DeCarlo v National Football League
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DeCarlo v National Football League 2017 NY Slip Op 30165(U) January 26, 2017 Supreme Court, New York County Docket Number: 161644/2015 Judge: Manuel J. Mendez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 01/27/2017 09:58 AM 1] NYSCEF DOC. NO. 46 INDEX NO. 161644/2015 RECEIVED NYSCEF: 01/27/2017 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: PART 13 ~---=M~A~N~U~E~L~J~·~M=E~N~D~E=Z'--~ -~-- Justice ARTHUR DECARLO, JR., Personal Representative on behalf of the Estate of his father, ARTHUR DECARLO, SR. in his individual capacity, and on behalf of his father's heirs and next of kin, 161644/2015 12/07//2016 001 INDEX NO. MOTION DATE MOTION SEQ. NO. MOTION CAL. NO. -againstNATIONAL FOOTBALL LEAGUE, Defendant. The following papers, numbered 1 to_6_ were read on this motion to dismiss. PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits Answering Affidavits - Exhibits ... 1 - 4· Exhibits -----------------11----5::::...__ __ Replying Affidavits -----------------------~6_ _ __ Cross-Motion: D Yes X No Upon a reading of the foregoing cited papers, it is Ordered that Defendant's motion to dismiss the Complaint, is denied. Plaintiff is the personal representative of the estate for his father Arthur Decarlo, Sr. (herein "Decarlo"). Plaintiff commenced this action on November 11, 2015, asserting causes of action as follows: (1) counts one and two- fraudulent concealment and fraud; (2) count three- civil conspiracy; (3) counts four and fivenegligence; (4) count six (mislabeled as count seven)- negligent misrepresentation; (5) counts seven and eight(mislabeled as counts eightand nine)- negligent hiring and retention; and (6) count nine (mislabeled as count seven)- wrongful death and survival. Decarlo played football for Defendant from 1953 to 1961. Plaintiff alleges that as a result of playing football, Decarlo suffered neurological injuries from repetitive head trauma sustained during his football career, and died from complications of dementia. That upon DeCarlo's death his brain was examined and it was determined that he had Alzheimer's disease and Chronic Traumatic Encephalopathy (herein "CTE")- a neurological illness that results from concussions due to repetitive head-trauma. That Decarlo suffered these injuries as a result of the Defendant's failure to enact safety guidelines during his football career, and that Defendant assumed a duty to inform its players of foreseeable harm for head 1 of 6 [*FILED: NEW YORK COUNTY CLERK 01/27/2017 09:58 AM 2] NYSCEF DOC. NO. 46 INDEX NO. 161644/2015 RECEIVED NYSCEF: 01/27/2017 injuries, including the risk of neurocognitive disabilities for athletes exposed to Mild Traumatic Brain Injury (herein "MTBI"). That Defendant concealed (through misrepresentations and omissions) the risk of long-term brain damage from repetitive head trauma and concussions. Defendant now moves to dismiss the Complaint pursuant to CPLR 3211 (a)(5) and (7), arguing that the claims are time barred and fail to state a cause of action. Defendant argues that the causes of action are time-barred pursuant to the applicable statute of limitations: (1) three years from accrual of the negligence causes of action; and (2) two or six years, depending on the circumstances, from accrual of the fraud-based causes of action, and thus, that these causes of action expired over fifty years ago when they accrued at the time Decarlo retired from football. Defendant also argues that the statute of limitations for civil conspiracy is that of the underlying tort, that the conspiracy claim is based on Defendant's alleged fraudulent concealment of progressive long-term neurological injuries resulting from repetitive head trauma, and that, therefore, the conspiracy cause of action is likewise timebarred. Defendant also contends that the causes of action are time-barred even if Plaintiff argues that they are based on the cognitive injury manifesting after DeCarlo's retirement. That based on the Complaint, Decarlo began experiencing symptoms of extreme headaches, memory loss, and mild confusion in 1993, that he sought and received medical attention for these symptoms between 1995 and 2005. That Decarlo was diagnosed in 2005 with having atrophy and ventricular enlargement of his brain as