Blank Rome Secures Appellate Court Affirmance of a Landmark Defense Verdict for NCAA in Ex-Athlete Concussion Case
A Blank Rome team secured a significant victory in a unanimous decision last week by a Superior Court panel affirming a landmark defense verdict in favor of the National Collegiate Athletic Association ("NCAA") obtained in May 2019. The case was tried for five weeks in Washington County, PA, in front of a jury. It was the first, and so far the only, football concussion case tried to verdict. This case will have significant implications on Blank Rome’s inventory of football concussion cases and other NCAA football cases around the country.
In the case, plaintiffs Matthew and Jessica Onyshko claimed that Mr. Onyshko developed ALS (commonly known as Lou Gehrig’s disease) as a result of repetitive head trauma that he sustained while playing linebacker for a Division 2 school, California University of Pennsylvania, from 1999–2003. He was diagnosed with ALS in 2008 and is now nearly 40 years old, confined to a wheelchair and unable to speak. The plaintiffs claimed that the NCAA failed to warn Mr. Onyshko and protect him from the long-term risks of developing a degenerative neurologic disease as a result of head trauma from playing football. In addition, there was a loss of consortium claim and a claim for punitive damages.
Given the tragic nature of Mr. Onyshko’s claim and its terrible effects on him, his wife, and two young daughters, the trial team, with the approval of the NCAA, did not contest damages. The Blank Rome defense team focused on establishing that the NCAA did not breach any duty to Mr. Onyshko and that his ALS, as tragic as it was, was not caused by repetitive head trauma while playing college football. The plaintiff’s primary expert was Dr. Bennett Omalu, the subject of the Will Smith movie Concussion, who gave the opinion that the plaintiff’s condition was caused by football and that the NCAA knew or should have known about the dangers of long-term degenerative neurologic disease and should have warned Mr. Onyshko while he was a student athlete. Our Blank Rome team presented one of the leading ALS physicians in the world, Dr. Stanley Appel from the Houston Medical Center, who testified that head trauma was not a cause of ALS and that, even to this day, the cause of ALS is unknown.
The jury deliberated for approximately six hours over two days and came back with a 10-2 verdict that the NCAA was not negligent. An appeal was taken to the Superior Court of PA and was argued by Lew Schlossberg on August 25, 2020. A three-judge panel last week unanimously affirmed the opinion of the trial judge in denying the plaintiffs’ motion for a new trial.
For more information, please read Pa. Panel Won't Revive Ex-College Athlete's Concussion Suit (Law360, January 8, 2021), featuring commentary by Art Hankin. This case was also the feature cover story in the October 2020 edition of Sports Illustrated, The Lawyer Who Took on the NFL Over Concussions Has a New Strategy That Could Devastate the NCAA.