WWE asks for sanctions against "vexatious" concussion litigator Konstantine Kyros

WWE has responded to the wrongful death lawsuit filed by the family of Matt Osborne three months ago (who was best known as the first Doink The Clown) by filing a motion last Friday asking for sanctions to be imposed on Konstantine Kyros, who is the lawyer behind this litigation as well as all the other similar concussion cases brought against WWE by former wrestlers over the past year.

In the motion, WWE's lawyer Jerry McDevitt argues that the "Plaintiff’s Counsel have blatantly disregarded the fundamental tenets of Rule 11 of the Federal Rules of Civil Procedure by knowingly submitting pleadings containing false and purposely deceptive allegations."

McDevitt's complaints include:

1. The Osborne lawsuit featuring the colour photographs of nearly 40 other former professional wrestlers that died young and "hyperbolic allegations" over the cause of their deaths, which were included exclusively for media consumption and marketing purposes rather than true legal merit.
   
2. Pleading false time periods that Osborne supposedly performed for WWE.
3. Falsely alleging that WWE executive Stephanie McMahon fraudulently concealed the risk of concussions during testimony she gave to a Congressional Committee in 2007.
4. Falsely alleging that WWE supposedly tried to suppress studies about the risk of concussions and CTE.
5. Pleading false and misleading distortions of WWE’s Wellness Program.
6. Originally filing the Osborne lawsuit in the Northern District of Texas in knowing violation of a mandatory forum-selection clause that Osborne had agreed to in his contract with WWE, which required the case to be filed in Connecticut. In fact, this was done one day after the U.S. District Court for the District of Oregon expressly ruled that Kyros was engaged in improper "forum shopping" tactics by working through "a hit list of potential venues."
7. Repeatedly refusing to transfer the Osborne case to Connecticut, despite all of Kyros' other cases against WWE being forcibly moved to that state.
8. Repeatedly refusing to amend the Osborne Complaint to correct its falsehoods or remove the parade of salacious, impertinent allegations.

Stephanie, for her part, gave grossly misleading testimony about the concussions sustained by their company's performers.

For example:

Q Okay. Have ringside doctors or treating physicians ever diagnosed a wrestler with a concussion and reported this to WWE?

A That I am aware of, no. There was a doctor who issued a warning to us, you know, that this person could develop a concussion but currently didn't have signs of it, and that person never wound up developing one.

Q Okay. Are you aware of any times where wrestlers have I guess self‐reported ‐‐ where wrestlers have self‐reported to you that they received concussions and this information came from the wrestler rather than a treating doctor?

A Not that I am aware of, but I am not saying that that never happened.

Q Right.

A Just not involved me.

Q Okay. All right. Are you aware of any incident where a wrestler in a match received a concussion?

A No.

Q Does WWE have a policy for time off if talent suffers a concussion?

A Yes. We go with the recommendation of the treating physician.

Q Okay. How about in cases where talent has suffered multiple concussions?

A Well, in the case ‐‐ the only case I can think of, this person was ‐‐ actually, I think he is still under contract to us. And he suffered a number of concussions and has wound up, I think, forming a foundation to look into concussions. But clearly he no longer performed for us. We are not going to put anybody in danger.

Q Okay. You have indicated that you are not aware of a case where a wrestler has received a concussion. Do you believe that WWE wrestlers are at risk for concussions because of the nature of their work?

A I think, under certain circumstances, yes.

Q Can you describe those circumstances?

A Well, inherently any move can be done incorrectly. You really are giving your life to the person that you are in the ring with. It is much more than guys just punching each other. Every move, even a simple body slam could go wrong, and you could land on your head. That, in and of itself, is very, you know, it is a very skilled move to do. You wouldn't think it just watching it, but it is. So, I mean, I would think if anything went wrong, certainly you would be at risk for concussion.

Q Would a chair shot to the head or a pile driver on an unpadded surface, would those present concussion risks?

A Not ‐‐ I mean, a pile driver, no, because your head never actually hits. And a chair shot, there is a particular way to hit someone with a chair. And again, if you screwed up and hit someone wrong, then sure. Or if you slipped on a pile driver and let somebody go, absolutely.

Q Okay.

A But the moves as they are supposed to be performed, I would say, no.

Q Okay.

A And mistakes do happen, certainly, as in life.

"Kyros, Mirabella, and Gilreath also relied upon the fraudulent concoction that Ms. McMahon committed perjury in front of a Congressional Committee in December 2007. They argued that the basis for Plaintiff’s claims was that WWE was supposedly "deceiving wrestlers into a false sense of security to keep wrestlers ‘like Matthew Osborne’ in the ring night after night, despite signs of medical and other problems that would otherwise lead Matthew Osborne to seek medical treatment, stop wrestling, or reduce the frequency of wrestling appearances." In support of that assertion, Plaintiff’s Counsel specifically cited paragraphs 58-88 of the Osborne Complaint, which include their false and misleading allegations that, in 2007, Ms. McMahon denied the risks of concussions and allegedly testified that there were no documented concussions in WWE’s history. As explained in more detail below, and also in WWE’s Motion to Dismiss the LoGrasso lawsuit, Plaintiff’s Counsel knew when they made these false allegations in the Osborne Complaint (and elsewhere) and then again when they repeated them in their Osborne Transfer Opposition that (1) Ms. McMahon had, in fact, acknowledged, not concealed, the risks of concussions in her testimony before a Congressional Committee; (2) she testified about concussions that had in fact occurred; and (3) her testimony about "documented concussions" was not about the entire 50-year history of WWE but, rather, in response to a very specific question about whether there had been any documented concussions after the enactment of the Wellness policy in 2006 – and her testimony was limited to what she knew based on what she had been told."

