September 16, 2019

September 16, 2019

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Jury Rules for NCAA in First Sports Concussion Case Tried to Verdict

In a landmark decision, a Pennsylvania jury ruled in favor of the defendant National Collegiate Athletic Association (NCAA) in the first sports concussion case tried to verdict. In a 10−2 decision, the jury in Onyshko v. NCAA, No. C-63-CV-201403620 (Wash. Cty. Ct. Comm. Pleas, PA) (filed 6/27/14, originally filed in federal court on 12/17/13) found that the NCAA was not negligent in its dealings with plaintiff Matthew Onyshko when he was a student at California University of Pennsylvania. 

In 2008, five years after his college football career ended, Onyshko was diagnosed with amyotrophic lateral sclerosis (ALS), a progressive neurodegenerative disease usually diagnosed between age 40 and 70. Onyshko and his wife sued NCAA for claims of negligence and loss of consortium. The complaint stated that, during his college football career, Onyshko experienced numerous, repeated blows to the head, lost consciousness for at least 30 seconds on three separate occasions, and that repeated blows to the head caused him to develop ALS. 

The NCAA is the main regulatory body for college sports to promote safe participation. According to Onyshko, the NCAA knew from at least the 1980s that football-induced brain injuries cause long-term damage, but it failed to adequately supervise, regulate, and minimize the risk of long-term brain injury resulting from repeated head impacts. 

NCAA’s pre-trial motion to dismiss, which argued that the complaint failed to adequately plead the existence of the legal duty, was denied by the court on December 3, 2014. Subsequently, NCAA moved for summary judgment, arguing that (1) the action was barred by the statute of limitations, (2) NCAA did not have a duty to plaintiff, (3) NCAA did not breach a duty to protect against the long-term risks of concussion and (4) plaintiff’s alleged head injuries incurred while playing college football did not cause his later development of ALS. In denying the motion, the court found that plaintiffs’ expert opinions created a genuine issue of material fact about whether concussive and sub-concussive blows to the head while playing collegiate football could cause ALS. 

After years of litigation and substantial discovery, the case went to trial, with jury selection beginning on April 29, 2019. During the trial, which lasted almost a month, Onyshko, now 38 years old, used a computerized device controlled by eye movement to give testimony. According to Onyshko, he sustained at least 20 concussions as a college football player during which he blacked out, but was never taken off the field in a stretcher. He further testified that he did not report the episodes to a trainer because he did not know that these were an issue. He said that the diagnosis of ALS in 2008 was a shock because it did not run in his family. 

During cross-examination, the NCAA’s attorney brought up Onyshko’s deposition testimony that Onyshko first experienced headaches, dizziness, and memory problems in 1999, before he played any collegiate games. Video recordings of games in which plaintiff played were shown to refute plaintiff’s claims of the multiple head injuries he allegedly sustained. 

In his closing statement, plaintiffs’ attorney requested compensatory damages of $9.6 million. Deliberation began the afternoon of June 5, 2019. After seven and a half hours, the jury found in favor of NCAA on liability. The plaintiffs announced plans to appeal and re-file the matter as a wrongful death case under Pennsylvania law when Onyshko dies.

© 2019 Wilson Elser

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About this Author

Anthony Corleto, Wilson Elser Law Firm, Stamford, White Plains, Commercial Litigation and Sports Law Attorney
Partner

Tony Corleto focuses on commercial litigation, transactions and sports risk matters. His experience covers intellectual property, corporate, construction, insurance coverage and bad faith, environmental, and employment practice liability issues. He regularly tries cases and argues appeals in the state and federal courts of Connecticut and New York, including complex matters involving banking and lease finance, software disputes, development rights and brain injuries.

Before his legal career, Tony worked as a commercial casualty underwriter and...

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Alia Naijar, Wilson Elser Law Firm, Las Vegas, Health Care and Litigation Law Attorney
Associate

Alia Najjar focuses her practice on civil litigation, including general liability and medical malpractice defense. She also has handled numerous litigation matters defending mortgage servicers, lenders and mortgage trustees. Alia began her legal career in California at a national law firm where she defended physicians and other licensed professionals before various California licensing boards, defended physicians in peer review matters and handled administrative law practice matters. Alia represents children in the foster care system pro bono.

Alia is licensed to practice medicine in Texas but decided to pursue a career in law. After graduating from medical school, she completed partial training in general surgery and, during her residency, rotated at some of the best hospitals in the United States. She has been a guest lecturer and panel member at Touro University College of Osteopathic Medicine and has authored articles on medical marijuana and the Patient Protection and Affordable Care Act’s impact on medical malpractice in Communiqué. She also co-authored “The Tail Wagging the Dog: Nevada’s 9-Month Super-Priority Dilemma” in the California Mortgage Finance News.

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