FILED

3/3/2020 11:29 AM
JOHN F. WARREN
COUNTY CLERK
DALLAS COUNTY

CAUSE NO. CC-20-01121-D

KAROL HARGIS DAVIS AND

JOHN M. DAVIS, INDIVIDUALLY AND § IN THE COUNTY COURT OF
ON BEHALF OF THE ESTATE OF §
JOHN THOMAS DAVIS, DECEASED. §
Plaintiffs, §
§
vs. § DALLAS COUNTY, TEXAS
§
NATIONAL COLLEGIATE ATHLETIC §
ASSOCIATION, §
§
Defendant. § COUNTY COURT AT LAW NO.

PLAINTIFFS’ ORIGINAL PETITION

NOW COME Plaintiffs, Karol Hargis Davis and John Mark Davis, Individually and on

Behalf of the Estate of John Thomas Davis, Deceased, complaining of Defendant National

Collegiate Athletic Association, hereinafter referred to as “Defendant” or “NCAA,” and for causes

of action would respectfully show this Court and Jury the following:

DISCOVERY CONTROL PLAN

1. Plaintiffs request that this case be governed by a discovery control plan as provided

in Rule 190 and be conducted under Level 3 of this Rule.

PARTIES

2. Plaintiffs, Mary Hargis Davis, the surviving spouse, and John Mark Davis reside in

Granbury, Texas.

3. Defendant, National Collegiate Athletic Association (“NCAA”) is an

unincorporated association of public and private colleges and universities that acts as the governing

body of college sports. Its principal office is located in Indianapolis, Indiana. As an

unincorporated association, the NCAA is a citizen of each state of which its members are a citizen,

including the State of Texas. The NCAA may be served with process pursuant to Article 17.044
of the Texas Civil Practice and Remedies Code by serving the Secretary of State, State of Texas,

1019 Brazos, Austin, Texas 78701 as agent for service of process, and the Secretary of State

forwarding a copy of the process by registered mail, return receipt requested, to its President: Mark

Emmert, 700 W. Washington Street, P.O. Box 6222, Indianapolis, Indiana 46206.

JURISDICTION AND VENUE

4. Venue is proper in Dallas County, Texas pursuant to §15.002(a)(1) of the Texas

Civil Practice and Remedies Code because all or a substantial part of the events or omissions

giving rise to the claim occurred in Dallas County, Texas. John Thomas Davis suffered numerous

concussions and sub-concussive blows to the head during football games and practices for

Southern Methodist University in Dallas County, Texas. The NCAA regularly conducted business

and association activities in Dallas County, Texas by and through the Southwest Conference,

which was headquartered in Dallas County, Texas. Further, the NCAA continues to regularly

conduct business and association activities in Dallas County, Texas, including NCAA-governed

sporting activities at the American Airlines Center, Cotton Bowl Stadium, and the college campus

of Southern Methodist University.

5. This Court has jurisdiction over the controversy because the damages exceed the

minimal jurisdiction limits of this Court. Because association members of the NCAA are citizens

of the State of Texas, this Court may exercise personal jurisdiction over the NCAA. As such, there

is no basis for removal of this case to Federal Court.

NATURE OF ACTION

6. This action seeks to recover damages for injuries sustained by John Thomas Davis

as a direct and proximate result of the tortious conduct of the NCAA in connection with its failure

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to take effective action to protect John Thomas Davis from the long-term effects of concussions

and sub-concussive blows to the head suffered while he played NCAA collegiate football.

7. The NCAA had a duty to promote the safety of student-athletes during their

participation in collegiate sports at its member institutions because (1) it explicitly and voluntarily

assumed responsibility for governing collegiate athletics and promoting safety in its constitution,

bylaws, committee reports, and other organizing documents; (2) its rulemaking authority precluded

its member institutions from attempting to modify playing rules to promote safety; (3) it actively

sought the participation of student-athletes in NCAA governed sporting activity and profited from

their involvement; and (4) it represented to college athletes, their parents, its member institutions,

and the public that it was protecting the safety of its athletes.

