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WWE wins important rulings in concussion lawsuits

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Two of the concussion lawsuits (Haynes and McCullough et al.) against WWE have been dismissed outright, whilst another one (LoGrasso and Singleton) had all but one of their claims against the company dismissed.

WWE crushes their concussion litigants!
WWE crushes their concussion litigants!
Joachim Sielski/Getty Images

Last week WWE won several important rulings in the class action concussion lawsuits that have been filed against the company by former wrestlers in which they had argued a laundry list of complaints involving fraudulent and negligent behaviour:

"Plaintiffs allege that they are either suffering from symptoms of permanent degenerative neurological conditions resulting from traumatic brain injuries sustained during their employment as wrestlers for WWE or are at increased risk of developing such conditions. Plaintiffs claim that they were injured as a result of WWE’s negligence in scripting violent conduct and failing to properly educate, prevent, diagnose and treat them for concussions. Plaintiffs also claim that WWE had knowledge of evidence suggesting a link between repeated head trauma that could be sustained during WWE events and permanent degenerative neurological conditions such as CTE and either concealed such evidence, fraudulent or negligently denied that it existed, or failed to disclose it in the face of a duty to disclose. Plaintiffs allege that they relied on such fraudulent statements or omissions to their detriment in making decisions regarding their health."

WWE had filed motions to dismiss all of the lawsuits against the company. Judge Vanessa Bryant ordered on March 21st that the lawsuits brought by Billy Jack Haynes and the group of Russ McCullough, Ryan Sakoda and Luther Reigns be completely dismissed, whilst she also dismissed all but one of the claims made by Vito LoGrasso and Evan Singleton. No ruling was made on the wrongful death lawsuits by the families of Nelson Frazier, Jr. (aka Mabel, Viscera and Big Daddy V) and Matt Osborne (aka the original Doink The Clown), but it is likely that they will also be partially or outright dismissed in the near future too.

Bryant in her memorandum explaining her decisions was critical of how the lawsuits were filed noting how all three complaints contained "nearly identical factual allegations" and were "excessively lengthy, including large numbers of paragraphs that offer content unrelated to the Plaintiffs' causes of action and appear aimed at an audience other than this Court."

Bryant noted how there were precious few allegations which detail specific instances of conduct that have wronged any of the plaintiffs and that the complaints were "replete with theoretical allegations of conditions from which a hypothetical person could suffer without alleging that any particular Plaintiff actually suffers from such a condition which has been causally connected by an expert to such Plaintiff’s performance at WWE events."

Bryant also complained that some of the allegations were "patently vague", some did "not seem to fit plaintiffs’ own timeline of events" (namely that WWE's Wellness Program lulled all the plaintiffs into a false sense of security, even though it was enacted after Haynes, McCullough, Sakoda and Reigns were fired by WWE and it wasn't intended to monitor former talent) and that some allegations were even "patently false" (namely that "LoGrasso, wrestling on average five times a week, sustained repeated concussions day after day over many years" which was also repeated verbatim in the McCullough et al. complaint).

However, Bryant's rulings didn't all go against the plaintiffs. She did rule that their claims weren't time barred by Connecticut's statutes of limitations and repose like WWE had attempted to argue. This is an important ruling as it seems to leave the door open for more litigation in the future if a test for chronic traumatic encephalopathy (CTE) is developed for living people and former WWE wrestlers are found to have the disease.

Where these cases start to fall down is that they failed to state a claim for negligence under Connecticut law. That's because even though all the plaintiffs alleged that WWE did not "properly assess, diagnose, and treat their wrestlers" for concussions, none of them had actually claimed that they had ever approached a specific WWE employee to report concussion-like symptoms but were subsequently wrongfully diagnosed as having not suffered a concussion or medically cleared to wrestle without adequate rest. Interestingly, in Bryant's ruling on this matter, she agreed with WWE that a contact sports exception should apply in this case, even though professional wrestling is not a sport:

"The Court agrees with WWE that under the contact sports exception they could only be held liable for reckless and intentional conduct, and not ordinary negligence. Plaintiffs were professional wrestlers who were financially compensated to engage in an activity in which physical violence was a known and even purposeful part of the activity. They were injured by other participants in what the plaintiffs describe as a "scripted" performance and thus in a manner that the plaintiff knew or should have reasonably anticipated.... Or they were injured in a manner that could be reasonably anticipated by an ordinary person who volunteers to "endure" an at least partially-simulated beating before a television audience and hits his head outside the ring.... As such, their claims are well within the type of claims for which Jaworski provides an exception to the general duty of care."

Bryant concluded that none of the negligence claims by the plaintiffs had demonstrated to her that WWE had acted recklessly or intentionally with respect to the risks that are inherent in compensated professional stunt wrestling and thus she dismissed all these claims.

