Rose v. Nat'l Collegiate Athletic Ass'n

• Decision Date: 28 September 2018
• Docket Number: MDL No. 2492,Original N.D. Ill. Docket No. 17 C 1402,Master Docket No. 16 C 8787
• Citation: 346 F.Supp.3d 1212
• Parties: Michael ROSE, and Timothy Stratton, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION and Big Ten Conference, Defendants.
• Court: U.S. District Court — Northern District of Illinois

346 F.Supp.3d 1212

Michael ROSE, and Timothy Stratton, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,

v.NATIONAL COLLEGIATE ATHLETIC ASSOCIATION and Big Ten Conference, Defendants.

MDL No. 2492

Master Docket No. 16 C 8787

Original N.D. Ill. Docket No. 17 C 1402

United States District Court, N.D. Illinois, Eastern Division.

Signed September 28, 2018

Matthew J. Healy, Healy Law Office, Denver, CO, Michael J. DiBella, DiBella Law Firm, PC, Jay Edelson, Edelson PC, Chicago, IL, Frank J. Di Bella, Gina Marie Di Bella, Di Bella & Di Bella, P.C., Northbrook, IL, for Plaintiffs.

Mark Steven Mester, Latham & Watkins LLP, Andrew S. Rosenman, Daniel Leslie Ring, Michael Allen Olsen, Mayer Brown LLP, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

John Z. Lee, United States District Judge

Plaintiffs Michael Rose and Timothy Stratton played football for Purdue University from 1996 to 2001. Purdue is in the Big Ten Conference ("Big Ten"), a Division I conference of the National Collegiate Athletic Association ("NCAA").

Over the course of their college football careers at Purdue, Rose and Stratton experienced thousands of repetitive concussive and subconcussive impacts to their heads. Now they are dealing with debilitating neurodegenerative disorders

and cognitive impairments due to repetitive brain trauma. As a result, Rose and Stratton, individually and on behalf of all others similarly situated, have sued for negligence, fraud, breach of express and implied contract, and unjust enrichment, alleging that the NCAA and the Big Ten were uniquely aware of the risks of repetitive brain trauma

and, yet, exposed players to those risks with no regard for players' health and safety.

The NCAA and Big Ten have moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). In addition, the Big Ten has moved for a more definitive statement under Rule 12(e). For the reasons herein, the motions are granted in part and denied in part [12][16].

Factual Background ¹

Rose and Stratton at Purdue

Each Saturday during football season, millions of fans watch college football games from their couches or in packed stadiums throughout the United States. Compl. ¶ 2, ECF No. 1. Nearly one hundred thousand college football players compete each year. Id. ¶ 1.

Rose played the position of linebacker for Purdue from 1996 to 1999. Id. ¶ 74. Weighing just over 200 pounds, Rose was small for his position. Id. ¶ 75. But what Rose lacked in size, he made up in intensity, once earning him the title of Big Ten Defensive Player of the Week. Id.

Stratton played the position of tight end for Purdue from 1998 to 2001. Id. ¶ 86. By the end of his college career, he was the school's all-time leader in receptions, with 204 in total. Id. ¶ 88.

Neither Rose nor Stratton had ever experienced a concussion before playing college football. However, while playing for Purdue in practices and games, both were subjected to thousands of impacts greater than 10 g's ("g" being a measure of gravitational force, where 1 g is equal to the force of gravity at the Earth's surface). Id. ¶¶ 5, 80, 85, 89, 94. Generally, the majority of football-related hits to the head exceed 20 g's, and some approach 100 g's. Id. ¶ 5.

During the time that Rose and Stratton were playing football at Purdue, the Big Ten and the NCAA did not inform them of an epidemic that was slowly injuring and killing student athletes. Id. ¶ 4. The Big Ten and the NCAA knew that repetitive subconcussive and concussive impacts to football players' heads created a serious risk of neurodegenerative disorders

and diseases. Id. ¶¶ 42, 56–65. But Defendants did not change their concussion treatment protocols until 2010, several years too late for Plaintiffs. Id. ¶ 70.

Now, long after their college football days have concluded, Rose and Stratton suffer from neurodegenerative diseases

and disorders caused by repetitive brain trauma. Id. ¶¶ 80–83, 89–92. Rose deals with ringing in his ears, memory loss, depression, and abrupt and uncontrollable mood swings. Id. ¶ 81. Stratton struggles with headaches, migraines, ringing in the ears, memory loss, depression, and anxiety. Id. ¶ 90.

Defendants' Roles in Safeguarding the Health and Safety of Plaintiffs

The NCAA was created in 1906 in response to the excessive brutality and alarming rate of head injuries

in college football. Id. ¶ 30. Thus, the NCAA's original purpose was to create and enforce rules to protect young people from head injuries resulting from dangerous athletic practices. Id. ¶¶ 30–31.