8. During all times relevant to this complaint, the NCAA knew, or should have known,

of the long-term dangers of concussions and sub-concussive blows to the head regularly suffered

by intercollegiate football players.

9. The NCAA failed to initiate policies or rules necessary to protect John Thomas

Davis in the face of long-standing and overwhelming evidence regarding the need to do so. The

NCAA failed to educate its football-playing athletes, like John Thomas Davis, on the long-term,

life-altering risks and consequences of head trauma in football. The NCAA failed to establish

known protocols system-wide to prevent, mitigate, monitor, diagnose, and treat neurological

disorders.

10. During the time period of the events in this action, the NCAA failed to address

and/or correct the coaching of tackling or playing methodologies that cause head injuries; the

NCAA failed to educate coaches, trainers and member institutions as to the symptoms indicating

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possible concussions; and the NCAA failed to implement system-wide “return to play” guidelines

for student-athletes who have sustained concussions.

11. The NCAA’s conduct increased the risk to John Thomas Davis of suffering the

injuries described herein.

12. The NCAA engaged in a long-established pattern of negligence and inaction with

respect to repeated head trauma, concussions, and concussion-related maladies sustained by

student-athletes, including John Thomas Davis.

13. Accordingly, Plaintiffs seek financial recovery for the long-term and chronic

injuries, financial losses, expenses, and intangible harms Plaintiffs have suffered as a result of the

NCAA’s negligence.

FACTUAL ALLEGATIONS

14. John Thomas Davis was a student at Southern Methodist University and played

collegiate football as a Linemen from 1955 through 1959. Southern Methodist University was a

member institution of the NCAA during John Thomas Davis’s collegiate football career.

Throughout his NCAA collegiate football career, John Thomas Davis suffered numerous

concussions and sub-concussive blows to the head during practices and games, including practices

and games in Dallas County, Texas.

15. John Thomas Davis was a teacher and coach in Paris, Texas. In the decades

following college, John Thomas Davis began to suffer headaches, progressively experienced

memory loss, withdrew from society, confusion, anxiety, paranoia, motor impairment and psychotic

episodes.

16. As a direct and proximate cause of suffering numerous concussions and sub-

concussive blows to the head while playing NCAA collegiate football, John Thomas Davis

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developed serious, permanent brain damage. John Thomas Davis was diagnosed with Alzheimer’s

Disease in 2001. A brain autopsy performed at Boston University revealed that Mr. Davis suffered

and died from Stage IV Chronic Traumatic Encephalopathy and Alzheimer’s Disease.

17. The NCAA agreed to toll the statute of limitations for this and similar claims in the

matter of Arrington v. NCAA. Moreover, Plaintiffs did not know and/or through exercise of

reasonable diligence should not have known of the cause of John Thomas Davis’s injuries, or of

the NCAA’s tortious and/or negligent act(s) giving rise to their cause(s) of action. At no time prior

to the death of John Thomas Davis, did either of the Plaintiffs know, or could they have known,

of the NCAA’s wrongful acts and John Thomas Davis’s resulting injury and death. Further, the

NCAA’s affirmative acts of concealment prevented Plaintiffs from discovering the claim until

February 6, 2017 when Boston University completed the brain autopsy. Accordingly, Plaintiffs

invoke the discovery rule as applicable to the claims asserted.

NCAA’S HISTORICAL BACKGROUND

18. There are currently more than 400,000 college athletes competing in three

divisions at over 1,000 colleges and universities that are member schools within the NCAA.

Through various licensing programs, the NCAA takes in, on average, over $ 1 billion in

revenues each year. The NCAA has remained the most significant college sports governing body

since its inception in 1906.

19. The NCAA assumed a duty to protect collegiate athletes, including John Thomas

Davis, at member institutions from being unnecessarily exposed to sports-related dangers.

20. Among the original reasons prompting the founding of the NCAA was the desire

to reduce the number of student-athlete injuries sustained in playing football, and since its

inception, it has assumed a duty to protect college athletes at its member institutions.

