Butler v. BRG Sports, LLC

2019 IL App (1st) 180362

141 N.E.3d 1104

436 Ill.Dec. 8

Michael BUTLER, Melvin Carter, Craig Curry, James Harrell, Robert Harris, Carlton Bailey Jones, Brad Quest, John Michael Reichenbach, Adam Schreiber, Eric Wright, Gary Anderson, Michael Clark, Chris Dieterich, Gerald Feehery, William Gay, Jeff Herrod, James Jones, Ernest Mills, Bruce Taylor, Thomas Vaughn, Lawrence Watkins, Felix Wright, Rahim Abdullah, Douglas Beaudoin, Rod Davis, Major Everett, David Galloway, Kenneth Green, Ricky Nattiel, Mark Nichols, Bernard Whittington, John L. Williams, Michael Williams, Glen Young, Antoine Cash, Glen Earl, Joe Odom, Chartic Darby, Central McClellion, Maurice Morris, Gerald Wunsch, Jeffrey Bryant, Dan Fike, David Hadley, Walter Lee (Todd) Howard, Sean Love, Cleophus Miller, Gregory Brown, Alphonso Carreker, Wendell Patrick Carter, Al Davis, Eric Hipple, Lemar Parrish, Plaintiffs-Appellants,

v.BRG SPORTS, LLC f/k/a Easton-Bell Sports, LLC, EB Sports Corp., BRG Sports Holdings Corp., BRG Sports, Inc., Riddell Sports Group, Inc., Riddell Inc., and All American Sports Corporation, Defendants-Appellees.

Charles Ali, Plaintiff-Appellant,

v.BRG Sports, LLC f/k/a Easton-Bell Sports, LLC, EB Sports Corp., BRG Sports Holdings Corp., BRG Sports, Inc., Riddell Sports Group, Inc., Riddell, Inc., and All American Sports Corporation, Defendants-Appellees.

Nos. 1-18-0362

1-18-0394 (cons.)

Appellate Court of Illinois, First District, FIRST DIVISION.

October 21, 2019

Thomas A. Demetrio and William T. Gibbs, of Corboy & Demetrio, P.C., of Chicago, and Brad R. Sohn, of The Brad Sohn Law Firm, PLLC, of Coral Gables, Florida, for appellants.

Karen Kies DeGrand, Mark H. Boyle, and Michael H. Adler, of Donohue Brown Mathewson & Smyth LLC, of Chicago, and Robert L. Wise, of Bowman and Brooke LLP, of Richmond, Virginia, for appellees.

PRESIDING JUSTICE GRIFFIN delivered the judgment of the court, with opinion.

¶ 1 These appeals stem from an important issue facing professional athletics and contemporary culture as a whole: former professional football players developing significant neurological disorders after sustaining repeated concussions from playing the game. Evolving scientific and medical research has uncovered a link between a person suffering repeated blows to the head and that person developing Chronic Traumatic Encephalopathy and a host of other neurological impairments.

¶ 2 The plaintiffs in these cases are former professional football players who have sustained numerous concussions and are suffering the attendant neurological impairments. The plaintiffs have already sued the NFL in a federal class action case and have entered into a settlement with the NFL to address their grievances. The former players, however, now seek redress from defendants, the manufacturers and designers of the helmets they wore while playing football. The plaintiffs allege that the helmet manufacturers have long known about the dangers and the harmful effects of repeated concussive and subconcussive traumas, but never warned the users of their helmets about the dangers, instead representing that their helmets were protecting the players.

¶ 3 The defendant-helmet manufacturers moved to dismiss these cases on the ground that the cases are barred by the two-year statute of limitations governing personal injury actions in Illinois. In response, plaintiffs argued that the cases are not time barred because the suits were filed within two years of the players learning about the injuries for which they seek redress. The trial court found that, because the players had already sued the NFL more than two years before filing these cases, the players knew about their injuries and, therefore, could have sued the helmet manufacturers at the same time—more than two years before filing these cases. Plaintiffs appeal the dismissal of their claims. We hold that the plaintiffs' claims are indeed untimely and, accordingly, we affirm.

¶ 4 I. BACKGROUND

¶ 5 Introduction

¶ 6 The plaintiffs in these cases are 54 former professional football players who are suffering neurological effects from sustaining numerous concussive and subconcussive traumas while playing professional football. The National Football League has settled lawsuits with classes of former professional football players, including the plaintiffs herein, who sought redress for claims that the NFL failed to inform them about and protect them from the risks of concussions in football. See, e.g. , In re National Football League Players Concussion Injury Litigation , 821 F.3d 410 (3d Cir. 2016). The players' suits were consolidated into a federal class action case which eventually consisted of about 5,000 former players who had filed substantially similar lawsuits. In re National Football League Players' Concussion Injury Litigation , 307 F.R.D. 351, 361 (E.D. Pa. 2015). All of the players involved in these appeals were also parties to the federal class action case against the NFL.

