bflowers@jonesday.com rharmanis@jonesday.com Attorneys for Defendant-Appellant University of Notre Dame du Lac

Counsel for Plaintiffs-Appellees listed on next page

Supreme Court of Ohio Clerk of Court - Filed November 30, 2017 - Case No. 2017-0098

Sandy Meizlish (000026220) Robert E. DeRose (0055214) BARKAN MEIZLISH HANDELMAN GOODIN DEROSE WENTZ, LLP 250 E. Broad St., 10th Fl. Columbus, OH 43215 Telephone: (614) 221-4221 Facsimile: (614) 744-2300 smeizlish@barkanmeizlish.com bderose@barkanmeizlish.com David D. Langfitt (PHV No. 5921-2017) Melanie J. Garner (PHV No. 6051-2017) LOCKS LAW FIRM The Curtis Center Suite 720 East 601 Walnut Street Philadelphia, PA 19106 Telephone: (215) 893-3423 Facsimile: (215) 893-3444 dlangfitt@lockslaw.com mgarner@lockslaw.com Richard S. Lewis HAUSFELD, L.L.P. 1700 K. Street, N.W. N.W. Suite 650 Washington, DC 20006 Telephone: (202) 540-7200 Facsimile: (202) 540-7201 rlewis@hausfeld.com Attorneys for Plaintiffs-Appellees

i

TABLE OF CONTENTS 

Page 

Table of Authorities .................................................................................................................... ii 

Introduction ................................................................................................................................. 1 

Statement of Facts ....................................................................................................................... 6 

Argument ................................................................................................................................... 11 

I.  Proposition of Law 1:  A diagnosis for the long‐term effects of an 

injury a plaintiff already knew about does not revive a time‐barred 

claim. ................................................................................................................... 11 

A.  The discovery rule is a narrow exception to the rule that 

causes of action accrue when the allegedly wrongful act 

occurs. ..................................................................................................... 12 

B.  The discovery rule does not apply under the facts alleged. ........... 16 

1.  Under settled legal principles, the discovery rule is 

inapplicable to the facts alleged. ............................................. 16 

2.  The Eighth District’s application of the discovery rule 

contradicts the legislature’s decision to impose a two‐

year statute of limitations on personal‐injury claims. ......... 25 

C.  Even if the discovery rule applied, the Estate’s claims would 

be untimely. ........................................................................................... 32 

II.  Proposition Of Law No. 2:  Plaintiffs’ fraudulent‐concealment and 

constructive‐fraud claims are subject to R.C. 2305.10(A)’s two‐year 

statute of limitations. ........................................................................................ 38 

A.  The text of R.C. 2305.10(A), along with the cases interpreting 

it, confirm that its two‐year limitations period applies to all 

of the Estate’s claims. ............................................................................ 39 

B.  Plaintiffs should not be allowed to extend limitations 

periods simply by relabeling their claims. ........................................ 45 

Conclusion ................................................................................................................................. 47 

Certificate of Service ................................................................................................................. 49 

Appendix .................................................................................................................................... 50 

 

ii

TABLE OF AUTHORITIES

Page(s) CASES

Abdalla v. Olexia, 113 Ohio App. 3d 756 (7th Dist. 1996) ................................................................................41

Allenius v. Thomas, 42 Ohio St. 3d 131, 538 N.E.2d 93 (1989) ......................................................................14, 18

Andrianos v. Cmty. Traction Co., 155 Ohio St. 47, 97 N.E.2d 549 (1951) ......................................................................... passim

Baxley v. Harley-Davidson Motor Co., 2007-Ohio-3678 (1st Dist.) ....................................................................................................13

Borchard v. Anderson, 542 N.W.2d 247 (Iowa 1996) ..........................................................................................15, 22

Braxton v. Peerless Premier Appliance Co., 2003-Ohio-2872 (8th Dist.) ...................................................................................................14

Bridges v. Astrue, No. 3:11-CV-06046-AC, 2012 WL 4322735 (D. Or. June 5, 2012) ....................................16

Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424 (1965) .................................................................................................................26

Clay v. Kuhl, 727 N.E.2d 217 (Ill. 2000) ......................................................................................................15

Colby v. Terminix Int’l. Co., L.P., No. 96-CA-0241, 1997 WL 117218 (Ohio Ct. App. 5th Dist. Feb. 10, 1997) ...............................................................................35

Columbus City Sch. Bd. of Educ. v. Franklin Cty. Bd. of Revision, 144 Ohio St. 3d 128, 2015-Ohio-4304 (2015) .......................................................................13

Cooper Indus., LLC v. City of S. Bend, 899 N.E.2d 1274 (Ind. 2009) .................................................................................................15

Cortrim Mfg. Co. v. Smith, 570 S.W.2d 854 (Tenn. 1978) ................................................................................................16

CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014) .............................................................................................................27

iii

Cundall v. U.S. Bank, 122 Ohio St. 3d 188, 2009-Ohio-2523 ..................................................................................25

Dean v. Ruscon Corp., 468 S.E.2d 645 (S.C. 1996) .....................................................................................................15

Doe v. Archdiocese of Cincinnati, 109 Ohio St. 3d 491, 2006-Ohio-2625 ............................................................................11, 30

Doe v. First United Methodist Church, 68 Ohio St. 3d 531, 629 N.E.2d 402 (1994) ..................................................................1, 5, 39

Erickson v. Scotsman, Inc., 456 N.W.2d 535 (N.D. 1990) .................................................................................................15

Flagstar Bank, F.S.B. v. Airline Union’s Mortg. Co., 128 Ohio St. 3d 529, 2011-Ohio-1961 ................................................................12, 13, 14, 25

Flowers v. Walker, 63 Ohio St. 3d 546, 589 N.E.2d 1284 (1992) ............................................................13, 17, 28

Gaines v. Preterm-Cleveland, Inc., 33 Ohio St. 3d 54, 514 N.E.2d 709 (1987) ................................................................43, 44, 45

Galayda v. Lake Hosp. Sys., Inc., 71 Ohio St. 3d 421, 644 N.E.2d 298 (1994) ..........................................................................27

Gilliam v. Mid-American Sec. Serv., Inc., No. 94-T-5079, 1994 WL 738504 (Ohio Ct. App. 11th Dist. Dec. 23, 1994) ..............46, 47

Gleason v. Borough of Moosic, 15 A.3d 479 (Pa. 2011) ...........................................................................................................15

Gonzales v. Sw. Olshan Found. Repair Co., 400 S.W.3d 52 (Tex. 2013) .....................................................................................................15

Hambleton v. R.G. Barry Corp., 12 Ohio St. 3d 179, 465 N.E.2d 1298 (1984) (per curiam) ...........................................17, 28

Howard v. Allen, 30 Ohio St. 2d 130, 283 N.E.2d 167 (1972) ..........................................................................29

Howard v. Fiesta Texas Show Park, Inc., 980 S.W.2d 716 (Tex. App. 1998) .........................................................................................22

Hughes v. Vanderbilt Univ., 215 F.3d 543 (6th Cir. 2000) ..................................................................................................29

In re Estate of Centorbi, 129 Ohio St. 3d 78, 2011-Ohio-2267 ....................................................................................31

iv

In re Nat’l Hockey League Players’ Concussion Injury Litig., No. MDL 14–2551, 2015 WL 1334027 (D. Minn. Mar. 25, 2015)......................................21

Investors REIT One v. Jacobs, 46 Ohio St. 3d 176, 546 N.E.2d 206 (1989) ..........................................................................41

John Doe 1 v. Archdiocese of Milwaukee, 734 N.W.2d 827 (Wisc. 2007) ...............................................................................................15

Knepler v. Cowden, No. 17473, 1999 WL 1243349 (Ohio Ct. App. 2d Dist. Dec. 23, 1999) .............................44

Koe v. Mercer, 876 N.E.2d 831 (Mass. 2007) ................................................................................................15

Liddell v. SCA Serv. of Ohio, Inc., 70 Ohio St. 3d 6, 635 N.E.2d 1233 (1994) ..........................................................22, 23, 24, 25

Lorillard v. Pons, 434 U.S. 575 (1978) .................................................................................................................42

Love v. City of Port Clinton, 37 Ohio St. 3d 98, 524 N.E.2d 166 (1988) ................................................................41, 45, 46

MacDonald v. Cleveland Income Tax Bd. of Review, __ Ohio St. 3d __, 2017-Ohio-7798 ......................................................................................39

Martin v. Arthur, 3 S.W.3d 684 (Ark. 1999) ......................................................................................................15

McCullough v. World Wrestling Entm’t, Inc., 172 F. Supp. 3d 528 (D. Conn.) ............................................................................................21

Messmore v. Monarch Mach. Tool Co., 11 Ohio App.3d 67 (9th Dist. 1983) .....................................................................................11

Nadra v. Mbah, 119 Ohio St. 3d 305, 2008-Ohio-3918 ..................................................................................41

Norgard v. Brush Wellman, Inc., 95 Ohio St. 3d 165, 2002-Ohio-2007 ............................................................................ passim

O’Stricker v. Jim Walter Corp., 4 Ohio St. 3d 84, 447 N.E.2d 727 (1983) ...................................................................... passim

Order of R.R. Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342 (1944) .................................................................................................................27

Perry Cty. v. RR. Co., 43 Ohio St. 451, 2 N.E. 854 (1885) ........................................................................................31

v

Pierce v. Durrani, 2015-Ohio-2835 (1st Dist.) ....................................................................................................44

Pingue v. Pingue, 2004-Ohio-4173 (5th Dist.) .........................................................................................3, 19, 20

Potts v. Celotex Corp., 796 S.W.2d 678 (Tenn. 1990) ................................................................................................15

Pratte v. Stewart, 125 Ohio St. 3d 473, 2010-Ohio-1860 ............................................................................32, 39

Ralphs v. City of Spirit Lake, 560 P.2d 1315 (Idaho 1977) ...................................................................................................15

Richardson v. Doe, 176 Ohio St. 370, 199 N.E.2d 878 (1964) .............................................................................29

Riddlesbarger v. Hartford Ins. Co., 74 U.S. 386 (1868) ...................................................................................................................28

Rowe v. John Deere, 533 A.2d 375 (N.H. 1987) ................................................................................................15, 22

Schmitz v. Nat’l College Athletic Ass’n, No. 103525 (8th Dist. Dec. 11, 2015) ..............................................................................33, 34

Schmitz v. The Nat’l Football League, No. 13-cv-1396, Doc. 1 ......................................................................................................8, 30

Schmitz v. Natl. Collegiate Athletic Ass’n, 2016-Ohio-8041 (8th Dist.) ........................................................................................... passim

Seeley v. Expert, Inc., 26 Ohio St. 2d 61, 269 N.E.2d 121 (1971) ......................................................................42, 43

Smith v. Thompson, 923 P.2d 101 (Alaska 1996) ...................................................................................................15

Spriestersbach v. Ohio Edison Co., No. 95 CA 6026, 1995 WL 641146 (Ohio Ct. App. 9th Dist. Nov. 1, 1995) ....................47

State ex rel. Crabtree v. Franklin Cty. Bd. of Health, 77 Ohio St. 3d 247, 673 N.E.2d 1281 (1997) ..........................................................................6

State v. Cichon, 61 Ohio St. 2d 181, 399 N.E.2d 1259 (1980) ........................................................................42

State v. McKelton, 148 Ohio St. 3d 261, 2016-Ohio-5735 ..................................................................................44

vi

Strock v. Pressnell, 38 Ohio St. 3d 207, 527 N.E.2d 1235 (1988) ........................................................................46

United States v. Kubrick, 444 U.S. 111 (1979) .....................................................................................................26, 29, 30

Vandemark v. Southland Corp., 38 Ohio St. 3d 1, 525 N.E.2d 1374 (1988) ............................................................................33

Viock v. Stowe-Woodward Co., 13 Ohio App. 3d 7 (6th Dist. 1983) ..........................................................................42, 46, 47

Walker v. Armco Steel Corp., 446 U.S. 740 (1980) .................................................................................................................30

Wetzel v. Weyant, 41 Ohio St. 2d 135, 323 N.E.2d 711 (1975) ....................................................................13, 31

CONSTITUTIONAL PROVISIONS

Ohio Const., Article II, § 1 ..........................................................................................................31

STATUTES

R.C. 2305.09 .......................................................................................................................... passim

R.C. 2305.10 .......................................................................................................................... passim

R.C. 2305.111 ................................................................................................................................41

R.C. 2744.04 ..................................................................................................................................41

OTHER AUTHORITIES

Random House Unabridged Dictionary 1169 (2d ed. 1993) .................................................16

Scalia & Garner, Reading Law: The Interpretation of Legal Texts .....................................................................42

D. Stout, Ara Parseghian, Coach Who Returned Notre Dame Football to Greatness, Dies at 94, NEW YORK TIMES (Aug. 2, 2017) ..........................................................................................29

1

INTRODUCTION

This case presents two questions. First, does a personal-injury tort claim accrue

only once a formal diagnosis apprises the plaintiff of the full extent of his injuries?