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 21. In the Intercollegiate Athletic Association’s (later renamed NCAA) Convention

Proceedings in 1906, the Association stated its purpose, acting through the Football Rules

Committee, to bring about “a vast improvement in the game of football, both in regard to the

risks to life and limb which were felt to have been too great, and especially in the better moral

tone of the play.”

22. College athletics at NCAA member institutions, at all times relevant to the facts

in this complaint, were, and continue to be, tightly regulated by the NCAA Constitution,

Operating Bylaws, Administrative Bylaws, and sports rules, that govern in great detail all matters

relating to athletic events, including: player well-being and safety, playing time and practice rules

for each sport, contest rules, amateurism, recruiting, eligibility, and scholarships.

23. Article II, Section 1, of the NCAA’s Constitution for 1969 includes the following

purposes of the Association:

(b) The upholding of the principle of institutional control of, and responsibility for,
all collegiate sports in conformity with the Constitution and Bylaws of the
Association.
....
(d) The formulation, copyrighting and publication of rules of play for the
government of collegiate sports.
....
(f) The supervision of the conduct of regional and national collegiate athletic
contests under the auspices of this Association and the establishment of eligibility
therefor.
....
(h) In general, the study of any phase of competitive athletics and the establishment
of standards therefor, to the end that the colleges and universities of the United
States may maintain their athletic activities on a high plane.

24. The NCAA Constitutions for 1970, 1971, and 1972 all contain materially similar

provisions.

25. The NCAA Bylaws for 1969, Article III, Section 1(k) establish the NCAA Committee

on Competitive Safeguards and Medical Aspects of Sports. This Section states in relevant part:

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 The membership of the Committee shall represent the fields of athletic administration,
coaching, physical education, physiology, medicine and athletic training. One member
shall be selected from the membership of the NCAA Football Rules Committee. The
Committee, subject to the direction of the Executive Committee, shall collect and
develop pertinent information regarding desirable training methods, prevention and
treatment of sports injuries and utilization of sound safety measures at the college level.
The Committee shall disseminate such information as might appropriately be brought
to the attention of the Association’s membership and recommend the establishment of
policies and standards designed to better training methods and the safety factor in
college athletics.

26. The NCAA Bylaws for 1970, 1971, and 1972 all contain materially similar provisions

regarding the NCAA Committee on Competitive Safeguards and Medical Aspects of Sports.

27. The NCAA Bylaws for 1969, Article III, Section 2(a) lists the rules and tournament

committees established by the NCAA, which includes the Football Rules Committee. This Section goes

on to state: “It shall be the duty of the above committees to establish and maintain rules of play in their

respective sports consistent with sound tradition of the respective sports and of such character as to

insure good sportsmanship and healthful participation by the competitors.”

28. The NCAA Bylaws for 1970, 1971, and 1972 all contain materially similar provisions

regarding the NCAA Football Rules Committee and its duties.

29. The NCAA has published a Sports Medicine Handbook (“Handbook”) at various times,

under differing titles, including 1933, which includes policies and guidelines for treatment and

prevention of injury, as well as return-to-play instructions.

30. The NCAA recognizes that the Handbook “may constitute some evidence of

the legal standard of care.”

31. The NCAA also recognizes it has a duty and moral obligation to do everything it

can to protect student-athletes, including John Thomas Davis. In testimony before the Senate

Commerce Committee, Mark Emmert, President of the NCAA, when asked whether the NCAA

owed a duty to protect student-athletes, testified “I think that was at the very least a terrible choice

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of words created by legal counsel to make a legal argument . . . I will unequivocally state we have

a clear moral obligation to make sure we do everything we can to protect and support student-

athletes.”

32. The NCAA has described, time and again, its responsibility for the health and

well-being of college athletes, including John Thomas Davis, and clearly communicated that it

has assumed such a duty.

33. The NCAA had a duty to protect football players like John Thomas Davis from

health and safety risks. The NCAA held itself out as acting in John Thomas Davis’s best interests.

John Thomas Davis relied on the NCAA to disclose relevant risk information and protect his health

and safety.

