Legal Document: DEBRA PLOETZ vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION

On January 19, 2017 a ORDER TO APPOINT RECEIVER - RESPONSE was filed involving a dispute between Ploetz, Debra, and National Collegiate Athletic Association, for OTHER PERSONAL INJURY in the District Court of Dallas County.

Preview
FILED
DALLAS COUNTY
3/13/2018 7:41 PM
FELICIA PITRE
DISTRICT CLERK

CAUSE NO. DC-17-00676

DEBRA M. HARDIN-PLOETZ, individually § IN THE DISTRICT COURT OF
and on Behalf of the Estate of Gregory Ploetz, §
Deceased, §
§
Plaintiff, §
§
vs. § DALLAS COUNTY, TEXAS
§
NATIONAL COLLEGIATE ATHLETIC §
ASSOCIATION, §
§
Defendant. § 95th JUDICIAL DISTRICT

PLAINTIFF’S RESPONSE TO DEFENDANT
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION’S
MOTION FOR SUMMARY JUDGMENT BASED ON STATUTE OF LIMITATIONS

Plaintiff Debra M. Hardin-Ploetz, individually and on behalf of the Estate of Gregory

Ploetz (“Plaintiff”), hereby files her response to Defendant National Collegiate Athletic

Association’s (“NCAA’s”) motion for summary judgment based on statute of limitations,

respectfully asks that the motion be denied, and would show as follows in support:

I.
INTRODUCTION

This case concerns former NCAA college football player Gregory Ploetz, who suffered

with dementia 1 for years before dying in May 2015. No one knew the cause of Mr. Ploetz’s

dementia while he was alive; the link between NCAA football and Mr. Ploetz’s dementia was first

established after his death. In December 2015, Boston University doctors studied slides of Mr.

Ploetz’s brain under a microscope and found it to bear the hallmark signifiers of CTE, or chronic

1
“Dementia” is general term that refers to symptoms of cognitive impairment. Ex. A, Dr. Fehnel Dep., at 187:23-
188:5. Knowledge of dementia does not imply knowledge of itscause, because there are “a variety of different
dementing processes.” See id. at 190:5-193:2 (discussing various causes of dementia, including without limitation
Alzheimer’s disease and CTE); see also Shetty, et al., Imaging in Chronic Traumatic Encephalopathy and Traumatic
Brain Injury, SPORTS HEALTH Vol. XX, No. X (2016), attached hereto as Ex. B, at 27 (noting a variety of dementias).

Plaintiff’s Response to the NCAA’s Motion for Summary Judgment – Page 1
traumatic encephalopathy. CTE researchers have established the causal link between repetitive

concussive and sub-concussive blows to the head, like those suffered by NCAA college football

players, and CTE-induced dementia. Accordingly, once the Boston University doctors discovered

in December 2015 that CTE caused Mr. Ploetz’s dementia, Plaintiff had an objectively-verified

belief that NCAA college football caused Mr. Ploetz’s dementia and resulting death.

Plaintiff then filed suit in January 2017, barely a year after the Boston University doctors’

discovery. Prior to Mr. Ploetz’s death and the subsequent study of his brain, neither Plaintiff nor

anyone else knew that Mr. Ploetz’s dementia was CTE-related. Further, neither Plaintiff nor Mr.

Ploetz could reasonably have known that NCAA football caused Mr. Ploetz’s dementia, because

they diligently inquired with doctors during Mr. Ploetz’s life about the possible causes of Mr.

Ploetz’s dementia but got no firm answers other than that the cause of Mr. Ploetz’s dementia would

only be discoverable after his death. The necessity of post mortem examination is consistent with

what Dr. Shetty, one of the NCAA’s purported experts, wrote in 2015. See Section II(D), infra.

Nevertheless, the NCAA has now filed a motion for summary judgment based on Texas’s

two-year personal injury statute of limitations. The NCAA claims that even if the discovery rule

tolled the statute of limitations for Plaintiff’s claims arising out of Mr. Ploetz’s CTE-related

dementia, Plaintiff and Mr. Ploetz should have brought suit within two years of August 2009,

which is when a doctor speculated that football might have played a role in Mr. Ploetz’s dementia.

The NCAA claims Texas’s fraudulent concealment doctrine does not apply for the same reasons.

The NCAA’s motion should be denied because neither Plaintiff nor Mr. Ploetz knew that

NCAA football caused Mr. Ploetz’s dementia until December 2015, when the Boston University

doctors studied Mr. Ploetz’s brain and found that Mr. Ploetz suffered from CTE. That key link—

the pathology report showing that Mr. Ploetz suffered from CTE rather than some other brain

Plaintiff’s Response to the NCAA’s Motion for Summary Judgment – Page 2
disease that might have caused his dementia—had to be established in order for Plaintiff to know

that Mr. Ploetz’s dementia resulted from his years of playing NCAA college football, rather than

some other—perhaps natural—cause. Further, Plaintiff and Mr. Ploetz diligently sought out

objective verification of the cause of Mr. Ploetz’s dementia, but were unable to obtain it, and were

in fact told that such verification could only be obtained after Mr. Ploetz’s death.