Second, may plaintiffs suing for bodily injury evade R.C. 2305.10(A)’s two-year

limitations period by characterizing their claims as “fraud” claims subject to R.C.

2305.09(C)’s four-year limitations period?

Both questions arise out of a lawsuit filed by Steven Schmitz and his wife Yvette.

Steven Schmitz played football at the University of Notre Dame between 1974 and 1978.

The Schmitzes alleged that Notre Dame coaches proactively taught and rewarded

tackling techniques that caused Mr. Schmitz to sustain numerous head injuries. At the

time, those injuries manifested in the form of concussions symptoms and Mr. Schmitz’s

being substantially disoriented as to time and place. But it was (allegedly) not until

December 31, 2012, that the Schmitzes realized the full extent of those head injuries.

The Complaint alleges that, on that date, doctors for the first time formally diagnosed

Mr. Schmitz with Chronic Traumatic Encephalopathy, or “CTE”—a progressive,

degenerative brain condition that was (again, allegedly) the long-term effect of the head

injuries Mr. Schmitz sustained decades earlier.

In October 2014, the Schmitzes sued Notre Dame and the NCAA under a slew of

theories, including negligence, constructive fraud, and fraudulent concealment. The

trial court dismissed these claims as time-barred under R.C. 2305.10(A), the two-year

2

statute of limitations applicable to claims for bodily injury. But the Eighth District

reversed. It concluded that the limitations period did not begin until December 2012,

when Mr. Schmitz alleged he was first diagnosed with CTE. It further concluded that

the constructive-fraud and fraudulent-concealment claims were subject to R.C.

2305.09(C)’s four-year statute of limitations, which usually applies to fraud claims. Both

decisions were wrong.

1. Start with the first error: Contrary to the Eighth District, the two-year

limitations period in R.C. 23015.10(A) began running long before Mr. Schmitz’s

December 2012 diagnosis. Section 23015.10(A) states that “an action based on . . . bodily

injury . . . shall be brought within two years after the cause of action accrues.” In

general, “a cause of action exists”—and the two-year limitations period in

R.C. 2305.10(A) begins to run—”from the time” the defendant commits the “wrongful

act” on which the cause of action is based. O’Stricker v. Jim Walter Corp., 4 Ohio St. 3d 84,

87, 447 N.E.2d 727 (1983). Under a narrow exception called the “discovery rule,”

statutes of limitation begin to run once the plaintiff learns that he “has been injured,”

and that his injuries were “‘caused by the conduct of the defendant.’” Norgard v. Brush

Wellman, Inc., 95 Ohio St. 3d 165, 2002-Ohio-2007 ¶9 (quoting O’Stricker, 4 Ohio St. 3d at

90). This exception applies, however, only to claims based on injuries that did not

“manifest” themselves “immediately.” O’Stricker, 4 Ohio St. 3d at 90. An injury that

3

manifests itself immediately triggers the statute of limitations—and it does so without

regard to whether the would-be plaintiff recognizes the “full extent” of his injury.

The discovery rule is not even applicable to this case. If the facts alleged are true,

Mr. Schmitz’s CTE and other neurological problems were the long-term effects of

injuries that manifested immediately. The Complaint alleges that Mr. Schmitz

sustained head injuries during the 1970s that manifested at that time in the form of

concussion symptoms and disorientation. While his CTE allegedly manifested years

later, that goes to the extent of Mr. Schmitz’s injury, and thus is irrelevant to the

discovery rule’s application. In holding otherwise, the Eighth District created a split

with the Fifth District, which held in Pingue v. Pingue, 2004-Ohio-4173 (5th Dist.), that

the long-term neurological and cognitive effects of head injuries sustained decades

earlier have no bearing on the discovery rule’s application.

Even if the discovery rule were applicable, the claims here would still be untimely.

Under the facts alleged in the Complaint, both prongs of the rule’s test—(1) actual or

constructive knowledge of the injury and (2) actual or constructive knowledge that the

would-be defendant caused it—were satisfied before October 2012. As for knowledge

of the injury, the Complaint alleges that CTE causes “progressive cognitive decline,”

meaning Mr. Schmitz necessarily experienced symptoms well before his December 2012

diagnosis, and so more than 2 years before he and his wife filed suit in October 2014. It

makes no difference that Mr. Schmitz alleged he was first diagnosed with CTE in

4

December 2012: The Complaint demonstrates that he was experiencing symptoms well

before then, giving the Schmitzes at least constructive knowledge of Mr. Schmitz’s

injury.

The Schmitzes also had constructive or actual knowledge of the injury’s cause

well before October 2012. If the allegations in the Complaint are true, then Mr. and Mrs.

Schmitz were on notice, no later than 2010, of the alleged correlation between cognitive

decline and head injuries like those sustained by Mr. Schmitz during his Notre Dame

playing days. Why? Because, as the Complaint explicitly alleges, in 2010 the NCAA

publicly issued a policy requiring its member institutions to have a Concussion

Management Plan. And it did so, according to allegations in the Complaint, after

almost 90 years of studies and reports detailing the long-term neurological and

cognitive problems that can result from head-to-head contact—including head-to-head

contact sustained in football specifically. Indeed, the Complaint alleges that the NCAA

forbade helmet-to-helmet hits as far back as 1976, during Mr. Schmitz’s college playing

days. So under the facts alleged, Mr. Schmitz either knew or should have known by

2010 of the alleged correlation between his injuries and playing football. Thus, if the

allegations in the Complaint are true, the Schmitzes had constructive or actual

knowledge of Mr. Schmitz’s injuries and their alleged cause, at the latest, sometime before

October 2012.

5

In sum, the discovery rule is not applicable to this case. Even if it were, the two-

year limitations period in R.C. 2305.10(A) expired before the Schmitzes filed suit in

October 2014.

2. As noted, the Eighth District further erred in concluding that the four-year

limitations period in R.C. 2305.09(C) applies to the fraudulent-concealment and

constructive-fraud claims in this case. Under this Court’s longstanding precedent, R.C.

2305.10(A) applies to “any action for . . . ‘bodily injury,’” without regard “to the form of

action” brought. Andrianos v. Cmty. Traction Co., 155 Ohio St. 47, 50, 51, 97 N.E.2d 549

(1951). Without even citing Andrianos, the Eighth District held that Mr. Schmitz could

make use of the longer limitations period in R.C. 2305.09(C) by slapping the “fraud”

label on his bodily injury claims. That is wrong.

* * *

In sum, the two-year limitations period applicable to the Schmitzes’ claims began

before Mr. Schmitz’s December 2012 diagnosis, and expired long before the Schmitzes

filed suit in October 2014. This Court should reverse the Eighth District’s contrary

holding, along the way clarifying two points for lower courts: First, the limitations

period in R.C. 2305.10(A) can begin to run even without a formal diagnosis. Second, this

Court’s decision in Andrianos remains good law, meaning that plaintiffs may not evade

R.C. 2305.10(A)’s limitations period by disguising claims for bodily injury as claims for

fraud.

6

STATEMENT OF FACTS

Steven and Yvette Schmitz filed this bodily injury suit in 2014. They pleaded a

variety of claims, but the gist of each was that Notre Dame and the NCAA caused Mr.

Schmitz to sustain head injuries while playing college football in the 1970s. The trial

court dismissed their suit as time-barred, and the case has been on appeal ever since.

Because the case is still in the pleadings stage, this brief sets forth the facts alleged in the

First Amended Complaint (which this brief refers to simply as the “Complaint”),

assuming but not conceding the truth of those allegations. See State ex rel. Crabtree v.

Franklin Cty. Bd. of Health, 77 Ohio St. 3d 247, 248, 673 N.E.2d 1281 (1997).

1. Steven Schmitz grew up in Ohio. And, like thousands of Ohioans before and

after him, he grew up playing football. At St. Edward High School in Cleveland, he

excelled. The University of Notre Dame’s football staff took notice and recruited him to

play college football. He accepted an athletic scholarship and matriculated in 1974. See

First Amended Complaint (“Complt.”) ¶¶15–16.

Mr. Schmitz played football at Notre Dame from 1974 to 1978. The Complaint

describes a football program in which, during this period, coaches taught players to use

their “helmeted head[s] against opposing players and teammates” during games and

practices. Complt. ¶61. Coaches “proactively rewarded” players “for inflicting head

injuries on [themselves] and others,” and compelled them “to ignore concussion

symptoms.” Complt. ¶105. This caused “repetitive head impacts,” including

7

“concussive and sub-concussive impacts,” to Mr. Schmitz and other players. Complt.

¶3; see also Complt. ¶¶2, 19, 63-64. This allegedly caused Mr. Schmitz to sustain

numerous head injuries, which manifested themselves in the form of “concussion

symptoms,” including “substantial[] disorient[ation] as to time and place.” Complt.

¶64. Despite these symptoms, Mr. Schmitz was “required to continue to play in games

and practices,” Complt. ¶62(b), or risk losing his scholarship: “Players were ordered

and expected to continue to participate in the practice or game,” and any player who

failed to do so “risked his place on the Notre Dame football team, his scholarship, and

his contractual right to attend classes at Notre Dame.” Complt. ¶63. All of this

occurred, the Complaint says, despite decades of studies, dating back to the 1920s,

linking repeated head trauma with long-term neurological problems. Complt. ¶¶70–

101. The Schmitzes alleged that the NCAA and Notre Dame knew of this information,

and faulted the NCAA for nonetheless failing to “make changes to its concussion

treatment protocols” until 2010, when it did so publicly. Complt. ¶109.

Mr. Schmitz eventually began showing signs of significant cognitive decline,

including “severe memory loss,” “Alzheimer’s, traumatic encephalopathy, and

dementia.” Complt. ¶19. His decline culminated in a formal diagnosis of CTE on

December 31, 2012. Complt. ¶20. CTE “involves the slow build-up of the Tau protein

within the brain tissue that causes diminished brain function, [and] progressive

cognitive decline.” Complt. ¶41. The Complaint alleges that Mr. Schmitz’s CTE and

8

other medical problems were “caused, aggravated, and/or magnified by the repetitive

concussive blows and/or sub-concussive blows to the head” that he sustained during

his time with the Fighting Irish football team. Complt. ¶19. These allegations mirror

those raised by the Schmitzes in an earlier suit against the National Football League. In

that suit, filed in New York state court in 2013 (and subsequently removed), the

Schmitzes alleged that injuries Mr. Schmitz sustained while competing in that league

caused his later neurological problems. See Schmitz v. The Nat’l Football League, No. 13-

cv-1396, Doc. 1, Ex. A (S.D.N.Y. Mar. 1, 2013).

