Five days ago, we reported that the family of the original Doink The Clown (real name: Matthew Osborne) had filed a wrongful death lawsuit against WWE arguing that the long term effects of brain trauma suffered during his 25 year wrestling career directly led to his premature death from an accidental drug overdose at the age of 55.
This made the Osborne family the eighth party to sue WWE over alleged concussion damage in the past nine months, joining the growing group of Billy Jack Haynes, Big Vito, Adam Mercer, the widow of Nelson Frazier Jr. (aka Mabel, Viscera and Big Daddy V), Luther Reigns, Russ McCullough and Ryan Sakoda.
On June 2nd, WWE's General Counsel and Secretary Laura Brevetti received letters from Konstantine Kyros, the lawyer behind most of, if not all, the concussion lawsuits, on behalf of the retired WWE wrestlers Blackjack Mulligan (Robert Windham), Dynamite Kid (Thomas Billington), Koko B. Ware (James Ware), and Ivan Koloff (Oreal Perras), alleging that they had all been injured as a result of WWE's negligent and fraudulent conduct and that they may sue the company over the matter. Consequently, WWE was told to refrain from communicating with these new clients of Kyros and from destroying any evidence relevant or pertaining to their injury claims.
In response, WWE's attorneys filed a pre-emptory complaint against Windham, Billington, Ware, Perras and various John Does (any other former WWE wrestlers who have not performed for the company in over three years and sign retainer agreements with Kyros in the future), which seeks a declaration that their claims relating to alleged traumatic brain injuries (TBIs) are time-barred due to the applicable statutes of limitations under Connecticut law.
However, the complaint is more aimed at the conduct of Kyros, who they accuse of beginning an improper internet solicitation scheme last year to recruit former WWE wrestlers to serve as plaintiffs in lawsuits against the company patterned after the successful TBI class action cases against the NFL by former players.
Moreover, WWE are very upset that Kyros has kept filing lawsuits outside of the state of Connecticut, in violation of the contracts signed by most plaintiffs, which they claim is evidence of forum shopping and an ongoing scheme to troll for new recruits in order to be able to file additional lawsuits in even more jurisdictions to vexatiously increase the cost to WWE of defending these stale and meritless complaints.
Kyros is also accused of being behind the lawsuit filed in California by McCullough, Reigns and Sakoda, and that he didn't sign the complaint in order to conceal his involvement in the litigation, in yet another attempt to evade the jurisdiction of the United States District Court in Connecticut. Although the similarity of the McCullough et al. lawsuit to the prior lawsuits does indeed look suspicious, Kyros told David Bixenspan three months ago for a Figure Four Weekly newsletter cover story that lawsuits aren't protected by copyright, so it's actually pretty common to see text lifted wholesale.
WWE has issued a statement to Cageside Seats about the WWE vs. Windham et al. lawsuit, which details some of the other complaints made about Kyros' behaviour in the case:
WWE Defends Against False Allegations
"WWE filed a lawsuit in Connecticut to protect the company from a series of fraudulent claims made by a Massachusetts attorney regarding alleged concussion-related injuries. A few examples of such false allegations from this lawyer include:
- Claims in two different federal courts that five individuals died prematurely due to head injuries when in fact all five individuals are alive today.
- Falsely stating that an individual's years of performance with WWE spanned 22 years from 1985 through 2007, when in fact the individual performed for only 2 years (1985-1986 and 1992-1993) and made one appearance in 2007.
- Alleging that head injury led to the death of a morbidly obese former performer who died of a heart attack years after last performing for WWE.
- A claim that an individual suffered from deafness allegedly due to head injury when said individual has publicly stated that he was deaf since birth.
- Claiming that head injury led to the accidental drug overdose of a former performer over 20 years after he last performed.
It is unfortunate that some former performers have been improperly recruited under the guise of a big ‘pay day', and we feel badly that these individuals are being misled and exploited."
In a story by the Associated Press (AP) entitled "WWE seeking to block concussion-related lawsuits" WWE lawyer Jerry McDevitt added that:
"Before this guy started trolling around looking for people to sue, we didn't have one person, none, claiming they had any kind of traumatic brain injuries, or dementia or ALS or any of the kind of stuff you see associated with the NFL."
This also seems a misleading statement to make too, as three wrestlers have been diagnosed with chronic traumatic encephalopathy (CTE) post-mortem (Chris Benoit, Andrew "Test" Martin and an unnamed third case), many wrestlers are known to suffer from dementia in later life (such as Nick Bockwinkel, Angelo Mosca and the late Verne Gagne), and Al Snow complained to the New York Times five years ago that his wrestling career had left him with "neurological damage that caused numbness on his right side, hearing loss and memory problems." Indeed, Daniel Bryan is reportedly suffering from a career threatening concussion injury at the moment, so there is an element of the pot calling the kettle black to McDevitt's rhetoric.
According to the AP, Kyros is denying WWE's claims that he's misleading and exploiting his clients:
Konstantine Kyros, who represents the wrestlers, denies those allegations. He said he has been retained by dozens of former WWE performers who all have health problems related to being dropped on their heads too many times.
He said each of them suffered repeated concussions and sub-concussive injuries after performing up to hundreds of times a year.
He said he will argue the statute of limitations doesn't apply when medical conditions manifest themselves years after the events that caused them.
"What the WWE lawsuit is doing is trying to do is prevent some of the most storied performers in the history of the organization from having their day in court," he said.
Robert "Blackjack Mulligan" Windham backed up Kyros to the AP, claiming that he has been diagnosed with dementia and blood clots in the brain, conditions that he believes were caused by his wrestling career, and arguing that his son Barry Windham is already showing signs of having similar problems in the future:
Reached at his home in Groveland, Florida on Wednesday, Windham said he has been diagnosed with dementia and blood clots in his brain, and feels abandoned by WWE.
The 73-year-old, who has not wrestled in 12 years, said he's positive his conditions are due to years of suffering head trauma in the ring.
"Sergeant Slaughter once went nuts on me and beat me unconscious with a turnbuckle," he said. "My jaw was broken. I lost teeth. I blacked out."
He said his son, former wrestler Barry Windham, also developed serious problems, including drug addiction, which he believes were related to his numerous head injuries.
"They really don't want to face it," he said. "They want to send everyone to rehab. But rehab doesn't work for loss of memory."
Robert Windham said he now uses a wheelchair, suffers from near constant nausea, and needs to use stickers on his bathroom door to remind him when he last went to the bathroom.
"And my son, you look at him and the lights are on, but nobody is home anymore," he said.
It should be noted that Robert Windham is the father-in-law of current WWE producer Mike Rotunda and the grandfather of Bray Wyatt and Bo Dallas. He's also made several posts on his own personal Facebook page over the past two months that could be interpreted as attempting to solicit other wrestlers to join Kyros' class action lawsuit against WWE:
WWE is demanding a jury trial on this matter, which may be a risky strategy, as many of the plaintiffs will come across as sympathetic in their injured states, and will also put the company under greater media scrutiny whilst the case is being heard.