It’s too late for a group of ex-NFL players to pursue concussion-related claims against the league’s official helmet-maker, a state appeals court ruled Monday.
The 1st District Appellate Court determined 54 out of 55 players in a class-action case against BRG Sports, the parent company of Riddell, are blocked by Illinois’ two-year statute of limitations for filing injury cases.
Those players were part of a 2015 settlement with the NFL in federal court stemming from similar claims: That repeated collisions during their careers caused serious brain injuries such as chronic traumatic encephalopathy and that the NFL knew about the risks. Riddell was a named defendant in that lawsuit but didn’t join the settlement.
Many of the plaintiffs in the immediate lawsuit have been diagnosed with specific disorders such as dementia and Alzheimer’s disease, while the rest are exhibiting symptoms and will be specifically diagnosed in the near future, they claimed. They argued Riddell should be held accountable because the two-year window for filing claims only began tolling after their specific diagnoses were realized.
But Justice John C. Griffin wrote in a 24-page opinion that the clock began to tick on the plaintiffs’ claims when they joined the federal NFL litigation. That demonstrated they knew of the injuries and that they were wrongfully caused, the court wrote.
“In this case, the allegations and the conduct of the plaintiffs in the federal class action case establish that the plaintiffs had sufficient knowledge to interpose the claims that they now pursue against Riddell as early as the point in which they pursued their claims against the NFL — a point more than two years before plaintiffs filed these cases,” the unanimous panel wrote.
The court issued a separate decision for the appeal filed by one of the former athletes, Haruki Nakamura. His claims were allowed to stand because he was not a party to the class action. He’d previously filed legal action over one specific concussion rather than the accrual of multiple head injuries, the appeals court noted. Thus, there was at least a question of fact as to whether he was aware of the potential for neurological impairments caused by repeated trauma to the head.
The plaintiffs’ claims in the larger consolidated case were filed in Cook County Circuit Court between July and December 2016. The defendants moved to dismiss them under the “discovery rule,” which holds the two-year period for filing claims begins to toll when the injured party knows or reasonably should know of his or her injury and that it was wrongfully caused.
Circuit Judge John H. Ehrlich granted the defendants’ motions to dismiss the claims, finding the plaintiffs sued the NFL for the injuries more than two years before filing the claims here and could have sued the helmet-makers at the same time.
On appeal, the plaintiffs cited asbestos cases such as VaSalle v. Celotex Corp., decided by the Illinois Supreme Court in 1987.
In that case, the high court ruled a man who had filed asbestos-related claims earlier could also try to recover separately for a lung cancer diagnosis ostensibly caused by the same exposure. Such a case arguably suggests additional claims can accrue after a new diagnosis.
However, another high court case, Golla v. General Motors Corp. from 1995, held a plaintiff need not know the exact extent of an injury for the statute of limitations to begin running. The dissent in VaSalle similarly held plaintiffs shouldn’t be able to recover for each distinct injury resulting from the same conduct.
The defendants cited to that logic, arguing the plaintiffs clearly had enough information to file suit earlier but didn’t.
The justices acknowledged there was merit in the plaintiffs’ argument that the asbestos case should hold sway, and that it “may very well be the most apt framework for latent brain injury litigation.” They added that the Golla case may be too “blunt and straightforward” for sports-related brain injury cases.
“It is not difficult to see unjust results if Golla were strictly applied to such cases. Plaintiffs in such cases could be deprived of any remedy before they could know about the severe afflictions that would follow the seemingly innocuous symptomatic discomforts they faced,” Griffin wrote.
“Those plaintiffs’ claims could be said to accrue on the basis that they had headaches or some other minor ailment when they could not reasonably know about a significant neurodegenerative disorder lurking that might not manifest until years later.”
Despite those potential problems, it’s clear the plaintiffs here were aware of the harm, the court wrote. Among other things, Griffin cited the first paragraph in their master complaint in the federal litigation, which sought compensation for “long-term chronic injuries” and noted their brain injuries were “progressive and latent.”
“Plaintiffs were not involved in the federal class action case to seek redress for existing symptoms: headaches, sleeping problems, et cetera. They were pursuing claims for the more insidious injuries that those symptoms represented and the future manifestations of those injuries,” Griffin wrote.
“The allegations in the federal class-action case establish that plaintiffs were seeking recourse for existing and impending manifestations of their latent brain injuries and that they knew such injuries existed or would exist.”
To hold otherwise would be harmful to judicial economy, and incentivize open-ended liability, the court wrote. They noted that about half of the players in the case still haven’t been officially diagnosed and under the plaintiffs’ own interpretation of the discovery rule, they’re asserting premature claims.
“How could that half of the plaintiffs be said to have sufficient knowledge of their injuries now, but not during their participation in the federal class action case?” the court wrote.
The panel noted that the plaintiffs could have pursued claims against Riddell during the federal case by simply checking a box on their short-form complaints to indicate they were aggrieved by the helmet-maker. None of them did. The justices also noted the settlement with the league provides an uncapped monetary fund that will be in place for the next 65 years, and that new claims can result in supplemental awards.
The panel concluded by rejecting arguments it should apply a five-year statute of limitations for fraudulent concealment claims and rejecting a request by the plaintiffs to amend their complaints by providing more details about their diagnoses. The justices called that proposal “futile.”
“The outcome of the case is not dependent on plaintiffs’ diagnoses or nondiagnoses. It is based on plaintiffs’ knowledge years ago that they were injured and that their injuries were wrongfully caused — knowledge that plaintiffs incontrovertibly possessed more than two years before filing these cases,” Griffin wrote.
William T. Gibbs, of Corboy & Demetrio, represented the plaintiffs in the case. He said this morning he and his team “certainly understand and appreciate the court’s opinion” regarding most of the plaintiffs, and are “very pleased” that Nakamura can continue pursuing his claims against the helmet-maker.
Gibbs added he thought the court was “spot-on” in rejecting a strict application of the Golla precedent in cases of prolonged exposure causing latent injuries.
“We appreciate their devotion to the issues in the case,” Gibbs said of the court.
Robert L. Wise of Bowman and Brooke LLP in Richmond, Va., represented the defendants. He forwarded a statement on behalf of Riddell, which said the company is pleased with the dismissal of most of the actions, which it called “baseless.” The company also stated its hopeful the decisions this week bring an end to these cases.
“But if not, Riddell will continue to vigorously defend itself against this litigation, as it will with the lone case that was reinstated. In the meantime, the company will continue its long-standing role on the field as the industry leader in helmet innovation.”
Justices Daniel J. Pierce and Carl Anthony Walker concurred in both opinions.
The decisions are Michael Butler, et al., v. BRG Sports LLC, et al., 2019 IL App (1st) 180362, and Haruki Nakamura v. BRG Sports LLC, et al., 2019 IL App (1st) 180397.