By Elizabeth Catalano, Esq. and Dylan F. Henry, Esq.
The Match Up
In 2016, several former professional wrestlers sued World Wrestling Entertainment (WWE), claiming that WWE was aware of the short-term and long-term risks associated with repeated head trauma and failed to warn the wrestlers of those risks for years. The wrestlers’ claims mirrored those claims professional football players brought against the NFL in similar failure-to-warn concussion litigation. The wrestlers alleged that they suffered neurological injuries (including chronic traumatic encephalopathy (CTE)) caused by repeated head trauma sustained while wrestling for WWE. They further alleged that WWE maintained business practices that “exploited” the wrestlers by failing to provide them with any protections or employee benefits.[1]
A key issue in the cases against WWE is the statute of limitations. Typically (depending on state law), a plaintiff would have 2 years to bring a negligence claim (which these failure-to-warn claims are). The general rule is the plaintiff’s clock starts to run from the date the negligent conduct occurred. Here, it would be the date that WWE failed to warn the wrestlers of the long-term risks associated with repeated head trauma, not when the injuries occurred.
Like most rules, there is an exception to the statute of limitations. In order to toll (legalese meaning to pause) the statute of limitations, the wrestlers needed to successfully show that either their due diligence did not and could not have led to discovery of the cause of action against WWE or that WWE knew of the risks and concealed them from the wrestlers.
In their attempt to save their case, the wrestlers argued that their claims were timely because WWE had actual knowledge about the health risks involved in wrestling and not only failed to warn the wrestlers but also actively concealed the dangers of repeated head trauma until 2015. The wrestlers were therefore unaware of their injuries before that the time and thus, their clock arguably did not start to run until 2015. The wrestlers pointed to “evidence” of actual knowledge dating back to 1995, when they alleged that WWE’s doctor had explained the danger of post-concussion syndrome.
The Smackdown
Between 2016 and 2018, Judge Vanessa L. Bryant of the District of Connecticut sided with WWE and dismissed the cases as being untimely, i.e. barred by the statute of limitations. For example, Judge Bryant explained that for the plaintiffs’ tort claims, the alleged concealment of risks by WWE must have occurred at a time when the plaintiffs were still wrestling and could still suffer head injuries while wrestling. However, no plaintiff had alleged that he or she wrestled for WWE later than 2011, and the first suit was brought in 2016. The court held that WWE did not have a continuing duty to warn the plaintiffs after their employment ended, and thus the statute of limitations clock began to run when the plaintiffs stopped wrestling.
In dismissing some of the wrestlers’ cases, Judge Bryant noted that plaintiffs’ counsel had the opportunity to conduct extensive discovery in prior consolidated cases, but was “unable to uncover any evidence showing that WWE has or had actual knowledge that concussions or subconcussive blows incurred during professional wrestling matches cause CTE.” Unfortunately for the wrestler-plaintiffs, “[t]he earliest evidence they were able to uncover is the fact that WWE learned from public news reports that one wrestler, Christopher Benoit, was diagnosed with CTE in 2007, which was after most of the Plaintiffs retired.” Even if this had occurred earlier, the Court indicated its unwillingness to find the diagnosis of one wrestler with CTE to “imbue WWE with actual awareness of a probable link between wrestling and CTE.”[2]
The wrestlers’ attorneys did not do their client any favors, as Judge Bryant’s opinion detailed the multiple procedural errors made by the attorneys in each of the cases, in addition to their improper conduct, failure to conduct factual due diligence, and filing of irrelevant, inflammatory, and inaccurate information in the pleadings.
The wrestlers appealed. The case is now pending before the United States Court of Appeals for the Second Circuit. It appears the wrestlers are unlikely to succeed in their bid to overcome their time-barred dismissal. Because of recent case law and because of the procedural nature of the claims as being consolidated, the appeals (except for the Laurinaitis case) were also untimely, according to the WWE.[3]
The WWE cases demonstrate one of the biggest issues plaintiffs face in these failure-to-warn head injury cases — time. Typically, these claims stem from decades-old head injuries. The plaintiffs face an uphill battle trying to successfully argue that the failure to warn years ago caused the harm alleged today.
The WWE case is similar to the NFL concussion litigation in the type of claims and defenses asserted, but is different in at least one key area — the tolling of the statute of limitations.