34. Additionally, the NCAA owed a duty to John Thomas Davis because through its

marketing and other efforts, it actively sought the participation of college athletes, such as John

Thomas Davis, in NCAA intercollegiate sporting activities and has profited from their participation.

35. Despite this recognition of a duty to exercise reasonable care to protect the

well-being of the student-athlete at member institutions, the NCAA breached its duty by failing

to exercise its powers to mitigate known risks, or risks it should have known to exist, to college

athletes, including John Thomas Davis, from the long term, life-altering risks and consequences of

head trauma sustained while participating in collegiate football.

36. The NCAA either knew, or should have known, of the risks to college athletes,

including John Thomas Davis, from repeated head trauma. Some of the NCAA’s admissions of

knowledge and other widely available information sources are identified in the following

paragraphs.

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 37. In 1933, the NCAA’s Medical Handbook for Schools and Colleges recommended

that players with concussions should receive rest and constant supervision and not be permitted

to play or practice until symptom-free for 48 hours. For symptoms lasting longer than 48 hours,

it recommended players “not be permitted to compete for 21 days or longer, if at all.”

Additionally, it stated “[t]here is definitely a condition described as “punch drunk” and often

recurrent concussion cases in football and boxing demonstrate this. Any individual who is

knocked unconscious repeatedly on slight provocation should be forbidden to play body-contact

sport.”

38. In 1937, the Proceedings of the Seventeenth Annual Meeting of the American

Football Coaches Association included the Seventh Annual Report on Football Injuries and

Fatalities: High School and College, states in relevant part [pg. 21-22]:

6. During the past seven years the practice has been too prevalent of allowing
players to continue playing after a concussion. Again this year this is true.
This can be checked at the time of the pre-season medical examination by
case history questions. A case in point is where no knowledge was had before
the player’s death of a boy who suffered a previous concussion from a bicycle
accident. Sports demanding personal contact should be eliminated after an
individual has suffered one concussion.

39. In the September 1968 issue of NCAA News [Volume 5, No. 8, Page 3], the

NCAA ran an article titled Dangers of Grid Head Injuries Cited by Safeguards Committee. In

the article, the NCAA’s Committee on Competitive Safeguards and Medical Aspects of Sports

issued a statement on the dangers of repeated head injuries in football. The article stated in

relevant part:

[T]hose individuals who have been rendered unconscious, even momentarily, in

a given game should never be allowed to play again in the same game and not
allowed to return to contact until all symptoms have cleared up entirely and he
has been checked by a competent medical authority. In the area of the head and
neck, being super cautious is the only route to follow.

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 It would be hoped that this type of situation would never occur, but often, due to
pressure from enthusiastic players, parents, coaches, alumni and even enthusiastic
and well-meaning physicians, boys who should not be playing are allowed to play.
Needless to say, we all want the athlete to compete as safely as possible and it is
this interest which prompted the Committee to call attention to this very important
aspect of health care.

40. In addition to the above, numerous medical and scientific journals published

articles detailing the potential dangers of head traumas and/or their long term effects, including:

a) In 1901, an article by D.S. Fairchild, M.D., The Immediate and Remote Effects of Brain

Injury, recognized a class of “not uncommon” head injuries that were “particularly serious

in regard to future results because of the fact that they involve widespread minute lesions

which remotely affect the nutrition of the brain and bring about changes in” its

mechanisms. Dr. Fairchild noted cases of patients who sustained head injuries, without any

skull fracture or localized hemorrhage, but that resulted in unconsciousness. After

resuming consciousness and resuming their normal functioning for a few months or a year,

some of these patients developed insanity. Dr. Fairchild concluded that a fall may, without

a skull fracture, cause a contusion or laceration of the brain tissue or “so disturb the

cerebrospinal fluid as to primarily bring about such changes and cause immediate results

or secondary serious remote effects by inducing degeneration and” produce insanity.