secondary to repeated injury from playing football, and that, therefore, the causes of action accrued when these conditions were discovered in 2005. Defendant also argues that the Complaint fails to state a cause of action for: (1) fraud because the Complaint does not identify any representation made by Defendant, that only conclusory allegations of concealment are plead, and that the Complaint does not plead with particularity that Decarlo justifiably relied on any alleged misrepresentation to his detriment; (2) negligent hiring or retention because the Complaint does not plead the identity of the specific MTBI Committee members employed by Defendant, and does not allege that Defendant knew or should have known any alleged employee's propensity for the sort of conduct complained of. Further, the Complaint fails to sufficiently allege how the hiring and retention of MTBI Committee members, decades after Decarlo retired, caused him harm, or that the employees were acting outside the scope of employment; (3) civil conspiracy because the Complaint does not allege the central element that two or more people agreed to commit an unlawful act, that conspiracy is not actionable without allegations of an intentional tort, and that the claim for fraudulent concealment that the conspiracy claim is based on, is deficiently pied because there 2 2 of 6 [*FILED: NEW YORK COUNTY CLERK 01/27/2017 09:58 AM 3] NYSCEF DOC. NO. 46 INDEX NO. 161644/2015 RECEIVED NYSCEF: 01/27/2017 was no fiduciary relationship duty to disclose, and mere silence is not sufficient, and; (4) wrongful death/survival because the substantive causes of action are timebarred. Plaintiff opposes the motion arguing thatthe statute of limitations for his claims run from DeCarlo's date of death on December 21, 2013, and, therefore, the actions are not time-barred. Plaintiff contends that the claims did not mature until after DeCarlo's death, that wrongful death and survival actions accrue at the time of the decedent's death. That Plaintiff is alleging that Defendant failed to warn the players, the public and the healthcare community of football's risk of causing CTE, and that this failure to warn left Decarlo at risk for both CTE and with no ability to recognize the symptoms consistent with the damage caused to his brain by repetitive trauma. That the suit is for both the injury done to Decarlo when he played football, ignorant of its risk of brain damage, and damages suffered during his lifetime after retirement, and that the wrongful death and survival actions therefore accrued when the CTE was diagnosed after DeCarlo's death. Plaintiff argues that a Plaintiff can still commence a wrongful death suit after missing the statute of limitations if the Defendant prevented the suit from being commenced by the use of fraud or misrepresentation. That the fraudulent concealment tolled the action until at least 2013 when the CTE was diagnosed, especially since it is clear thatthere is a connection between CTE and playing football. That the allegations of fraudulent concealment and negligence are adequately plead, and were hidden and undiscoverable until the CTE was diagnosed after DeCarlo's death in 2013. Plaintiff contends that Defendant has failed to satisfy its burden proving that the statute of limitations has passed. That although Defendant argues that certain symptoms and doctor's visits put Decarlo on inquiry notice of his dementia and Alzheimer's condition, there is no basis to argue that such notice precludes this suit based on the disease of CTE which could only, and was only, diagnosed after DeCarlo's death and post-mortem autopsy of his brain. Plaintiff argues that the Complaint makes clear that the triggering event for accrual purposes was the postmortem diagnosis of CTE as there is no ability to definitively diagnose CTE until after death. Plaintiff also contends that all of the claims are sufficiently plead. That the fraud claims sufficiently assert the who, what, where and when of Decarlo never being told of the association between multiple hits to the head and CTE, or how to define and identify pre-death CTE symptoms. That without Defendant disclosing that dementia could be a pre-mortem symptom of CTE, and because CTE could only be identified and diagnosed at death, there was no way of knowing the risk or the cause