Tuesday, November 6, 2018
At Legally Speaking Ohio, Marianna Bettman has an extensive analysis. She summarizes:
On October 31, 2018, the Supreme Court of Ohio handed down a merit decision in Schmitz v. Natl. Collegiate Athletic Assn., Slip Opinion No. 2018-Ohio-4391. In a decision written by Justice French, joined in full by Chief Justice O’Connor and Justices DeWine and DeGenaro, the court allowed a lawsuit to proceed which was filed by the widow of a football player who sustained repetitive blows to the head during his college playing days in the 1970’s, but who was not diagnosed with chronic traumatic encephalopathy (“CTE”) until December of 2012. The court ruled that the 12(B)(6) motions to dismiss the claims as time-barred should have been denied. Justice Fischer concurred in judgment only. Justice Kennedy, joined by Justice O’Donnell, concurred in part, and concurred in judgment only in part, with an opinion. The case was argued April 11, 2018.
Essentially, the court held the discovery rule applied to the claims and the court could not rule as a matter of law that the plaintiff's negligence claims were time-barred based on the discovery rule. Of course, the discovery process may unearth facts that establish the claims as time-barred, but the plaintiff has the chance to move forward.