(JAMA Sept. 7, 1901; Page 623);

b) In 1906, an article by Edward Nichols, M.D., The Physical Aspect of American Football,

noted the high frequency of concussions among football players in both practice and

games. Dr. Nichols observed that a player that sustained a concussion might run through

many additional plays before his teammates noticed him to be mentally irresponsible, that

every case involved memory loss, and that the mental state of players following a

concussion varied from being excitable, hysterical, confused, or simply unconscious. The

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 article conceded that the real seriousness of the injury was not certain, but Dr. Nichols had

every concussed man sent to the infirmary for overnight observation. Dr. Nichols

concluded that constant medical supervision of both teams at football games was necessary.

(Boston Medical and Surgical J. 1906; Vol. CLIV, No. 1, Pg. 1);

c) In 1908, Dr. Nichols and Frank Richardson, M.D. wrote a follow-up article, Football

Injures of the Harvard Squad for Three Years Under the Revised Rules, which also

addressed concussions. Again, the article notes that concussions of the brain have been

frequent in football. The article describes a severe case where the football player patient

was unconscious for three days and reports that he still complains of difficulty in studying

and concentrating his mind and of almost constant headaches. The authors require all

concussed players at Harvard to stay in the infirmary overnight in order to avoid the

possibility of delayed symptoms, as sometimes occurs, and a student is permitted to return

to college if “perfectly clear” the following morning. The article concludes that injuries

“are avoided by not playing injured men until they have entirely recovered.” (Boston

Medical and Surgical J. 1909; Vol. CLX, No. 2, Pg. 33);

d) In 1928, an article by Harrison Martland, M.D., Punch Drunk, identified a condition

commonly present in professional boxers called “Punch Drunk” which has associated

symptoms including unsteady gait, foot dragging, periods of confusion, tremors, vertigo,

and sometimes insanity. Dr. Martland opined that a definite brain injury due to “a single or

repeated blows on the head or jaw which cause multiple concussion hemorrhages in the

deeper portion of the cerebrum” was the condition’s cause. Dr. Martland cited past

autopsies that demonstrated a cranial injury death, following injuries where the skull is not

fractured and there may be no scalp laceration, may occur in which there are no other

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 lesions but multiple punctate hemorrhages in the deeper structures of the brain. Although

admitting the limited evidence available, Dr. Martland concluded that “the fact that nearly

one half of fighters who have stayed in the game long enough develop [Punch Drunk],”

means that the “condition can no longer be ignored by the medical profession or the

public.” (JAMA 1928; Vol. 91, No. 15, Pg. 1103);

e) In 1939, an article by Walter Schaller, M.D., After-Effects of Head Injury, concluded “[t]he

post-traumatic concussive state produces reversible changes of brain function which, in

severe cases, may become irreversible, with demonstrable pathologic change.” The article

noted that “in severe concussion states, both of the human being and experimental animal,

definite pathologic changes have long been recognized and affecting the” brain’s myelin,

ganglion cells, and the blood vessels. Dr. Shaller explained the residual symptoms of a

moderately severe brain concussion (including headache, vertigo, nervousness/irritability,

memory loss, poor concentration, and fatigability) will last longer than the immediate

symptoms of shock, but rarely last more than three months. (JAMA 1939; Vol. 113, No.

20, Pg. 1779);

f) In 1942, an article by J.Y. Malone, M.D., Head Injuries – A New Treatment for

Postconcussional Headaches and Dizziness: Preliminary Report, recognized that the

severity of a head “injury is of no importance in diagnosis [of a concussion], since a very

minor blow with no ensuing loss of consciousness may lead to a particularly vicious type

of chronic headache.” The article states “[t]he postconcussional syndrome is being

recognized more and more frequently as an oft occurring sequela of a concussion of the

brain.” “It is usually characterized by a triad of symptoms which includes headache,

dizziness and emotional disturbances.” (JAMA 1942; Vol. 119, No. 11, Page 861); and

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 g) In 1952, an article by Augustus Thorndike, M.D., Serious Recurrent Injuries of Athletes –

Contraindications to Further Competitive Participation, recommended a three-strike rule

for concussions in football (i.e., recommending that players cease to play football after

receiving their third concussion). The article states “[p]atients with cerebral concussion

that has recurred more than three times or with more than momentary loss of consciousness

at any one time should not be exposed to further body-contact trauma.” “The college health

authorities are conscious of the pathology of the “punch-drunk” boxer.” The article goes

on to state that in “all serious cases [of cerebral concussion] one should insist upon

complete examination, including . . . consultation with a qualified neurologist or

neurosurgeon.” (N. Engl. J. Med. 1952; 247:554-556).

