Nat'l Collegiate Athletic Ass'n v. Finnerty, Court of Appeals Case No. 20A-CT-1069

• Docket Nº: Court of Appeals Case No. 20A-CT-1069
• Citation: 170 N.E.3d 1111
• Case Date: May 04, 2021
• Court: Court of Appeals of Indiana

170 N.E.3d 1111

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Appellant-Defendant,
v.
Jennifer FINNERTY, Individually, and as Personal Representative of the Estate of Cullen Finnerty, Plaintiff-Appellee,
and
Carol Anderson, Individually, and as Personal Representative of the Estate of Neal Anderson, Plaintiff-Appellee,
and
Maura Solonoski, Individually, and as Attorney-in-Fact for Andrew Solonoski Jr., Plaintiff-Appellee,

Court of Appeals Case No. 20A-CT-1069

Court of Appeals of Indiana.

FILED May 4, 2021

Attorneys for Appellant: William F. Stute, Marc R. Shapiro, Francesca Morency, Orrick, Herrington & Sutcliffe LLP, Washington, D.C., Nicholas J. Nelson, Faegre Drinker Biddle & Reath LLP, Minneapolis, Minnesota, Brian J. Paul, Patrick H. Reilly, Daniel E. Pulliam, Kristina A. Coleman, Bianca M. Eddy, Faegre Drinker Biddle & Reath LLP, Indianapolis, Indiana

Attorneys for Appellees: Robert T. Dassow, Tyler J. Zipes, Hovde Dassow + Deets, LLC, Indianapolis, Indiana

Robb, Judge.

Case Summary and Issues

1] Cullen Finnerty, Neal Anderson, and Andrew Solonoski Jr. each played college football, albeit at different times and for different universities. Jennifer Finnerty, individually and as Personal Representative of the Estate of Cullen Finnerty ("Finnerty"); Carol Anderson, individually and as Personal Representative of the Estate of Neal Anderson ("Anderson"); and Maura Solonoski, individually and as Attorney-in-Fact for Andrew Solonoski Jr. ("Solonoski") (collectively, "Athletes"), each filed a lawsuit against the National

[170 N.E.3d 1114

Collegiate Athletic Association ("NCAA") alleging, broadly speaking, that the NCAA knew about the harmful effects of concussion-related injuries, failed to warn its athletes about those effects and/or concealed from its athletes its knowledge of those effects, and failed to implement reasonable concussion-management protocols to protect its athletes.

2] These three cases were consolidated for purposes of pre-trial discovery and the Athletes sought to take the depositions of Mark Emmert, Donald Remy, and Dr. Brian Hainline, three senior NCAA executives (collectively, "Executives"). The NCAA moved for a protective order quashing those depositions. The trial court granted the protective order in part and denied it in part. The NCAA sought to certify the order for interlocutory appeal, but the motion was deemed denied by the operation of Appellate Rule 14(B)(1)(e). Subsequently, the NCAA moved for a second protective order, which the trial court denied and immediately certified for interlocutory appeal.

[3] The NCAA raises the sole issue of whether Indiana should adopt the "apex deposition doctrine," which would bar taking the deposition of high-ranking executives absent a showing they have "unique personal knowledge" of relevant facts. Brief of Defendant-Appellant at 33. The Athletes raise the issue of whether the NCAA's second motion for protective order was a repetitive motion/motion to reconsider affecting the timeliness of this appeal. Concluding the NCAA forfeited its right to appeal the trial court's order denying in part its motion for protective order and there are no extraordinarily compelling reasons to restore that right, we dismiss.

Facts and Procedural History

[4] The NCAA, an unincorporated association, is the governing body of collegiate athletics and is headquartered in Indianapolis. Emmert is the NCAA President; Remy is its Chief Legal Officer and Chief Operating Officer or "second-in-command[,]" Br. of Appellant at 15; and Hainline is the Chief Medical Officer. As of October 2020, there were over forty individual actions (including these three) and a federal multidistrict litigation proceeding including over 500 class actions pending against the NCAA in courts across the United States regarding football-related head injuries. See Br. of Appellant at 14-15.