Belying the NCAA’s claim that Plaintiff should have known in 2009 that NCAA college

football caused Mr. Ploetz’s dementia, the NCAA’s own purported expert Dr. Shetty wrote in 2015

that CTE can only be diagnosed post mortem, the NCAA denies that NCAA football caused Mr.

Ploetz’s CTE and related dementia, and the NCAA’s other purported medical expert apparently

holds the opinion that Mr. Ploetz suffered and died from Alzheimer’s disease, not CTE. Further,

to the extent the NCAA wishes to rely upon any purported knowledge Plaintiff or Mr. Ploetz had

or allegedly should have had from September 12, 2009 forward regarding the cause of Mr. Ploetz’s

dementia, the NCAA has waived those arguments by entering into a tolling agreement in

Arrington. For these and other reasons explained below, the NCAA’s motion should be denied.

II.
FACTUAL BACKGROUND

A. Mr. Ploetz’s Life Before 2009.

Mr. Ploetz played varsity NCAA college football at the University of Texas at Austin

(“UT”) in 1968, 1969, and 1971. MSJ at 2. 2 After obtaining his bachelor’s degree at UT in 1972,

he went on to earn a master’s degree from UT in 1975. Id. Mr. Ploetz then devoted his working

life to educating children and worked in public schools as an art teacher. Id.; see also Ex. C,

2
The NCAA’s motion for summary judgment, to which this instrument responds, is cited herein as “MSJ at __.”

Plaintiff’s Response to the NCAA’s Motion for Summary Judgment – Page 3
Affidavit of Debra M. Hardin-Ploetz (“Pls. Aff.”), ¶ 2. He and Plaintiff married in 1977 and

remained married until Mr. Ploetz’s death. Ex. C, Pls. Aff., ¶ 1.

By the mid-2000s, Mr. Ploetz was experiencing depression, memory loss, confusion,

erratic behavior, and had increasing difficulty communicating with others. Id., ¶¶ 3-8. Shortly after

a September 2008 ankle surgery, Mr. Ploetz’s dementia worsened. Id., ¶ 9.

B. Mr. Ploetz’s Life from 2009 Until His Death in 2015.

As Mr. Ploetz’s dementia worsened, Plaintiff and Mr. Ploetz sought medical assistance,

both to help treat Mr. Ploetz’s dementia and in an effort to understand what might be causing it.

Id., ¶¶ 10-11. From 2009 until his death in May 2015, a number of different doctors saw Mr. Ploetz.

See id. Some of them speculated about the possible causes of Mr. Ploetz’s dementia:

• Several medical providers suggested the possibility of, or tentatively diagnosed
Mr. Ploetz with, Alzheimer’s disease.

o See Ex. D, Patient Record UT Southwestern Medical Center, at 000000004
(noting in February 2010 that “[Mr. Ploetz] will be a candidate for research
in UT Southwestern’s Alzheimer Disease Center.”) (emphasis added)

o See Ex. D at 000000060 (noting in August 2010 “[e]tiology [i.e. cause]
unclear,” but calling for “check for routine studies and Athena ADMark
tau and amyloid beta levels to help with diagnosis . . . .”) (emphasis added).

o See also Ex. D at 000000097 (noting in October 2011 that test “results do
suggest AD [i.e. Alzheimer’s disease])”) (emphasis added);

o See also Ex. E, 2011 Aledo Family Medicine Clinic Progress Notes, at
000004-05 (repeated references to Alzheimer’s);

o See also Ex. F, July 2013 Medical Center of McKinney Psych Initial
Hospital Assessment, at 0000020 (tentatively diagnosing Mr. Ploetz with
Alzheimer’s);

Plaintiff’s Response to the NCAA’s Motion for Summary Judgment – Page 4
o See also Ex. C, Pls. Aff., ¶ 12 (“At least one of the doctors mentioned the
possibility of Alzheimer’s disease . . . .”);

o See also Ex. G, Santos Dep. 3, at 74:24-75:9 (“A. . . . [H]e was brought into
an Alzheimer’s facility, so I was led to believe that. Q. Led to believe that
what? A. That he had Alzheimer’s or some kind of – some form of
dementia.”);

o See also Ex. H, Beau Ploetz Dep. 4 at 52:5-53:6 (in October 2012, Mr.
Ploetz’s son believed that Mr. Ploetz was suffering from Alzheimer’s
disease because “by that time, multiple doctors had diagnosed [Mr. Ploetz]
with either early onset Alzheimer’s disease or dementia”).