41. Medical science has known for many decades that repetitive and violent jarring of

the head or impact to the head can cause Mild Trauma Brain Injury (“MTBI”) with a

heightened risk of long term, chronic neuro-cognitive maladies.

42. The NCAA has known or should have known for many years that MTBI

generally occurs when the head either accelerates rapidly and then is stopped, or is rotated

rapidly.

43. The NCAA has known or should have known for many years that medical

evidence has shown that symptoms of MTBI can appear hours or days after the injury, indicating

that the injured party has not healed from the initial blow.

44. The NCAA has known or should have known for many years that once a person

suffers an MTBI, he is up to four times more likely to sustain a second one. Additionally,

after suffering even a single sub-concussive or concussive blow, a lesser blow may cause

MTBI, and the injured person requires more time to recover.

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 45. The NCAA has known or should have known for many years that collegiate

football players and their families, including John Thomas Davis, were unaware of the serious

risk posed to the players’ long-term cognitive health caused by repeated head impacts while

playing football.

46. The NCAA has known or should have known for many years that clinical and neuro-

pathological studies by some of the nation’s foremost experts demonstrate that multiple head

injuries or concussions sustained during a football player’s career can cause severe cognitive

problems such as depression and early-onset dementia.

47. The NCAA has known or should have known for many years that published peer

review scientific studies have shown that repeated traumatic head impacts (including sub-

concussive blows and concussions) cause ongoing and latent brain injury. For decades, these

injuries have been documented and associated with sports-related head impacts in both football

and boxing.

48. The NCCA failed to educate John Thomas Davis about the long-term, life-altering

risks and consequences of head injuries that can result from participation in the game of

football, despite its knowledge of those risks.

49. During the time John Thomas Davis played football in the NCAA, there was no

rule prohibiting players from targeting the heads of other players with their helmets or leading with

their heads when tackling or blocking. Related rule changes came years later.

50. Despite its knowledge and recommendations by its own Committee on Competitive

Safeguards and Medical Aspects of Sports, NCAA failed to exercise its power to impose system-

wide return to play guidelines for intercollegiate football players at member institutions, including

the Southern Methodist Universty.

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 51. Despite its knowledge that to properly evaluate whether a student-athlete could

safely return to play after sustaining a blow to the head requires information regarding the player’s

baseline neurological performance, the NCAA failed to require that neurological baselines be

established for its athletes during the pre-season medical examination.

52. The NCAA’s accumulated knowledge about head injuries to football players, and

the associated health risks, was at all times superior to that available to student-athletes like John

Thomas Davis.

53. The NCAA’s breach of its duty to exercise reasonable care based on its knowledge

and what it should have known, caused John Thomas Davis to subsequently develop long-term

neurodegenerative problems.

54. Medical literature published before and after John Thomas Davis’s NCAA

football career ended clearly establishes that repeated blows to the head and head injuries of the

kind suffered by John Thomas Davis cause the long-term neurodegenerative problems.

55. The NCAA knew for years prior to 1972 that MTBI experienced in football can and

does lead to long-term brain injury in football players, including, but not limited to, memory loss,

dementia, depression, and CTE and its related symptoms.

COUNT I - NEGLIGENCE

56. Plaintiffs incorporate the aforementioned paragraphs by reference as though fully set

forth herein.

57. At all relevant times, the NCAA had a duty toward John Thomas Davis to

supervise, regulate, monitor, and provide reasonable and appropriate rules to minimize the risk of

injury to him while playing collegiate football.

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 58. John Thomas Davis did reasonably and justifiably rely upon the NCAA to protect

his health and safety.

59. The NCAA actively sought John Thomas Davis’s participation in inter-collegiate

sports and it gained revenues and fees as a result of his participation.