2. On October 20, 2014—just under two years after Mr. Schmitz’s CTE

diagnosis—the Schmitzes sued Notre Dame and the NCAA. Mr. Schmitz sought relief

under theories of negligence, fraudulent concealment, constructive fraud, and breach of

contract. Mrs. Schmitz added a derivative claim for loss of consortium.

Notre Dame and the NCAA moved to dismiss these claims as untimely. Each

claim, they argued, sought recovery for bodily injury, and was thus subject to R.C.

2305.10(A)’s two-year statute of limitations. They argued that the alleged wrongful acts

said to have caused Mr. Schmitz’s head injuries occurred during his time at Notre

Dame, meaning his claims accrued no later than 1978 (when his college playing days

ended) and were thus time-barred

Notre Dame and the NCAA acknowledged the discovery rule, but argued that it

had no bearing on the timeliness of the claims. Under the facts alleged in the Complaint,

9

Mr. Schmitz suffered numerous head injuries in the 1970s that were immediately

manifest in the form of “concussion symptoms” and disorientation. Complt. ¶64.

Further, the Complaint alleges that Mr. Schmitz’s CTE and other neurological problems

were the long-term effects of those decades-old injuries. See Complt. ¶19 (alleging that

CTE and other injuries were “caused, aggravated, and/or magnified by the repetitive

concussive blows and/or sub-concussive blows to the head” during his time at Notre

Dame). Notre Dame and the NCAA thus argued that the Schmitzes sought relief for the

long-term effects of injuries that had immediately manifested themselves decades

earlier, making the discovery rule inapplicable.

The trial court agreed and granted the motion to dismiss. App.43. Before it did,

Mr. Schmitz passed away. The trial court substituted his estate as a plaintiff, with Mrs.

Schmitz serving as the Estate’s fiduciary.

3. Mrs. Schmitz and the Estate appealed to the Eighth District, which affirmed in

part and reversed in part. It affirmed the trial court’s dismissal of the breach-of-contract

claims, holding that the discovery rule never applies to such claims. Schmitz v. Natl.

Collegiate Athletic Ass’n, 2016-Ohio-8041 ¶¶16-17 (8th Dist.) (“App. Op.”) (included in

appendix at App.7). But it reversed the dismissal of the remaining claims. The court

conceded that “a plaintiff’s claim accrues when he or she is aware of the possibility

of . . . injury, even though he or she may not be aware of the full extent of the injury.”

App. Op. ¶31. But, the Eighth District said, Mr. Schmitz’s CTE was a “latent brain

10

disease” rather than a late-arising effect of the brain injuries that Mr. Schmitz sustained

in the 1970s. App. Op. ¶53; id. at ¶25. The Eighth District thus concluded that the

discovery rule applied.

Under the discovery rule, the Eighth District held that the statute of limitations

began to run only once doctors formally diagnosed Mr. Schmitz with CTE in December

2012, since this was the point at which he first became “aware of” the disease. App. Op.

¶25. Because the Schmitzes filed their complaint less than two years after that alleged

date of diagnosis, the Eighth District held, their claims were timely.

The Eighth District went on, in dicta, to find that the two year statute of

limitations in R.C. 2305.10(A) for claims for bodily injury applied only to the Estate’s

negligence claim. Notre Dame and the NCAA had argued that this statute applied to

the fraudulent-concealment and constructive-fraud claims as well, since those claims

too were based on Mr. Schmitz’s bodily injuries. The Eighth District disagreed, stating

that the Estate’s fraud claims were subject to the four-year statute of limitations in

R.C. 2305.09(C)—the statute of limitations applicable to fraud claims generally—

because they were “separate and distinct from the other claims.” App. Op. ¶40.

4. Notre Dame and the NCAA appealed to this Court. Mrs. Schmitz and the

Estate did not cross-appeal the dismissal of the breach-of-contract claims. That leaves

just the Estate’s claims for negligence, fraudulent-concealment, and constructive fraud,

11

along with Mrs. Schmitz’s derivative loss-of-consortium claim. On September 27, 2017,

the Court accepted jurisdiction to decide whether these claims were timely.

ARGUMENT

Each of the Estate’s claims is, in truth, a personal-injury claim, and so each is

governed by the two-year statute of limitations in R.C. 2305.10(A). This brief first

explains why any claims arising under R.C. 2305.10(A) are untimely. See below 11–38

Section II explains why all of the Estate’s claims are subject to R.C. 2305.10(A). See below

38–47. As for Mrs. Schmitz’s loss-of-consortium claim, that claim is derivative of the

Estate’s claims, and thus “can be maintained only so long as the primary action

continues.” Messmore v. Monarch Mach. Tool Co., 11 Ohio App.3d 67, 69 (9th Dist. 1983).

Because the Estate’s claims are properly dismissed as time-barred, the loss-of-

consortium claim (the only other claim in the case) must also be dismissed.

I. Proposition of Law 1: A diagnosis for the long-term effects of an injury a plaintiff already knew about does not revive a time-barred claim.

“In general, a cause of action exists”—and the two-year limitations period in R.C.

2305.10(A) begins to run—“from the time” the defendant commits the “wrongful act”

on which the action is based. O’Stricker v. Jim Walter Corp., 4 Ohio St. 3d 84, 87, 447

N.E.2d 727 (1983). The discovery rule is a narrow exception, and applies only with

respect to causes of action based on injuries that do not “manifest” themselves

“immediately.” Id. at 90. If the facts alleged in the Complaint are true—as the Court

must assume at the motion-to-dismiss stage, Doe v. Archdiocese of Cincinnati, 109 Ohio St.

12

3d 491, 2006-Ohio-2625 ¶11—Mr. Schmitz’s CTE and other neurological problems were

the long-term effects of injuries that manifested immediately during his playing days.

As such, the discovery rule is inapplicable, and Mr. Schmitz’s claims accrued no later

than 1978, when he last played football at Notre Dame. Therefore, the statute of

limitations had long since run when the Schmitzes filed suit in 2014. See below §I.B, pp.

16–32. And even if the discovery rule applied, it could not save the Estate’s claims,

because the Complaint shows that the Schmitzes knew of the head injuries and their

alleged source well before October 2012. See below §I.C., pp. 32–38.

A. The discovery rule is a narrow exception to the rule that causes of action accrue when the allegedly wrongful act occurs.

The canonical description of the discovery rule, at least as it applies to

R.C. 2305.10(A), comes from this Court’s decision in O’Stricker: “When an injury does

not manifest itself immediately, [a] cause of action” based on that injury “arises upon

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.” 4

Ohio St. 3d at 90. So while a cause of action generally accrues at the time the allegedly

tortious act occurs, Ohio courts will toll the statute of limitations, in cases where the

injury is not immediately manifest, until the plaintiff knows (or reasonably should

know) that he has been injured by the defendant’s actions. Flagstar Bank, F.S.B. v.

Airline Union’s Mortg. Co., 128 Ohio St. 3d 529, 2011-Ohio-1961 ¶14. The rule thus

13

prevents an “injured party’s right to recovery” from being “barred by the statute of

limitations before he is even aware” that he has a right to recovery. O’Stricker, 4 Ohio St.

3d at 87.

Outside of a few areas in which the legislature has codified the discovery rule, see,

e.g., R.C. 2305.10(B), none of which are applicable here, the rule is a judge-made

exception to the statutory scheme. See Flagstar Bank, 2011-Ohio-1961 ¶13 (“[T]his court

created an exception to the general rule, commonly known as the discovery rule.”).

Thus, owing to the fact that “statutes of limitation are a legislative prerogative,” Wetzel

v. Weyant, 41 Ohio St. 2d 135, 138, 323 N.E.2d 711 (1975), the judge-made exception must

be narrowly construed. See Columbus City Sch. Bd. of Educ. v. Franklin Cty. Bd. of Revision,

144 Ohio St. 3d 128, 2015-Ohio-4304 ¶29 (“We cannot permit a judge-made rule limiting

subsequent appeals to interfere with a right of appeal that is conferred by statute.”).

So it has been, at least in this Court. For one thing, as the formulation in

O’Stricker makes explicit, the rule applies only when the plaintiff’s “injury does not

manifest itself immediately.” 4 Ohio St. 3d at 90. If the plaintiff’s injury is immediately

manifest, the discovery rule is inapplicable. This is true even if the plaintiff does not

know whose conduct caused the injury. In those circumstances, the plaintiff is

immediately on notice that he has the statutory period to figure out whom to sue. See

Flowers v. Walker, 63 Ohio St. 3d 546, 549–50, 589 N.E.2d 1284 (1992); Baxley v. Harley-

14

Davidson Motor Co., 2007-Ohio-3678 ¶8 (1st Dist.); Braxton v. Peerless Premier Appliance

Co., 2003-Ohio-2872 ¶14 (8th Dist.).

In the event the injury does not manifest immediately, the discovery rule may

apply. But even then, it tolls the statute of limitations only until the plaintiff knows, or

should know, that he has been injured and that “the injury was ‘caused by the conduct

of the defendant.’” Norgard v. Brush Wellman, Inc., 95 Ohio St. 3d 165, 2002-Ohio-2007

¶9. Once the plaintiff has that information, the limitations period begins to run even if

the plaintiff is not “aware of the full extent of the injury.” Allenius v. Thomas, 42 Ohio St.

3d 131, 133, 538 N.E.2d 93 (1989).

This makes sense. Again, the purpose of the discovery rule is to protect plaintiffs

from having their claims expire before they know that they have claims, O’Stricker, 4

Ohio St. 3d at 87, not to afford plaintiffs the option of waiting to see if a claim they

already know of increases in value. So limiting the discovery rule to latent injuries, as

opposed to the latent effects of already-known injuries, is consistent with the rule’s

purposes. So too is it consistent with the legislative purposes that R.C. 2305.10(A) is

designed to promote—for example, encouraging the “prompt prosecution of causes of

action”; suppressing “stale and fraudulent claims”; and avoiding “the inconveniences

engendered by delay.” Flagstar Bank, 2011-Ohio-1961 ¶7 (quoting Pratte v. Stewart, 125

Ohio St. 3d 473, 2010-Ohio-1860 ¶42)). Each of these interests is advanced by a rule

requiring plaintiffs to litigate their claims promptly once they learn that they have been

15

“injured by the conduct of defendant,” O’Stricker, 4 Ohio St. 3d at syl. ¶2, even if they do

not yet know the injury’s full extent. (These policy concerns are addressed in greater

depth later. See below 25–32.)

The latent-injury–versus–latent-effects distinction is consistent with the way the

discovery rule operates in other jurisdictions, where statutes of limitation are tolled

“only during the period when the plaintiff had no knowledge at all that the wrong had

occurred and, as a reasonable person, was not put on inquiry.” Potts v. Celotex Corp.,

796 S.W.2d 678, 680–81 (Tenn. 1990). “[W]hen a plaintiff is aware of his or her injury,

but not the full extent of those injuries, a ‘discovery rule’ should not be applied to toll

the statute of limitations.” Erickson v. Scotsman, Inc., 456 N.W.2d 535, 539 (N.D. 1990);

accord Gonzales v. Sw. Olshan Found. Repair Co., 400 S.W.3d 52, 58 (Tex. 2013); Gleason v.

Borough of Moosic, 15 A.3d 479, 484 (Pa. 2011); Cooper Indus., LLC v. City of S. Bend, 899

N.E.2d 1274, 1280 (Ind. 2009); Koe v. Mercer, 876 N.E.2d 831, 837 (Mass. 2007); John Doe 1

v. Archdiocese of Milwaukee, 734 N.W.2d 827, 836 (Wisc. 2007); Clay v. Kuhl, 727 N.E.2d

217, 222 (Ill. 2000); Martin v. Arthur, 3 S.W.3d 684, 690 (Ark. 1999); Borchard v. Anderson,

542 N.W.2d 247, 251 (Iowa 1996); Dean v. Ruscon Corp., 468 S.E.2d 645, 647 (S.C. 1996);

Smith v. Thompson, 923 P.2d 101, 106 (Alaska 1996); Rowe v. John Deere, 533 A.2d 375, 376

(N.H. 1987); Ralphs v. City of Spirit Lake, 560 P.2d 1315, 1317 (Idaho 1977).