• Medical providers also suggested that complications from Mr. Ploetz’s 2008 ankle
surgery might be to blame.

o See Ex. I, June 2009 Neuropsychological Evaluation by James Cannici,
Ph.D., at 000001 (recounting 2008 ankle surgeries and subsequent memory
loss), 000004 (“Test results are consistent with those with dementia. Due
to the apparent acute onset of his cognitive decline, a progressive dementia
is less likely. Test results were consistent with those who have sustained
acute oxygen deprivation and reduced blood flow.”) (emphasis added);

o See also Ex. D at 000000058 (noting in August 2010 that, “[o]verall, the
pattern of neurocognitive deficits reflects primary dysfunction of frontal
systems, consistent with a frontal variant of Mild Cognitive Impairment.
Etiology [i.e. cause] is unclear, though his reported rapid onset of
symptoms following ankle surgery in 2008 is worrisome for possible
hypoxic [i.e. oxygen deprivation] injury.”) (emphasis added);

o See also Ex. C, Pls. Aff., ¶ 12 (“At least one of the doctors mentioned the
possibility of . . . some complication from Greg’s surgery.”).

3
Ms. Santos served as a caregiver for Mr. Ploetz in the last year or so of his life. Ex G., Santos Dep., at 10:11-14:2.
4
Beau Ploetz is the son of Plaintiff and Mr. Ploetz.

Plaintiff’s Response to the NCAA’s Motion for Summary Judgment – Page 5
o See also Ex. H, Beau Ploetz Dep. at 40:10-41:22 & 46:20-49:12 (from late
2008 to at least 2010, Mr. Ploetz’s son believed that Mr. Ploetz’s ankle
surgery caused his dementia).

One doctor also suggested that Mr. Ploetz’s football career might play a role in Mr. Ploetz’s

dementia, but he did not firmly diagnose it as a cause. 5 And, in addition to the various other

possible causes discussed by Mr. Ploetz’s medical providers, at least one doctor told Plaintiff that

she would only be able to know whether Mr. Ploetz had football-induced dementia after his death.

Ex. C, Pls. Aff., ¶ 13 (“The doctor said they could only tell if Greg had CTE by dissecting his

brain—meaning we wouldn’t be able to tell while Greg was alive.”).

Ultimately, Plaintiff and Mr. Ploetz did not know, and could not reasonably have known,

the cause of Mr. Ploetz’s dementia and death until well after his death on May 11, 2015. 6 By late

2015, Plaintiff had arranged for Mr. Ploetz’s brain to be sent to Boston University, where

5
The NCAA cites four reports from just two doctors, Dr. Blair and Dr. Cannici, that touch on the subject of football.
MSJ at 10-11. But none of those reports make a firm diagnosis of CTE or another football-related disease, and Dr.
Cannici’s report in fact reaches a different conclusion as to the possible cause of Mr. Ploetz’s symptoms. See MSJ Ex.
1, Dr. Blair’s Reports, at 26 & 31, (“DIAGNOSTIC IMPRESSIONS: 1. MINIMAL MEMORY DIFFICULTIES A.
LIKELY SECONDARY TO HISTORY OF FOOTBALL INJURIES.”) (emphasis added), 37 (“DIAGNOSTIC
IMPRESSIONS: 1. EARLY DEMENTIA A. LIKELY AGGRAVATED BY HIS RECENT OPERATIONS IN
SOME CAPACITY B. IN PART RELATED TO HIS PREVIOUS FOOTBALL INJURIES C. MILD VITAMIN B12
DEFICIENCY 2. FAMILY HISTORY OF SEIZURES); MSJ Ex. 2, Dr. Cannici’s Report, at 46 (recounting that Dr.
Blair mentioned football as a possible cause of Mr. Ploetz’s symptoms—and in fact coming to a different conclusion
as to the possible cause(s)—in June 2009).
6
Id., ¶¶ 13, 16; see also Ex. H, Beau Ploetz Dep. at 67:12-69:19 (in 2014, Plaintiff said she believed something other
than football caused Mr. Ploetz’s dementia); Ex. J, Jim Ploetz (one of Mr. Ploetz’s brothers) Dep., at 58:1-17 (“Q. Do
you recall any specific diagnosis that you ever heard that Greg received? A. No. Q. Do you have a personal opinion
on what caused Greg’s dementia? A. Only post death. . . . After his death, they sent his brain to Boston University to
be studied. He was diagnosed with Stage 4 CTE.”); Ex. K, Charles Ploetz (another of Mr. Ploetz’s brothers) Dep., at
69:11-12 (“After Greg was diagnosed with CTE by Boston University, I think we all took that as a fact . . . .”), 92:5-
22 (Plaintiff was “searching very hard” for causes of Mr. Ploetz’s symptoms but doctors could not determine cause
until they looked at Mr. Ploetz’s brain); Ex. A, Dr. Fehnel Dep., at 62:2-19 (“Q. Why did you feel most comfortable
with this particular case? A. . . . I didn’t feel comfortable talking about causality or other mechanisms . . . unless there
was . . . a pathological diagnosis.”), 154:2-6 (“[I]mportantly, the changes that we see in CTE are things that we
diagnose pathologically. So after the patient has died and they seem to be specific to those that have a history of head
injury.”), 198:15-24 (“Q. Right. And you would agree that at least as to the evidence that was available while Mr.
Ploetz was alive, the medical record was inconclusive as to whether he suffered from Alzheimer’s disease, CTE or
some other condition? . . . A. The overall medical record said that he had – clearly had dementia and the exact subtype
[of] that dementia was not fully determined until his death; right.”).