60. The NCAA prevented its member institutions, including the Southern Methodist

University, from formulating their own safer rules of play for intercollegiate football.

61. The NCAA acted carelessly and negligently in its position as the regulatory body

for collegiate football teams and its student-athletes, including John Thomas Davis. The

NCAA knew or should have known that its actions or inaction in light of the rate and extent of

concussions reported and made known to the NCAA would cause harm to John Thomas Davis in

both the short and long term.

62. The NCAA was careless and negligent by breaching the duty of due care it assumed

for the benefit of John Thomas Davis, both generally and in the following particular respects:

a. Failing to educate John Thomas Davis concerning symptoms that may indicate a
concussion has occurred;

b. Failing to warn John Thomas Davis of the risk of unreasonable harm resulting from
repeated concussions;

c. Failing to disclose to John Thomas Davis the special risks of long-term

complications from repeated concussions and return to play;

d. Failing to disclose to John Thomas Davis the role of repeated concussions in

causing chronic life-long cognitive and neurological decline;

e. Failing to promulgate rules and regulations to adequately address the dangers to

John Thomas Davis of repeated concussions and failing to implement a return-
to-play policy to minimize long-term chronic cognitive and neurological
problems for which he was at an increased risk;

f. Misrepresenting pertinent facts that John Thomas Davis needed to be aware of

to make determinations of the safety of his return to play;

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g. Concealing pertinent facts necessary for John Thomas Davis to make an
informed decision about participating in football;

i. The NCAA knew or should have known about the high incidence of
concussions among student-athletes in many sports, including
football;
ii. The NCAA knew or should have known that that a history of
multiple concussions has been associated with greater risk of future
brain defects in student-athletes, including symptoms of post-
traumatic brain injury such as dizziness, loss of memory, impulse
control problems, and Chronic Traumatic Encephalopathy (CTE);
iii. The NCAA concealed these facts from student-athletes, including
John Thomas Davis;
iv. Through concealment of material facts, the NCAA intended to
induce a false belief in its student-athletes, including John Thomas
Davis, that he should continue to play and should not be prevented
from playing football even after a sports even after a blow to the
head, concussion and/or several concussions that should have
required time to heal;
v. John Thomas Davis was under the supervision and/or guidance of
the NCAA and John Thomas Davis’s football coaches and training
staff, and justifiably relied on their silence with respect to this issue
as representing that the facts did not exist;
vi. The concealed information was such that John Thomas Davis would
have acted differently if he had been aware of the material facts.
John Thomas Davis would not have continued to play, or would
have taken additional time to become asymptomatic before
returning to play;
vii. Despite the NCAA’s knowledge, the NCAA failed to act reasonably
by developing appropriate means to identify at risk players and
guidelines or rules regarding return-to-play criteria;
viii. The NCAA’s inaction increased the risk of long-term injury and
illness in student-athletes, including John Thomas Davis; and
ix. The NCAA knew or should have known that failing to provide this
information and/or concealing said information would result in
injury to John Thomas Davis.

h. Failing to require pre-season base-line neurological testing as part of a required

medical exam for football players so that health professionals could determine
when an athlete actually recovered from a head injury;

i. Failing to adopt rules and reasonably enforce those rules to minimize the risk
of John Thomas Davis suffering debilitating concussions; and

j. Increasing the risk of harm to John Thomas Davis.

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 63. Such acts and omissions constituting negligence were a proximate cause of John

Thomas Davis’s Alzheimer ’s disease and Chronic Traumatic Encephalopathy (CTE). John

Thomas Davis’s injuries were so severe that his wife, Karol Hargis Davis, struggled to care for him.

