Written by: Adam C. Carter, Esp Kreuzer Cores LLP

The Appellate Court for the First District of Illinois recently published its opinion analyzing the discovery rule as it pertained to former football players and their suit against helmet manufacturers, including Riddell, the National Football League’s (NFL) officially licensed helmet provider, in Butler v. BRG Sports, LLC, 2019 IL App (1st) 180362. The appellate court affirmed the Cook County trial court’s grant of summary judgment on behalf of the defendants, agreeing the discovery rule did not extend the statute of limitations to a point where the plaintiffs’ suit against Riddell was considered to be timely filed. The key issue in the case was a determination of when the players’ cause of action accrued and whether the discovery rule applied based on the date of accrual.

The 54 plaintiffs in Butler were former professional football players who alleged they are suffering neurological effects from concussive traumas while playing professional football. Butler, 2019 IL App (1st) 180362, ¶ 6. The plaintiffs in the Cook County case sued Riddell and its associated entities alleging that they conspired with the NFL to misinform players about the risks of long-term brain damage that could result from playing football. Id. ¶ 7. The plaintiffs filed their suits in 2016. Crucial to the court’s decision was the fact that all of the plaintiffs had previously been plaintiffs in a consolidated federal class action entitled In re National Football League Players’ Concussion Injury Litigation, 307 F.R.D. 351 (E.D. Penn. 2015), which was litigated in the United States District Court for the Eastern District of Pennsylvania. Butler, 2019 IL App (1st) 180362, ¶ 6. The federal class action suit had been filed more than two years prior to Butler. In Butler, the trial court held, and the appellate court affirmed, the plaintiffs knew or reasonably should have known of their injuries at the time they joined the federal class action. Id. ¶ 18. They would have had knowledge that they had been injured, and that it was wrongfully caused, or else they would not have had a basis to file the federal class action. Id. Because the federal class action claims were all filed more than two years before the Butler case was filed, the statute of limitations barred the plaintiffs’ claims in Butler.

Importantly, Riddell was a defendant in the consolidated federal class action as well. Id. ¶ 15. Despite it being a defendant, Riddell was not a party to the settlement of that case. Id. The appellate court noted the plaintiffs had the opportunity to assert their claims against Riddell in the federal class action case, but did not do so. Id. Plaintiffs’ opportunity to pursue Riddell in the federal class action was thoroughly discussed in Butler. The appellate court noted that in the federal class action, each plaintiff was given a short-form complaint in which to submit basic information about their claims to the court. Id. ¶ 51. The plaintiffs had the option to state if they had a claim against Riddell, which was listed as one of the defendants both in the short-form complaint and the master complaint, but none of the Butler plaintiffs even checked the box to indicate they were aggrieved by Riddell. Id. The Butler court specifically found the plaintiffs “each made a conscious decision to voluntarily and intentionally not pursue Riddell for the brain injuries from which the plaintiffs are suffering.” Id. Based on the plaintiffs’ decision not to pursue Riddell in the federal class action and to institute a separate suit against the helmet-maker, it appears the plaintiffs were attempting a double recovery for the same injuries and damages. The appellate court alluded to this fact by noting the plaintiffs already compromised with the NFL for the same claims they make against Riddell in the Butler case, writing the settlement with the NFL included compensation for current and future diagnoses of injuries from the latent brain injuries. Id. ¶ 52.

The purpose of the discovery rule is to postpone the starting of a suit-limitations period until the injured party knows or should know of his injury. Id. ¶ 22, citing Knox College v. Celotex Corp., 88 Ill. 2d 407, 414 (1981). The statutory limitations period starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused. Butler, 2019 IL App (1st) 180362, ¶ 22. The plaintiffs urged the court in this case to apply the discovery rule and find that their causes of action accrued at the time they were diagnosed with a specific neurodegenerative issue. Id. ¶ 23. (Emphasis added.)

Defendants countered by citing the Illinois Supreme Court’s ruling in Golla v. General Motors Corp., that a plaintiff who knows he is injured need not know the exact nature or extent of his injuries for the statute of limitations to begin running. Id. ¶ 30, citing Golla v. General Motors Corp., 167 Ill. 2d 353, 367 (1995). In Golla, the Supreme Court found there was no requirement a plaintiff must discover the full extent of her injuries before the statute of limitations begins to run, and because the plaintiff knew or should have known at the time of the accident both that she was injured and that the injury may have been wrongfully caused, the limitations period commenced. Butler, 2019 IL App (1st) 180362, ¶ 31, citing Golla.