16

B. The discovery rule does not apply under the facts alleged.

The foregoing establishes that the two-year statute of limitations in

R.C. 2305.10(A) begins to run immediately upon the occurrence of a wrongful act if, as

here, the “injury . . . manifest[s] itself immediately.” O’Stricker, 4 Ohio St. 3d at 90.

1. Under settled legal principles, the discovery rule is inapplicable to the facts alleged.

At least in the context of R.C. 2305.10(A), the discovery rule is applicable only

when the claim at issue is based on an injury that did “not manifest itself immediately.”

Id. Here, the Complaint alleges that Mr. Schmitz’s head injuries were immediately

manifest, and that the neurological deficits for which the Estate now seeks recovery are

the long-term effects of those injuries. The discovery rule is therefore inapplicable to

this case.

1.1. If the allegations in the Complaint are true, Mr. Schmitz perceived his head

injuries at the moment they occurred. To experience the symptoms of a head injury is

precisely what it means for a head injury to become “manifest.” See, e.g., Bridges v.

Astrue, No. 3:11-CV-06046-AC, 2012 WL 4322735, at *14 (D. Or. June 5, 2012) (“Dr.

Laurie concluded she had ‘mild reactive airway disease manifested by cough causing

her shortness of breath’ …”); Cortrim Mfg. Co. v. Smith, 570 S.W.2d 854, 855 (Tenn. 1978)

(“For about two years prior to his death, the plaintiff’s husband suffered from

arteriosclerotic heart disease manifested as anginal pain and shortness of breath.”); see

also Random House Unabridged Dictionary 1169 (2d ed. 1993) (defining “manifestation”

17

to mean an “outward or perceptible indication”). Moreover, this Court has long held

that limitations periods start when plaintiffs “possess[] knowledge sufficient to lead a

reasonably prudent person to make inquiry . . . with reasonable care and diligence.”

Hambleton v. R.G. Barry Corp., 12 Ohio St. 3d 179, 182, 465 N.E.2d 1298 (1984) (per

curiam).

The Complaint alleges: “On many occasions in drills, practices, and games, [Mr.

Schmitz] experienced concussion symptoms, including but not limited to being

substantially disoriented as to time and place.” Complt. ¶64 (emphasis added). Given

that allegation, Mr. Schmitz’s injuries were manifest and the limitations period began to

run immediately. It makes no difference that, according to the Complaint, Mr. Schmitz

did not realize that these “symptoms” were indicative of an “an injury that should be

monitored, treated, or even acknowledged.” Complt. ¶65. That bears on Mr. Schmitz’s

appreciating the extent of his injuries rather than their existence. Neither does it make

any difference that he claims not to have “recognize[d] that [he] sustained an injury to

the head that required treatment, rest or therapy.” Complt. ¶68. Whatever this vague

allegation means, it is irrelevant given the allegation that Mr. Schmitz experienced the

symptoms of head injuries at the time they occurred. Those experiences alone establish

that the injury was immediately manifest, since “constructive knowledge of facts” is all

that is required “to start the statute of limitations running under the discovery rule.”

Flowers, 63 Ohio St. 3d at 549 (emphasis added). Indeed, the Complaint alleges that Mr.

18

Schmitz and other players were threatened with being cut from the team, and thus

losing their scholarships, if they “failed to continue to participate” after having their

“bell[s] rung,” Complt. ¶63—a threat that would be necessary only if the players were

experiencing symptoms that would otherwise have led them to stop playing.

Because the head injuries that Mr. Schmitz allegedly sustained while playing

were immediately manifest, the discovery rule is inapplicable to claims based on those

injuries. This leaves only the question whether the alleged neurological and cognitive

deficits for which the Complaint seeks relief are the long-term effects of the injuries that

manifested in the 1970s. If they are, then the discovery rule is inapplicable, since it does

not apply where injuries are immediately manifest, even if their “full extent” is not

immediately manifest. Allenius, 42 Ohio St. 3d at 133.

According to the Complaint, Mr. Schmitz’s neurological and cognitive decline—

and in particular, his CTE—was the long-term effect of the very same head injuries that

he sustained and experienced during his playing days. The Complaint expressly alleges

that his “severe memory loss, cognitive decline, Alzheimer’s, [CTE], and dementia,

all . . . have been caused, aggravated, and/or magnified by the repetitive concussive blows

and/or sub-concussive blows to the head he suffered while playing running back and

receiver on the Notre Dame college football team.” Complt. ¶19 (emphasis added).

And it states that “Steve Schmitz is permanently disabled based on the latent effects of

neuro-cognitive and neuro-behavioral injuries he sustained while playing football at

19

Notre Dame.” Complt. ¶129 (emphasis added). Indeed, the plaintiffs’ entire theory is

that the brain injuries Mr. Schmitz sustained at Notre Dame had effects later in life that

he never could have anticipated. See Complt. ¶43 (“Steve Schmitz was subjected to

repetitive concussive and sub-concussive impacts in practices and games . . . yet he was

never aware of the short-term and long-term health risk associated with [such]

impacts.”); Complt. ¶129 (“The latent injuries sustained by Steve Schmitz developed

over time and were manifest later in life.”). It follows from all of this that, on the face of

the pleadings, the conditions on which the Estate’s claims are based are the long-term

effects of the injuries that manifested immediately during Mr. Schmitz’s playing days.

The discovery rule is therefore inapplicable.

This case is materially indistinguishable from Pingue v. Pingue, 2004-Ohio-4173

(5th Dist.)—the only other Ohio case addressing neurological and psychological injuries

allegedly sustained as a result of earlier head trauma. The plaintiff in that case had

been beaten by his father between 1968 and 1990. He knew that he had been injured as

a result, but he did not learn the full extent of those injuries until the early 2000s, when

“his neurologist informed him he had suffered an irreversible brain injury” and “post-

traumatic stress disorder,” and that he was “at greater risk of contracting Parkinson’s

disease and Alzheimer’s disease as a result of his brain injury.” Id. ¶10. He sued less

than a year later, arguing that the discovery rule applied. The Fifth District disagreed:

The diagnosis simply informed the plaintiff about the “extent of his injuries,” id. ¶19

20

(emphasis added), not their existence. And in those circumstances, the court held, the

discovery rule has no role to play. Id.

Steven Schmitz, like the plaintiff in Pingue, perceived his head injuries at the

moment they occurred. Compare Complt. ¶¶19, 62, 64 with Pingue, 2004-Ohio-4173

¶¶20–24. And Steven Schmitz, like the plaintiff in Pingue, waited to sue until years later,

when he received a formal diagnosis regarding the full extent of his cognitive injuries.

Compare Complt. ¶20 with Pingue, 2004-Ohio-4173 ¶10. So the claims in this case, like

those in Pingue, are untimely. 2004-Ohio-4173 ¶¶20–24.

1.2. The Eighth District below evaded this conclusion by characterizing CTE as

an injury entirely distinct from the concussions Mr. Schmitz experienced in the 1970s.

“The thrust of the complaint,” it concluded, “is not an injury for concussive and

subconcussive impacts,” but rather a separate injury “in the form of CTE and other

neurological diseases that did not manifest until decades after Schmitz stopped playing

football at Notre Dame.” App. Op. ¶25. But the court cited nothing in support of this

conclusion. Indeed, it altogether ignored the Complaint’s allegations, quoted above,

which establish precisely the opposite. See, e.g., Complt. ¶19 (alleging that Mr.

Schmitz’s “severe memory loss, cognitive decline, Alzheimer’s, [CTE], and dementia”

all “have been caused, aggravated, and/or magnified by the repetitive concussive blows

and/or sub-concussive blows to the head he suffered while playing running back and

receiver on the Notre Dame college football team.”).

21

The Eighth District appears to have arrived at the wrong answer by asking the

wrong question: It asked whether CTE and the head injuries claimed to have caused it

are the “same injury” in some abstract, intuitive sense, instead of focusing on the more-

mundane-but-relevant question whether the Complaint alleged that CTE is a distinct

injury. In conducting this intuitive inquiry, the Eighth District relied on two federal

district court decisions applying out-of-state law. See McCullough v. World Wrestling

Entm’t, Inc., 172 F. Supp. 3d 528 (D. Conn. 2016); In re Nat’l Hockey League Players’

Concussion Injury Litig., No. MDL 14–2551, 2015 WL 1334027 (D. Minn. Mar. 25, 2015)

(“NHL”). As an initial matter, neither case addressed the allegations in the Schmitzes’

complaint. And since the Estate’s claims are untimely under Ohio law if the allegations

in the Complaint are true, see above 16–20, it matters not a bit whether they would be

timely under the law of another jurisdiction.

In any event, neither opinion is persuasive. McCullough rests on the court’s

assertion that CTE and the brain injuries that result in CTE “are not the same

‘condition.’” 172 F.Supp.3d at 547. But the court cited nothing in support of this

assertion. Instead, it seemed to rest entirely on the district court judge’s intuition

regarding whether CTE and earlier head injuries are two injuries or one. The NHL case

suffers from the same defect; the court asserted, but did not meaningfully explain, why

CTE is a separate injury from the head injuries that cause it. 2015 WL 1334027, at *7. In

other words, both decisions rested upon the same sort of unsupported intuitions that

22

the Eighth District relied upon below—an approach that has no relation to the

complaint-focused analysis that Ohio law requires.

Anyway, to the extent out-of-state precedent is relevant, the Court should

consider the many cases reaching the opposite conclusion. For example, Howard v.

Fiesta Texas Show Park, Inc., 980 S.W.2d 716 (Tex. App. 1998), held that a plaintiff who

experienced neck and shoulder pain while riding a roller coaster could not make use of

the discovery rule to sue for what turned out years later to be severe damage to his

spinal cord. Id. at 718, 722. Howard, along with many other cases, establishes that

whether a particular harm is a latent injury—as opposed to the long-term effect of a

previously experienced injury—turns on whether the allegations (or evidence) show

that the supposedly latent injury is really just an exacerbation, aggravation, or ultimate

result of an injury experienced earlier. See, e.g., Rowe, 533 A.2d at 376, 377 (discovery

rule did not restart statute of limitations when head injuries sustained in accident

turned out to include grand mal seizures); Borchard, 542 N.W.2d at 251 (post-traumatic

stress disorder from domestic abuse was not a latent injury, but rather the long-term

effect of the physical and emotional abuse previously suffered). Because the Complaint

alleges that CTE and the other alleged cognitive issues are the long-term effects of the

earlier experienced injuries, the Estate’s claims are time-barred.

Contrary to the Eighth District’s opinion, nothing in Liddell v. SCA Serv. of Ohio,

Inc., 70 Ohio St. 3d 6, 635 N.E.2d 1233 (1994) (cited in App. Op. ¶¶26–30), is to the

23

contrary. That case involved the claims of a former police officer, Kenneth Liddell, who

inhaled toxic fumes while responding to a fire involving a truck that was improperly

carrying hazardous waste. Liddell knew he was injured the day of the accident: He

passed out at the scene; he was treated for smoke inhalation at the hospital; he

“reported experiencing a scratchy throat and a burning and watering of his eyes”; and

he developed recurring sinus infections. Id. at 7. But it was not until years later that he

developed a cancerous tumor in his sinuses. Upon learning of his cancer, Liddell sued

the company that owned the truck for negligence. The suit would have been untimely

if Liddell’s claims accrued on the date of the accident, but timely if it accrued only once

he learned of his nasal cancer. This Court held the latter date was the relevant one,

since Liddell’s cancer was a latent injury; one arising from the same incident as, but

distinct from, the injuries sustained earlier.

