A number of former NFL players recently filed an appeal in the Illinois Appellate Court challenging a lower court ruling that dismissed their claims against helmet manufacturer Riddell as untimely. The players alleged that Riddell, along with the NFL, failed to warn them of the long-term consequences of sustaining multiple concussions while wearing Riddell helmets during football games and in practice, including the increased risk of developing latent and life-threatening brain injuries later in life. The players were diagnosed with neurodegenerative brain diseases, including Alzheimer’s and dementia, many years after they had sustained their concussions and years after they had experienced symptoms, including headaches, memory loss, dizziness, blurred vision and mood swings. Because the players had begun experiencing these symptoms many years ago, and in fact had sued the NFL to recover damages for the symptoms in 2012, Riddell argued that the players were on notice no later than 2012 that they could develop potentially related neurodegenerative diseases in the future, and therefore, the players could (and should) have brought their claims for the yet-to-be diagnosed conditions back in 2012. The Illinois trial court agreed, and dismissed the claims, holding that they had simply been brought too late. See Law360 Article, NFL Players Want Claims Revived Against Helmet Co. Riddell, May 14, 2019. The Illinois Appellate Court has yet to rule on the appeal, but if the lawsuit had been brought in Massachusetts, the outcome may have been different.
In Massachusetts, the Date of Diagnosis Triggers the Claim
In Evans v. Lorillard Tobacco Co., the Massachusetts Supreme Judicial Court analyzed the issue of when the clock begins to run on a claim for latent personal injuries allegedly caused by a dangerous or defective product. In beginning its analysis, the Court acknowledged that such claims are subject to a so-called “discovery rule.” Under the discovery rule, “a claim accrues and the statute of limitations clock commences when a plaintiff knows, or reasonably should have known, that she has been harmed or may have been harmed by the defendant’s conduct.” Evans, 465 Mass. 411, 449 & n.19 (2013). However, the Evans Court went a step further and recognized that there might be multiple causes of action available to a plaintiff (and therefore multiple dates of accrual), if as a result of the defendant’s misconduct, the plaintiff suffered multiple injuries that were “separate and distinct.” Id. As the Court explained, “when a later-discovered disease is separate and distinct from an earlier-discovered disease, the earlier disease does not trigger the statute of limitations for a lawsuit based on the later disease.” Id.
In Evans, the plaintiff continuously smoked the defendant’s cigarettes beginning in 1960. She survived a heart attack as a result of her smoking in 1985 but continued to smoke, even though it was undisputed that she drew a connection between her smoking and her heart attack, and attributed both to the defendant’s misconduct. In 2001, she was diagnosed with lung cancer, also as a result of her smoking, but did not survive. Her estate filed suit in 2004, nearly twenty years after she had first suffered the heart attack, claiming that the defendant’s misconduct had caused her death. The defendant argued that since the plaintiff had connected the dots in 1985 between the defendant’s alleged misconduct, her continued smoking, and resulting harm in the form of a heart attack, she was also on notice, at that time, that she could develop lung cancer in the future, and therefore, her 2004 lawsuit based on the lung cancer was simply too late.
The Evans Court, however, disagreed, holding that the claim arising from the heart attack was separate and distinct from the claim arising from the lung cancer. Specifically, the Court held that a cause of action for injuries resulting from lung cancer accrued when the plaintiff knew or reasonably should have known that she had developed lung cancer from smoking the defendant’s product. Id. at 450. The court went on to clarify that plaintiffs know or reasonably should know that they have developed a specific disease when they are formally diagnosed with the disease. Id. (emphasis added). Therefore, a product liability and/or negligence claim for damages based on a specific disease accrues on the date of diagnosis of that specific disease.
Effect of Evans on Claims for Latent Brain Injuries
The Riddell football helmet case is pending in Illinois, so the Evans analysis is not controlling there. However, it will be interesting to see whether the Illinois Appellate Court reaches a similar conclusion as that reached by the Massachusetts Supreme Judicial Court in Evans. Moreover, if the claims had been brought in Massachusetts, it seems that they could have survived a motion to dismiss on timeliness grounds, assuming the players brought their lawsuits promptly following a “separate and distinct” diagnosis of their latent brain injuries. While understandably frustrating for a product defendant to have to answer for alleged misconduct decades earlier (particularly where documents and evidence may no longer be available due to the passage of time), the “date of diagnosis” rule provides a bright line for determining when the clock begins to run on a claim for latent personal injuries allegedly caused by a dangerous or defective product in Massachusetts.