Ripple v. Marble Falls Indep. Sch. Dist., CV. No. 1:12–CV–827–DAE.

• Decision Date: 27 March 2015
• Docket Number: CV. No. 1:12–CV–827–DAE.
• Parties: Blake Alan RIPPLE, Plaintiff, v. MARBLE FALLS INDEPENDENT SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Western District of Texas

99 F.Supp.3d 662

Blake Alan RIPPLE, Plaintiff

v.MARBLE FALLS INDEPENDENT SCHOOL DISTRICT, Defendant.

CV. No. 1:12–CV–827–DAE.

United States District Court, W.D. Texas, Austin Division.

Signed March 27, 2015.

Daniel Garza, Martin J. Cirkiel, Cirkiel & Associates, P.C., Round Rock, TX, for Plaintiff.

ORDER: (1) GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; (2) GRANTING IN PART AND DENYING IN PART DEFENDANT'S EVIDENTIARY OBJECTIONS

EZRA, District Judge.

On January 23, 2015, the Court held a hearing on a Motion for Summary Judgment filed by Defendant Marble Falls Independent School District (“Defendant”) (“Mot.,” Dkt. # 31.). Martin J. Cirkiel, Esq., represented Plaintiff Blake Alan Ripple (“Plaintiff” or “Ripple”); Bridget Robinson, Esq., represented Defendant. After careful consideration of the memoranda in support of and in opposition to the Motion, and in light of the parties' arguments at the hearing, the Court, for the reasons that follow, GRANTS Defendant's Motion for Summary Judgment (Dkt. # 31). In accordance with this ruling, the Court GRANTS IN PART and DENIES IN PART Defendant's Objections to Plaintiff's Evidence in Opposition to Defendant's Motion for Summary Judgment (Dkt. # 39).

BACKGROUND

I. Factual Background

In Fall of 2007, Ripple began his freshman year at Marble Falls High School in Marble Falls Independent School District. (See “Blake Aff.,” Dkt. # 37, Ex. 1 ¶ 4; Mot., Ex. 2–1 at 1–3.) Throughout his high school career, he participated in the Marble Falls High School Football team, which was a voluntary, extracurricular activity. (Blake Aff. ¶ 1; Mot., Exs. 2–1, 2–2, 2–3, 2–4, 6 ¶ 4.) For the duration of his time on the team, Athletic Director Cord Woerner (“Woerner”) served as the Head Football Coach and Brandon Belk (“Belk”) served as one of two athletic trainers, licensed by the state to assess and treat student medical issues. (“Woerner Aff.,” Mot., Ex. 2 ¶ 2; “Belk Aff.,” Mot., Ex. 4 ¶¶ 2–3.)

To join the football team, Marble Falls students are required to submit a “Preparticipation Physical Evaluation—Medical History” form (the “Form”) prior to each season. (Woerner Aff. ¶ 7; Belk Aff. ¶ 4.) The form has two parts: a medical history portion, which the student and parent fill out, and a physical examination portion, which a health care professional fills out. (Belk Aff. ¶ 4.) Incoming Freshmen and third-year students are automatically subject to the physical examination. (Id. ) The other students need only obtain the physical examination if a parent marks “yes” to certain medical history questions. (Id. ) The physical examination portion of the Form requires the health care professional to determine whether the student is “cleared” to participated in sports without restrictions, “cleared after completing evaluation/rehabilitation” for particular medical issues, or “not cleared.” (Id. ) A student who is not cleared cannot participate in athletic practices, games, or matches of any kind. (Id. )

In accordance with the football program's requirements, Ripple submitted the Form in the summer before each football season. (See Mot., Exs. 2–1, 2–2, 2–3, 2–4; Woerner Aff. ¶ 7.) On the Form he submitted prior to his Freshman season, Ripple indicated that he experienced racing heart/skipped heartbeats and high blood pressure /cholesterol and that he had a family history of heart problems and heart-related death. (Mot., Ex. 2–1 at 1.) In August 2007, a health care professional cleared Ripple contingent to a follow-up appointment with his family physician regarding his high heart rate and blood pressure. (Mot., Ex. 2–1 at 2.) Children's Cardiology Associates subsequently cleared him to play with no restrictions. (Id. at 3.) Although Ripple was cleared, Belk assisted in monitoring Ripple's blood pressure regularly during athletic activities that school year. (Belk Aff. ¶ 6.) Ripple does not allege that any concussions occurred during his Freshman season.

In August 2008, Ripple underwent a physical examination following the submission of the Form due to the affirmative nature of various answers on the Form's medical history section. (Belk Aff. ¶ 7; Mot., Ex. 2–2 at 2.) In addition to the questions to which Ripple answered “yes” the year before, he also indicated that he experienced exercise-related chest pain, he tired more quickly than his friends during exercise, he had become ill from exercising in the heat, he had become dizzy during or after exercise, he had become unexpectedly short of breath with exercise, and a physician had previously denied him participation in sports for heart problems. (Mot., Ex. 2–2 at 1.) His doctor cleared him without restriction for the year. (Id. at 2.) In October 2008, Ripple also underwent a Hypertrophic Cardiomyopathy (HCM) screening, after which the physician concluded that there was no evidence for HCM. (Id. at 3.) Ripple does not allege that any concussions occurred during his Sophomore season. However, Ripple did experience two injuries that year: he hyperextended his leg in January 2009 at a football game and tore his right meniscus in January or February 2009 playing touch football. (Belk Aff. ¶ 8; “Blake Dep.,” Mot., Ex. 9 at 60:8–61:16.)