Liddell was a straightforward application of the latent-injury–versus–latent-

effects distinction. No one could plausibly argue that Liddell’s cancer was an

aggravation, exacerbation, or worsening of the injuries that manifested themselves

earlier (the sinus infections, scratchy throat, and so on). This meant the cancer was a

latent injury, to which the discovery rule applied, rather than a latent effect of an

already known injury, to which it would not have applied. But that logic will not work

in this case: As already explained, the Complaint’s allegations, if true, establish that the

Estate’s claims rest on neurological and cognitive problems that are the long-term

24

effects of head injuries that immediately manifested decades ago. Liddell has nothing to

say about the discovery rule’s application to facts like these.

If the Court disagrees—if it reads Liddell to say that the discovery rule is properly

applied to all long-term effects of tortious conduct that are distinct in some way from

the effects that manifested immediately—then it should limit Liddell to contexts (like the

toxic-tort context) in which proof of liability is likely to turn mostly or exclusively on

documentary evidence. In O’Stricker, this Court stressed that applying the discovery

rule to such cases would not be unfair because such cases generally turn on

“documentary evidence,” which “does not typically become less reliable over time.” 4

Ohio St. 3d at 89. It contrasted documentary evidence with “the exercise of individuals’

memories,” recognizing that memories do become less reliable over time. Id. Outside

the toxic-tort context, however, many personal-injury tort cases will turn on individuals’

memories. In this case, for example, there is likely to be no documentary evidence

regarding what Notre Dame taught its players, the manner in which it treated

concussions, and the extent to which players were made to keep playing despite head

injuries—all such evidence will come in through witness testimony. Cases like this one,

unlike toxic-tort cases such as O’Stricker or Liddell, will turn on dated (perhaps

unavailable) evidence and unreliable memories. O’Stricker, 4 Ohio St. 3d at 89. So even

if Liddell’s reasoning were arguably broad enough to justify the discovery rule’s

25

application to this case, and it is not, this Court should clarify that Liddell is limited to

analogous contexts where non-documentary evidence is unlikely to be important.

1.3. If the allegations in the Complaint are true, then Mr. Schmitz’s cognitive and

neurological difficulties are the long-term effects of injuries that manifested themselves

immediately in the 1970s. Accordingly, the discovery rule is inapplicable and the

Estate’s claims are untimely.

2. The Eighth District’s application of the discovery rule contradicts the legislature’s decision to impose a two-year statute of limitations on personal-injury claims.

If the facts alleged in the Complaint are sufficient to invoke the discovery rule,

then that rule is much broader than ever before suggested. And a broad discovery rule

undercuts the policies that the General Assembly chose to promote with R.C. 2305.10(A).

2.1. Statutes of limitation “serve a gate-keeping function for courts by ‘(1)

ensuring fairness to the defendant, (2) encouraging prompt prosecution of causes of

action, (3) suppressing stale and fraudulent claims, and (4) avoiding the inconveniences

engendered by delay—specifically, the difficulties of proof present in older cases.’”

Flagstar Bank, 2011-Ohio-1961 ¶7 (quoting Pratte, 2010-Ohio-1860 ¶42). These four

interests are best advanced by a rigorous application of the discovery rule, under which

this case is properly dismissed.

Fairness to the defendant. The General Assembly’s enactment of statutes of

limitation reflects the importance of “ensuring fairness to the defendant.” Cundall v.

26

U.S. Bank, 122 Ohio St. 3d 188, 2009-Ohio-2523 ¶22. These statutes reflect “a pervasive

legislative judgment that it is unjust to fail to put the adversary on notice to defend

within a specified period of time and that ‘the right to be free of stale claims in time

comes to prevail over the right to prosecute them.’” United States v. Kubrick, 444 U.S.

111, 117 (1979) (citation omitted).

It is of course true that protecting defendants is not the only interest that must be

accounted for in designing a tort system. There is, for example, the countervailing

interest in protecting plaintiffs from the possibility that their claims will expire before

they even know they have been injured. See O’Stricker, 4 Ohio St. 3d at 87. The

discovery rule exists to protect that interest. Id. But that rule applies only in specific

circumstances, as it must to avoid undermining the fairness-to-defendants function that

statutes of limitation are “primarily designed to assure.” Burnett v. N.Y. Cent. R.R. Co.,

380 U.S. 424, 428 (1965). And the distinction between latent injuries (to which the

discovery rule may apply) and latent effects (to which it does not apply), keeps the

discovery-rule exception from swallowing the immediate-accrual rule. This distinction

ensures that plaintiffs with latent injuries have an opportunity to seek relief while

spurring all other would-be plaintiffs to action, thereby striking a balance that assures

fairness to plaintiffs and defendants alike.

No doubt, the latent-injury–versus–latent-effects distinction will, in some cases,

prevent plaintiffs whose injuries unexpectedly worsen from collecting for the full extent

27

of their injuries. Such is the nature of statutes of limitation, which have bite only with

respect to otherwise-meritorious claims. What is more, any unfairness is mitigated by

the fact that plaintiffs can sue to obtain damages for future harms. See Galayda v. Lake

Hosp. Sys., Inc., 71 Ohio St. 3d 421, 425, 644 N.E.2d 298 (1994) (citing Penn. Co. v. Files, 65

Ohio St. 403, 407, 62 N.E. 1047 (1901)). Take this case. The Complaint repeatedly

alleges that “a substantial body of medical and scientific evidence had been developed

specifically relating to brain injuries in the sport of football” by 1933—four decades

before Mr. Schmitz played at Notre Dame. Complt. ¶5; see also Complt. ¶¶38–42, 69–

101. Assuming that to be true, Mr. Schmitz could have sought damages for the future

effects within the limitations period. None of this is to say that plaintiffs can always

obtain damages for future harms; they will still have to carry their burden of proving

entitlement to such relief. Nonetheless, the availability of such damages ameliorates the

perceived harshness of the General Assembly’s choice to enact statutes of limitation.

Encouraging prompt prosecution. Statutes of limitation “require plaintiffs to

pursue ‘diligent prosecution of known claims.’” CTS Corp. v. Waldburger, 134 S. Ct. 2175,

2183 (2014) (citation omitted). Even when the underlying claim is valid, the theory goes,

it is “unjust not to put the adversary on notice to defend within the period of limitation.”

Order of R.R. Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-49 (1944).

The discovery rule does not excuse plaintiffs from exercising diligence. See

O’Stricker, 4 Ohio St. 3d at 90. Indeed, “‘constructive knowledge of facts, rather than

28

actual knowledge of their legal significance, is enough to start the statute of limitations

running under the discovery rule.’” Flowers, 63 Ohio St. 3d at 549 (citation omitted).

This means the discovery rule applies only where the plaintiff’s injuries were not

immediately manifest, and then tolls the statute only until the plaintiff learns (or until he

should have learned) that the defendant’s conduct caused his injury. See Norgard, 2002-

Ohio-2007 ¶8. Limiting the discovery rule to latent injuries maintains this balance by

requiring plaintiffs to bring claims for known injuries promptly.

The Eighth District’s focus on a diagnosis, see App. Op. ¶25, greatly undermines

the interest in resolving claims quickly and fairly. This Court has long held that

limitations periods start when plaintiffs “possess[] knowledge sufficient to lead a

reasonably prudent person to make inquiry . . . with reasonable care and diligence.”

Hambleton, 12 Ohio St. 3d at 182. Tying the limitations period to a diagnosis—even in

cases where the plaintiff knows or reasonably should know of his injury without a

diagnosis—would relieve plaintiffs of their burden to diligently pursue claims.

The suppression of stale and fraudulent claims. Statutes of limitation “are

founded,” in part, “upon the general experience of mankind that claims, which are

valid, are not usually allowed to remain neglected.” Riddlesbarger v. Hartford Ins. Co., 74

U.S. 386, 390 (1868). As time passes, evidence is lost and memories fade, making it

more difficult to separate the fraudulent goats from the non-fraudulent sheep. The

upshot is that delay increases the risk of “unwarranted and fraudulent claims which

29

would be difficult to disprove.” Richardson v. Doe, 176 Ohio St. 370, 372, 199 N.E.2d 878

(1964).

Stale (as opposed to fraudulent) claims carry many of the same risks. See Kubrick,

444 U.S. at 117. Take, for example, this case. The Complaint alleges that Notre Dame

employees committed wrongful acts by encouraging players to injure themselves and

others, by ignoring players’ injuries, and by failing to provide proper medical treatment.

Complt. ¶¶62-67. But many of those with first-hand knowledge of this alleged conduct

have died, including the two men best positioned to offer evidence in this case: Steven

Schmitz and Ara Parseghian, Notre Dame’s head coach during Mr. Schmitz’s college

playing days. See D. Stout, Ara Parseghian, Coach Who Returned Notre Dame Football to

Greatness, Dies at 94, NEW YORK TIMES (Aug. 2, 2017), available online at

http://tinyurl.com/y8d523ww. The rest are forty years older, and so are their memories.

The result? No jury will be able “to fully understand the . . . context in which” the

events “took place.” Hughes v. Vanderbilt Univ., 215 F.3d 543, 550 (6th Cir. 2000).

Statutes of limitation exist precisely “to spare the courts from litigation of stale claims,”

like these, after “memories have faded, witnesses have died or disappeared, and

evidence has been lost.” Howard v. Allen, 30 Ohio St. 2d 130, 137, 283 N.E.2d 167 (1972)

(quoting Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314 (1945)).

In this case, the jurors’ task would be further complicated by intervening events

occurring in the 40 years since Mr. Schmitz’s alleged injuries. For example, Mr. Schmitz

30

competed in the National Football League, where he alleges that he experienced head-

to-head contact far more “intense and violent” than what he experienced at Notre Dame.

Schmitz. v. The Nat’l Football League, No. 13-cv-1396, Doc. 1 at 23 (S.D.N.Y. Mar. 1, 2013).

Given the passage of time, it will be impossible for any jury reliably to untangle who (if

anyone) is responsible for the cognitive and neurological problems that Mr. Schmitz

experienced later in life.

Avoiding the difficulties that accompany delay. Finally, the foregoing

application of R.C. 2305.10(A) furthers the policy of “protect[ing] defendants and the

courts from having to deal with cases in which the search for truth may be seriously

impaired by the loss of evidence, whether by death or disappearance of witnesses,

fading memories, disappearance of documents, or otherwise.” Kubrick, 444 U.S. at 117

(emphasis added); see Archdiocese of Cincinnati, 2006-Ohio-2625 ¶10 (noting “the

difficulties of proof present in older cases”).

Statutes of limitation “recognize[] that after a certain period of time it is unfair to

require the defendant to attempt to piece together his defense to an old claim.” Walker v.

Armco Steel Corp., 446 U.S. 740, 752 (1980). That is especially true in cases (like this one)

in which the proof will consist of witness testimony rather than documentary evidence.

Again, O’Stricker stressed that the discovery rule could be fairly applied to product-

liability cases because such cases tend to rest on “documentary evidence” that “does not

typically become less reliable over time.” 4 Ohio St. 3d at 89. It contrasted

31

documentary evidence with “the exercise of individuals’ memories,” recognizing that

memories do become less reliable over time. Id. Strict adherence to the latent-injury–

versus–latent-effects distinction limits the number of cases based on decades-old events,

and thus limits the number of cases litigated based on unreliable non-documentary

evidence. In so doing, the distinction respects the legislature’s determination that it is

important to prevent claims “from showing up at great distances of time, and

surprising the parties or their representatives when all the proper vouchers and

evidence are lost, or the facts have become obscure from the lapse of time, or the

defective memory or death or removal of witnesses.” Perry Cty. v. RR. Co., 43 Ohio St.

451, 456, 2 N.E. 854 (1885).

2.2. It follows from the foregoing that the Eighth District’s decision is

inconsistent with the law the legislature passed, and with the purposes behind it. What

the Estate seeks—and what the Eighth District permitted—is a modification of that law.