Plaintiff’s Response to the NCAA’s Motion for Summary Judgment – Page 6
neuropathologists study brains post mortem for signs of CTE. Ex. C, Pls. Aff., ¶ 16. In December

2015, those same neuropathologists diagnosed Mr. Ploetz with CTE, which is the most severe form

of CTE. Id.; see also Ex. L, Boston University Clinical Report. Thus, Plaintiff finally learned of

the link between Mr. Ploetz’s dementia and CTE in December 2015, which represents the first

point in time Plaintiff arguably could have known NCAA football caused Mr. Ploetz’s dementia

and death. Ex. C, Pls. Aff. at ¶ 16; see also Ex. L; see also Section II(D), infra (quoting Dr. Shetty’s

2015 article, which provides that CTE can only be diagnosed post mortem).

Plaintiff filed this lawsuit and served process on the NCAA in January 2017. MSJ at 6;

Ex. M, Return of Service. The NCAA answered in March 2017. MSJ at 6.

C. The NCAA fraudulently concealed the link between college football and dementia for
well over 50 years.

The NCAA was founded in 1906 with the express purpose of protecting college athlete

health and safety. 7 In particular, there were serious concerns college football players were

suffering from too many injuries, and the issue was important enough to draw the attention of

President Theodore Roosevelt. Ex. N, Lennon Dep., at 114:7-17, 306:16-307:4.

By the 1930s, itwas known in medical circles that certain sports, like boxing, caused

mental deterioration. Medical professionals spoke of dementia pugilistica, or fighter’s dementia,

which they found to be linked to the repetitive head trauma suffered by boxers. 8 For instance, in

1928, Harrison Martland, M.D. authored an article entitled Punch Drunk, in which Dr. Martland

opined that symptoms including unsteady gait, foot dragging, periods of confusion, tremors,

7
See, e.g., Ex. N, Lennon Dep. at 49:12-50:11. Kevin Charles Lennon is an NCAA vice president who was deposed
in this case. Id. at 118:11-23.
8
See, e.g., Ex. B at 1. One of the authors of that article, Dr. Shetty, has been designated by the NCAA as a purported
expert in this case, and the article was produced to Plaintiff as a material upon which Dr. Shetty relied in forming her
opinions in this case. See Section II(D), infra.

Plaintiff’s Response to the NCAA’s Motion for Summary Judgment – Page 7
vertigo, and sometimes insanity were caused by brain injury resulting from “a single or repeated

blows on the head or jaw which cause multiple concussion hemorrhages in the deeper portion of

the cerebrum.” 9 As early as 1933, the NCAA made the connection between other contact sports—

like football—and injury to the brain. Ex. P, 1933 NCAA Handbook on the Prevention and Care

of Athletic Injuries, at MSU000017-18.

At some point, however, the NCAA decided it would be more profitable to hide that

connection despite the NCAA’s foundational purpose. In fact, in the course of this litigation, the

NCAA has even denied knowing whether or not the 1933 Handbook—which included an early

concussion protocol—was in fact an NCAA document. 10 Fortunately for the truth, the NCAA has

been more forthcoming in other litigation, where it has expressly identified the 1933 Handbook as

its own document, consistent with the fact that the phrase “National Collegiate Athletic

Association” and term “NCAA” appear repeatedly on the document’s face. See Ex. R, NCAA’s

Objections and Responses to Geishauser Plaintiff’s First Set of Interrogatories, at 6-7 (“Response

to Interrogatory No. 6: . . . the NCAA identifies its National Collegiate Athletic Association

Medical Handbook for Schools and College (1933) in further response to this interrogatory as its

only presently-known source of information regarding issues related to concussions and head

injuries prior to 1972.”); see also Ex. P at MSU000001-03.

