A three-justice panel of the Fifth Court of Appeals in Dallas has given the family of a man who died of chronic traumatic encephalopathy, or CTE, another chance to bring its negligence lawsuit against the National Collegiate Athletic Association.
The lawsuit was brought in June 2020 by the family of Roger S. Braugh Sr., who played both quarterback and defensive back for the Southern Methodist University football team from 1960 until 1962. He died in March 2019 and an autopsy performed at Boston University showed the cause was stage IV CTE.
His family appealed after Dallas County Court at Law No. 5 Judge Nicole Taylor determined the family waited too long to bring its lawsuit. The NCAA had argued the family knew “decades ago” that Braugh was suffering from cognitive impairment and, therefore, missed the two-year statute of limitations to bring suit.
But the Fifth Court of Appeals determined the NCAA “did not establish its right to judgment as a matter of law” and sent the case back to Judge Taylor for trial.
“In sum, the parties do not dispute the existence, timing, or severity of Roger Sr.’s cognitive decline,” the panel wrote. “But the family argues that knowing Roger Sr. had symptoms of ‘cognitive impairment’ is not the same thing as knowing that the impairment was likely caused by participation in college football.”
The NCAA had pointed to five specific events between 1998 and 2017 that it argued started the two-year clock for the family to file suit, but the justices determined “there are fact issues regarding each of the dates the NCAA relies on to establish its limitations defense.”
Those five events are:
- A 1998 conversation between Braugh and his brother about his cognitive decline being related to football
- An August 2014 intake questionnaire Braugh’s daughter filled out at the request of Braugh’s geriatric psychiatrist where she reported he had head trauma from college football and lost consciousness
- An October 2015 doctor’s note describing Braugh as a college football player “who may have progressive CTE”
- An October 2015 email from Braugh’s daughter to a doctor asking for more information about the diagnosis and treatment of CTE
- Braugh’s 2017 decision to opt out of the Arrington v. NCAA class action settlement against the NCAA
The Fifth Court of Appeals addressed each event in turn, explaining why none supported the summary judgment win granted to the NCAA.
As for the 1998 conversation between Braugh and his brother, the court noted that the men discussed both “old age” and football as possible reasons for the neurodegenerative problems Braugh was suffering.
“Mere suspicion” that the injuries were related to Braugh’s playing college football, the justices wrote, “is, standing alone, insufficient to establish accrual as a matter of law.”
Similarly, in the August 2014 questionnaire, Braugh’s daughter disclosed that her father also had dementia and Parkinson’s disease.
“In light of the fact issues that remain, we conclude the NCAA did not establish, as a matter of law, that the family nevertheless should have known through the exercise of reasonable diligence that Roger Sr.’s injuries were likely related to football,” the court wrote.
Dispatching the third event — the October 2015 doctor’s note — the panel wrote there was no evidence that the doctor’s note was “ever communicated” to any of Braugh’s children and no evidence regarding how the doctor “obtained this information.”
“Viewed in the light most favorable to the plaintiffs, a doctor’s note that a former football player may have progressive CTE is not the same as a doctor’s determination that a former football player likely has progressive CTE likely caused by playing football,” the opinion reads.
Similarly, the October 2015 email from Braugh’s daughter asking a doctor for information about CTE diagnosis and treatment doesn’t mention football and “does not prove conclusively that the family’s claims are barred by limitations,” the court held.
In March 2017, Braugh’s daughter, Jane, told the NCAA in a letter that her father “wishes to exclude himself” from the Arrington class action settlement that provided a medical monitoring fund for those who played NCAA sports.
“While Jane’s letter opting out of the class action on her father’s behalf may be evidence a jury can consider in determining whether the family knew or should have known through the exercise of reasonable diligence that Roger Sr.’s injuries were likely related to football, it is not the conclusive evidence required to support a summary judgment,” the court held. “… We conclude that receiving notice of or opting out of the class settlement did not provide objective verification that Roger Sr.’s symptoms were football-related injuries.”
Justices Emily Miskel, Maricela Moore Breedlove and Cynthia Barbare sat on the panel that issued the 25-page opinion Tuesday. The justices heard oral arguments in January. Judge Taylor entered judgment granting the NCAA an early win in August 2023, and the Braugh family filed its notice of appeal the following month.
The Braugh family is represented by Kirsten M. Castañeda of Alexander Dubose & Jefferson, Lisa Blue Baron of Baron & Blue and Justin H. Shrader and James Hartle of Shrader & Associates.
The NCAA is represented by Victor Vital of Haynes Boone, Anna Kalinina, Benjamin Pendroff and Alicia M. Barrs of Barnes & Thornburg, and Jeffrey S. Levinger of Levinger PC.
The case number is 05-23-00958-CV.