In Butler, the court’s analysis fell somewhere in between the hazy line of the family of asbestos-related cases and the hard line set forth in Golla. The court sidestepped the invitation to shoehorn the case into one of those analyses. Rather, the previous federal class action was the unique factor which provided clarity for the court. In Butler, the court found the plaintiffs’ conduct in the federal class action established that the plaintiffs had sufficient knowledge to interpose the claims they now pursued against Riddell as early as the point in which the pursued their claims against the NFL (and Riddell) in the federal class action. Id. ¶ 34. The court saw it was the same injuries, same defendants, and same allegations of negligence and failure to warn, in each case.

Further, the court found the plaintiffs proposed the adoption of an unworkable discovery rule analysis. At the time of the Butler case, approximately half of the plaintiffs had received diagnoses of a specific neurodegenerative disorder, such as dementia or Alzheimer’s disease, but the other half had not. Id. ¶ 48. Under the plaintiffs’ own proposed standard, (that their claims in Butler should now be allowed pursuant to the discovery rule because they now had specific diagnoses that they did not have at the time of the federal class action), half of the plaintiffs who had not yet received such diagnoses were therefore asserting premature claims. Id.

Plaintiffs also had a claim for fraudulent concealment, which carries a five-year statute of limitations. The appellate court found plaintiffs sought to invoke the claim as a tolling mechanism for otherwise untimely personal injury claims. Id. ¶ 61. Plaintiffs argued Riddell’s conduct prevented them from discovering claims they had against it, and therefore had five years from the time they filed the federal class action complaint to file their complaints in this case. Id. ¶ 62. The appellate court noted the supreme court has made clear that an allegation of fraudulent concealment does not give a plaintiff an automatic five-year extension for bringing a claim once the plaintiff has knowledge of the claim. Id. ¶ 63, citing Morris v. Margulis, 197 Ill. 2d 28, 38 (2001). Once the party discovers the “fraud,” it is no longer concealed, and if there is time remaining within which to file the action, the Code of Civil Procedure does not operate to toll the limitations period. Butler, 2019 IL App (1st) 180362, ¶ 63. In this case, the problem with plaintiffs’ argument is that they professed knowledge of the facts giving rise to the alleged fraudulent concealment, but still did not file these cases for more than two years after suing the NFL. Id. ¶ 65. They also had the opportunity to pursue Riddell on these claims in the federal class action and chose not to do so. Id.

Last, it should be noted that, without the need to do so, the appellate court explained the plaintiffs were not without a remedy for their injuries. Plaintiffs had already secured a remedy for the harm alleged in the Butler case via their settlements with the NFL in the federal class action. Id. ¶ 55. That settlement, approved by the Pennsylvania-based federal district court, provided remedies for current and future damages, including an “uncapped monetary damage award fund” which was created to provide compensation to players who later submitted proof of certain diagnoses. Id. ¶ 57. This fund is to remain in place for 65 years. Id. The Butler court further explained the settlement terms, including the uncapped fund, showed the parties were “keenly aware” of future deterioration and diagnoses, the types of which some of the plaintiffs were now alleging in the Butler case. Id. ¶ 59.

Plaintiffs’ mistake in this case was the decision to attempt to obtain additional and possibly more lucrative damages in Illinois state court rather than pursuing their claims against Riddell within the considerable framework that had been provided to them in the federal class action. The fact that Riddell was a named defendant in that federal class action was also a factor on which the Illinois courts seized in questioning plaintiffs’ actions. Without the prior federal class action, which set forth an identifiable date by which the court could confidently find the plaintiffs knew or reasonably should have known they were damaged, the analysis would have proven to be much more difficult. The plaintiffs’ reliance on the discovery rule with the federal class action suit and settlement in their back pocket was misplaced. The discovery rule under Illinois law can be difficult to navigate for both plaintiffs’ and defendants’ lawyers. It is fact- and case-specific. In Butler, the existence of the prior suit made the analysis much easier for the court.

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Adam C. Carter is a partner with Esp Kreuzer Cores LLP in Wheaton. He focuses his practice in the areas of construction law, product liability, professional liability, aviation law, propane and explosives litigation, catastrophic injury and loss litigation, environmental litigation, and business torts and commercial Litigation. Mr. Carter is currently an elected member of the Board of Directors of the Illinois Association of Defense Trial Counsel and serves on the IDC Civil Practice and Legislative Committees. He earned his B.A. cum laude from Augustana College in 1998 and earned his juris doctorate cum laude from the University of Illinois College of Law in 2001. He was admitted to the Illinois Bar and United States District Court, Northern District of Illinois in 2001, and has been admitted pro hac vice to defend clients in numerous state and federal courts across the country. He may be reached at acarter@ekclawfirm.com.