9
Ex. O, Henry S. Martland, M.D., Punch Drunk, JAMA (1928) Vol. 91, No. 15, at Ploetz.Plt.005624; see also Ex. B
at 1 (citing same).
10
See Ex. P at MSU000017-18 (early concussion protocol); see also Ex. Q, NCAA’s Objections and Responses to
Plaintiff’sFirst Set of Requests for Admission, Second Set of Interrogatories, and Fourth Set of Requests for
Production, at 23 (“After a reasonable inquiry, information known or easily obtainable by NCAA is insufficient to
enable NCAA to admit or deny that the document appended hereto with pages bates labeled MSU000001-MSU000020
was a 1933 NCAA ‘publication.’ However, NCAA admits that the document appended hereto with pages bates lebeled
MSU000001-MSU000020 is a true and correct copy of a document titled ‘Handbook on the prevention and Care of
Athletic Injuries.’”).

Plaintiff’s Response to the NCAA’s Motion for Summary Judgment – Page 8
Unfortunately, the NCAA’s policy of concealment kept the connection between college

football and dementia pugilistica a/k/a “punch drunk syndrome” a/k/a CTE out of the public eye

for decades, including during Mr. Ploetz’s upbringing and through the years Mr. Ploetz played

college football.

D. The NCAA’s purported experts’ opinions undermine its limitations argument.

On February 16, 2018, the NCAA identified Dr. Teena Shetty (neurologist) and Dr.

Rudolph J. Castellani (neuropathology) as purported retained expert witnesses in this lawsuit.11

Ex. S, NCAA’s Second Amended Response to Plaintiff’s Request for Disclosures, at 15-18.

In 2015, Dr. Shetty wrote that, “[c]urrently, the diagnosis of CTE can only be made pathologically,

and there is no concordance of defined clinical criteria for premorbid diagnosis.” Ex. B, at 1.

On February 26, 2018, the NCAA belatedly disclosed Dr. Castellani’s opinion that “Gregory

Ploetz suffered from Alzheimer’s disease, not CTE.” Ex. T, NCAA’s Fourth Amended Response

to Plaintiff’s Request for Disclosures, at 19. Dr. Castellani’s opinions also show his skepticism

here in 2018 regarding CTE diagnoses in connection with football—which is particularly curious

given the NCAA’s position that Mr. Ploetz and Plaintiff should have known of the link between

Mr. Ploetz’s dementia and NCAA college football in 2009. Ex. T at 19.

III.
DISCUSSION

The NCAA bases its motion for summary judgment on Texas’s two-year personal injury

statute of limitations. MSJ at 1. However, the NCAA also recognizes Texas’s discovery rule and

fraudulent concealment doctrine. MSJ at 9, 11-12. The discovery rule “defers the accrual of [a]

cause of action until the injury was or could have reasonably been discovered.” MSJ at 9 (internal

11
As the Court has ruled, the NCAA’s February 16 disclosures were deficient.

Plaintiff’s Response to the NCAA’s Motion for Summary Judgment – Page 9
quotations omitted). The fraudulent concealment doctrine “estop[s] [a defendant] from relying on

the defense of limitations until the [plaintiff] learns of the right of action or should have learned

thereof through the exercise of reasonable diligence.” MSJ at 11-12.

Plaintiff did not know and could not reasonably have known until December 2015 that

NCAA football, rather than something else—like Alzheimer’s disease or a hypoxic episode during

one of Mr. Ploetz’s 2008 ankle surgeries—caused Mr. Ploetz’s dementia. It was only after the

Boston University doctors studied Mr. Ploetz’s brain and found that Mr. Ploetz suffered from CTE

that Plaintiff finally knew what caused Mr. Ploetz’s dementia and death. Accordingly, the

discovery rule applies here, and the statute was tolled until December 2015 at the earliest, which

was only a bit over a year before Plaintiff brought suit.

Similarly, the NCAA has long concealed the link between football and CTE such that a

layperson could not be expected to know—without consulting a professional knowledgeable about

the NCAA’s pattern of deception—that the NCAA’s malfeasance contributed to the CTE suffered

by Mr. Ploetz and others, and the NCAA therefore cannot be heard to complain that Plaintiff and

Mr. Ploetz should have known during Mr. Ploetz’s lifetime that Mr. Ploetz suffered from CTE.

A. Applicable law

1. Legal Standard

The NCAA bears the burden to conclusively establish that there are no genuine issues of

material fact as to its limitations defense. MSJ at 6; Childs v. Haussecker, 974 S.W.2d 31, 40 (Tex.

1998). “The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could

differ in their conclusions in light of all of the summary-judgment evidence.” Transcon.Ins. Co. v.