In July 2009, Ripple underwent a third physical examination following the submission of the Form. (Mot., Ex. 2–3 at 2.) In addition to the questions to which Ripple answered “yes” the year before, he also indicated he had a medical illness or injury since his last check-up; he had a stinger, burner, or pinched nerve ; he had skin problems; and that he had problems with his knee and ankle. (Id. at 1.) The doctor cleared him without restriction for the year. (Id. at 2.)

Ripple attests that he was not fitted for a helmet in anticipation of his Junior year, so he received a helmet that did not fit him when he returned to practice that year. (Blake Aff. ¶ 10.) He further attests that during an early-October 2009 game, his head caused him significant pain. (Id. ¶ 11; Blake Dep. 63:22–65:12.) After he told Belk that his head was pounding, he was nauseous, and he felt dizzy, he accidentally asked Belk for a Midol instead of a Tylenol. (Id. ) Ripple attests that Belk asked him if it hurt a lot; Ripple replied that it did not. (Blake Dep. 64:15–17.) Ripple attests that Belk gave him Tylenol and instructed him to lay down and rest on the trip home. (Id. at 64:19–21.) Ripple attests that he did not tell his parents about this injury or see a doctor in response. (Id. at 64:22–65:5.)

On October 23, 2009, Ripple played in game against Lampasas (the “Lampasas Game”). (Blake Aff. ¶¶ 12–16; Blake Dep. 63:18; Belk Aff. ¶ 10.) During the last few minutes of the game, Ripple sustained a head injury. (Blake Aff. ¶ 13; Belk Aff. ¶ 10.) After a coach called him off the field, he spoke with his teammate Jacob Cernosek on the sideline, who said that he needed to see the trainer immediately. (Blake Aff. ¶ 14; Blake Dep. 75:5–6.) Ripple then spoke with Belk on the sidelines and told him that his head was pounding, his ears were ringing, and he felt dizzy and nauseous.¹ (Blake Dep. 76:1–3.) Ripple does not remember what Belk said in response, but recalls that Belk then walked away. (Blake Dep. 76:4–8.) Ripple did not play any more plays in that game, and returned to the locker room. (Id. at 76:9–11.) His parents took him to the hospital, where Ripple attests that the doctor diagnosed him with a concussion. (Id. at 75:12–16; Blake Aff. ¶ 16.) Belk attests that when he called Ripple's parents the next to follow-up on the injury, they informed him that he had sustained a concussion. (Belk Aff. ¶ 11.) Ripple did not play in any other games that season. (Id. ¶ 12; Blake Aff. ¶ 18.) Following the injury, he continued to experience headaches, nausea, and involuntary shaking on his right side like a tremor. (Blake Aff. ¶ 18.) On October 26, 2009, Ripple's parents took him to see his general practitioner, who referred him to a neurologist for follow-up care. (“Lori Aff.,” Dkt. # 37, Ex. 2.)

In December 2009, Ripple was involved in a car accident, after which he was taken to the hospital. (Blake Aff. ¶ 21.) Although the accident had no impact on the concussion, Ripple attests that a CAT scan revealed nodules on his thyroid, which he had surgically removed on March 12, 2010. (Id. ¶¶ 21–22.) Following the surgery, Ripple received Homebound Services to ensure he would be able to continue his education while he was recovering from the surgery at home. (Id. ¶ 46.) He attests that the school frequently sent work home with vague instructions or instructions that required his presence in class to understand or to participate. (Id. ¶ 47.) He further attests that “on numerous occasions” the school did not give him any work. (Id. )

Ripple attests that during Spring 2010, he began to receive recruiting letters from Division 1 colleges interested in his football ability, but that Woerner withheld the letters until he began summer training in August. (Id. ¶ 24.) He also attests that he received treatment at the Mayo Clinic in Rochester, Minnesota in late May 2010. (Id. ¶ 25.) When he returned from the Mayo Clinic, he returned to a local doctor for follow-up care, who indicated that he should “take it slow and not run too much” in the coming football season. (Id. ¶ 26.)

In July 2010, Ripple filled out the Form in anticipation of his Senior season. (Mot., Ex. 2–4 at 1.) In addition to the questions to which Ripple answered “yes” the year before, he also indicated that he had been hospitalized overnight in the past year, he had experienced numbness and tingling in his arms/hands/legs/feet, he was missing a paired organ, and that he had one previous concussion that occurred on October 23. (Id. ) Due to his responses, he underwent a physical examination and was cleared without restriction to participate in the 2010–11 football season. (Id. at 2.)

Ripple's mother, Lori Ripple (“Lori”), attests that she met with Woerner before practice began to explain Ripple's medical limitations. (“Lori Aff.,...