without this information being divulged by Defendant. That the Complaint sufficiently pleads 3 3 of 6 [*FILED: NEW YORK COUNTY CLERK 01/27/2017 09:58 AM 4] NYSCEF DOC. NO. 46 INDEX NO. 161644/2015 RECEIVED NYSCEF: 01/27/2017 that the Defendant ignored, minimized, disputed and suppressed the consensus that CTE was linked with repeated blows to the head, including the MTBI Committee picked by Defendant who produced fraudulent peer-reviewed research on head trauma. Plaintiff further argues that the negligence claims are based on the Defendant as the guardian of the game of football and player-safety, that Defendant made all of the rules, including health and safety, and that nothing was done to protect players although Defendant had reason to know of the link between brain injuries and repetitive hits to the head. That although Defendant had accumulated knowledge internally (repository of records and data on injury, and externally (the peer-reviewed scholarship on long-term risk of repetitive head trauma), it failed to take measures to protect the players. Plaintiff also contends that there is no requirement of a fiduciary relationship in order to plead fraud or concealment, and that the Complaint sufficiently pleads reliance and causation by linking the alleged fraudulent acts and misrepresentations with DeCarlo's injuries. That the negligent hiring and retention claims are adequately plead as they sound in ordinary negligence, and the Complaint asserts that the MTBI Committee was created by Defendant to undertake good-faith research, but actually created sham-science. Applying New York law, in general, "whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" pursuantto CPLR §3211 (EBC I, Inc. v.Goldman, Sachs&Co.,5N.Y.3d11,at19, 799N.Y.S.2d 170,at175,832 N.E.2d 26, at 31 [2005]). To dismiss an action as time-barred under CPLR § 3211 (a)(5), the statute of limitations must have expired. The statute of limitation begins to run when a cause of action accrues, that is, when all of the facts necessary to the cause of action have occurred so thatthe party would be entitled to obtain relief in court (Aetna Live and Cas. Co. v. Nelson, 67 N.Y.S.2d 169, 501 N.Y.S.2d 313, 492 N.E.2d 386 [1986]). Actions to recover for malpractice or negligent misrepresentation are governed by a three-year statute of limitations (See CPLR § 214). Claims for negligent hiring and retention are also governed by the three-year statute of limitations of CPLR 214, applicable to negligence generally. (Schrank v. Lederman, 52 A.D.3d 494, 860 N.Y.S.2d 556 [2"d Dept. 2008]). The time in which an action for fraud must be commenced "shall be the greater of six years from the date the cause of action accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it." [See CPLR 213(8)]. The statute of limitations for civil conspiracy is that of the underlying tort, meaning that a Plaintiff's tort claims must be viable and timely in order for those claims to form the basis for a civil conspiracy cause of action. (Thome v. Alexander & Louisa Calder Foundation, 70 A.D.3d 88, 890 N.Y.S.2d 16 [1st Dept. 2009], see also Schlotthauer v. Sanders, 153 A.D.2d 729, 545 N.Y.S.2d 196 [2"d Dept. 1989]). Actions 4 4 of 6 [*FILED: NEW YORK COUNTY CLERK 01/27/2017 09:58 AM 5] NYSCEF DOC. NO. 46 INDEX NO. 161644/2015 RECEIVED NYSCEF: 01/27/2017 to recover for wrongful death and survival must be commenced within two years after the decedent's death. (See EPTL §5-4.1 ). The date of Mr. DeCarlo's death is December 21, 2013. Plaintiff commenced this action on November 15, 2015. Therefore, Plaintiff's claims are timely as the date of accrual for the causes of action under these circumstances was the date of DeCarlo's death. These concussion cases involving the Defendant are relatively new, and case law on point involving latent head injuries is lacking. An article published in the New York State Bar Journal addressed statute of limitations issues with regards to football related head injuries. "Football-related head trauma can be likened to asbestos exposure in that damage caused by both can take up to 20 to 40 years to manifest." (Joseph M. Hanna, Concussions May Prove To Be A Major Headache For The NFL, 840CT N.Y. St. B.J. 10 (2012)). That studies have shown an indeterminate gestation period, that usually personal injury actions have a two