Briggs Equip. Trust, 321 S.W.3d 685, 692 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

“All evidence favorable to the nonmovant must be taken as true, and all reasonable doubts must

Plaintiff’s Response to the NCAA’s Motion for Summary Judgment – Page 10
be resolved in favor of the nonmovant.” Pasko v. Schlumberger Tech. Corp., No. 13-15-00619-

CV, 2016 WL 8607596, at *2 (Tex. App.—Corpus Christi 2016, pet. filed) (citing Childs, 974

S.W.2d at 44.). “‘Typically, inquiries involving the discovery rule raise questions to be decided by

the trier of fact . . . .’” Id. (quoting Nugent v. Pilgrim’s Pride Corp., 30 S.W.3d 562, 567 (Tex.

App.—Texarkana 2000, pet. denied).

2. The Discovery Rule

Texas’s discovery rule applies in cases where “the nature of the injury incurred is

inherently undiscoverable and the evidence of the injury is objectively verifiable,” such as in

“cases involving latent injuries or diseases . . . .” Childs v. Haussecker, 974 S.W.2d 31, 37-38

(Tex. 1998). The discovery rule “operates to defer accrual of a cause of action until a plaintiff

discovers, or through the exercise of reasonable care and diligence, should discover” the injury

“and that it was likely caused by the wrongful actions of another.” Pasko, 2016 WL 8607596, at

*2 (citing Childs, 974 S.W.2d at 40, 44) (emphasis in original). “A plaintiff’s ‘mere suspicion . . .

that a causal connection exists between [his] exposure and symptoms is, standing alone,

insufficient to establish accrual as a matter of law.” Id. at *3 (quoting Markwardt v. Tex. Indus.,

Inc., 325 S.W.3d 876, 888 (Tex. App.—Houston [14th Dist.] 2010, no pet.)). Thus, a latent

“disease cause of action should not be deemed to accrue absent some objective verification of a

causal connection between the injury and toxic exposure, provided that the failure to obtain that

verification is not occasioned by a lack of due diligence.” Childs, 974 S.W.2d at 43 (emphasis

added).

Pasko proves instructive. There, Michael Pasko, an oilfield worker, cleaned what he

thought was a water spill on May 6, 2013. Id. at *1. Unbeknownst to him at the time, the “water”

was in fact hydraulic fracturing fluid that contained a number of chemicals. Id. When Pasko’s

Plaintiff’s Response to the NCAA’s Motion for Summary Judgment – Page 11
hands came in contact with the fluid, he suffered chemical burns to his skin. Id. Unfortunately,

Pasko’s exposure also lead him to contract skin cancer, which was first diagnosed in September

2013. Id. In August 2015, Pasko sued Schlumberger—the entity whose employee directed Pasko

to clean the spill and whose negligence allegedly caused a carcinogen to be present in the fluid

Pasko came in contact with. Id. Schlumberger moved for summary judgment on the basis that

Pasko should have sued within two years of his exposure, not his cancer diagnosis, and the trial

court granted Schlumberger’s motion. Id. Pasko appealed, and the Corpus Christi Court of Appeals

reversed the trial court. Id. at *4. As the Court explained, “Schlumberger presented no summary

evidence to establish that Pasko was aware of his [cancer] before September of 2013,” and “mere

suspicion alone is insufficient to establish that the limitations period began to accrue as a matter

of law [in May 2013].” Id. at *3.

Similarly, in Pustejovsky v. Rapid-American Corp., the Texas Supreme Court dealt with

whether the plaintiff’s settlement of an asbestosis claim barred his subsequent mesothelioma claim.

35 S.W.3d 643, 653 (Tex. 2000). Both claims arose out of plaintiff’s exposure to asbestos fibers,

but because mesothelioma is a more slowly-developing disease, plaintiff only became aware of it

when he was diagnosed with mesothelioma twelve years after he became aware of his asbestosis.

Id. at 644-46. The Texas Supreme Court sided with the plaintiff and overturned a summary

judgment entered in part on the basis of the statute of limitations and the discovery rule. Id. at 653.

The Court held that “the statute of limitations governing [a mesothelioma claim] begins when a

plaintiff’s symptoms manifest themselves to a degree or for a duration that would put a reasonable

person on notice that he or she suffers from some injury and he or she knows, or with reasonable

diligence should know, that the [mesothelioma] is likely work-related.” Id. In other words, the

mere fact that plaintiff was exposed to asbestos and had previously sued for a different injury based

Plaintiff’s Response to the NCAA’s Motion for Summary Judgment – Page 12
on that exposure was insufficient to show his knowledge of his mesothelioma injury and the causal

link between said injury and its cause, which he only came to know upon receiving a firm medical

diagnosis of mesothelioma.

The cases cited by the NCAA in support of its motion dealt with plaintiffs who had ways

of objectively verifying that their disease was related to the incident but failed to do so for lack of

diligence. For instance, in the only discovery rule case discussed in the NCAA’s motion, Bell v.