¶ 7 In the cases now before us, dozens of plaintiffs are suing Riddell and its associated entities (collectively "Riddell" or "defendants"). Riddell is a manufacturer of sports equipment and is the NFL's officially licensed helmet provider. Plaintiffs allege that Riddell conspired with the NFL to misinform players about the risks of long-term brain damage that can result from playing football, even with a helmet. The plaintiffs maintain that Riddell has long known about the dangers and the harmful effects of repeated concussive and subconcussive traumas, but that it never warned the users of its helmets about such dangers. The plaintiffs pleaded that each of them has been or will be diagnosed with a neurodegenerative disorder as a result of playing football while using a Riddell helmet.

¶ 8 Butler Appeal, 18-0362

¶ 9 In this appeal, there are seven groups of plaintiff-appellants that total 53 retired NFL players. For purposes of this appeal, there is no basis on which to distinguish between the different groups of Butler appellants—they are similarly situated. However, the breakdown is as follows. The Boone plaintiffs are 10 former players that filed a complaint on July 13, 2016. The Anderson plaintiffs are 12 former players that filed a complaint on August 25, 2016. The Abdullah plaintiffs are 12 former players that filed a complaint on August 25, 2016. The Cash plaintiffs are 3 former players that filed a complaint on December 19, 2016. The Coxson plaintiffs are 4 former players that filed a complaint on December 19, 2016. The Bryant plaintiffs are 6 former players that filed a complaint on December 19, 2016. The Brown plaintiffs are 6 former players that filed a complaint on December 19, 2016.

¶ 10 These 53 plaintiffs were all involved in the federal multidistrict concussion injury litigation in the Eastern District of Pennsylvania ( In re National Football League Players' Concussion Injury Litigation , 307 F.R.D. 351 (E.D. Pa. 2015) ). Between the time of the plaintiffs' participation in the federal litigation and the time that the trial court dismissed their complaints in these cases, approximately half of the 53 plaintiffs had been diagnosed with dementia or Alzheimer's disease. The plaintiffs who have not been diagnosed with a specific neurodegenerative disorder allege that they are exhibiting symptoms of their latent brain injuries and that they will be diagnosed with a specific neurodegenerative disorder at some point.

¶ 11 These plaintiffs argue that the statute of limitations for the specific neurodegenerative disorder they now face could not have accrued until that plaintiff was diagnosed with the disorder. The plaintiffs maintain that they did not and could not have alleged that they were suffering from one of these disorders when they were participating in the federal class action case because they had not yet been diagnosed with being afflicted by one of those particular disorders.

¶ 12 Ali Appeal, 18-0394

¶ 13 In this appeal, plaintiff-appellant Charles Ali is the lone plaintiff. He is similarly situated with the plaintiffs in the Butler appeal in all important respects. Like the plaintiffs in the Butler appeal, Ali was involved in the federal multidistrict concussion injury litigation in the Eastern District of Pennsylvania ( In re National Football League Players' Concussion Injury Litigation , 307 F.R.D. 351 (E.D. Pa. 2015) ). He was formally diagnosed with dementia in 2015—after his participation in the federal litigation ended. Like the plaintiffs in the Butler appeal, Ali argues that only upon his diagnosis with dementia could his statute of limitations be triggered as to that injury. All of the issues raised in the Ali appeal are identical to those raised in the Butler appeal, it is just filed separately.

¶ 14 Issues Now Before the Court

¶ 15 In the federal class action case against the NFL in which all of these plaintiffs were involved, the plaintiffs therein also named Riddell as a defendant. The plaintiffs in that case claimed that Riddell should be liable for the defective design of helmets. While Riddell was sued in that federal class action case, it was not a party to the settlement. In re National Football League Players' Concussion Injury Litigation , 307 F.R.D. 351, 362 n. 2 (E.D. Pa. 2015). Even though the plaintiffs in this case had the opportunity to do so, none of them asserted claims against Riddell in the federal class action case, pursuing only claims against the NFL.

¶ 16 Riddell moved to dismiss these cases in the circuit court arguing that the claims the plaintiffs now assert are barred by the statute of limitations. The statute of limitations for the plaintiffs' principal claims for personal injury is two years.¹ There is no dispute that the concussions the players suffered that were the impetus for the harms the players now face occurred more than two years before this case was filed. The question in these cases, however, is when did the cause of action accrue for the neurological disorders the players now face...