to four year time period to file a claim, and that "to be fair to people with latent injuries, most states have adopted the 'discovery rule."' (Id.). Further, the article states that" ... NFL alumni should be able to invoke the discovery rule because cognitive illnesses caused by multiple concussions (e.g., CTE, dementia, Alzheimer's, depression) represent exactly the type of latent injuries the rule was intended to address." (Id.). "CPLR 214-c was enacted ... to ameliorate the effect of a line of cases holding that toxic tort claims accrued upon the impact or exposure to a substance, even though the resulting injury did not manifest itself until some time later... [and] provides for a three-year limitations period for actions to recover damages for injuries to person or property 'caused by latent effects of exposure to any substance ... and is computed 'from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier."' (In re New York City Asbestos Litigation, 53 Misc.3d 579, 39 N.Y.S.3d 629 [1st Dept. 2016], see also CPLR 214-c). " ... [D]iscovery occurs when the 'injured party discovers the primary condition on which the claim is based."' (In re New York City Asbestos, Supra, citing MRI Broadway Rental v. United States Min. Prods. Co., 92 N.Y.2d 421, 681N.Y.S.2d783, 704 N.E.2d 550 [1998], see also Matter of New York County DES Litigation, 89 N.Y.2d 506, 678 N.E.2d 47 4, 655 N. Y .S.2d 862 [1997]- where the Court held that where a " ... claimant may experience early symptoms that are too isolated or inconsequential to trigger the running of the Statute of Limitations ... the discovery of the injury occurs ... when the plaintiff is diagnosed with the primary condition for which damages are sought." The Court stated that it need not decide where the threshold lies to determine when the statute of limitations is triggered because the Plaintiff was "formally diagnosed [with] the very abnormalities that constitute the harm for which she seeks recovery.") 5 5 of 6 [*FILED: NEW YORK COUNTY CLERK 01/27/2017 09:58 AM 6] NYSCEF DOC. NO. 46 INDEX NO. 161644/2015 RECEIVED NYSCEF: 01/27/2017 Plaintiff's causes of action are not time-barred as they are premised on the cause of DeCarlo's neurological illness, CTE, not being discoverable until an autopsy was performed after his death. This type of latent disease is comparable to asbestos cases where the injury occurred outside of the statute of limitations period, however, the manifestation of the disease or illness is not developed or detected until years later. If Plaintiff was suffering from a latent condition, and the ability to diagnose the condition is not available until the death of the injured party, then under the discovery rule the cause of action arises upon the discovery of the latent disease, i.e. at the time an autopsy is performed. On a motion to dismiss an action pursuant to CPLR § 3211 (a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts alleged in the pleading to be true, afford the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see Leon v. Martinez 84 N.Y.S.2d 83, 614 N.Y.S.2d 972, 638 N.E.2d 511). The test of the sufficiency of a complaint is whether liberally construed it states in some recognizable form a cause of action known to the law (Union Brokerage, inc., v. Dover Insurance Company, 97 A.O. 2d 732, 468 N.Y.S.2d 885 [1st. Dept. 1983]). The sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law, a motion for dismissal will fail (Quinones v. Schaap, 91 A.O. 3d 739, 937 N.Y.S.2d 262 [2"d. Dept. 2012]). Affording the pleading a liberal construction, accepting all facts alleged in the Complaint to be true, the Complaint states causes of action cognizable at law. All of Plaintiff's claims have been sufficiently plead to state recognizable causes of action. Accordingly, it is ORDERED, that Defendant's motion to dismiss the Complaint as time-barred, and for failure to state of cause of action, is denied, and it is further, ORDERED, that the parties appear for a Preliminary Conference at IAS Part 13, 71 Thomas Street, Room 210, on March 29, 2017, at 9:30 a.m. ENTER: Dated: January 26, 2017 MANUELJ.MENDEZ J.S.C. J MENDEZ WiA~UE'-s"c J. . . ~- Check one: D FINAL DISPOSITION Check if appropriate: X NON-FINAL DISPOSITION 0 DO NOT POST 6 6 of 6 [J REFERENCE
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