To compare, in the NFL concussion litigation, the plaintiffs were actually able to uncover stronger evidence that the NFL was aware of the risks of repetitive head traumas, but ignored, minimized, or suppressed information concerning the link between that trauma and cognitive damage. In their suit alleging negligence, medical monitoring, fraudulent concealment, fraud, and negligent misrepresentation, among other claims, the football players were able to point to specific examples of concealment, like the NFL’s (1994) Mild Traumatic Brain Injury Committee which was allegedly “at the forefront of a disinformation campaign that disseminated ‘junk science’ denying the link between head injuries and cognitive disorders.”[4]
Grappling With Time
Though the Second Circuit’s decision is still pending, the WWE cases are a great example of how time is not on plaintiffs’ side in these failure-to-warn cases, specifically when the allegations are failure to warn about CTE or other brain diseases that take years to develop. Further complicating the timing is that CTE can only be diagnosed during a posthumous autopsy of the brain, and thus, CTE claims should only be brought after death, which can occur decades after the initial head trauma.
That said, time is not always on the defendant’s side in these cases either, and the statute of limitations is not as strong of a shield for defendants as one might think. While the statute of limitations is the general rule, courts have and will apply the exception to the rule and toll the statute of limitations. As more failure-to-warn / CTE and latent brain disease cases are filed, more caselaw will be made regarding what evidence is sufficient to toll the statute of limitations.
For example, in Schmitz v. NCAA,[5] the Ohio Supreme Court ruled that a former University of Notre Dame football player who played from 1974-1978 and later suffered from CTE had not necessarily run out of time to sue Notre Dame and the NCAA. The Ohio Supreme Court essentially held that CTE is football’s signature latent disease. In doing so, the court emphasized that even if Schmitz had experienced some neurological impairment prior to his CTE diagnosis in December 2012, there was no way to conclusively determine that his claims were barred by the statute of limitations because he did not know and had no reason to know that he had suffered a latent brain injury while playing football.[6] The Schmitz holding is important because it was the first appellate court decision in the country to hold that CTE could be a latent disease, and thus toll the statute of limitations.
Although the WWE cases will likely be unsuccessful on appeal, it is important to keep tabs on how these failure-to-warn / CTE and brain disease cases play out. Every sports team and athletic institution can be affected in the future from caselaw that is made today.
UPDATE: After this article went to print, the Second Circuit panel issued its decision on the wrestlers’ appeals. As predicted, the panel dismissed the three WWE class action suits brought by the wrestlers due to their appeals being untimely under Supreme Court precedent. The court also affirmed the dismissal of the remaining Laurinaitis case, which Judge Bryant first dismissed because the wrestlers stopped wrestling before WWE knew about the risks of brain trauma alleged. Still pending is the trial court’s determination of the amount of sanctions that the wrestlers’ attorney will have to pay WWE for his misconduct throughout the case.
[1] The wrestlers’ causes of action included tort claims, wrongful death and survival actions, misclassification claims (alleging misclassification of wrestlers as independent contractors instead of employees), RICO claims, FMLA claims, and successor liability claims. See McCullough v. World Wrestling Entertainment, Inc., No. 3:15-CV1074 (VLB) (lead case); World Wrestling Entertainment, Inc. v. Windham, et al, No. 3:15-CV-994 (VLB) (consolidated case); Laurinaitis v. World Wrestling Entertainment, Inc., No. 3:16-CV-1209 (VLB) (consolidated case).
[2] McCullough v. World Wrestling Entertainment, Inc, No. 3:15-cv-01074-VLB (Memorandum of Decision Granting Defendants’ Motions for Judgment on the Pleadings and to Dismiss and Granting in Part and Denying in Part Defendants’ Motion for Sanctions), at p. 33; see also Mike Curley, “WWE Wins 2 Bouts In Suits Over Wrestlers’ Concussions” (Sept. 17, 2018), https://www.law360.com/articles/1083554/wwe-wins-2-bouts-in-suits-over-wrestlers-concussions.
[3] See generally Pete Brush, “High Court Ruling May KO 2nd Circ. WWE Injury Appeals” (June 5, 2020), https://www.law360.com/articles/1280479/high-court-ruling-may-ko-2nd-circ-wwe-injury-appeals.
[4] In re National Football League Players Concussion Injury Litigation, 821 F.3d 410, 422 (3d Cir. 2016) (approving final class settlement agreement).
[5] Schmitz v. Nat’l Collegiate Athletic Ass’n, 122 N.E.3d 80 (Ohio 2018); http://www.courtnewsohio.gov/cases/2018/SCO/1031/170098.asp#.X0aLtShKiUk
[6] Id. at 88.