64. Upon trial of this case, it will be shown that Plaintiffs were caused to sustain injuries

and damages as a proximate result of the NCAA’s negligence and other tortuous conduct as set

forth herein; and Plaintiffs will respectfully request the Court and Jury to determine the amount of

loss Plaintiffs incurred in the past and future not only from a financial standpoint, but also in terms

of good health and freedom from pain and worry. The elements of damages, provided by law,

which Plaintiffs are entitled to have the Jury in this case separately consider, are as follows:

a. Hospital care, necessarily incurred in the treatment of John Thomas Davis’s The
physical pain and suffering John Thomas Davis suffered, past and future.

b. The mental anguish John Thomas Davis suffered, past and future.

c. The amount of reasonable medical expenses, including medical and injuries, past
and future.

d. Loss of earnings suffered by John Thomas Davis, past and future;

e. The damages resulting from the physical impairment and disfigurement suffered by
John Thomas Davis and the resulting inability to do those tasks and services that
John Thomas Davis ordinarily would have been able to perform past and future;

f. Loss of consortium with his family and/or spouse suffered by Plaintiffs due to Mr.
Davis’ injuries; past and future.

g. Funeral Expense.

65. The actions and inactions of the NCAA, as specifically alleged herein above,

whether taken separately or together, were of such a character as to constitute a pattern or practice

of intentional wrongful conduct and/or malice resulting in the damages and injuries of John

Thomas Davis. More specifically, the NCAA consciously and/or deliberately engaged in

18
oppression, fraud, willfulness, wantonness and/or malice with regard to John Thomas Davis and

should be held liable in punitive and exemplary damages to Plaintiffs.

66. Additionally, the actions, omissions, and/or undertakings of the NCAA were of

such a character as to make it guilty of malice. The conduct of the NCAA involved an extreme

degree of risk, considering the probability and magnitude of potential harm to others. In addition,

the NCAA had actual subjective awareness of the risk involved, but nevertheless proceeded with

conscious indifference to the rights, safety, and welfare of others. Further, notwithstanding the

above, the NCAA conduct is of such a nature that it violates Tex. Civ. Prac. & Rem. Code § 41.008.

Accordingly, as a result of the conduct of the NCAA, Plaintiffs seek exemplary damages in such

an amount as to be found proper under the facts and circumstances.

67. Notwithstanding the above, when formulating the amount of exemplary damages,

the jury should also consider:

a. the nature of the NCAA’s wrong;

b. the character of the NCAA’s conduct;

c. the degree of the NCAA’s culpability;

d. the situation and sensibilities of John Thomas Davis;

e. the extent to which the NCAA’s conduct offends a public sense of justice and
propriety; and

f. the net worth of the NCAA.

68. By reason of all the above and foregoing, John Thomas Davis has been damaged in

an amount in excess of the minimum jurisdictional limits of this Court.

69. Pursuant to Tex. R. Civ. P. 47, Plaintiffs seek monetary relief of over

$1,000,000.00. Plaintiffs further demand judgment for all other relief justly entitled.

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 JURY DEMAND

70. Plaintiffs hereby request a trial by jury. The jury fee was paid contemporaneously

with the filing of the Original Petition.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiffs request that upon, final hearing,

this Court enter Judgment against Defendant National Collegiate Athletic Association for actual,

special and exemplary or punitive damages together with interest thereon at the legal rate, costs of

court, and for other such additional and further relief, special and general, at law and in equity,

which Plaintiffs show just and proper in accordance with the law.

Respectfully submitted,

/s/ Eugene R. Egdorf

By:______________________________
SHRADER & ASSOCIATES, L.L.P.
Eugene R. Egdorf
Texas Bar No. 06479570
Justin H. Shrader
Texas Bar No. 24008797
Alex Barlow
Texas Bar No. 24006798
James B. Hartle
Texas Bar No. 24082164
3900 Essex Lane, Suite 390
Houston, Texas 77027
Telephone: (713) 782-0000
Facsimile: (713) 571-9605
Email: gene@shraderlaw.com
Email: justin@shraderlaw.com
Email: barlow@shraderlaw.com
Email: jim@shraderlaw.com

And

BARON AND BLUE

Lisa Blue Baron, PhD, JD
Texas Bar No. 02510500
25 Highland Park Village

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 Dallas, TX 75225
Telephone: (214) 969-7373
Facsimile: (214) 969-7648
Email: lblue@baronandblue.com

ATTORNEYS FOR PLAINTIFFS

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