"Especially odious is the concocted falsehood in the Osborne Complaint (and others filed by Kyros) regarding WWE executive Ms. McMahon. Although liberally accusing WWE of making false representations to the various Plaintiffs in the multiple suits filed to date, Kyros and his collage of affiliated lawyers have yet to identify a single factual misrepresentation ever made to any plaintiff by anybody at WWE with the particularity required by the rules. Thus, they concocted an allegation about Ms. McMahon that she had fraudulently concealed the risk of concussions during testimony she gave to a Congressional Committee in 2007. No such thing ever happened, and Ms. McMahon actually acknowledged concussion risk during her testimony, a fact Plaintiff’s Counsel deliberately concealed by their pleadings. Plaintiff’s Counsel create this deceptive concoction by first alleging, devoid of any citation, that an unnamed "WWE executive" on an unspecified date in 2007 "admitted that ‘WWE wrestlers are at risk for concussions because of the nature of their work.’" Then, just nine paragraphs later in the Complaint, Plaintiff’s Counsel allege specifically that WWE executive Ms. McMahon testified to a Congressional Committee in December 2007 that "there were no documented concussions in WWE’s history." (emphasis added). Having first pled that an unnamed WWE executive admitted to risks of concussions in 2007 and then specifically alleging that Ms. McMahon supposedly denied such risks while under oath in 2007 before a Congressional Committee, Plaintiff’s Counsel essentially accuse Ms. McMahon of committing perjury – a knowingly false claim that is compounded by the purposeful omission of meaningful details of the actual testimony of Ms. McMahon and the identity of the unnamed "WWE executive." In fact, the "WWE executive" they quote in Paragraph 59 of the Complaint as acknowledging the concussion risk is the very Stephanie McMahon they inconsistently then accuse in Paragraphs 64-65 of concealing the risks of concussions. Moreover, the statement acknowledging the risk of concussions alleged in Paragraph 59 of the Complaint was to the exact same Congressional Committee on the same day in 2007 – in the very same place where Plaintiff’s Counsel attempt to portray Ms. McMahon as lying to Congress to conceal the admission by the unnamed "WWE executive."  In short, she specifically acknowledged, not concealed, the risk of concussion in her testimony. Plaintiff’s Counsel’s deceptive tactics did not stop there. They purposefully omitted other testimony from Ms. McMahon that objectively disproves the allegation that she denied concussion risks when testifying to the Congressional Committee. As Plaintiff’s Counsel know, Ms. McMahon testified specifically at the same hearing about a talent that "suffered a number of concussions and has wound up, I think, forming a foundation to look into concussions." She further discussed a woman wrestler who "fell from the top rope and was knocked unconscious," and although Ms. McMahon, who is not a doctor, was not sure whether the wrestler was diagnosed with a concussion, she noted that "[s]he was unconscious … so if that warrants a concussion, then –but I don’t recall." Her testimony that Plaintiff’s Counsel continues to misrepresent as testimony that there have been no documented concussions "in WWE’s history," was in fact in response to a question about concussions between the time of the enactment of the Wellness Policy (which Plaintiffs know and allege began in 2006) and the date of Congressional Committee hearing (which was in December 2007). Id. at 118 (testifying that there had been no documented concussions as far as she knew, and as far as she was told, in that period). She was not asked, and did not testify, as to whether there had been any documented concussions in the entire history of WWE. Despite being caught dead to rights inventing bogus allegations of fraud and perjury, rather than withdraw their odious concoction, Plaintiff’s Counsel incredibly have represented to the Court that her actual testimony is "precisely in line" with their allegation that she testified "that there were no documented concussions in WWE’s history."  WWE specifically advised Kyros and the other lawyers of the impropriety of these falsehoods and fabrications, and then addressed the fabrications in WWE’s motion to dismiss briefing in the LoGrasso Action (pending before this Court). Kyros and Mirabella did not dispute in their Opposition to WWE’s Motion to Dismiss that they selectively omitted in their filings with this Court key passages of the testimonial record before Congress that showed that Ms. McMahon was, in fact, the "WWE executive" who had actually acknowledged the risks of concussions and actually disclosed that concussions had occurred to the Congressional Committee. Plaintiff’s Counsel should be sanctioned for their remarkable insistence on continuing to make these false assertions rather than withdrawing them, as Rule 11 and common decency require.... Plaintiff’s Counsels’ deliberate concoction wrongly accusing Ms. McMahon of perjury before a Congressional Committee is NOT a matter of insignificance. It is exactly what Rule 9(b) and 11 are designed to prevent and sanction when violated. Such false allegations impact the reputation of this hardworking, professional woman and entertainer who, in addition to her corporate duties, serves on charitable organizations. As noted above, Ms. McMahon was recently named a Trustee of the Children’s Hospital of Pittsburgh Foundation as a result of her efforts at fundraising to find cures for pediatric cancer. The Foundation’s work is devoted to care for severely ill children and advancing research for cures for terminal illnesses. Those kinds of notable and worthwhile endeavors, and the fundraising effort needed to support the cause, can be seriously impaired by false allegations of the kind demonstrated here. A clearer example of a Rule 11 violation cannot be imagined."