NCAA bid to shield executives from concussion suit depositions dismissed

Indianapolis-based NCAA’s appeal seeking to bar depositions of key executives in a concussion-injury lawsuit filed by the estates of former college football players was dismissed Tuesday. A divided Indiana Court of Appeals panel found the appeal untimely.

The ruling keeps open the possibility that NCAA President Mark Emmert, Chief Legal Officer/Chief Operating Officer Donald Remy and Chief Medical Officer Dr. Brian Hainline may have to answer questions from attorneys representing three deceased former college football players whose estates claim they suffered concussion-related traumatic brain injuries.

The litigation involves Neal Anderson, who played at the University of Illinois from 1960-1964; Andrew Solonoski Jr., a North Carolina State University player from 1966-1970; and Cullen Finnerty, who died at 30 after playing at the University of Toledo and Grand Valley State University from 2002-2006. Representatives for each claimed they suffered chronic traumatic encephalopathy and asserted claims including negligence and fraudulent concealment against NCAA — claims that were consolidated in Marion Superior Court in July 2019.

The COA noted, “As of October 2020, there were over forty individual actions (including these three) and a federal multidistrict litigation proceeding including over 500 class actions pending against the NCAA in courts across the United States regarding football-related head injuries.”

After counsel for the plaintiffs moved to depose the NCAA officials, attorneys for the athletics governing body sought a protective order seeking to quash those depositions, which the trial court denied in part and granted in part, allowing limited depositions tailored to each deponent. The trial court, however, did not certify its ruling for interlocutory appeal, prompting NCAA to file a second motion for protective order. The court denied that motion and immediately certified that second motion for the instant interlocutory appeal, which the COA dismissed as untimely on Tuesday.

“Having missed or foregone the opportunity to ask the Court of Appeals to accept jurisdiction after its first motion for protective order was denied, the NCAA’s second motion is nothing more than a motion for the trial court to reconsider its earlier ruling seeking a renewed opportunity to bring this issue to the appellate courts,” Judge Margret Robb wrote for the majority joined by Judge L. Mark Bailey. “Pursuant to Trial Rule 53.4(A) and Appellate Rule 14(B)(1), the NCAA’s time for seeking an interlocutory appeal of the trial court’s ruling on its motion for protective order has long since passed, and the NCAA has forfeited its right to appeal.”

The majority likewise found there was no cause to restore NCAA’s right to appeal, finding the appeal had been “improvidently granted,” noting the motions panel had the authority to reconsider accepting jurisdiction. Likewise, the COA found no abuse of discretion in the trial court’s ruling.

“The NCAA’s repetitive motion for a protective order/motion to reconsider did not extend the time for an interlocutory appeal of the trial court’s denial and this appeal is therefore untimely,” the majority concluded. “Finding no extraordinarily compelling reasons to consider the merits of the appeal, we dismiss.”

Judge Elizabeth Tavitas dissented from the dismissal. “This is an unusual case that is consuming an extraordinary amount of the trial court’s time and resources, and it is important to resolve these discovery issues in a timely manner. Under these extraordinarily compelling circumstances, I would address the NCAA’s interlocutory appeal even if the second motion for a protective order was repetitive under Trial Rule 53.4(A).”

Tavitas also took the majority to task, arguing it “dismisses the appeal but addresses the merits in dicta. In light of the majority’s dismissal of this appeal, I decline to issue an advisory opinion on the merits.”

Robb in a footnote rejected the assertion that the majority weighed in on the merits of the NCAA’s appeal. “This does not represent an advisory opinion but an alternate theory for why the NCAA does not prevail in its appeal: it loses either because it forfeited its right to an interlocutory appeal or because it is not entitled to the relief it seeks under the Trial Rules.”

The majority specifically noted it expressed no opinion on NCAA’s argument that Indiana adopt the “apex” doctrine, which would limit depositions of top officials to only instances when they have unique personal knowledge of facts or information that cannot be obtained through less intrusive means.

The case is National Collegiate Athletic Association v. Jennifer Finnerty, et al.,

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