Bryant also ruled that the plaintiffs’ fraudulent deceit and negligent misrepresentation claims were not pled with sufficient particularity, i.e., that they "utterly failed" to satisfy the standards required to demonstrate that fraud had taken place:

"Plaintiffs’ 281-paragraph complaint is replete with allegations that WWE has "repeatedly" misrepresented material facts to the plaintiffs, often in the form of statements that WWE "misrepresented, omitted, and concealed" various short and long-term risks or possible diagnoses regarding plaintiffs’ health, without actually specifying whether such statements were affirmatively misrepresented, or rather affirmatively concealed, or simply omitted. But in regard to the fraud claims the length of plaintiffs’ complaints is deceiving, as the length belies an utter lack of substance.

In opposition to WWE’s motion to dismiss the Singleton and LoGrasso complaint, plaintiffs could manage to identify only three specific statements that they allege to have been fraudulent.
1. Vince K. McMahon told a congressional committee that the WWE "is always concerned about safety of our talent."
2. Dr. Joseph Maroon’s statement to the NFL Network, Total Access in March, 2015 that "the problem of CTE, although real, is its being over-exaggerated."
3. WWE Executive Stephanie McMahon Levesque’s testimony in 2007 to the Committee on Oversight and Government Reform of the U.S. House of Representatives that there were "no documented concussions in WWE‘s history."

Bryant concluded that there was no evidence that the first two statements were fraudulent (expressions of opinion and scepticism can't usually be used to support a fraud claim) and that the plaintiffs appeared to have repeatedly misrepresented both the substance and meaning of Levesque’s testimony (because she was being questioned at the time about documented concussions since the WWE Wellness Policy was enacted). Thus, as the plaintiffs failed to plead specific facts indicating that WWE made any specific statement that it knew or should have known to be false at the time, upon which they reasonably relied, all their negligent misrepresentation and fraudulent deceit claims were dismissed too.

However, Bryant ruled that Singleton and LoGrasso have alleged a plausible claim for fraud by omission, although not the other plaintiffs whose WWE careers ended before their Wellness Policy was implemented:

"As to the existence of a duty to speak, the Court determined in Part III.C above that it is plausible at this stage of the litigation that defendant owed plaintiffs a duty on the basis of a special relationship that existed by virtue of WWE’s superior knowledge and the expertise of its medical staff as well as a general duty that may have arisen as a result of WWE’s voluntarily undertaking to create the Wellness Program, to provide concussion testing and to reach out to current and former wrestlers about other hazards linked with WWE participation, including drug and alcohol abuse. Further factual development may shed light on the existence or nonexistence of such a duty....

Read liberally ... the complaints allege that increasing public and scientific awareness of the risks related to head trauma ultimately resulted in recent discoveries regarding a link between repeated head trauma and permanent degenerative neurological conditions. In particular, the WWE is alleged in the various complaints to have had knowledge of such a link as early as 2005. For wrestlers active during and after 2005, information about a link to permanent degenerative conditions could plausibly have informed plaintiffs’ own choices about whether and when to re-enter the ring after sustaining a head injury and could plausibly have prevented permanent brain damage. Plaintiffs also allege that by virtue of its Wellness Program, begun in 2007, WWE possessed superior knowledge regarding a link between participation in WWE wrestling events and such permanent conditions. Because Singleton and LoGrasso are alleged to have wrestled on or after 2005, when WWE’s knowledge of the non-disclosed facts is alleged to have begun, their claims for fraudulent non-disclosure may proceed."

However, just because it's a plausible claim at this point doesn't mean that Bryant was particularly swayed by the arguments employed by Singleton and LoGrasso, indicating they have a steep hill to climb to prove their case. In particular, in LoGrasso's case she believed that there was evidence that he should have been aware of the risk of having some degenerative neurological condition caused by his wrestling career long before filing the case (which means his claim could be time-barred), as by 2008 he was showing symptoms of neurological injury in the form of residual, pounding headaches, which grew worse over the next couple of years, along with being diagnosed with deafness and temporomandibular disorder:

"Yet the allegation that LoGrasso did not know of a connection between his headaches and head trauma sustained during wrestling activity, accepted as true for the purposes of this motion, nonetheless pushes the boundary between possible and plausible. Plaintiffs will carry a heavy burden to convince any reasonable trier of fact that LoGrasso, one year after retiring from wrestling in 2007, could not pinpoint the source of his headaches, deafness, and TMJ."

Bryant was also sceptical of the inherent contradiction which underlies plaintiffs' fraud claims:

"Plaintiffs simultaneously argue on the one hand that studies and data linking MTBIs with permanent degenerative neurological conditions were both widespread and widely-publicized, and on the other hand that Plaintiffs had no knowledge of any of this widely-publicized information and instead relied, to their detriment, on a television entertainment company to explain to them the dangers of volunteering, for compensation, to be hit in the head repeatedly with a metal folding chair."

Basically, even the LoGrasso and Singleton case is dead in the water too unless they can find a smoking gun in discovery that proves that WWE knew that participating in professional wrestling matches could cause CTE or other degenerative conditions and failed to disclose this fact to their wrestlers. That seems unlikely, especially as the plaintiffs claimed that WWE knew this link by 2005, before Chris Benoit's double murder suicide and his later CTE diagnosis post-mortem.