Showa Denko K.K, plaintiff Savannah Bell took a dietary supplement called L-tryptophan (“L-T”)

and began suffering muscle pain so severe that she became bed-ridden for about five months. 899

S.W.2d 749, 752 (Tex. App.—Amarillo 1995, writ denied). Bell later learned that she suffered

from a disease called EMS, “which gives rise to numerous physical problems including rashes,

swelling, achiness in joints, and, most predominantly, severe muscle pain.” Id. In July 1990, Bell

“filled out, in her own handwriting, an 11-page instrument denominated as an ‘L-tryptophan

[EMS] Patient Data Sheet,’” in which “she described her use of L-T” and stated that her health

had previously been “excellent.” Id. at 755. Bell had previously seen a doctor for her severe pain

in March 1990 after reading that distributors “took it (L-T) off the shelves” due to its connection

to EMS. Id. The doctor did not raise other potential causes or tell Bell that she could not be

diagnosed with EMS until after her death—to the contrary, he agreed with Bell’s “concern[ ] that

[L-T] may be a problem.” Id.

In September 1992, Bell sued L-T distributors, who moved for summary judgment based

on the statute of limitations. The trial court granted their motion, and the Amarillo Court of Appeals

affirmed based on Bell’s knowledge that her severe pain was related to her ingestion of L-T,

knowledge Bell had in July 1990. Thus, the only discovery rule case discussed in the NCAA’s

motion—a non-binding case—stands for the proposition that a disease-related cause of action is

Plaintiff’s Response to the NCAA’s Motion for Summary Judgment – Page 13
barred by the statute of limitations where a plaintiff (a) whose health was previously “excellent,”

(b) becomes bedridden due to pain after taking a dietary supplement, (c) reads that the dietary

supplement was retracted from the market, (d) receives a confirmatory diagnosis from a doctor

who does not suggest alternate causes or that plaintiff can only be diagnosed after death, (e)

thereafter writes an 11-page instrument stating her knowledge that the supplement caused her pain,

and (f) demonstrates her lack of diligence by failing to investigate further and waiting over two

years to bring suit. Further, the Texas Supreme Court did not opine on Bell’s merits, which means

that the later-decided Pustejovsky and Childs (and Pasko, in following those cases’ logic) control

to the extent Bell might be read to conflict with the Texas Supreme Court’s mandate that a latent

“disease cause of action should not be deemed to accrue absent some objective verification of a

causal connection between the injury and toxic exposure, provided that the failure to obtain that

verification is not occasioned by a lack of due diligence.” Childs, 974 S.W.2d at 43. The other

cases the NCAA cites in passing are also inapplicable. See Roberts v. Lain, 32 S.W.3d 264, 269-

71 (Tex. App.—San Antonio 2000, no pet.) (non-binding; not opined on by Texas Supreme Court;

unlike here, plaintiff had severe and persistent adverse reactions at the time of exposure, but only

sued decades later after allegedly developing mental issues related to that exposure; causation

could have been and was established prior to death); Aponte v. Kim Int’l Mfg., L.P., 05-7-00358-

CV, 2008 WL 2122599, at *3-4 (Tex. App.—Dallas 2008, no pet.) (more than two years prior to

suing, plaintiff suspected chemicals she worked with caused asthma, went to doctor with

complaint, and doctor told her to avoid the chemical, i.e., confirmed her suspicion; causation could

have been and was established prior to death); Rodriguez v. Crowell, 319 S.W.3d 751, 757 (Tex.

App.—El Paso 2009, pet. denied) (non-binding; not opined on by Texas Supreme Court; plaintiff

Plaintiff’s Response to the NCAA’s Motion for Summary Judgment – Page 14
could see the cause of her injury, namely bird droppings in her workplace; causation could have

been and was established prior to death).

3. Fraudulent Concealment

“Texas courts have long adhered to the view that fraud vitiates whatever it touches, and

have consistently held that a party will not be permitted to avail himself of the protection of a

limitations statute when by his own fraud he has prevented the other party from seeking redress

within the period of limitations.” Borderlon v. Peck, 661 S.W.2d 907, 908-09 (Tex. 1983); see also

Cox v. Upjohn Co., 913 S.W.2d 225, 231 (Tex. App.—Dallas 1995, no writ) (“Where a wrongdoer

actively conceals its wrongful conduct, such fraud effectively abrogates the purpose of the statute

of limitations period in the wrongful death action and creates an intolerable position. To hold

otherwise would, in effect, be telling a wrongdoer that as long as it conceals the existence of a

cause of action for two years after the injured party’s death, it is free and clear of responsibility.”).

