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Nakamura v. BRG Sports, LLC

Court of Appeals of Illinois, First District, First Division

October 21, 2019

HARUKI NAKAMURA, Plaintiff-Appellant,
v.
BRG SPORTS, LLC f/k/a EASTON-BELL SPORTS, LLC, EB SPORTS CORP., BRG SPORTS HOLDINGS CORP., BRG SPORTS, INC., RIDDELL SPORTS GROUP, INC., RIDDELL, INC., and ALL AMERICAN SPORTS CORPORATION, Defendants-Appellees.

          Appeal from the Circuit Court of Cook County No. 17 L 10123 Honorable John H. Ehrlich, Judge Presiding.

          PRESIDING JUSTICE GRIFFIN delivered the judgment of the court, with opinion. Justices Pierce and Walker concurred in the judgment and opinion.

          OPINION

          Griffin Presiding Justice.

         ¶ 1 Like the other opinion filed simultaneously with this one, [1] the issue in this appeal concerns a former professional football player who sustained repeated concussions while playing football. Evolving scientific and medical research has uncovered a link between a person suffering repeated blows to the head and that person developing Chronic Traumatic Encephalopathy and a host of other neurological impairments. The former player, plaintiff Haruki Nakamura, is suing the defendant-helmet manufacturers for the significant medical conditions he has developed as a result of the head trauma he endured while playing football.

         ¶ 2 Plaintiff filed a disability insurance claim with an insurance company in 2013 when he suffered one particularly severe concussion that ultimately ended his career. When plaintiff filed this suit, defendants responded that the case was barred by the two-year statute of limitations that governs personal injury actions in Illinois. Defendants argue that plaintiff knew about his injuries when he filed the insurance claim in 2013 and became involved in litigation in connection with that claim. Thus, defendants argue, the statute of limitations began to run more than two years before this case was filed in 2017, so this case is untimely.

         ¶ 3 The trial court agreed with defendants' argument and dismissed the case. We find that, at a minimum, the allegations at least leave open the possibility that there is a question of fact as to whether plaintiffs disability claim and his conduct associated with that claim caused the statute of limitations to begin to run for the harm for which plaintiff now seeks redress. Accordingly, we reverse the trial court's dismissal of plaintiff s claims and we remand the case to the trial court for further proceedings.

         ¶ 4 I. BACKGROUND

         ¶ 5 Plaintiff Haruki Nakamura is a former professional football player who sustained multiple concussions while playing football. He played six seasons in the National Football League, playing for both the Baltimore Ravens and the Carolina Panthers. In a preseason game on August 29, 2013, plaintiff suffered an acute concussion. Plaintiff was taken to the hospital and he was diagnosed with a concussion. In the following months, plaintiffs condition worsened and he experienced headaches, impaired cognition, visual changes, fatigue, depression, and suicidal ideation. Plaintiff was released from his contract by the Carolina Panthers and he entered into a settlement with the team for money in exchange for a release of any claims he might have had against the team.

         ¶ 6 The concussion that plaintiff suffered in August 2013 eventually ended his career. Plaintiff filed a disability insurance claim on November 8, 2013 under a policy issued by Lloyd's of London. In furtherance of his claim with Lloyd's of London, plaintiff stated that he had a permanent disability and claimed that he was suffering from several post-concussive symptoms. Plaintiff stated that he became permanently disabled on the day he was released from his contract by the Carolina Panthers and his football career ended.

         ¶ 7 In 2014, plaintiff was evaluated by medical professionals and was diagnosed with post-concussion syndrome. The doctor that evaluated plaintiff opined that plaintiff was unlikely to return to playing professional football and that, to a reasonable degree of medical certainty, plaintiff was permanently disabled with post-concussion syndrome. Plaintiff was also evaluated by doctors retained by Lloyd's of London. Those doctors opined that plaintiff was not permanently disabled, that he could participate in his occupation of playing professional football, and that whether plaintiff would return to playing professional football was his choice. Lloyd's of London denied plaintiffs disability claim.

         ¶ 8 Plaintiff then sought benefits from the NFL Player Retirement Plan claiming a permanent disability. The Retirement Plan first denied plaintiffs claim, but plaintiff was referred to a neurologist for an evaluation in connection with his claim for benefits from the Retirement Plan. The evaluating physician found that "[plaintiffs] constellation of symptoms, including cognitive impairment, debilitating headaches, dizziness/vertigo, and behavioral changes characterized by irritability, depression, anxiety and outbursts, is consistent with a chronic post-concussion syndrome." The doctor went on to conclude that plaintiff met the criteria for permanent disability, and the Retirement Plan reversed its decision and awarded benefits to plaintiff.

         ¶ 9 Still believing his disability insurance claim with Lloyd's of London was improperly denied, plaintiff filed suit against Lloyd's of London in North Carolina in 2016. Plaintiff repeated that he was permanently disabled. The doctor who evaluated plaintiff for his lawsuit against Lloyd's of London found that plaintiffs then-existing cognitive impairments may well have been caused by the August 29, 2013 head injury-the concussion that ended plaintiffs career. The doctor diagnosed plaintiff with chronic post-concussion syndrome on October 8, 2015.

         ¶ 10 While plaintiff was pursuing his insurance claim, thousands of other retired NFL players were suing the League seeking redress for claims that the NFL failed to inform them about and protect them from the risks of concussions in football. See, e.g., In re National Football League Players Concussion Injury Litigation, 821 F.3d 410 (3d Cir. 2016). The players' suits were consolidated into a federal class action case which eventually consisted of about 5, 000 former players who had filed substantially similar lawsuits. In re National Football League Players' Concussion Injury Litigation, 307 F.R.D. 351, 361 (E.D. Pa. 2015). The National Football League settled lawsuits with the former players involved in the federal class action case. In re National Football League Players Concussion Injury Litigation, 821 F.3d 410, 447-48 (3d Cir. 2016). Plaintiff was not a party to the federal class action case against the NFL.

         ¶ 11 Plaintiff has not yet been diagnosed with a severe neurodegenerative disease like Alzheimer's or dementia like many of the former players that sued the NFL. See Butler v. BRG Sports, LLC, 2019 IL App (1st) 180362, ΒΆΒΆ 10-13. Nonetheless, plaintiff characterizes his ...


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