[5] Anderson played football at the University of Illinois from 1960 to 1964. While playing college football, Anderson was "knocked unconscious several times and sustained multiple serious concussions." Appendix to Brief of Defendant-Appellant ("Appellant's App."), Volume II at 130. After college, Anderson began to suffer from headaches and tinnitus, and then developed further mental, emotional, and physical problems. After his death in 2018, an examination of his brain tissue showed that Anderson suffered from chronic traumatic encephalopathy ("CTE"). Solonoski played football at North Carolina State University from 1966 to 1970. While playing college football, Solonoski suffered multiple serious concussions. After college, Solonoski's mental and physical health began to decline, and he was eventually diagnosed with "frontotemporal lobar degeneration and [CTE]." Id. , Vol. II at 166. And Finnerty played football at the University of Toledo in 2001 and Grand Valley State University from 2002 through 2006 and was allegedly knocked unconscious and sustained multiple concussions during his playing career. He died at the age of thirty. A study of Finnerty's brain after his passing showed he suffered from Stage II/IV CTE. See id. , Vol. II at 92. Complaints filed in Marion Superior Court

[170 N.E.3d 1115

against the NCAA on behalf of each of the three men alleged, among other things, negligence and fraudulent concealment.¹

6] In July 2019, at the Athletes’ request and with the NCAA's agreement, the trial court consolidated the three actions for purposes of pretrial discovery. The Athletes then noticed the depositions of the Executives. In October 2019, the NCAA filed a motion for a protective order seeking to quash those depositions. The NCAA asserted that the depositions of three of the NCAA's most senior executives "are not designed to obtain information from individuals with firsthand knowledge of the underlying facts but are part of a discovery strategy designed to harass, inconvenience, and increase expenses." Id. , Vol. II at 199. The NCAA argued the depositions should be barred by the "apex deposition doctrine," pursuant to which some courts – although not yet courts in Indiana – have barred depositions of high level or "apex" officials unless the party seeking the depositions shows that: 1) the officials have unique personal knowledge of the facts and 2) the information sought cannot be obtained through less intrusive means. The NCAA asserted the apex deposition doctrine is consistent with Indiana Trial Rule 26 ’s prohibition on unduly burdensome discovery and should be applied in Indiana.

[7] With respect to the Executives’ personal knowledge of the facts, the NCAA noted that they each joined the NCAA years after the Athletes played college football.² The Executives submitted affidavits supporting the motion for protective order that the NCAA characterized as showing that they lack any knowledge, let alone unique personal knowledge, regarding:

(a) Plaintiffs or their time as a student athletes ...; (b) documents or information regarding the causes or long-term effects of traumatic brain injuries that the NCAA may have generated, collected, or relied on [during their playing years]; (c) the NCAA's actions related to the prevention and treatment of traumatic brain injuries [during those years]; or (d) any communications between the NCAA and the [Athletes’ respective colleges] regarding [the Athletes] or any other topic [during the relevant years].

Id. , Vol. II at 202-03. The NCAA also argued that Remy's knowledge is "protected by the attorney-client and work-product privileges and is therefore not discoverable." Id. , Vol. II at 204. The NCAA contended that "whatever general knowledge [the Executives] may possess regarding the NCAA's current policies is insufficient to warrant the expense and burden of a deposition." Id. The NCAA also argued that the Athletes had failed to exhaust less intrusive discovery methods, as they had not yet taken any Rule 30(B)(6) depositions and had deposed only one NCAA employee.

[8] In response, the Athletes asserted that to prove their claims,

they must gather evidence pertaining to the NCAA's degree of control over its member schools and athletes (duty, policies), its historical and current knowledge about concussions (notice and knowledge, polices, concealment), and the historical and current state of medical science (general causation, policies, concealment).

[170 N.E.3d 1116

Id. , Vol. III at 5. And they argued that each of the Executives, "in his own right, has critical knowledge about one or more of these topics." Id. Further, the Athletes noted that not all of Remy's knowledge is related to his position as Chief Legal Officer. In addition to being a lawyer, Remy is Hainline's direct supervisor, oversees the Sports Science Institute, and regularly communicates with Hainline about important health and safety matters and concussion safety policies. The Athletes argued they were entitled to take the Executives’ depositions under Indiana's liberal discovery rules because the NCAA had failed to show good cause to quash the depositions and no less intrusive or alternate means were available to the Athletes to obtain the Executives’ "highly relevant information." Id. , Vol. III at 4.

9] On December 9, 2019, following a hearing, the trial court denied in part and granted in part the NCAA's motion for a protective order. The trial court noted that it had already determined that requests for documents from 1942 through the present were...