Fraudulent concealment occurs where: (1) there is an underlying tort; (2) the defendant knows

about it;(3) the defendant uses deception to conceal the tort; and (4) the plaintiff relies on the

defendant’s deception. Cass v. Stephens, 156 S.W.3d 38, 64 (Tex. App.—El Paso 2004, pet.

denied). It tolls the statute of limitations “until the [plaintiff] learns of the right of action or should

have learned thereof through the exercise of reasonable diligence.” Id.

Cass v. Stephens serves as a good example. It dealt with oil and gas royalties and how

expenses were accounted for in calculating the royalties. Id. at 48-49. More specifically, the oil

and gas lease’s operator kept detailed expense records for his own benefit, but only sent

abbreviated records to a non-operating interest owner. Id. at 65. A later investigation by the non-

operating interest owner revealed major discrepancies in the expense accounting, which worked

in the operator’s favor to the non-operating interest owner’s detriment. Id. The non-operating

Plaintiff’s Response to the NCAA’s Motion for Summary Judgment – Page 15
interest owner then sued, and the operator tried its statute-of-limitations defense to the jury. The

jury, relying in part on the operator’s keeping two sets of books and records, found the operator

had fraudulently concealed its expense-accounting scheme. Id. at 64.

B. The NCAA’s motion for summary judgment should be denied.

The NCAA’s motion for summary judgment should be denied because: (1) neither Plaintiff

nor Mr. Ploetz knew or reasonably could have known that NCAA college football caused Mr.

Ploetz’s dementia until at least December 2015, when Mr. Ploetz’s brain was examined post

mortem, and December 2015 is therefore the earliest the discovery rule could have stopped tolling

the two-year statute of limitations; and (2) for decades, and to this very day, the NCAA has

fraudulently concealed its knowledge that college football causes CTE and dementia, and those

involved in college football, like Mr. Ploetz, relied on the NCAA’s claims to care about football

player health and safety even as the NCAA concealed football’s relation to dementia, and the

NCAA’s concealment prevented Plaintiff from learning of the NCAA’s responsibility for

Mr. Ploetz’s dementia until after Mr. Ploetz death, diagnosis with CTE, and subsequent

investigation into the NCAA’s conduct.

1. The discovery rule tolled the statute of limitations until December 2015, and
Plaintiff filed suit in January 2017, well within the two-year limitations period.

As an initial matter, the NCAA does not challenge the discovery rule’s applicability to this

case in general, i.e., that the disease underlying Mr. Ploetz’s dementia symptoms was “inherently

undiscoverable” and its cause “objectively verifiable,” albeit after his death. Thus, this case falls

within the discovery rule’s general parameters, just like other “cases involving latent injuries or

diseases . . . .” Childs, 974 S.W.2d. at 31.

Plaintiff’s Response to the NCAA’s Motion for Summary Judgment – Page 16
As to the discovery rule’s application here, a reasonable jury could find that

December 2015 was the first point in time at which Plaintiff or Mr. Ploetz knew or reasonably

could have known that NCAA college football caused Mr. Ploetz’s dementia. December 2015 is

when the Boston University doctors diagnosed Mr. Ploetz with CTE, and that pathology diagnosis

was the first time Plaintiff or Mr. Ploetz knew or reasonably could have known, despite their

diligence, that Mr. Ploetz’s dementia resulted from his years of playing NCAA college football,

rather than some other—perhaps natural—cause. See Section II(B)-(D), supra.

As discussed above, Mr. Ploetz began suffering from dementia in the mid-2000s. Ex. C,

Pls. Aff, ¶¶ 3-8; see also Section II(A)-(B), supra. His deterioration became more apparent in

2009. Id. At that point, Plaintiff and Mr. Ploetz diligently began seeking treatment and inquiring

with doctors as to the potential causes of Mr. Ploetz’s dementia. Ex. C, Pls. Aff. ¶¶ 10-11; see also

n. 5-6, supra. Doctors speculated regarding a number of different potential causes, including

Alzheimer’s disease, complications from Mr. Ploetz’s September 2008 ankle surgery, vitamin B12

deficiency, and Mr. Ploetz’s

Case Info

Judge

MOLBERG, KEN Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

March 13, 2018

Case Filing Date

January 19, 2017

County

Parties

BALUK, DAVID J Attorney for the Plaintiff
BLUE, LISA Attorney for the Plaintiff
EGDORF, EUGENE ROGER Attorney for the Plaintiff
MONTALVO, HERIBERTO R Attorney for the Defendant
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION Defendant
PLOETZ, DEBRA Plaintiff
PURCELL, BRADLEY J Attorney for the Defendant
RAVEN, RICKY A Attorney for the Defendant
SELINIDIS, STEPHAN D Attorney for the Defendant
WATT, CHRIS Attorney for the Defendant

For full print and download access, please subscribe at https://www.trellis.law/.

Document for DEBRA PLOETZ vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION

Preview

Related Topics

Case Info

Parties