But the law is not the courts’ to modify. See Ohio Const., Art. II, §1 (“The legislative

power of the state shall be vested in a General Assembly …”). To the contrary,

“statutes of limitation are a legislative prerogative and their operation and effect are

based upon important legislative policy.” Wetzel, 41 Ohio St. 2d at 138. The courts’

“role” is limited to “apply[ing] the legislature’s designated limitations on causes of

action.” In re Estate of Centorbi, 129 Ohio St. 3d 78, 2011-Ohio-2267 ¶11. If it is to be the

law of Ohio that worsened injuries restart the limitations period under R.C. 2305.10(A),

32

“‘it is the General Assembly that should declare it as such rather than’” the courts.

Pratte, 2010-Ohio-1860 ¶20 (quoting Ault v. Jasko, 70 Ohio St. 3d 114, 120, 637 N.E.2d 870

(1994) (Moyer, C.J., dissenting)).

That is especially so in the context of concussion litigation; a class of suits

potentially affecting every past, present, and future amateur (and, for that matter,

professional) athlete in the State of Ohio. Setting statutes of limitation in this field will

require answering the sort of open-ended, policy-driven questions for which the

legislative process is well-suited. For example: Will permitting suits based on decades-

old concussions (and sub-concussions) deter schools and other organizations from

hosting athletic competitions? If so, to what extent? And if these lawsuits are a

deterrent, is the resulting benefit to public health (if any) worth whatever harm to public

health follows from the decreased availability of athletic opportunities?

The courts do not have “sufficient scientific, empirical or other information from

which to craft a rule of law” applicable in these circumstances. Id. Rather than

attempting to do so, the Court can apply the law as it exists, leaving the policymaking

to the policymakers.

C. Even if the discovery rule applied, the Estate’s claims would be untimely.

Assume for the sake of argument that CTE is a wholly distinct injury from the

head injuries that Mr. Schmitz sustained while at Notre Dame. Even if that were true, it

would not automatically make the Estate’s claims timely. The reason is that the

33

discovery rule tolls the statute of limitations only until the plaintiff “discovers, or by the

exercise of reasonable diligence should have discovered, that he or she was injured by

the wrongful conduct of the defendant.” Norgard, 2002-Ohio-2007 ¶8. This is a “two-

pronged test,” requiring “discovery not just that one has been injured but also that the

injury was ‘caused by the conduct of the defendant.’” Id. at ¶ 9. Under this test, the

Estate’s claims accrued before October 2012, and were therefore time-barred when the

Schmitzes filed their complaint in October 2014.

Prong 1 – Discovery of the Injury. The Complaint states that Steven Schmitz first

received his CTE diagnosis on December 31, 2012. It further alleges that CTE “involves

the slow build-up of the Tau protein within the brain tissue that causes diminished brain

function” and “progressive cognitive decline.” Complt. ¶41 (emphasis added). It

follows from this that Mr. Schmitz must have exhibited the symptoms of CTE long

before his December 2012 diagnosis. Indeed, in their Eighth District briefing, Mrs.

Schmitz and the Estate affirmatively argued that Schmitz was already “unemployable”

“[a]t the time of the diagnosis,” and suffering from “severe memory loss, cognitive

decline, early onset Alzheimer’s disease, traumatic encephalopathy, and dementia.” See

Br. of Plaintiffs-Appellants at 5, Schmitz v. Nat’l College Athletic Ass’n, No. 103525 (8th

Dist. Dec. 11, 2015). In short, while plaintiffs at the motion-to-dismiss stage are entitled

to have courts assume the truth of all “allegations of the complaint” and draw all

“reasonable inferences deducible therefrom,” Vandemark v. Southland Corp., 38 Ohio St.

34

3d 1, 7, 525 N.E.2d 1374 (1988), the allegations and the reasonable inferences therefrom

leave no doubt that Mr. Schmitz exhibited symptoms of CTE sometime before October

2012—outside the two-year limitations period.

In concluding otherwise, the Eighth District stated that “plaintiffs allege a latent

injury that Schmitz was not aware of until his diagnosis in 2012.” App. Op. ¶25. But it

makes no difference that Mr. Schmitz was (allegedly) first diagnosed with CTE on

December 31, 2012. Indeed, O’Stricker itself held that, under the discovery rule,

R.C. 2305.10(A)’s limitations period is triggered once “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.” 4 Ohio St. 3d at 90 (emphasis added). Here, the Complaint

establishes that Mr. Schmitz either did or should have “become aware that he had been

injured” long before his diagnosis. Again, the Complaint creates an unmistakable

inference that Mr. Schmitz suffered from cognitive and neurological issues that would

reasonably have alerted him that he was suffering from some sort of injury. The Estate

and Mrs. Schmitz even admitted below that Mr. Schmitz in fact undertook a “diligent

investigation” to discover the cause of his “symptoms,” eventually receiving the CTE

diagnosis from “a competent medical authority.” Br. of Plaintiffs-Appellants at 21,

Schmitz v. Nat’l College Athletic Ass’n, No. 103525 (8th Dist. Dec. 11, 2015). So the

question whether Mr. Schmitz was (or should have been) aware that he was suffering

35

from an injury before October 2012—even if he did not know its name or its precise

nature—is beyond responsible debate.

The Eighth District is not the first court to suggest that a plaintiff with a latent

injury must obtain a formal diagnosis to begin the limitations period running. See, e.g.,

Colby v. Terminix Int’l. Co., L.P., No. 96-CA-0241, 1997 WL 117218, at *2–3 (Ohio Ct. App.

5th Dist. Feb. 10, 1997). The Court should clarify that this is a misapplication of Ohio

law, and that the first prong of the discovery rule is satisfied once the plaintiff knows

(or should know) that he has been injured, without regard to whether he obtains this

knowledge through a formal diagnosis.

Prong 2 – Notice of the Injury’s Cause. The foregoing establishes that the

Schmitzes either knew or should have known that Mr. Schmitz was suffering from the

injuries on which the Estate’s claims are based more than two years before the

Schmitzes filed suit in 2014. The remaining question is whether he knew he was injured

by the alleged wrongful conduct at issue. If the answer is yes, then even under the

discovery rule the two-year limitations period in R.C. 2305.10(A) expired before the

Schmitzes filed suit in October 2014.

The answer is yes. If the facts alleged in the Complaint are true, then Mr. and

Mrs. Schmitz knew (or should have known) no later than 2010 that the head injuries

allegedly sustained as a result of Notre Dame’s and the NCAA’s conduct were believed

to create a risk of long-term cognitive defects. For it was in 2010 that the NCAA “made

36

changes to its concussion treatment protocols . . . that required its member institutions

to have a Concussion Management Plan . . . in place for all sports.” Complt. ¶109.

Those plans had to provide that any “student-athlete who exhibits signs, symptoms, or

behaviors consistent with a concussion shall be removed from practice or competition

and evaluated by an athletics healthcare provider with experience in the evaluation and

management of concussions.” Complt. ¶110.

According to the Complaint, this change occurred against the backdrop of almost

a century of studies and medical developments linking head injuries to long-term

cognitive decline. Complt. ¶¶70–101. The Complaint expressly states that,

“[b]eginning with studies on the brain injuries suffered by boxers in the 1920s, medical

science has long recognized the debilitating effects of concussions.” Complt. ¶70.

Indeed, the Complaint references a steady stream of information that put the public on

notice of information concerning the risks associated with brain injuries and football.

As early as 1937, “the American Football Coaches Association published a report

warning that players who suffer a concussion should be removed from sports

demanding personal contact.” Complt. ¶72. Between 1952 and 1994, “numerous”

studies established that “repetitive head trauma in contact sports, including boxing and

football, has potential[ly] dangerous long-term effects on brain function.” Complt. ¶87.

In 1967, the “American Medical Association . . . declared that coaches should not teach

players to lead with their head[s],” and in 1976—while Mr. Schmitz was in college—

37

“the NCAA . . . passed a safety rule prohibiting initial contact with the head.” Complt.

¶59. By the early 1980s, one study in particular identified the risk of “long-term

damage in the form of unexpected cognitive impairment” after experiencing a mild

traumatic brain injury. Complt. ¶88. That report “received national attention.” Id.

Another showed that “two or more concussions close in time could have serious short-

term and long-term consequences in both football players and other victims of brain

trauma.” Complt. ¶90. By the mid-2000s, “survey-based papers . . . found a strong

correlation between depression, dementia, and other cognitive impairment in

professional football players and the number of concussions those players had received.”

Complt. ¶96.

In short, if the allegations in the Complaint are true, then by 2010 at the absolute

latest, Mr. Schmitz was or should have been alerted to the possibility that head injuries

can lead to significant, long-term cognitive impairment.

The two-pronged test was met, at the latest, before October 2012. All of this

means that, even under the discovery rule, the two-year statute of limitations in

R.C. 2305.10(A) began to run more than two years before the Schmitzes filed their

complaint in October 2014. Long before October 2012, Mr. Schmitz would have been

exhibiting symptoms of CTE, meaning he either knew (or reasonably should have

known) that he had sustained the injury at issue in this suit. And by 2010, all of the

information needed to attribute that injury to the alleged “wrongful acts” by Notre

38

Dame and the NCAA were public. It follows that, at some point before October 2012,

the Schmitzes had either “discover[ed], or by the exercise of reasonable diligence should

have discovered, that [Mr. Schmitz] was injured by the wrongful conduct” at issue.

Norgard, 2002-Ohio-2007 ¶8.

* * *

Any claims subject to the two-year statute of limitations in R.C. 2305.10(A) are

time-barred. Because there is no dispute that the Estate’s negligence claim is governed

by R.C. 2305.10(A), the Eighth District erred in reversing the trial court’s dismissal of

that claim. The constructive-fraud and fraudulent-concealment claims are likewise

subject to R.C. 2305.10(A), and so likewise time-barred. The Eighth District held

otherwise, but erred in doing so, for the reasons addressed in the next section.

II. Proposition Of Law No. 2: Plaintiffs’ fraudulent-concealment and constructive-fraud claims are subject to R.C. 2305.10(A)’s two-year statute of limitations.

Over sixty years ago, this Court held that Ohio’s two-year statute of limitations

for claims for bodily injury—General Code 11224-1, which was the precursor to

R.C. 2305.10(A)—“govern[ed] all actions the real purpose of which [was] to recover

damages for injury to the person.” Andrianos v. Cmty. Traction Co., 155 Ohio St. 47, syl.

¶2, 97 N.E.2d 549 (1951) (emphasis added). Without even mentioning Andrianos, the

Eighth District held that the Estate’s claims for fraudulent concealment and constructive

fraud, both of which sought recovery “for injury to [Mr. Schmitz’s] person,” were

subject to R.C. 2305.09(C)’s four-year statute of limitations. App. Op. ¶40. That holding

39

conflicts with this Court’s precedent, which directs courts to look to the “essential

character” of the claims, not their form. Doe v. First United Methodist Church, 68 Ohio St.

3d 531, 536, 629 N.E.2d 402 (1994), superseded by statute, R.C. 2305.111(C), as recognized in

Pratte, 2010-Ohio-1860 ¶25. It also runs contrary to the text of R.C. 2305.10(A), which

Andrianos accurately interpreted. The Eighth District’s holding should therefore be

reversed.

A. The text of R.C. 2305.10(A), along with the cases interpreting it, confirm that its two-year limitations period applies to all of the Estate’s claims.

Section 2305.10(A) provides that “an action for bodily injury . . . shall be brought

within two years after the cause of action accrues.” The Eighth District instead applied

R.C. 2305.09(C), which, at all relevant times, required filing “fraud” actions “within four

years after” the claim’s accrual. Two canons of statutory construction—canons the

Eighth District overlooked—confirm that R.C. 2305.10(A) applies to all claims based on

“bodily injury,” regardless of whether they are characterized as “fraud” claims.