To this end, the NCAA Constitution states that its primary principle is to ensure that: "Intercollegiate athletics programs shall be conducted in a manner designed to protect and enhance the physical and educational well-being of student athletes." Id. ¶ 34. To carry out this goal, the NCAA promulgates and implements standard-sport regulations and requirements, such as the NCAA Constitution, Operating Bylaws, and Administrative Bylaws, which provide detailed instructions on game and practice rules pertaining to player well-being and safety. Id. ¶ 35.

Additionally, the NCAA publishes a Sports Medicine Handbook ("Handbook") annually. Id. ¶ 37. The Handbook includes official policies and guidelines for the treatment and prevention of sports-related injuries, as well as return-to-play guidelines. Id. These policies and guidelines recognize that "student-athletes rightfully assume that those who sponsor intercollegiate athletics have taken reasonable precautions to minimize the risk of injury from athletics participation."Id. As a member conference in the NCAA, the Big Ten is required to comply with, administer, and enforce all applicable NCAA rules, regulations, policies, and guidelines to protect the health and safety of Purdue University football players, including Plaintiffs. Id. ¶¶ 36, 39, 41. Furthermore, the NCAA promises to assist the Big Ten in its efforts to fully comply with NCAA rules and regulations. Id. ¶ 38. As compared to Plaintiffs and other Purdue University football players, the NCAA and the Big Ten are in a superior position to know of and to mitigate the risks of concussions and traumatic brain injuries

. Id. ¶ 42.

Symptoms and Treatment of Concussive and Subconcussive Impacts to the Head

When someone suffers a severe impact to the head, they may exhibit: (1) dizziness; (2) tiredness; (3) nausea; (4) vomiting; (5) headaches; (6) blurred vision or light sensitivity; (7) slurred speech; (8) difficulty concentrating or decision-making; (9) difficulty balancing or lack of coordination; (10) unexplained anxiety or irritability; or (11) memory loss. Id. ¶ 44. Symptoms may last for one or two weeks. Id. ¶ 47. A concussed player, however, may not recognize the signs of a concussion, and the symptoms themselves may prevent him from recognizing he has suffered a concussion. Id. ¶ 45.

After a person experiences a concussion, his or her brain needs time to heal to prevent long-term damage. Id. ¶ 46. After diagnosing a patient with a concussion, doctors generally prohibit him or her from returning to normal activities for a few weeks after a concussion, due to the brain's particular vulnerability to further injury. Id. ¶ 47. Individuals who do not recover from a concussion within a few weeks are diagnosed with post-concussion syndrome

. Id. ¶ 48. The symptoms of post-concussion syndrome can last for months or can be permanent. Id.

When a football player experiences minor, subconcussive brain trauma

, he may not exhibit symptoms of a concussion. Id. ¶ 63. However, even minor brain trauma may eventually lead to neuropathological and neurophysiological alterations, including neuronal damage, reduced cerebral blood flow, altered brainstem evoked potentials, and reduced speed of information processing. Id.

Studies Establishing the Dangers Associated with Football-related Brain Trauma

Plaintiffs cite numerous studies regarding the risks associated with football-related brain trauma

. Id. ¶¶ 43–67. Plaintiffs allege that the NCAA and the Big Ten were in a comparatively superior position than football players to know about these studies. Id. ¶ 42.

For example, in 1952, an article published in the New England Journal of Medicine recommended a three-strike rule for concussions in football, which recommended that players cease to play football permanently after the third concussion. Id. ¶ 60. In a 1967 study, Drs. Hughes and Hendrix examined how severe impacts affected brain activity in football players by utilizing electroencephalograms

("EEGs"). Id. ¶ 61. Shortly thereafter, doctors identified a potentially fatal condition known as "Second Impact Syndrome," referring to a condition when additional injury to an already-concussed brain triggers swelling that the skull cannot accommodate. Id. ¶ 62.

In addition, studies conducted by Boston University concluded that repeated concussions trigger progressive degeneration of brain

tissue and lead to an increased risk of depression, dementia, and suicide. Id. ¶¶ 50–51. Furthermore, autopsies of former football players' brains have shown that 96% of National Football League ("NFL") players had Chronic Traumatic Encephalopathy ("CTE"), a debilitating condition found in those with a history of repetitive brain trauma. Id. ¶ 53. CTE was found in 79% of all autopsied brains of former players who played at any level of football. Id.

Furthermore, numerous other studies have been published in medical journals warning of the dangers of single concussions, multiple concussions, and football-related head trauma

from multiple concussions. Id. ¶ 63. For instance, studies have shown that repetitive subconcussive and concussive impacts to the head create a serious risk of long term effects, including memory loss, dementia, depression, CTE, Alzheimer's disease, Parkinson's disease, and other related diseases and symptoms. Id. ¶ 43. As a result of these and numerous other studies, medical professionals began recommending changes to...