Beasley Allen, along with lawyers from Leiff Cabraser and Tom Sinclair of Sinclair Law Firm, represent Art DeCarlo and his family in an individual suit against the National Football League (NFL). Justice Manuel J. Mendez of the Supreme Court of New York State denied the NFL’s motion to dismiss the complaint filed by the deceased player’s son, ruling he had sufficiently asserted his claims of fraud, concealment and negligence for the wrongful death suit to move forward.

Art DeCarlo Sr. was drafted by the Bears in the 1953 draft, but began his professional career with the Pittsburgh Steelers. For the next two years, though, he served in the military and returned to play for the Washington Redskins in 1956. Ultimately, he retired from the Colts. While playing for the Colts, DeCarlo played in back-to-back championships in 1958 and 1959, including the game dubbed “The Greatest Game Ever Played.”

According to the complaint, the player suffered numerous concussive and sub-concussive blows during his years playing professional football. In his later years, and as a result of what we now know to be stage IV out of IV Chronic Traumatic Encephalopathy (CTE), DeCarlo suffered a slow decline in his cognitive abilities. Unfortunately for DeCarlo, there is no way to diagnose CTE until a post mortem autopsy can be performed.

That CTE cannot be diagnosed until after death is a major part of why Judge Mendez denied the NFL’s Motion to Dismiss. In making the ruling, Judge Mendez described the disease as being akin to asbestos because “damage caused by both can take up to 20 to 40 years to manifest.” The judge said in his order:

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.

The discovery rule, combined with the latent nature of CTE and that the rule was designed exactly for these types of injuries, meant the claims were not time-barred. Judge Mendez wrote further:

The date of Mr. DeCarlo’s death is Dec. 21, 2013 and Plaintiff commenced this action on Nov. 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.

The case will now proceed in New York state court. In April, a Pennsylvania federal judge approved an uncapped settlement in multidistrict litigation (MDL) between the NFL and about 5,000 former players seeking damages for concussions and degenerative neurological conditions resulting from their playing days. In October, dozens of ex-NFLers filed a new head injury class action in Louisiana federal court against the NFL and football helmet maker Riddell Inc. over the harmful effects of repeated head injuries and concussions in football, alleging they conspired to mislead players and the public about the known risks.

This ruling by Judge Mendez is not only a win for the DeCarlo family, but a win for all those with cases involving latent injuries. Recognizing the inherent impossibility of filing a claim within a traditional limitations period without any diagnosis, as would be required had the court treated CTE as the NFL argued, Judge Mendez entered a well-reasoned and supported ruling that allows this case to go forward as it should. If you need more information on this matter, contact Rebecca Gilliland, a lawyer in our firm’s Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at Rebecca.Gilliland@beasleyallen.com.

Sources: Law360.com, the opinion, and the complaint

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