1. When two statutes conflict, this Court “turn[s] to the familiar rule of statutory

construction that when there is a conflict between a general provision and a more

specific provision in a statute, the specific provision controls.” MacDonald v. Cleveland

Income Tax Bd. of Review, __ Ohio St. 3d __, 2017-Ohio-7798 ¶27. “The canon rests on the

rationale that ‘[t]he particular provision is established upon a nearer and more exact

view of the subject than the general, of which it may be regarded as a correction.’” Id.

(quoting Scalia & Garner, Reading Law: The Interpretation of Legal Texts 183 (2012)).

40

Indeed, so fundamental is this canon of construction that the General Assembly

expressly codified it in R.C. 1.51, leaving no doubt as to its application in Ohio. See R.C.

1.51 (“If a general provision conflicts with a special or local provision,” and if “the

conflict between the provisions is irreconcilable, the special or local provision prevails

as an exception to the general provision, unless the general provision is the later

adoption and the manifest intent is that the general provision prevail.”)

In Andrianos, the Court applied this settled principle to hold that Ohio’s two-year

statute of limitations for actions for bodily injury “governs all actions the real purpose

of which is to recover damages for injury to the person.” 155 Ohio St. 47, syl. ¶2. The

plaintiff in Andrianos brought a breach-of-implied-contract claim against a

transportation company after he was injured riding the bus. Id. at 47–49. While that

action normally carried a six-year limitations period, this Court found his claim time-

barred by the two-year period that applies to actions for bodily injury. Id. at 49, 53. The

relevant statute—then General Code 11224-1, now R.C. 2305.10(A)—“is a special statute

relating to a specific subject”: an action “for bodily injury.” Id. at 50. Its language “is

not confined to any particular type of injury, nor does it concern itself with the

circumstances under which an injury was inflicted. On its face, it clearly covers all

actions based on a claim respecting bodily injury,” without regard to the “form of the

action brought.” Id. at 51 (emphasis added).

41

The Court continues to apply Andrianos, see Nadra v. Mbah, 119 Ohio St. 3d 305,

2008-Ohio-3918 ¶27, as well as the specific-governs-the-general canon, see Love v. City of

Port Clinton, 37 Ohio St. 3d 98, 99, 524 N.E.2d 166 (1988). In Love, a man alleged that a

police officer subdued and handcuffed him using improper procedures, and sought to

take advantage of the two-year limitations period in R.C. 2305.10(A). 37 Ohio St. 3d at

98. The Court instead applied R.C. 2305.111’s one-year statute of limitations for

battery—“an intentional, offensive touching” that results in “harmful contact”—

because it was the more specific statute applicable the alleged injury. Id. at 99.

The same logic requires application of R.C. 2305.10(A) to the fraudulent-

concealment and constructive-fraud claims in this case. R.C. 2305.10(A) is a specific

statute of limitations for claims “for bodily injury.” In contrast, R.C. 2305.09(C), is a

“general statute of limitations, relative to bringing an action based upon fraud.” Abdalla

v. Olexia, 113 Ohio App. 3d 756, 759 (7th Dist. 1996); cf. Investors REIT One v. Jacobs, 46

Ohio St. 3d 176, 179, 546 N.E.2d 206 (1989) (observing that R.C. 2305.09 “provides a

general limitation period of four years for tort actions not specifically covered by other

sections of the Ohio Revised Code”). “In such a circumstance, the special statute

prevails over the general statute.” Abdalla, 113 Ohio App. 3d at 759 (applying R.C.

2744.04’s two-year limitations period, rather than R.C. 2305.09(C)’s four-year period, to

fraud claim against political subdivision).

42

The Estate seeks damages for the bodily injuries Mr. Schmitz allegedly suffered.

Complt. ¶¶140–41, 150–51. Whether the claims are styled as negligence claims or fraud

claims, “the real purpose . . . is to recover damages for injury to the person.” Andrianos,

155 Ohio St. 47, syl. ¶2.; see Viock v. Stowe-Woodward Co., 13 Ohio App. 3d 7, 11 (6th Dist.

1983) (holding that R.C. 2305.10(A) applied to action for fraudulent concealment

because the claim sought damages for bodily injury.). As such, R.C. 2305.10(A)’s

specific provision for actions for bodily harm should control.

2. “In interpreting the meaning of legislative language, it is not unimportant that

the General Assembly has failed to amend the legislation subsequent to a prior

interpretation thereof by this court.” Seeley v. Expert, Inc., 26 Ohio St. 2d 61, 72, 269

N.E.2d 121 (1971). “[S]uch legislative inaction in the face of longstanding judicial

interpretations of [a statute] evidences legislative intent to retain existing law.” State v.

Cichon, 61 Ohio St. 2d 181, 183–84, 399 N.E.2d 1259 (1980); see also Scalia & Garner,

Reading Law: The Interpretation of Legal Texts at 322 (“If a word or phrase has been

authoritatively interpreted by the highest court in a jurisdiction . . . a later version of

that act perpetuating the wording is presumed to carry forward that interpretation.”).

And so the legislature’s decision to reenact legislation “without modification after

judicial interpretation, is [an] indication of implied legislative approval of such

interpretation.” Seeley, 26 Ohio St. 2d at 72–73; see also Lorillard v. Pons, 434 U.S. 575, 580

(1978) (same).

43

The General Assembly has never changed the language this Court interpreted in

Andrianos. In 1951, General Code 11224-1 provided that “‘[a]n action for bodily

injury . . . shall be brought within two years after the cause thereof arose.” Andrianos,

155 Ohio St. at 50. Two years after Andrianos interpreted that provision, the General

Assembly codified the Revised Code and used identical language. See R.C. 2305.10

(1953). It has amended R.C. 2305.10 several times since then, but today, as in 1951, Ohio

law provides that “an action for bodily injury . . . shall be brought within two years.”

R.C. 2305.10(A). In Andrianos, this Court interpreted that language to apply to “all

actions the real purpose of which is to recover damages for injury to the person.” 155

Ohio St. 47, syl. ¶2. The General Assembly’s “reenactment” of that language, “without

modification after judicial interpretation,” is best understood as its “approval” of

Andrianos. Seeley, 26 Ohio St. 2d at 72.

3. The Eighth District failed to even mention this Court’s binding decision in

Andrianos—let alone address its importance to the proper interpretation of R.C.

2305.10(A). Instead, the Court relied on Gaines v. Preterm-Cleveland, Inc., 33 Ohio St. 3d

54, 514 N.E.2d 709 (1987), to hold (with no explanation) that the Schmitzes’ fraud claims

“are separate and distinct from the other claims” and so are subject to R.C. 2305.09(C)’s

four-year statute of limitations. App. Op. ¶40.

That reliance was misplaced. Gaines involved a distinct claim for fraud tied to

distinct conduct: A patient sued a health care facility for (1) medical malpractice for

44

failing to remove an intrauterine device, and (2) fraud for affirmatively misrepresenting

that the device had been removed. 33 Ohio St. 3d at 54. The Court applied R.C.

2305.09(C)’s four-year statute of limitations to the fraud claim because the conduct

underlying that claim did not overlap with the conduct underlying the medical

malpractice claim. Id. at 56. That is, “while an action in fraud may give rise to a cause

of action independent from an action in medical malpractice, it is only separate where

the decision to misstate the facts is not ‘medical in nature.’” Pierce v. Durrani, 2015-

Ohio-2835 ¶36 (1st Dist.) (quoting Gaines, 33 Ohio St. 3d at 56). When the alleged fraud

is “inextricably tied to [the] malpractice claim,” however, Gaines does not apply.

Knepler v. Cowden, No. 17473, 1999 WL 1243349, at *9 (Ohio Ct. App. 2d Dist. Dec. 23,

1999).

The Gaines majority, like the Eighth District, did not discuss Andrianos, let alone

overrule it. See State v. McKelton, 148 Ohio St. 3d 261, 2016-Ohio-5735 ¶363 (O’Neill, J.,

concurring in part and dissenting in part) (“[T]he Ohio Supreme Court does not

overrule precedent sub silentio.”). Assuming Gaines even applies outside the medical-

malpractice context, it can be reconciled with Andrianos: 2305.09(C)’s four-year statute

of limitations applies to a claim of fraud only if the alleged conduct leading to that claim

can be separated from the conduct leading to the core claim. However, when the entire

claim is an action to recover for damages for bodily injury, so that the fraud claims are

45

inseparable from the other claims, R.C. 2305.10(A)’s two-year statute of limitations

applies. See Andrianos, 155 Ohio St. 47, syl. ¶2.

In this case, unlike in Gaines, the alleged negligence is inextricably tied to the

alleged fraud. The Complaint itself proves the point. The allegations giving rise to the

negligence claim are almost identical to the allegations giving rise to the fraud claims.

Compare Complt. ¶¶116, 120–21 (negligence) (alleging that Notre Dame breached its

duty to provide “up-to-date guidance” and “not to conceal material information” by

“failing [to] inform the student football players [and their “extended families”] of the

dangers of concussive and sub-concussive injuries”), with Complt. ¶¶133, 136–37

(fraudulent concealment) (alleging that Notre Dame had a “duty to warn” its players

about “the risk of harm and long-term health effects of repetitive” head injuries from

football,” including “the risks of concussive and sub-concussive impacts,” but instead

“concealed these risks” from players); and Complt. ¶¶143, 147–48 (constructive fraud)

(same). Ultimately, the Estate’s claims—for negligence, fraudulent concealment, and

constructive fraud—boil down to allegations that Notre Dame had a duty to inform Mr.

Schmitz about the risks of playing football and failed to do so. As these claims are

inextricably linked, R.C. 2305.10(A)’s two-year limitations period should apply.

B. Plaintiffs should not be allowed to extend limitations periods simply by relabeling their claims.

To choose the applicable statute of limitations, this Court looks to the “essential

character” of the action. Love, 37 Ohio St. 3d at 99 (applying Andrianos). This prevents

46

plaintiffs from transforming one action “‘into another type of action subject to a longer

statute of limitations’” “‘[t]hrough clever pleading or by utilizing another theory of

law.’” Id. at 100 (citation omitted).

The Court’s precedent demonstrates the essential-character test in practice. In

Andrianos, for example, the plaintiff brought an action for breach of implied contract,

yet this Court applied the two-year statute of limitations for bodily injury. 155 Ohio St.

at 51–52; id. at 51 (“No matter what form is adopted, the essence of the action is the

wrongful injury[.]”). In Love, the plaintiff brought an action for negligence, yet this

Court applied the one-year statute of limitations for battery. 37 Ohio St. 3d at 100; id.

(“To hold otherwise would defeat the assault and battery statute of limitations.”); see

also Strock v. Pressnell, 38 Ohio St. 3d 207, 215, 527 N.E.2d 1235 (1988) (“Ohio courts have

repeatedly rejected attempts by a plaintiff to avoid the untoward effects of a legal bar by

pleading alternative theories of recovery in lieu of the barred action.”).

Lower courts have used this test to bar claims for bodily injury that plaintiffs

have brought as claims for fraud. See Gilliam v. Mid-American Sec. Serv., Inc., No. 94-T-

5079, 1994 WL 738504, at *2 (Ohio Ct. App. 11th Dist. Dec. 23, 1994); Viock, 13 Ohio App.

3d at 10-11. In Gilliam, the Eleventh District held that R.C. 2305.10’s two-year statute of

limitations barred a common-law fraud claim because it was “clear that the essence of

[the] fraud claim [was] an attempt to recover for bodily injuries sustained.” 1994 WL

738504, at *2. The plaintiff could not “extend[] the statute of limitations by labeling it as

47

a fraud claim. To hold otherwise would defeat the statute of limitations for bodily

injury.” Id. Similarly, in Viock, the Sixth District found held that R.C. 2305.10 barred a

fraudulent concealment claim based on dangerous working conditions because the

plaintiff’s “bodily injury . . . was the gist of” his fraud claims and he “sought recovery of

damages growing out of his bodily injury.” 13 Ohio App. 3d at 11.

