Family of former Notre Dame football player argues for right to sue school for brain injuries suffered years later.

Family of former Notre Dame football player argues for right to sue school for brain injuries suffered years later.

An Ohioan who played football for the University of Notre Dame in the 1970s sued the school for failing to protect him from head injuries that turned into a chronic disease decades later. But a Cuyahoga County common pleas court ruled he waited too long to file the case.

Steven T. Schmitz was 57 years old when he was diagnosed with chronic traumatic encephalopathy (CTE) by the Cleveland Clinic Neurology Department in 2012. In 2014, he and his wife, Yvette, filed a personal-injury lawsuit against Notre Dame and the National Collegiate Athletic Association (NCAA). Schmitz died in 2015, and his wife continues to press on with the lawsuit.

While the common pleas court found the lawsuit was filed after the statute of limitations for a personal injury lawsuit passed, the Eighth District Court of Appeals disagreed and indicated the suit could move forward. Notre Dame and the NCAA appealed to the Ohio Supreme Court, which agreed to hear the case. NCAA et al. v. Schmitz is one of three case the Court will hear during a special off-site court session in Putnam County on April 11.

More than 500 students from nine Putnam County school districts are expected to attend the session at Ottawa-Glandorf High School. A day before the justices travel to northwest Ohio, the Court will hear four cases in Columbus on April 10, including two dealing with Public Utilities Commission of Ohio (PUCO) decisions.

Time Limits, Types of Injury at Issue in Football Case
The Schmitzes claim Notre Dame and the NCAA knew or should have known the risks of brain injuries college football players faced and that they ignored the risk. The Cleveland area couple also claim that NCAA schools encouraged players to use their helmets when tackling and blocking and did little to address the concussions players suffered. Among the Schmitzes’ charges, they claim the institutions were negligent, committed fraud, and harmed the couple’s relationship (legally known as “loss of consortium”).

The parties argue the distinction between characterizing CTE, a certain type of brain injury associated with football and other contact sports, as a “latent disease” or a “latent effect” of an injury. If CTE is a latent disease, it would be a separate injury or illness compared with a brain injury, such as a concussion. If CTE is the latent effect of a disease, it would be the continuation and increased severity of a brain injury that worsens over time. The distinction impacts the timing of when the player’s lawsuit must be filed to comply with Ohio’s statute of limitations for certain civil cases. Notre Dame and the NCAA argued the deadline for the Schmitzes to file the cases ended years earlier.

Oral Arguments Scheduled
The sessions start at 9 a.m. on both days, with the April 10 cases being heard at the Thomas J. Moyer Ohio Judicial Center in Columbus. All arguments are streamed live online at sc.ohio.gov and broadcast live and archived on The Ohio Channel.

Case Previews Available
Along with the brief summaries below, in-depth previews of the seven cases being heard are now available.

Tuesday, April 10
While most entities regulated by the Public Utilities Commission of Ohio (PUCO) file appeals of commission decisions directly with the Ohio Supreme Court, state law requires motor carriers to file appeals to the Tenth District Court of Appeals in Columbus. A trucking company appealed a “motor carrier civil forfeiture” that resulted in a $1,680 PUCO fine to the Tenth District. It filed its notice of appeal with the Franklin County clerk of courts and served the notice to a PUCO commissioner, who documented the receipt. In In re LMD Integrated Logistical Services the Court considers the PUCO’s contention that the appeal is invalid because the law required the trucking company to initiate the appeal by filing with the PUCO’s docketing division first, then going to the appellate court.

In re Complaint of Harris Design Services v. Columbia Gas of Ohio, an appeal from the PUCO, centers on an architecture firm’s claim that its gas company didn’t notify the business that the gas had been shut off for months in a vacant property in late 2013, resulting in pipes bursting and property damage. The gas company counters its employees placed two door tags on the property. The property owners maintain that they regularly checked on the property and saw no door tags, that the gas company knew the property was vacant, and that the tags weren’t adequate notice that the gas had been turned off.

The Board of Professional Conduct recommends a Cleveland attorney be indefinitely suspended from practicing law based on his representation of a man seeking to sue his former employer. Much of the complaint about the attorney’s actions in Cleveland Metropolitan Bar Association v. Moody stem from statements the lawyer made to his client, who secretly recorded a conversation. The attorney during the meeting told his client how he intentionally ignored and delayed providing materials to the opposing attorney and that he used obscene language to disparage her. The attorney claims he didn’t violate any disciplinary rules, and even if he did, the sanction should be less than an indefinite suspension.

An indefinite suspension is recommended for a Columbus attorney in Columbus Bar Association v. Rieser. The state’s professional conduct board found the attorney accepted several unsolicited checks, totaling nearly $80,000, from a psychiatrist he was representing in a workers’ compensation fraud case. The bar association and the attorney agreed to a two-year suspension with one year stayed, but the board suggests the harsher sanction in part because he took the money, signed over two checks to an art gallery, and deposited some of the checks into his personal account. The attorney notes that he didn’t seek the overpayment and he provided the doctor with effective representation.

Wednesday, April 11
In State v. Ireland, a drunk man was beaten after he inappropriately touched a woman on his way out of a Blacklick bar. One customer attacked the man, then the woman’s husband punched and kicked the man, who was severely injured. The woman’s husband, a Persian Gulf War veteran, was convicted of felonious assault. He argues the assault was involuntary because he had a dissociative episode caused by post-traumatic stress disorder stemming from his time in combat. The prosecutor maintains that blackouts are an affirmative defense, which requires the man to prove he was in this blackout state causing him to act involuntarily when he attacked the bar patron.

A Clark County man convicted of drug trafficking and possession had to forfeit to the state the van he drove to the 2005 drug deal and a pickup truck he used as partial payment for the drugs. After an appeal, the trial court in 2012 ordered the return of the man’s property, but the vehicles had been sold at an auction six years earlier. When he appealed the use of auction prices to determine what the state should pay him for the vehicles, his attorney filed an Anders brief stating that the appeal was frivolous. In State v. Bowshier, the man argues his claim has a legitimate basis, citing an appeals court ruling about using auction prices to value property, and he asks that a new lawyer be appointed to handle his case.