Section 2305.10(A)’s two-year statute of limitations should apply to the Estate’s

claims. Each seeks damages for the “substantial injuries” and “harm” that resulted

from Mr. Schmitz’s CTE. Complt. ¶¶139–40 (fraudulent concealment); Complt. ¶¶150–

51 (constructive fraud). The “essential character” of these claims is bodily injury. But

“for the four-year fraud provision, R.C. 2305.09(C), to apply, fraud must be the gist of

the action.” Spriestersbach v. Ohio Edison Co., No. 95 CA 6026, 1995 WL 641146, at *2

(Ohio Ct. App. 9th Dist. Nov. 1, 1995) (applying R.C. 2305.10 to fraud claim because

“[t]he gist of [the] action [was] negligence”). Because fraud is not the gist of the Estate’s

action, it cannot circumvent the two-year statute of limitations by bringing claims for

fraud.

CONCLUSION

This Court should reverse the Eighth District, and hold that the Estate’s claims

against Notre Dame and the NCAA are time-barred under the facts alleged. Because

those causes of action should have been dismissed, Mrs. Schmitz’s derivative claim for

loss of consortium should likewise have been dismissed.

48

Date: November 30, 2017 Respectfully submitted,

s/ Matthew A. Kairis Matthew A. Kairis (0055502) Yvette McGee Brown (0030642) Aaron Michael Healey (0091709) Benjamin M. Flowers (0095284) M. Ryan Harmanis (0093642) JONES DAY 325 John H. McConnell Blvd., Suite 600 Columbus, OH 43215 Telephone: (614) 469-3939 Facsimile: (614) 461-4198 makairis@jonesday.com ymcgeebrown@jonesday.com ahealey@jonesday.com bflowers@jonesday.com rharmanis@jonesday.com Attorneys for Defendants-Appellants University of Notre Dame du Lac

Frederick R. Nance (0008988) Steven A. Friedman (0060001) Sean L. McGrane (0091287) SQUIRE PATTON BOGGS (US) LLP 4900 Key Tower 127 Public Square Cleveland, OH 44114 Telephone: (216) 479-8500 Facsimile: (216) 479-8780 fred.nance@squirepb.com steven.friedman@squirepb.com sean.mcgrane@squirepb.com Attorneys for Defendants-Appellants National Collegiate Athletic Association

49 

CERTIFICATE OF SERVICE 

The undersigned hereby certifies that on November 30, 2017, a true copy of this 

brief was served upon the following by electronic mail:  

Robert E. DeRose 

   Counsel of Record 

Sandy Meizlish (000026220) 

MEIZLISH HANDELMAN  

GOODIN DEROSE WENTZ 

250 E. Broad Street, 10th Floor 

Columbus, OH  43215 

Email:  bderose@barkanmeizlish.com 

   smeizlish@barkanmeizlish.com 

 

David D. Langfitt 

Melanie J. Garner 

LOCKS LAW FIRM 

The Curtis Center, Suite 720 East 

601 Walnut Street 

Philadelphia, PA  19106 

Email:  dlangfitt@lockslaw.com 

   mgarner@lockslaw.com 

 

Richard S. Lewis  

HAUSFELD LLP 

1700 K Street, N.W. 

NW Suite 650 

Washington, D.C.  20006 

Email:  rlewis@hausfeld.com 

   

 

Attorneys for Plaintiffs‐Appellees 

Frederick R. Nance  

Steven A. Friedman  

Sean L. McGrane  

SQUIRE PATTON BOGGS (US) LLP 

4900 Key Tower 

127 Public Square 

Cleveland, Ohio  44114 

Email: fred.nance@squirepb.com 

steven.friedman@squirepb.com 

sean.mcgrane@squirepb.com 

 

Attorneys for National Collegiate Athletic 

Association 

 

 

 

 

 

 

 

/s/ Matthew A. Kairis 

 

One of the attorneys for Defendant‐Appellant 

University of Notre Dame du Lac 

 

 

    

50

APPENDIX

Notice of Appeal……………………………………….…………………App.1 Entry of Judgment by the Eighth Appellate District………….………App.5 Opinion by the Eighth Appellate District.………..……………….……App.7 Entry of Judgment by the Court of Common Pleas, Cuyahoga County………….................................................………App.43 Ohio Const., Article II, § 1………………………………………………App.44 R.C. 2305.09…..……………...……………………………………………App.45 R.C. 2305.10…..………………………...…………………………………App.47 R.C. 2305.10 (1953)…..…………………………..………………….……App.52

IN THE SUPREME COURT OF OHIO

National Collegiate Athletic Association, et al.,

Defendants-Appellants,

v.

Steven Schmitz, et al.,

Plaintiffs-Appellees.

Case No. ________________

Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District

Court of Appeals Case No. CA-15-103525

____________________________________________________________________________

NOTICE OF APPEAL OF APPELLANTS NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, AND UNIVERSITY OF NOTRE DAME DU LAC

____________________________________________________________________________

Frederick R. Nance (0008988) Steven A. Friedman (0060001) Sean L. McGrane (0091287) SQUIRE PATTON BOGGS (US) LLP 4900 Key Tower 127 Public Square Cleveland, OH 44114 Telephone: (216) 479-8500 Facsimile: (216) 479-8780 fred.nance@squirepb.com steven.friedman@squirepb.com sean.mcgrane@squirepb.com

Attorneys for National Collegiate Athletic Association

Matthew A. Kairis* (0055502) *Counsel of Record

Aaron Michael Healey (0091709) Benjamin M. Flowers (0095284) JONES DAY 325 John H. McConnell Blvd., Suite 600 Columbus, OH 43215 Telephone: (614) 469-3939 Facsimile: (614) 461-4198 makairis@jonesday.com ahealey@jonesday.com bflowers@jonesday.com

Attorneys for Appellant University of Notre Dame du Lac

Counsel for Plaintiffs-Appellees listed on next page

Supreme Court of Ohio Clerk of Court - Filed January 20, 2017 - Case No. 2017-0098

App.1

Robert E. DeRose (0055214) Neal J. Barkan (0020450) BARKAN MEIZLISH HANDELMAN GOODIN DEROSE WENTZ, LLP 250 E. Broad St., 10th Fl. Columbus, OH 43215 Telephone: (614) 221-4221 Facsimile: (614) 744-2300 bderose@barkanmeizlish.com nbarkan@barkanmeizlish.com Attorneys for Plaintiffs-Appellees David D. Langfitt Melanie J. Garner LOCKS LAW FIRM The Curtis Center Suite 720 East 601 Walnut Street Philadelphia, PA 19106 Telephone: (215) 893-3423 Facsimile: (215) 893-3444 dlangfitt@lockslaw.com mgarner@lockslaw.com Attorneys for Plaintiffs-Appellees Richard S. Lewis HAUSFELD, L.L.P. 1700 K. Street, N.W. N.W. Suite 650 Washington, DC 20006 Telephone: (202) 540-7200 Facsimile: (202) 540-7201 rlewis@hausfeld.com Attorney for Plaintiffs-Appellees

App.2

Notice of Appeal of Appellants National Collegiate Athletic Association and University of Notre Dame du Lac

Appellants National Collegiate Athletic Association and University of Notre

Dame du Lac, hereby give notice of appeal to the Supreme Court of Ohio from the

judgment of the Cuyahoga County Court of Appeals, Eighth Appellate District, entered

in Court of Appeals case number CA-15-103525 on December 8, 2016.

This appeal is of public or great general interest.

Respectfully submitted, _/s Matthew A. Kairis__________ Matthew A. Kairis* (0055502) *Counsel of Record Aaron Michael Healey (0091709) Benjamin M. Flowers (0095284) JONES DAY 325 John H. McConnell Blvd., Suite 600 Columbus, OH 43215 Telephone: (614) 469-3939 Facsimile: (614) 461-4198 makairis@jonesday.com ahealey@jonesday.com bflowers@jonesday.com

Attorneys for Appellant University of Notre Dame du Lac

Frederick R. Nance (0008988) Steven A. Friedman (0060001) Sean L. McGrane (0091287) SQUIRE PATTON BOGGS (US) LLP 4900 Key Tower 127 Public Square Cleveland, OH 44114 Telephone: (216) 479-8500 Facsimile: (216) 479-8780 fred.nance@squirepb.com steven.friedman@squirepb.com sean.mcgrane@squirepb.com Attorneys for National Collegiate Athletic Association

App.3

Certificate of Service

I hereby certify that a true copy of this Notice of Appeal was served upon the

following by electronic mail this 20th of January 2017:

Robert E. DeRose (0055214) Neal J. Barkan (0020450) BARKAN MEIZLISH HANDELMAN GOODIN DEROSE WENTZ, LLP 250 E. Broad St., 10th Fl. Columbus, OH 43215 Telephone: (614) 221-4221 Facsimile: (614) 744-2300 bderose@barkanmeizlish.com nbarkan@barkanmeizlish.com Attorneys for Plaintiffs-Appellees David D. Langfitt Melanie J. Garner LOCKS LAW FIRM The Curtis Center Suite 720 East 601 Walnut Street Philadelphia, PA 19106 Telephone: (215) 893-3423 Facsimile: (215) 893-3444 dlangfitt@lockslaw.com mgarner@lockslaw.com Attorneys for Plaintiffs-Appellees

Richard S. Lewis HAUSFELD, L.L.P. 1700 K. Street, N.W. N.W. Suite 650 Washington, DC 20006 Telephone: (202) 540-7200 Facsimile: (202) 540-7201 rlewis@hausfeld.com Attorney for Plaintiffs-Appellees

/s Matthew A. Kairis

Counsel of Record for Appellant University of Notre Dame du Lac

App.4

Cuyahoga County Clerk of Courts Notification [CA-15-103525]CLERK_E-NOTICE@CUYAHOGACOUNTY.US to: AHEALEY 12/08/2016 11:33 AM

History: This message has been forwarded.

CLERK_E-NOTICE Cuyahoga County Clerk of Courts Notification [CA-15-103525]

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Case: CA-15-103525Case Caption: STEVEN SCHMITZ, ET AL. vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ET AL.Notice Type: (JEAO) JUDGMENT ENTRYNotice ID/Batch: 30914241 - 1556774

To: AARON MICHAEL HEALEY

Affirmed in part, reversed in part, and remanded.>Mary J. Boyle, J., Larry A. Jones, Sr., A.J., and Frank D. Celebrezze, Jr., J., concur. Notice issued.

On Copy:STEVEN A FRIEDMAN (E1A) - STEVEN.FRIEDMAN@SQUIREPB.COM NEAL J BARKAN (A1A) - NBARKEN@BARKANLAW.COM MATTHEW A. KAIRIS (E2A) - MAKAIRIS@JONESDAY.COM MELANIE J. GARNER (A1A) - MGARNER@LOCKSLAW.COM MATTHEW A. KAIRIS (E2A) - JONESDAYCLEVELANDDOCKET@JONESDAY.COM STEVEN A FRIEDMAN (E1A) - CLE_DCKT@SSD.COM DAVID D. LANGFITT (A1A) - DLANGFITT@LOCKSLAW.COM FREDERICK R NANCE (E1A) - FRED.NANCE@SQUIREPB.COM ROBERT E DEROSE (A1A) - BDEROSE@BARKANMEIZLISH.COM SEAN L MCGRANE (E1A) - SEAN.MCGRANE@SQUIREPB.COM RICHARD S. LEWIS (A1A) - RLEWIS@HAUSFELD.COM FREDERICK R NANCE (E1A) - CLE_DCKT@SSD.COM NEAL J BARKAN (A1A) - NBARKAN@BARKANLAW.COM

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SEAN L MCGRANE (E1A) - CLE_DCKT@SSD.COM

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